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February 25-March 3, 2023
In this week's issue:
- NACAA Comments on EPA’s Proposed Section 111(d) Implementing Regulations (February 27, 2023)
- EPA Issues Guidance, “Opt-In” Announcement for IRA-Funded Climate Pollution Reduction Grants (March 1, 2023)
- EPA Staff Again Conclude That Evidence Supports Retaining 70-ppb Ozone NAAQS (March 1, 2023)
- EPA Issues Final Air Toxics Standard for Wood Preserving Area Sources (February 27, 2023)
- Office of Inspector General Issues Report on “EPA’s Ineffective Residential Wood Heater Program” (February 28, 2023)
- Fifty-Eight Members of Congress Advocate for “the Most Stringent Rules Possible” for Passenger Cars and Heavy-Duty Trucks (February 28 2023)
- Bipartisan House and Senate Votes to Block ESG Investing Face Veto (March 2, 2023)
- EPA Proposes to Grant Governors’ Requests for Removal of Summertime Gasoline Volatility Waiver (March 1, 2023)
- EPA Defends Light-Duty Vehicle GHG Emission Standards Rule in D.C. Circuit Brief (February 24, 2023)
- Goffman Faces Another Senate Confirmation Hearing (March 1, 2023)
This Week in Review
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NACAA has submitted comments to EPA regarding the agency’s December 2022 proposal “Adoption and Submittal of State Plans for Designated Facilities: Implementing Regulations Under Clean Air Act Section 111(d)” (docket EPA-HQ-OAR-2021-0527). EPA’s Implementing Regulations were initially adopted in 1970 and were updated most recently by the promulgation of the final Affordable Clean Energy (ACE) rule in 2019, which lengthened the timeframe for state plan development from 9 months to three years (reflecting the timeframes for plan development specified in Section 110 of the Clean Air Act). The 2019 vacatur of the ACE rule by the US Court of Appeals for the DC Circuit called for EPA to justify the changes to the 111(d) implementing regulations and to the timeframes it specifies. EPA’s December 2022 proposed rule delineates 15 months for the development of state plans, and calls for “meaningful engagement” by communities to be included in the plans, as well as offering compliance flexibility in the development and filing of state plans. Developed by the NACAA Climate Change Committee, NACAA’s comment letter calls for EPA’s engagement with agencies that will be affected by this proposed rule to allow them to implement rules promulgated under Section 111(d) successfully given the variety of circumstances faced by our agencies. In general, NACAA supports many of the provisions and flexibilities offered by the proposed rule, including those governing regulatory mechanisms for full and conditional plan approval or disapproval; provisions for improving meaningful stakeholder involvement; permissible compliance options; and modernized plan submission provisions. However, the letter notes that previous 111(d) filings have been much longer than the 15 months proposed by the rule, and that EPA’s proposed timelines for state plan development will be insurmountably short for many agencies if the rule is finalized as proposed. In this comment letter, NACAA identifies the basis for this concern and makes recommendations that would affect successful implementation of the rule. Our agencies have a long track record of implementing Section 111(d), and the letter calls for EPA to learn from and benefit from that experience.
For further information:
https://www.4cleanair.org/wp-content/uploads/NACAA_111d_Implementing_Regs_Comments-_-02272023.pdf
and
EPA has released information about how state, local and territorial governments can apply for and implement the Inflation Reduction Act (IRA) funded Climate Pollution Reduction Grants (CPRG) program. This program will provide grants to states, local governments, tribes, and territories to develop and implement plans for reducing greenhouse gas and other air pollution emissions. Section 60114 of the IRA provides $5 billion to support states, municipalities, air pollution control agencies, and tribes to develop and implement greenhouse gas (GHG) reduction strategies. This program will offer $250 million for noncompetitive planning grants, and $4.6 billion for competitive implementation grants. States, (including the District of Columbia and Puerto Rico) can opt in to receive $3 million grants; the largest 67 metropolitan areas can opt-in to $1 million grants. (Other metro areas may be eligible if states and others opt out, and EPA encourages smaller metro areas to opt in to join the queue of possible recipients.) Territories (including the four territorial NACAA member agencies) are eligible for awards of $500,000. Program guidance on how to opt in and apply was released on March 1, 2023; states must opt in by March 31, 2023 and offer applications by April 28, 2023; metro areas must opt in by April 28, 2023, with application paperwork due by May 31, 2023. All applicants must have a current SAM.gov and grants.gov account. As part of the planning grants, grant recipients will create or update initial and deeper plans, and participating agencies and non-recipient agencies that are covered by these plans will be eligible for the implementation grants. EPA expects to announce the notice of funding opportunity for the implementation grants later in 2023, with applications due in the first quarter of calendar year 2024. EPA has detailed guidance on eligible activities, sample opt-in letters, sample documents, a frequently asked questions page, application guidance, and other technical support resources. EPA will host an additional webcast for state and local governments on March 7, 2023; for tribes and territories on March 9, 2023. NACAA will also host an online workshop for its agencies to help them take advantage of this opportunity on March 15, 2023.
For further information:
https://www.epa.gov/inflation-reduction-act/climate-pollution-reduction-grants
EPA staff released their second external review draft of the Policy Assessment [PA] for the Reconsideration of the Ozone National Ambient Air Quality Standards. In this second external review draft, as in the first, which was released in April 2022, EPA staff present their conclusion to retain the current 70-parts-per-billion (ppb) 8-hour ozone standard without revision. This conclusion is also consistent with the final decision made by the previous EPA Administrator at the end of the previous ozone NAAQS review finalized in December 2020. In this week’s 1,146-page draft PA, EPA staff write, “Accordingly, we conclude it is appropriate in this reconsideration of the 2020 [decision] to consider retaining the current primary standard of 0.070 ppm O3, as the fourth-highest daily maximum 8-hour concentration averaged across three years, without revision. In light of this conclusion, we have not identified any potential alternative standards for consideration. In the event of different policy judgments from those made in the 2015 and 2020 reviews, however, standard levels in the range from 70 ppb to 60 ppb (recognized by the CASAC in those two reviews to be supported by the scientific evidence) may be appropriate to consider.” EPA staff also conclude that evidence warrants retaining the 70-ppb secondary ozone standard without revision.
For further information:
https://www.epa.gov/system/files/documents/2023-03/O3_Recon_v2_Draft_PA_Mar1-2023_ERDcmp_0.pdf
EPA has issued a final National Emission Standards for Hazardous Air Pollutants (NESHAP) for Wood Preserving Area Sources, based upon the required technical review the agency is required to conduct every eight years. EPA determined that there have been no cost-effective developments in controls for the source category since the rule was issued in 2007. Therefore, the agency is not making amendments to the existing NESHAP, except for minor edits and formatting changes to the table of applicable general provisions. As part of this regulation, EPA is also including technical corrections to the NESHAP for the Surface Coating of Wood Building Products.
For further information:
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The EPA Office of Inspector General (OIG) announced a report titled, The EPA’s Residential Wood Heater Program Does Not Provide Reasonable Assurance that Heaters Are Properly Tested and Certified Before Reaching Consumers. OIG summarizes the key takeaway of its report as follows: “The EPA’s ineffective residential wood heater program puts human health and the environment at risk for exposure to dangerous fine-particulate-matter pollution by allowing sales of wood heaters that may not meet emission standards.” In the report, OIG states that EPA’s 2015 residential wood heater New Source Performance Standard “is flawed,” resulting in the agency approving test methods that “lack clarity and allow too much flexibility.” The result of this, writes OIG, is that “certification tests may not be accurate, do not reflect real-world conditions, and may result in some wood heaters being certified for sale that emit too much particulate-matter pollution.” Among OIG’s findings is that “data from an EPA-approved testing lab indicate that some certified wood heaters do not meet emission standards” and “[a]lthough the EPA withdrew some flawed certification test methods, wood heaters certified based on those withdrawn test methods remain available for sale.” OIG also found that EPA “lacks internal controls to ensure that certification test reports are valid and that certification tests are conducted appropriately” and highlights that “State regulators told us that they cannot rely on the EPA’s certifications of wood heaters and, therefore, develop their own standards and lists of approved wood heaters for sale.” In the report, OIG makes six recommendations to EPA, among which are to 1) clarify certification test report expectations in upcoming rule revisions; 2) develop a reliable certification test method based on real-world conditions; and 3) implement internal controls to, among other things, review certification test reports and conduct systematic compliance audit tests. OIG notes that EPA disagreed with one of the recommendations and “did not clearly indicate concurrence or nonconcurrence with the others.” Therefore, all the recommendations are unresolved.
For further information:
https://www.epa.gov/system/files/documents/2023-02/_epaoig_20230228-23-E-0012_2.pdf
and
Nine Senators and 49 members of the House of Representatives sent a letter to EPA Administrator Michael Regan urging him to “swiftly issue by no later than the end of March two proposed rules governing clean car and truck vehicle emission standards, and to finalize them before the end of this year.” Further, the lawmakers call upon the Administrator to “issue the most stringent rules possible – rules that account for technological advances and cost-savings in zero-emission technologies (including those made possible by recent legislation); achieve critically necessary reductions in greenhouse gases (GHGs) and other pollutants; and are developed with thorough stakeholder involvement that ensures all affected communities can engage in the rulemaking process.” In particular, the signatories write that the proposed and final rules should 1) reduce GHG emissions from new light-duty vehicles (LDV) sold in 2030 by 75 percent compared to today’s new vehicles; 2) ensure the LDV and heavy-duty vehicle (HDV) standards support greater zero-emission vehicle adoption by considering market growth expected from [Inflation Reduction Act] and [Infrastructure Investment and Jobs Act] investments (which will surpass existing commitments outlined in Executive Order 14037); 3) put the nation on a trajectory to ensure 100 percent of all HDVs sold in 2035 are zero-emission vehicles including pathway milestones assuring continuous progress; and 4) reflect recently adopted state LDV and HDV emissions standards, consistent with state authority under the Clean Air Act. EPA has stated publicly that it intends to release both proposals by the end of this month and finalize the “Phase 3” truck rule by the end of this year and the clean cars rule by March 2024.
For further information:
The U.S. Senate has voted on a Congressional Review Act (CRA) joint resolution (H.J. Res 30) that would block the U.S. Department of Labor from implementing rules allowing retirement funds to consider environmental, social and governance (ESG) factors. The Senate voted 50-46 vote on the measure, which passed thanks to the support of two Democrats, Sen. Joe Manchin (D-WV) and Jon Tester (D-MT). A version of the bill passed the U.S. House of Representatives on February 28, 2023 on a vote of 216-204, with Rep. Jared Golden (D-ME) as the only Democrat voting with Republicans in favor of the measure. The November 22, 2022 Labor Department rule would alter changes first instituted by the Trump administration that prevented the consideration of ESG by fiduciaries overseeing retirement accounts. The November 2022 Labor Department rule does not mandate those investments but allows for the consideration of certain ESG factors that are financially relevant to an investment’s risk-return analysis. “Retirement plan fiduciaries should be free to consider climate change and other ESG factors without regulatory barriers or the threat of litigation,” Reps. Sean Casten (D-IL) and Juan Vargas (D-CA), co-chairs of the Congressional Sustainable Investment Caucus, said in a joint statement after the House vote. President Joe Biden is expected to veto the CRA resolution and proceed with the rule, however House Republicans have introduced CRA resolutions to reverse a number of additional regulatory actions, including EPA’s Waters of the US (WOTUS) rule and the Heavy Duty Vehicles rule reducing NOX emissions – EPA’s December 20, 2022, final rule, “Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards.” Both are expected to face a veto from President Biden if passed.
For further information:
https://www.congress.gov/118/bills/hjres30/BILLS-118hjres30ih.pdf
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EPA released a notice of proposed rulemaking responding to notifications 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 Reid Vapor Pressure (RVP) limitation established by section 211(h)(4) increases emissions that contribute to air pollution in their states. The Governors requested that EPA promulgate a regulation applying, 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 10 percent ethanol that are sold, offered for sale, dispensed, supplied, offered for supply, transported or introduced into commerce in their states beginning with the 2023 summer ozone control season. In this week’s action, EPA proposes to remove the 1-pound-per-square-inch RVP waiver for summer gasoline-ethanol blended fuels containing 10 percent ethanol (E10), thereby allowing the year-round sale of E15 in the affected states. EPA states in the proposal that it also received petitions from multiple stakeholders requesting that the effective date of this action be extended to the summer of 2024. Therefore, EPA explains, the agency proposes to delay the effective date for one year “consistent with statutory provisions,” which would make the effective date of a final action April 28, 2024. EPA will hold a public hearing on this proposal 15 days after the action in published in the Federal Register and accept public comments for 45 days following publication.
For further information:
and
EPA filed a brief in the U.S. Court of Appeals for the District of Columbia Circuit defending its 2021 revised greenhouse gas (GHG) emission standards rule for light-duty vehicles. The rule has been challenged by a group of 16 states as well as industry group petitioners. In its brief, EPA states that the petitioners lack standing to sue because they are not affected by the rule as auto manufacturers are and that their “assertions of injury-in-fact from increased use of electric vehicles are unsupported, speculative, and conclusory, and depend on third-party actions. Further, because use of electric vehicles undisputedly will increase with or without the 2021 rule, State Petitioners do not establish redressability.” EPA also argues that the “rule lawfully accounts for feasible emission-control technologies, including electrification,” and that “the major-questions doctrine offers no reason to depart from statutory text.” With respect to fleet averaging, EPA asserts that the rule “lawfully averages emissions across all vehicles in a fleet, including electric vehicles.” Further, arguing that the rule is “reasonable,” EPA says it “treated upstream emissions of all vehicles, electrified or not, the same way” and that it “properly considered costs and benefits.” In opening briefs filed on November 3, 2022, both sets of petitioners relied heavily on the “major questions doctrine” articulated by the Supreme Court in West Virginia v. EPA, arguing that EPA unlawfully enacted standards with enormous economic and political ramifications without clear statutory authority. The state petitioners, in their brief, emphasized the strain that the standards will place on grid reliability and ramifications for national security, while the industry group petitioners characterized the standards as effectively phasing out conventional vehicles in favor of electric vehicles. The industry petitioners additionally argued that EPA lacks clear statutory authority to set emission standards based on fleetwide averaging. The state petitioners are Texas, Alabama, Alaska, Arkansas, Arizona, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina and Utah.
For further information:
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-EPA-brief-2-24-23.pdf
The U.S. Senate Committee on Environment and Public Works met for a second time to consider the nomination of Joseph Goffman to be the Assistant Administrator for EPA’s Office of Air and Radiation, a role he has served in an Acting or de facto basis since 2021. “From the earliest days of his career, when he helped develop the Clean Air Act Amendments of 1990 as a staff member on this very committee, to his time at EPA under Presidents Obama, and now Biden, Joe Goffman has dedicated his life’s work to cleaning up the air we breathe and protecting our one and only planet”, Committee Chair Sen. Tom Carper (D-DE) said in introducing Goffman. Goffman answered Senators’ questions and parried criticism about a number of EPA initiatives including state implementation plan disapprovals, the reinstatement of the “Appropriate and Necessary” finding for the 2015 Mercury and Air Toxics (MATS) standard, and reliability concerns raised by the forthcoming expansion of the Cross-State Air Pollution Rule (CSAPR). “We believe that if and when we do propose additional reductions in mercury, we can point to the MATS rule, we can point to its success,” he said, after Sen. Ben Cardin (D-MD) asked about the rule, which is under interagency review at the White House. When asked by Ranking Member Sen. Shelley Moore Capito asked about reliability concerns from CSAPR raised by grid operators, Goffman said “as we are developing the final rule, we are making changes to address those very concerns.” Sen. Ed Markey (D-MA) welcomed Goffman’s pledge to finalize stronger truck and car emission rules; but Goffman faced challenging questions about ozone attainment from Sen. Mark Kelly (D-AZ), who noted Arizona’s “unique air quality challenges” for background levels that put Maricopa County in danger of nonattainment. Goffman was nominated in the 116th congress but his nomination failed to advance to a full Senate vote. Changes in the balance of power in the 117th Senate mean that Goffman has his best chance to date of having his nomination passed by the full U.S. Senate, assuming his nomination clears a committee vote, expected soon.
For further information: