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February 4-10, 2023
In this week's issue:
- EPA Issues Final Amendments to NESHAP and NSPS for Lead Acid Battery Manufacturing (February 7, 2023)
- EPA Publishes Final Rule to Add Compound to List of Those Excluded from Regulatory Definition of VOC (February 8, 2023)
- Groups Argue in D.C. Circuit Reply Brief that EPA’s 2009 Endangerment Finding Should Not be Afforded “Extreme Deference” (February 8, 2023)
- Senator, with 33 Co-Sponsors, Proposes Joint Resolution to Disapprove EPA’s Final Heavy-Duty Truck Rule (February 8, 2023)
- Bipartisan Group of Senators Calls on EPA to Take Regulatory Action on Governors’ Requests to Allow Year-Round Sale of E15 (February 9, 2023)
- EPA Announces Electric Sector Pledge to Support School Bus Electrification (February 8, 2023)
- New Minnesota Law Will Decarbonize Its Power By 2040 (February 7, 2023)
This Week in Review
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EPA has issued final amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Lead Acid Battery Manufacturing Area Sources and the New Source Performance Standards (NSPS) for Lead Acid Battery Manufacturing Plants. The source category includes plants that produce lead acid batteries and their processes, including grid casting, paste mixing, lead oxide manufacturing, three-process operations (battery assembly) and lead reclamation. The source category includes 40 facilities, 39 of which are area sources and are covered by both the NESHAP and the NSPS. The revisions to the rules include technology improvements in the NESHAP and NSPS and changes to the applicability provisions for the area source NESHAP.
For further information:
EPA published in the Federal Register (88 Fed. Reg. 8,226) a final rule adding (2E)-1,1,1,4,4,4-hexafluorobut-2-ene – also known as trans1,1,1,4,4,4-hexafluorobut-2-ene and HFO-1336mzz(E); CAS number 66711-86-2 – to the list of compounds that are excluded from the regulatory definition of volatile organic compound (VOC). The agency says it is taking this final action because the compound “makes a negligible contribution to tropospheric ozone (O3) formation.” According to EPA, HFO-1336mzz(E) may be used in various applications in foam expansion or blowing agents where it has substantial performance and energy-saving advantages. It can be used as a replacement for several compounds with higher global warming potential. Further, it has a lower stratospheric ozone depletion potential than other alternatives and “based on the available toxicity data, it is less harmful compared with other chemicals used for the same purpose.” The final rule takes effect April 10, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-02-08/pdf/2023-02384.pdf,
https://www.epa.gov/system/files/documents/2023-02/HFO%201336mmz_E%20Fact%20Sheet.pdf
and
Pro-fossil fuel groups challenging EPA’s denial of their petitions to reconsider the agency’s 2009 greenhouse gas (GHG) Endangerment Finding filed a reply brief in the U.S. Court of Appeals for the District of Columbia Circuit in which they attempt to rebut EPA’s arguments regarding their standing to sue and the substance and timeliness of their petitions. The groups go on to argue that the “extreme deference standard of review” that courts customarily apply to EPA decisionmaking is “too permissive” for a case of this nature. Characterizing the Endangerment Finding as “the foundation for a vast expansion of regulatory authority over the full range of human activity due to the ubiquitous nature of CO2 and other GHG emissions,” the Petitioners urge the court to look to the Supreme Court’s June 2022 decision in West Virginia v. EPA, which held that the “major questions doctrine” constrains EPA’s authority to impose GHG rules of “tremendous economic and political significance’ in the absence of clear Congressional authorization. With respect to the Endangerment Finding, the groups argue, “EPA’s claim of regulatory authority covers literally all human activity. But it rests on a very dubious scientific determination, which in turn rests upon a very dubious claim of statutory authority. In our system of government such vast claims of regulatory power cannot rest upon such brittle foundations.” The major questions doctrine set forth in West Virginia “counsels greater judicial scrutiny where monumental policy choices are hiding in a scientific house of cards,” they assert. The groups also suggest that the Supreme Court’s decision in Massachusetts v. EPA that GHGs are “air pollutants” cannot be squared with West Virginia (even as they recognize that the D.C. Circuit lacks authority to overturn that decision). “Two major EPA GHG regulations have already been overturned based on the major questions doctrine,” the Petitioners write. “It is time to return to the source of the trouble. It is for Congress, not EPA, to decide whether the full sweep of human activity is subject to EPA regulation in a futile and destructive quest to control the climate.”
For further information: https://www.4cleanair.org/wp-content/uploads/ConcernedHouseholdElecvEPA-PetionersReplyBrief-2-8-23.pdf
Senator Deb Fischer (R-NE), joined by 33 Republican co-sponsors, proposed a joint resolution under which Congress would disapprove EPA’s final heavy-duty truck NOx rule (“Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards”), which was published in the Federal Register on January 24, 2023 (88 Fed. Reg. 4,296) to take effect on March 27, 2023. Under the Congressional Review Act, Congress can reverse rules promulgated by the Executive Branch if a majority of Senators and a majority of Representatives vote in favor of a joint resolution and the President signs the action. In a press statement, Senator Fischer is quoted as follows: “The Biden Administration is saddling the trucking industry with an onerous regulation that would jack up vehicle costs and hurt good paying jobs. This aggressive EPA rule – which will hit mom and pop truck operations the hardest – is also ineffective because it incentivizes operators to keep using older, higher-emitting trucks for longer. During a period of high inflation and supply chain disruptions, the last thing this country needs is more expensive freight costs and fewer truckers. I am proud to be leading a large coalition of my colleagues to push back against the Biden Administration’s obsession with excessive climate regulations.”
For further information:
https://www.fischer.senate.gov/public/_cache/files/d2717a08-23cb-4337-ad55-3585fe6a00ed/maz23050.pdf
and
https://www.fischer.senate.gov/public/index.cfm/news?ID=8CF42BC1-03CD-4D07-AAE7-E47CC683003F
A bipartisan group of 31 Senators, led by Joni Ernst (R-IA) and Tammy Duckworth (D-IL), sent a letter to EPA Administrator Michael Regan and Shalanda Young, Director of the Office of Management and Budget (OMB), urging prompt action on notifications made last year by various Midwest governors seeking year-round sale of E15 in their respective jurisdictions. Under CAA section 211(h), EPA is to promulgate, within 90 days of such notifications accompanied by supporting documents, regulations allowing the year-round sale of E15. EPA received most of the notifications in April 2022. In their letter, the Senators write, “Homegrown, American-produced ethanol strengthens our national security and ensures lower vehicle emissions to achieve the Administration’s climate goals.” They concluded their letter by writing, “Higher blends of ethanol like E15 are a common-sense solution to lower the cost for consumers at the gas pump and to lower vehicle emissions. As we gear up for the summer 2023 travel season, we have the production and distribution infrastructure to meet consumer demand for this lower cost and environmentally friendly fuel option. By working swiftly to finalize the Governors’ requests, you will bring much needed certainty to our corn growers, fuel retailers, and consumers to enjoy the clean-burning, lower cost benefits of year-round E15 through the 2023 summer driving season.” OMB received EPA’s proposed rule responding to states’ requests on December 5, 2022. On January 27, 2023, seven Attorneys General from Midwest states sent a similar letter to Administrator Regan and Director Young seeking promulgation of final regulations by the end of January (see related article in last week’s Washington Update).
For further information:
https://www.4cleanair.org/wp-content/uploads/Bipartisan-Senate_letter-to-epa-on-E15-020923.pdf
and
https://www.reginfo.gov/public/do/eoDetails?rrid=282612
At an event in Alma, KS to mark the delivery of the state’s first all-electric school buses (funded under the Bipartisan Infrastructure Law) EPA Administrator Michael S. Regan announced a new pledge by two electric utility organizations to work proactively to promote “seamless” collaboration between school districts and their electricity providers to ensure successful nationwide deployment of electric school buses. The specific pledges made include facilitating communication; providing technical support and assistance; and working in partnership to increase funding for deployment of electric school buses. The organizations making the pledge are the Edison Electric Institute and the Beneficial Electrification League. Also this month, EPA submitted its “Clean School Bus Program Second Report to Congress: Fiscal Year 2022,” detailing the agency’s program that funds the replacement of higher-emitting school buses with zero-emission or “clean” (lower-emitting) school buses. EPA reports that in the first year of the Clean School Bus Program the agency conducted widespread program outreach and administered a national rebate competition that drew almost 2,000 applications: “The enthusiastic response prompted EPA to almost double the funding level available for rebates to nearly $1 billion.” In October 2022, EPA announced that over 400 applications had been selected, to replace about 2,600 buses, with 95 percent of those replaced with electric buses.
For further information:
https://www.epa.gov/cleanschoolbus/clean-school-bus-technical-assistance
and
https://www.epa.gov/system/files/documents/2023-02/420r23002.pdf
Minnesota has signed a bill into law requiring 100 percent carbon-free electricity in the state by 2040. The legislation establishes two programs: a renewable electricity standard and a carbon-free energy standard. Minnesota’s previous renewable portfolio standard was passed in 2007 and required Xcel Energy and Minnesota Power, the state’s power utilities, to produce at least 25 percent of their energy supply from renewable sources by 2025. They achieved that goal eight years early and the updated renewable standard raises the requirement to 55 percent renewable energy by 2035. The law’s carbon free energy standard requires those utilities to 100 percent of their power from carbon-free sources by 2040, using renewables, hydropower, nuclear, hydrogen power and biomass to meet the 2040 goal. The bill also has provisions to streamline energy permitting in the state, to set minimum wage requirements for workers, and to advance environmental justice. The Minnesota Senate approved the bill on a 34-33 vote along party lines; the Minnesota House passed the measure on a 70 to 60 vote and it was signed by Gov. Tim Walz on February 7, 2023. Minnesota joins California, Hawaii, Illinois, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Virginia, Washington, Puerto Rico and the District of Columbia in having laws that require a transition to 100 percent carbon-free or renewable electricity; Maine and Nevada have laws that set 100-percent goals and Michigan, New Jersey and Wisconsin have executive orders requiring 100 percent carbon-free electricity as well.
For further information:
https://mn.gov/commerce/news/?id=17-563384
And
https://www.revisor.mn.gov/bills/bill.php?f=SF4&y=2023&ssn=0&b=senate