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February 17-23, 2024
In this week's issue:
- NACAA Meets with OMB on Forthcoming EPA Final Phase 3 HD GHG Rule and Multi-Pollutant LMDV Rule (February 20, 2024)
- EPA Proposes Revisions to NSR “Project Emissions Accounting” Rules (February 22, 2024)
- EPA Proposes Revisions to Method 320 Source Testing Procedures (February 22, 2024)
- EPA Announces Final Rule Removing Summertime Gasoline Volatility Waiver in Eight States Beginning in 2025 (February 22, 2024)
- EPA Seeks Public Comment on California’s Request for Authorization of Preemption for State’s In-Use Locomotive Regulation (February 21, 2024)
- Court Grants EPA’s Request To Delay First “Imminent Danger” Enforcement Case Pending Toxics Rule Finalization (February 17, 2023)
- ALA Highlights Children’s Health Benefits from Transition to Zero-Emission Transportation and Electricity Generation (February 21, 2024)
- NACAA Requests 30-Day Extension of Comment Period for EPA’s Disapproval of South Coast’s Contingency Measures Plan (February 20, 2024)
- Supreme Court Hears Oral Argument on Applications to Stay EPA Good Neighbor Plan (February 21, 2024)
This Week in Review
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Representatives of NACAA met with officials from the White House Office of Management and Budget (OMB) and EPA, as part of the OMB-led interagency review of EPA’s final rules setting Phase 3 greenhouse gas (GHG) emission standards for heavy-duty (HD) trucks and multi-pollutant emission standards for light-and medium-duty vehicles (LMDVs). Drawing from NACAA’s comments on the proposals for these rules Erik White (Placer County, CA) and Tracy Babbidge (CT), Co-Chairs of the NACAA Mobile Sources and Fuels Committee, discussed NACAA’s views and recommendations on key issues related to the two programs. In addition to the air quality, public health and environmental justice needs for these rules topics discussed included the ever-evolving and vastly increasing feasibility, availability and cost competitiveness of zero-emission vehicles, the financial incentives provided under the Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA) and the need for the final rules to reflect these factors. Erik and Tracy also highlighted NACAA’s recommendations regarding each rule. In brief, regarding the LMDV rule, NACAA strongly supports EPA’s proposal. For criteria pollutants, the association is especially in favor of EPA finalizing the proposed 0.5 milligrams per mile PM standard for LDVs and MDVs and the requirement that this standard be met across three duty cycles, as well as the proposed Magnox standards. With respect to GHGs, NACAA supports finalization of the strongest CO2 standards that are technologically feasible. For LDVs, NACAA urges that EPA, at minimum, adopt the proposed standards with the addition of anti-backsliding requirements. The association firmly opposes Alternative 2 from the proposal or any final program that is weaker than the proposal plus anti-backsliding provisions, and also urges against a more gradual rate of phase in for any final standards, such as Alternative 3, unless the standards for MYs 2031 and 2032 are revised to fully recoup the loss of emission reductions that would occur from less protective standards in the earlier years. For MDVs, NACAA supports adoption of the proposed CO2 standards. Regarding the Phase 3 rule, emphasis was placed on the stringency of the final standards with the recommendation that EPA finalize performance-based standards that, at a minimum, are based on values that reflect the Advanced Clean Truck ZEV percentages through 2030, but with more protective standards for several types of heavy-duty vehicles: transit and school buses and refuse and concrete trucks. Another topic discussed was infrastructure, including the very strong state, regional and local leadership and innovation in this regard. NACAA communicated that EPA should not add measures, such as an “off ramp” from the emission standards or a mid-term evaluation, which are unnecessary and, if anything, could drive a self-fulfilling prophecy. NACAA’s Executive Director Miles Keogh and Nancy Kruger, Deputy Director of NACAA, also participated in the meeting.
For further information:
and
https://www.4cleanair.org/wp-content/uploads/NACAA_Comments-LMDV_Multipollutant_NPRM-070323lh-1.pdf
EPA issued a proposed rule to revise provisions of its New Source Review (NSR) permitting regulations pertaining to “project emissions accounting,” the applicability test for determining whether a proposed modification at an existing facility is a “major modification” subject to NSR requirements. The proposed revisions are intended to “improve implementation and enforceability” and respond to issues raised in a petition for administrative reconsideration of the original 2020 Project Emissions Accounting Rule filed by the Natural Resources Defense Council. Under the 2020 rule, emission decreases are to be considered along with emission increases during “Step 1” of the two-step NSR applicability test. In Step 1, a source determines whether a proposed project, by itself, is projected to result in a significant emissions increase. If so, the process moves to Step 2, where the source evaluates whether the project will result in a significant net emissions increase, considering any other increases and decreases in actual emissions throughout the facility. EPA’s newly proposed revisions to the NSR rules include three components. First, it would revise to the definition of the term “project” to include criteria for determining the scope of a project that may be subject to major NSR requirements, adding detail consistent with its 2018 final action on project “aggregation.” The current definition of “project” is “a physical change in, or change in the method of operation of, an existing major stationary source.” EPA proposes to further define a project as “a discrete physical change in, or change in the method of operation of, an existing major stationary source, or a discrete group of such changes (occurring contemporaneously at the same major stationary source) that are substantially related to each other. Such changes are substantially related if they are dependent on each other to be economically or technically viable.” The proposed rule also includes: 1) revisions to the recordkeeping and reporting requirements applicable to minor modifications at existing major stationary sources; and 2) revisions to require that emissions decreases accounted for in the Step 1 “significant emissions increase” calculation be enforceable. Public comments on the proposed rule will be due 60 days after publication in the Federal Register.
For further information:
EPA issued a proposed rule to make “routine corrections and revisions” to Test Method 320, which describes sampling and analytic procedures for extractive emission measurements using Fourier transform infrared (FTIR) spectroscopy. Method 320 – Measurement of Vapor Phase Organic and Inorganic Emissions by Extractive Fourier Transform Infrared (FTIR) Spectroscopy, was promulgated in 1999 along with the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for the Portland Cement Manufacturing Industry; it has not been updated or revised since then. EPA has incorporated the use of Method 320 into numerous NESHAP and New Source Performance Standards rules. In 2017, the agency convened a series of discussions with stakeholders in the emissions measurement community to identify technical issues related to FTIR spectroscopy and potential revisions to Method 320; the proposed rule seeks to address issues identified in those discussions. EPA’s proposed revisions include updating the method’s validation and quality assurance spiking procedures to provide what EPA describes as “a more performance-based approach” to emissions measurement, with specified acceptance criteria. “Instead of specifying exactly how stack testers should use or perform a particular method procedure, the method defines the criteria that must be met for a specific method element, which provides stack testers with flexibility while maintaining the quality and reliability of the measurement results,” EPA explains in the proposal’s preamble. The proposal also includes technical revisions and editorial changes to clarify and update the requirements and procedures specified in Method 320, including removing the batch sampling procedures. EPA will accept public comments on the proposed rule for 60 days following publication in the Federal Register.
For further information:
EPA announced a final rule to remove the summertime 1-pound-per-square-inch (psi) Reid Vapor Pressure (RVP) waiver for E10 (gasoline blended with 10 percent ethanol) in eight states, thereby allowing the year-round sale of E15 (gasoline blended with 15 percent ethanol) in the affected states. This final action is in response to notifications (which began in 2022) from the Governors of Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin, made under Clean Air Act (CAA) Section 211(h)(5), that the RVP limitation established by Section 211(h)(4) increases emissions that contribute to air pollution in their states. As requested by the Governors, the final rule applies – in lieu of the RVP limitation established by Section 211(h)(4) – the RVP limitation established by Section 211(h)(1) to all fuel blends containing gasoline and E10 that are sold, offered for sale, dispensed, supplied, offered for supply, transported or introduced into commerce in their states. However, although the Governors requested that the rule take effect beginning with the 2023 summer ozone control season and EPA proposed in 2023 to delay the effective date by one year, until April 28, 2024, the effective date of the final rule is April 28, 2025. EPA says it received multiple petitions from stakeholders requesting an extension of the effective date. Consistent with statutory provisions, the agency delayed the effective date until 2025 because of concerns over insufficient fuel supply. The final rule also establishes a regulatory process by which a state may request to reinstate the 1-psi waiver.
For further information:
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EPA announced that it is seeking public comment on the California Air Resources Board’s (CARB) request for an authorization of preemption for the state’s In-Use Locomotive Regulation. The regulation was adopted on April 27, 2023; on November 7, 2023, CARB sent a letter notifying EPA of the final regulation and requesting that the agency authorize preemption under Section 209(e) if the Clean Air Act (CAA). (With respect to rules establishing standards for new nonroad vehicles and engines, the nomenclature is for EPA to grant an “authorization,” under CAA Section 209(e)(2), for CARB to enforce its own standards notwithstanding the statutory preemption that prohibits states from enacting emission standards for new nonroad vehicles and engines. The more familiar term “waiver of preemption” applies, under CAA Section 209(b), to EPA action on rules establishing standards for new onroad vehicles and engines. The term “waiver” is often used, informally, in both instances.) EPA will hold a virtual public hearing on California’s request on March 20, 2024, beginning at 10 AM Eastern Time. Those wishing to testify at or attend the hearing must register by March 13, 2024. EPA will accept written comments through April 23, 2024.
For further information:
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The U.S. District Court for the Eastern District of Louisiana has granted EPA’s request to indefinitely delay a case the Agency has brought against Denka Performance Elastomer, a Louisiana-based rubber manufacturer, over its emissions of chloroprene. EPA had sought a delay in the case (United States v. Denka Performance Elastomer, et al. USCA Case No. 23-735), as the agency finalizes a rulemaking with new emission limits. The trial, scheduled to begin March 11, 2024, was the first case EPA has brought under its Clean Air Act section 303 “imminent and substantial endangerment” authority. EPA requested to continue the trial at an unspecified date following its finalization of New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and National Emission Standards for Hazardous Air Pollutants for the SOCMI and Group I and II Polymers and Resins. Under the terms of a consent decree, EPA has until March 29, 2024 to finalize these standards.
For further information:
https://www.4cleanair.org/wp-content/uploads/epa2024_0313.pdf
The American Lung Association (ALA) released a report, Boosting Health for Children: Benefits of Zero-Emission Transportation and Electricity, in which it “highlights the positive impacts that a nationwide transition to zero-emission transportation and electricity generation would have on children’s health.” The basis of the report is the same modeling that was used for ALA’s March 2022 Zeroing in on Healthy Air (which modeled a scenario under which zero-emission vehicles account for all new passenger vehicles sold by 2035 and all new trucks sold by 2040) and a projection that the U.S. electric grid will be powered by clean, non-combustion renewable energy by 2035. With this as the foundation, ALA concludes that between 2020 and 2050 the following would be prevented nationally: 1) 508 infant mortality cases, 2) 2.79 million pediatric asthma attacks, 3) 147,000 pediatric acute bronchitis cases, 4) 2.67 million pediatric upper respiratory symptoms and 5) 1.87 million pediatric lower respiratory symptoms. The report also includes a state-by-state breakdown of the avoided children’s asthma attacks. ALA concludes its report by stating, “In recent months, EPA has taken important actions, but has several outstanding decisions to make that will affect the health of children for decades to come. EPA must complete the following standards with an eye toward transitioning transportation and electricity generation away from combustion and toward zero-emissions.” The list of EPA actions ALA seeks includes 1) quickly finalizing the “strongest possible” Phase 3 greenhouse gas (GHG) standards for heavy-duty trucks and strong multi-pollutant standards for light- and medium-duty vehicles to reduce GHG emissions and “maximize reductions” in particulate matter and other criteria pollutants, 2) approving pending Clean Air Act waivers for California rules for transportation sources and 3) continuing the rollout of funding for electric school buses. ALA also calls upon the National Highway Traffic Safety Administration to establish the “strongest possible” Corporate Average Fuel Economy standards and upon all federal agencies to “put additional federal investments to work to ensure that the infrastructure built today protects our kids from pollution now and in the long run.”
For further information:
NACAA sent a letter to Ginger Vagenas of EPA Region IX requesting a 30-day extension – to April 3, 2024 – of the public comment period for EPA’s February 2, 2024, proposed rule, “Air Plan Disapproval; California; Los Angeles-South Coast Air Basin; 1997 8-Hour Ozone.” The proposed rule concerns California’s “Final Contingency Measure Plan – Planning for Attainment of the 1997 80 ppb 8-hour Ozone Standard in the South Coast Air Basin,” which addresses the Clean Air Act requirements for submittal of contingency measures that will be implemented if emission reductions from anticipated technologies associated with the area’s 1997 ozone NAAQS attainment demonstration are not achieved. NACAA explains in its letter that although this particular proposed rule relates to the Los Angeles-South Coast Air Basin nonattainment area “it has far broader implications, potentially affecting any nonattainment area in the country required to prepare and submit a contingency measure plan for any ozone or particulate matter NAAQS. Therefore, state and local air agencies require additional time to evaluate this EPA proposed action and develop informed comments on it. Extending the public comment period by 30 days [beyond March 4, 2024] would allow agencies to more thoroughly review and consider the proposal while still allowing the process to proceed in a timely manner.” The letter of request was also submitted to the EPA docket for the proposed rule (EPA-R09-OAR-2023-0626).
For further information:
and
https://www.govinfo.gov/content/pkg/FR-2024-02-02/pdf/2024-02082.pdf
The U.S. Supreme Court heard oral arguments over applications by states and industry for an “emergency stay” of EPA’s federal “Good Neighbor Plan” for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS). The plan was originally set to apply to 23 upwind states, but has since been stayed in 12 states by various federal circuit courts. In December, the Supreme Court agreed to consider applications for a national stay brought by the states of Ohio, Indiana and West Virginia and by several industry groups that are challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit. Its decision to hear oral argument over whether to issue a stay was highly unusual (this is only the third time since 1971 that the Supreme Court has heard oral argument on an emergency application). No lower court has yet considered the merits of the Good Neighbor Plan or EPA’s underlying State Implementation Plan disapprovals. The state and industry stay applicants argued before the Supreme Court that the reduced geographic applicability of the Good Neighbor Plan renders it arbitrary and capricious; they also emphasized the costs they are incurring to implement the rule. EPA and state supporters of the plan argued that it is inappropriate for the Supreme Court to consider alleged legal flaws with the rule before the case is briefed and argued in the lower court. They further argued that residents of downwind states will suffer immediate harm to their health and well-being if the rule is stayed. It is not clear when the Supreme Court will issue its decision over whether to grant or deny the stay.
For further information:
https://www.supremecourt.gov/oral_arguments/argument_audio/2023 (oral argument audio; select “Ohio v. EPA”)
and
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23a349_4fb4.pdf (oral argument transcript)