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August 5-11, 2023
In this week's issue:
- NACAA Submits Comments on EPA’s GHG Power Plant Proposal (August 8, 2023)
- NACAA Submits Comments on State Review Framework Guidance for Round 5 (August 8, 2023)
- EPA Publishes Proposed Amendments to Air Emissions Reporting Requirements Rule; Public Hearing Scheduled for August 30 (August 9, 2023)
- Iowa and Nebraska File Complaint to Compel Final EPA Action on Governors’ Requests for Removal of Summertime Gasoline Volatility Waiver (August 7, 2023)
- Docketing in Good Neighbor Plan Litigation Continues Apace (August 4-10, 2023)
- HHS and DOT Release Website to Track Heat-Related Ambulance Calls (August 9, 2023)
This Week in Review
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In a letter to EPA written by the NACAA Climate Change Committee, NACAA has submitted comments on the EPA’s May 23, 2023 proposal “New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule” (EPA Docket EPA-HQ-OAR-2023-0072). This proposal sets New Source Performance Standards (NSPS) for the emissions of greenhouse gases (GHGs) from new gas fired power plants and Emission Guidelines for GHG emissions from existing coal and gas fired power plants under section 111 of the Clean Air Act. It also repeals EPA’s 2021 Affordable Clean Energy (ACE) rule. EPA’s proposal states that the rules would yield projected net climate and health benefits ranging from $64 billion to $85 billion, an annual net benefit that ranges from $5.4 billion to $5.9 billion. Beyond the 617 million metric tons of CO2 through 2042 that the Proposed Power Plant GHG Rules would reduce directly, they would co-beneficially reduce criteria pollutants significantly: 64,000 short tons of NOx and 6,000 short tons of PM2.5 in 2030, in addition to significant SO2 benefits. “These are needed reductions to stabilize the climate and to address the ongoing burdens on the public and the environment caused by air pollution,” NACAA’s letter states. NACAA’s letter notes that the Proposed Power Plant GHG Rules describe a pathway toward meeting the urgency of the climate crisis as it relates to the emissions of GHGs from the electric power sector, which remains a critically important sector in its contributions to global atmospheric GHG concentrations and conventional air pollutants that harm the health of Americans. The letter calls for EPA to work to closely with state and local co-regulators to finalize a proposal consistent with our technical and policy recommendations. In summary, our comments on the Proposed Power Plant GHG Rules call for EPA to set realistic rulemaking timetables and provide automatic extension processes and mechanisms to meet those timetables, as well as provide flexibilities (such as fuel alternatives, trading programs, and other presumptively approvable compliance pathways) that will enable our clean air agencies to successfully implement the rule. NACAA also recommends that EPA clarify requirements that are incompletely described in the proposal, and offer technical support and resources to support the successful implementation of the Proposed Power Plant GHG Rules by state and local clean air agencies. State and local clean air agencies have a long track record of implementing power sector emission reduction programs, and the letter calls for EPA to learn from and benefit from that experience. The proposal has already received over 1 million comments, and EPA has said that it intends to finalize the proposal by Spring 2024.
For further information:
https://www.4cleanair.org/wp-content/uploads/NACAA-Power-Plant-GHG-Rules-Comments-_-08032023.pdf
NACAA’s Enforcement Committee has submitted a letter with comments by email to EPA’s Office of Enforcement and Compliance Assurance (OECA) on EPA’s Clean Air Act Metrics Plain Language Guide: State Review Framework – Round 5. This document will help guide EPA’s State Review Framework (SRF) assessments of NACAA agency programs for the next SRF round. The SRF is a review of enforcement activity that aims to assess OECA and state enforcement of the Clean Air Act with consistency across agencies, and EPA released updated guidance documents for use in upcoming SRF reviews. NACAA’s letter on the latest guidance makes recommendations for greater clarity about how the document is intended to be used and suggests numerous technical improvements that align the guidance with other documents and with the purpose and objectives of the SRF. It also urges greater clarity about ratings applied during the reviews and recommends differentiation in the guidance (and the reviews) between procedural and reporting deficits and areas for improvement that would result in direct environmental benefit.
For further information:
EPA published in the Federal Register (88 Fed. Reg. 54,118) a proposed rule to update the Air Emissions Reporting Requirements (AERR). The proposal includes mandating, for the first time, the reporting of emissions of hazardous air pollutants (HAPs). EPA uses the AERR to collect data that serves as the basis for the National Emissions Inventory (NEI), which is used to develop regulations, carry out modeling and conduct risk assessments. The data is also used by state, local and tribal agencies and other federal programs. Under the AERR, states are required to collect data on air emissions and submit them to EPA. Currently, most states report HAP emissions, but it is not consistent across the nation. The proposal would call for many industries to report HAP emissions data and would let states report emissions on behalf of the sources. Additionally, the proposal would use the same emissions thresholds every year to determine if a facility’s information must be reported; require industry to report emissions for certain facilities in Indian country and federal waters that are currently not reported; provide flexibilities to small businesses, including allowing some to report total HAP emissions and exempting many collision repair shops; and provide EPA with information that would help it to better estimate emissions from prescribed fires. EPA will hold a virtual public hearing on the proposed rule on August 20, 2023; the deadline to pre-register as a speaker is August 25. Comments on the proposal are due October 18, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-08-09/pdf/2023-16158.pdf
and
https://www.epa.gov/air-emissions-inventories/air-emissions-reporting-requirements-aerr
The Attorneys General of Iowa and Nebraska filed a complaint against EPA in the U.S. District Court for the Southern District of Iowa Central Division for failure to promptly perform its mandatory, nondiscretionary duties under Clean Air Act (CAA) section 211(h)(5). The Governors of Iowa and Nebraska notified EPA on April 28, 2022, of their requests that the agency waive the summertime 1-pound-per-square-inch Reid Vapor Pressure (RVP) waiver for E10 (gasoline containing 10 percent ethanol) to allow the year-round sale of E15 in their respective states beginning with the 2023 summer ozone control season. The CAA requires that EPA promulgate final regulations waiving the summertime RVP waiver within 90 days of a Governor’s notification requesting such action. This week’s complaint follows a March 6, 2023, letter from the Iowa and Nebraska AGs to EPA Administrator Michael S. Regan notifying him that should the agency fail to take final action on the Governors’ requests within 60 days they reserved the right to sue for injunctive relief. In their complaint, the AGs ask the court to enjoin EPA “to promulgate a final rule promptly under [CAA section 211] by a date certain, but more than six months before the first day of the 2024 high ozone season.” Also on March 6, 2023, EPA published in the Federal Register a notice of proposed rulemaking – responding to notifications not only from the Governors of Iowa and Nebraska but also from the Governors of Illinois, Minnesota, Missouri, Ohio, South Dakota and Wisconsin – to remove the summertime 1-pound-per-square-inch RVP waiver for E10 but with a delayed effective date of April 28, 2024 (see related article in the March 4-10, 2023, Washington Update).
For further information:
The docket for the Good Neighbor Plan Litigation in the U.S. Court of Appeals for the District of Columbia Circuit continued to fill over the past week. On August 4, 2023, Enbridge (U.S.) Inc., a petitioner challenging EPA’s June 5, 2023, final Good Neighbor Plan for the 2015 8-hour ozone standard, filed a motion seeking to stay portions of the rule pending conclusion of the judicial review. In its motion, Enbridge (U.S.) Inc. describes itself as “a wholly-owned subsidiary of Enbridge Inc., a diversified energy company headquartered in Calgary, Canada. Enbridge (U.S.) Inc.’s holdings include natural gas pipelines regulated by the Federal Energy Regulatory Commission.” In particular, Enbridge asks the court to stay the portions of the final rule applicable to pipeline engines. In making its case, Enbridge argues that it is likely to succeed in its challenge of the Good Neighbor Plan based on the merits and contends that the rule violates the “Major Questions” Doctrine; EPA failed to identify the emissions “amount” from non-EGU sources that contribute significantly to nonattainment; and EPA’s rule is arbitrary and capricious. Enbridge also alleges that it will be irreparably harmed absent a stay and that the balance of harms and public interest weigh heavily in favor or a stay. On August 8, 2023, petitioner TransCanada PipeLine USA Ltd. also filed a motion seeking to stay provisions of the rule applicable to pipeline engines and on August 9, 2023, the U.S. Chamber of Commerce filed an amicus (friend of the court) brief in support of industry petitioners’ August 2, 2023, joint opposed motion to stay the final rule. In addition, the court issued an order on August 9, 2023, that, among other things, suspends briefing on Utah’s earlier stay motion in the D.C. Circuit (because the 10th Circuit has granted a stay of EPA’s disapproval of Utah’s Good Neighbor SIP) and requires EPA to file a consolidated response to all the stay motions on August 18, 2023.
For further information:
https://www.4cleanair.org/wp-content/uploads/Litigation-GNPlan-TransCanada_Stay_Motion-080823.pdf,
https://www.4cleanair.org/wp-content/uploads/Litigation-GNPlan-Chamber_Amicus_Brief-080923.pdf,
and
The U.S. Department of Health and Human Services (HHS) and the U.S. Department of Transportation (DOT) have released a new website ambulance calls and emergency room visits related to heat-related illness across the country. HHS Secretary Xavier Becerra said the tracker will help state and local governments plan and prevent heat-related illnesses and deaths for at-risk people. The National EMS Information System (NEMSIS) will collect data from 911 calls for heat-related illnesses and show heat-related emergency medical services activations on the state and county-level.
For further information:
https://nemsis.org/heat-related-ems-activation-surveillance-dashboard/