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January 21-27, 2023
In this week's issue:
- EPA Inspector Finds Agency “Not on Track” to Achieve Enforcement Priority of Stopping Aftermarket Defeat Devices for Vehicles and Engines (January 25, 2023)
- EPA Publishes Proposal to Revise Primary Annual PM2.5 NAAQS, Retain 24-Hour NAAQS Without Revision; Sets March 28 Comment Deadline (January 27, 2023)
- EPA Publishes Final Heavy-Duty Truck NOx Rule in Federal Register (January 24, 2023)
- Researchers: Understanding Racial Disparities in Air Pollution Impacts Requires Better Empirical Understanding Of Race (January 23, 2023)
- States and Environmental Groups Challenge EPA’s “Do-Nothing” Aircraft PM Rule (January 20, 2023)
- Proposed Consent Decree Sets Deadlines for EPA Action on Review and Potential Update of Oil and Natural Gas Rules (January 24, 2023)
- Groups Supporting Reinstatement of Waiver for California’s Advanced Clean Cars Regulation File Amicus Briefs in D.C. Circuit (January 18 & 20, 2023)
- Joe Goffman and David Uhlmann, President Biden’s Picks for Top EPA Air and Enforcement Posts, on List of Nominees Sent to Senate for Confirmation (January 23, 2023)
- EPA Seeks Nominees by February 27 for State Air Agency Seat on Clean Air Scientific Advisory Committee (January 27, 2023)
This Week in Review
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As EPA prepares to drop its enforcement priority of “Stopping Aftermarket Defeat Devices for Vehicles and Engines,” which is included in the fiscal year (FY) 2021 through 2023 National Compliance Initiatives (NCI), the agency’s Office of Inspector General (OIG) released a report in which it concludes that EPA is not on track to achieve 10 (25 percent) of the 40 measures and deliverables to which it committed in the strategic plan for that NCI. OIG states in the report that it was not able to evaluate the EPA Office of Enforcement and Compliance Assurance’s (OECA) progress on six of the deliverables due to a lack of defined terms in the strategic plan and specific requirements for those metrics. OIG further reports that “OECA and the regions inconsistently interpreted the strategic plan’s requirements,” and “[w]hen provided the opportunity, OECA did not update the NCI strategic plan to clarify its requirements and reflect how the NCI is being implemented, which hindered EPA’s ability to overcome those obstacles.” Other problems reported include inadequate technical training; the lack of a quantifiable link between some deliverables and program outcomes; impediments to effective communications; and, notwithstanding EPA’s provision of some information based on the NCI strategic plan metrics, the agency “does not share helpful enforcement data with the states or incentivize complementary state efforts to the EPA’s NCI implementation.” OIG made five recommendations to OECA: 1) to develop guidance for the regions; 2) to update the strategic plan for this NCI to address “unforeseen challenges”; to include quantifiable deliverables in the NCI strategic plan; 4) to work with the Office of General Counsel to provide enforcement data to the states, as appropriate; and 5) to overcome barriers to voluntary state initiatives that complement EPA’s work in this area. OIG reports that OECA disagreed with recommendations #2, #3 and #5 and, while OECA agreed with recommendations #1 and #4, it did not provide a completion date for the guidance recommended for in #1 nor acceptable corrective actions for #4. “All recommendations are therefore unresolved.”
For further information:
and
EPA published in the Federal Register (88 Fed. Reg 5,558) its proposed rule to revise the particulate matter (PM) National Ambient Air Quality Standards (NAAQS) based on the agency’s 2021-2022 reconsideration of a December 18, 2020, EPA decision to retain without revision the existing PM NAAQS. The agency proposes to revise the current 12-micrograms-per-cubic-meter (µg/m3) primary annual PM2.5 standard to a level within the range of 9-10 µg/m3 and is seeking comment on an annual standard between 8 µg/m3 and 11 µg/m3. For the primary 24-hour PM2.5 NAAQS, EPA proposes to retain the current 35-µg/m3 standard without revision and is seeking comment on lowering the short-term standard to as low as 25 µg/m3. The agency further proposes to retain without revision the secondary annual and 24-hour PM2.5 standards and the primary and secondary PM10 standards; EPA seeks comment on revising the level of the secondary 24-hour PM2.5 standard to as low as 25 µg/m3. EPA also includes several proposed modifications to technical monitoring requirements and the monitoring network such as modifying the PM2.5 network design criteria to call for monitoring in “at-risk communities.” In particular, EPA proposes, “For areas with additional required SLAMS, a monitoring station is to be sited in an at-risk community where there are anticipated effects from sources in the area (for example: a major port, rail yard, airport, or industrial area.).” EPA states that this proposed network design change would not add a requirement for new monitors but, rather, utilize existing sites and ensure at-risk communities are considered if sites need to be moved. EPA also proposes updates to the Air Quality Index for PM2.5. Although the proposal does not address area designations the package includes maps identifying which areas would violate a 10-µg/m3 primary annual standard and a 9-µg/m3 primary annual standard based on current data, as well as maps depicting the impact of other standards scenarios considered by the agency. EPA believes a vast majority of areas will be in attainment of the proposed range of standards based on current data and that forthcoming federal rules, as well as investments made with funding under the Inflation Reduction Act and Bipartisan Infrastructure Law, will allow many areas to attain a revised standard. In terms of annual benefits and costs, in 2032 under a 10-µg/m3 annual standard EPA estimates 1,700 avoided premature deaths, 110,000 avoided lost workdays, $17 billion in net benefits and $95 million in costs. In 2032 under a 9-µg/m3 annual standard EPA estimates 4,200 avoided premature deaths, 270,000 avoided lost workdays, $43 billion in net benefits and $395 million in costs. The deadline for public comments on the proposal in March 28, 2023. EPA will hold a virtual public hearing on the proposal, to be announced in a separate Federal Register notice.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-01-27/pdf/2023-00269.pdf
and
EPA published in the Federal Register (88 FR 4,296) its final rule to reduce emissions of nitrogen oxide (NOx) from highway heavy-duty (HD) vehicles and engines. Beginning with model year (MY) 2027, all heavy-duty trucks are required to meet a numeric NOx emissions limit of 35 milligrams per horsepower-hour (mg/hp-hr), compared to the current standard, set by EPA 20 years ago, of 200 mg/hp-hr. The final rule includes a single phase of emission standards (MY 2027) versus two phases (MY 2027 and MY 2031) as outlined by EPA in its Proposed Option 1. By way of comparison, under its Omnibus HD Rule, the California Air Resources Board (CARB) requires medium HD (MHD), light HD (LHD) and HD gasoline trucks to meet a 20-mg/hp-hr standard in 2027 and heavy HD (HHD) trucks to meet a 20-mg/hp-hr standard in 2031, with an interim standard of 35 mg/hp-hr for MYs 2027 through 2030. According to EPA, its standards are 80 percent lower than the current standards. The emission standards recommended by NACAA – 20 mg across the board beginning with MY 2027 – would be at least 90 percent lower than the current standards (the standards in CARB’s Omnibus are 90 percent lower). EPA also provides manufacturers with a 15-mg/hp-hr in-use compliance margin, without sunset, for the HHD and MHD NOx emission standards. The agency establishes the first-ever federal low-load numeric NOx emissions standards, similar to CARB’s though tighter for HHD trucks at 50 mg/hp-hr in MY 2027 versus CARB’s 90 mg/hp-hr in MY 2027 and 100 mg in MY 2031; however, EPA again provides a 15-mg in-use compliance margin, without sunset, for the HHD and MHD emission standards. EPA increases the old useful life (UL) periods in one phase, pulling ahead from MY 2031 to MY 2027 CARB’s second, more stringent phase of UL periods for MHD, LHD and HD gasoline trucks; but, for HHD trucks, EPA’s MY 2027 650,000-mile UL period, while slightly higher than CARB’s MY 2027 600,000-mile UL period, stays flat at 650,000 miles, never increasing to 800,000 miles as CARB’s does for HHD trucks beginning with MY 2031. EPA also increases emission warranty periods in a similar way relative to CARB’s, but for HHD trucks the warranty period is the same as CARB’s in 2027, at 450,000 miles, never increasing to CARB’s second phase (MY 2031) warranty period of 600,000 miles. In addition to the new numeric NOx emission standards and UL and warranty provisions, EPA also includes in the final rule provisions related to in-use test procedures and compliance, allowances, exceptions and credits. These provisions may have an impact on the overall effectiveness of the numeric standards and on real-world emission reductions. EPA states in the notice, “This final rule is effective on March 27, 2023. The incorporation by reference of certain material listed in this rule is approved by the Director of the Federal Register as of March 27, 2023.”
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-01-24/pdf/2022-27957.pdf
and
A cross-study literature review of research in the journal Current Environmental Health Reports performed by a team from the University of Michigan and the University of Maryland has found that while medical research has made connections between air pollution impacts and race, there are wide inconsistencies in the determination of what constitutes racial disparities, resulting in mixed results with potentially unclear policy implications for addressing disproportionate impact. The study, “Evaluating Race in Air Pollution and Health Research: Race, PM2.5 Air Pollution Exposure, and Mortality as a Case Study”, examined ten empirical studies conducted in the U.S. between 2016 and 2022 that documented the modifying role of race in the link between air pollution and health. While these studies individually linked air pollution with disparate racial impact, across the range of papers overall, “the results indicate no consistent role of race in the association between PM2.5 exposure and mortality. Moreover, conceptualization and discussion of race was often brief and incomplete, even when the empirical results were unexpected or counterintuitive.” The paper suggests that a more consistent and empirical discussion of the “meaning of race, the race variables, and the cultural and structural racism that some argue are proxied by race variables” is still needed to better inform pathways for policy interventions.
For further information:
https://link.springer.com/article/10.1007/s40572-023-00390-y
In separate petitions, 11 states and three environmental groups challenged EPA’s November 23, 2022, final rule aligning U.S. aircraft PM emission standards and test procedures with those adopted in 2017 and 2019 by the International Civil Aviation Organization (ICAO). The standards apply to new type design and in-production civil aircraft engines with rated output of greater than 26.7 kilonewtons (typically used in commercial passenger and freight aircraft and larger business jets). Since virtually all affected aircraft already meet the ICAO standards, the rule will not result in any improvement in public health or environmental protection. As acknowledged by EPA in the rule, “the final in-production and new type design standards will not result in emission reductions below current levels of engine emissions.” State petitioners are Attorneys General offices in California, Connecticut, Illinois, Maryland, Massachusetts, New Jersey, New York, Oregon, Pennsylvania, Vermont and Washington. Environmental petitioners are the Center for Biological Diversity, Friends of the Earth and Sierra Club. The petitions were filed in the U.S. Court of Appeals for the District of Columbia Circuit. Although the petitioners do not state the reason for their respective challenges, in a press release, the environmental petitioners refer to the rule’s “outdated and ineffective” standards, noting that EPA “has made only minor updates to the standards over the last 50 years” since the agency first set PM aircraft standards in 1973. Liz Jones, an attorney for the Center for Biological Diversity, stated, “It’s outrageous that the EPA continues to defer to the aviation industry rather than do its job protecting people’s health. Communities near airports are bombarded every day with deadly pollution. They deserve better than this do-nothing rule.”
For further information:
https://www.4cleanair.org/wp-content/uploads/Aircraft_PM_Rule-California-v.-EPA-1-20-23.pdf,
https://www.biologicaldiversity.org/programs/climate_law_institute/transportation_and_global_warming/airplane_emissions/pdfs/Aircraft-PM-Rule-Petition-for-Review.pdf, https://biologicaldiversity.org/w/news/press-releases/lawsuit-challenges-biden-epa-failure-to-cut-airplane-soot-pollution-2023-01-20/
and
https://www.govinfo.gov/content/pkg/FR-2022-11-23/pdf/2022-25134.pdf
EPA published in the Federal Register (88 Fed. Reg. 4,178) a proposed consent decree to settle California Communities Against Toxics v. Regan, in which the California Communities Against Toxics, Coalition for a Safe Environment and Sierra Club argue that EPA failed to perform it nondiscretionary duty to review and, as necessary, revise the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Oil and Natural Gas Production Facilities and Natural Gas Transmission and Storage source categories. The Clean Air Act requires EPA to carry out a technology review for NESHAP source categories and propose new standards, if needed, every eight years. The last technology review for the source categories named in the suit was in 2012, putting EPA behind schedule for the next required review. The plaintiffs also argue that EPA unreasonably delayed responding their 2012 petition for administrative reconsideration of that 2012 final rule, “Oil and Natural Gas Sector: New Source Performance Standards for Hazardous Air Pollutants Reviews.” In their complaint, filed in the U.S. District Court for the District of Columbia on April 12, 2022, the plaintiffs asked the court to set expeditious deadlines for EPA to act. Under the proposed consent decree, with respect to EPA’s provision in the 2012 rule of an affirmative defense to civil penalties for violations of emission standards caused by malfunctions – a provision to which the plaintiffs object in their 2012 petition for administrative reconsideration – EPA would be required to sign a proposed action by February 12, 2024 and a final action by December 10, 2024. With respect to its review of the Oil and Gas NESHAP and other issues related to the reconsideration petition, EPA would be required to sign a proposed action by December 19, 2025. EPA will accept public comment on the proposed consent decree until February 23, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-01-24/pdf/2023-01303.pdf
Six amicus briefs were filed in the U.S. Court of Appeals for the District of Columbia Circuit by individuals, organizations and others in support of respondent EPA’s March 2022 decision to reinstate the waiver of federal preemption for California’s light-duty greenhouse gas (GHG) emission standards and zero emission vehicle sales mandate, part of the state’s Advanced Clean Cars Program. EPA’s reinstatement action was in response to revocation of the waiver in the 2019 final “SAFE” 1 rule and has been challenged by states and industry groups in State of Ohio v. EPA. The amici supporting EPA include the South Coast Air Quality Management District; Senators Tom Carper, Chairman of the Senate Committee on Environment and Public Works, and Rep. Frank Pallone, Jr., Ranking Member of the House Committee on Energy and Commerce; a group of 10 public health organizations; a group of administrative law professors; an individual law professor; and California Climate Scientists, a group of scientific experts who study the physical and economic effects of climate change on the people and places of California.
For further information:
https://www.4cleanair.org/wp-content/uploads/Ohio-v.-EPA-SCAQMD-Amicus-Brief-1-20-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Ohio-v.-EPA-Carper-Pallone-Amicus-Brief-1-20-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Ohio-v.-EPA-Public-Health-Orgs-Amicus-Brief-1-20-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Ohio-v.-EPA-Law-Professors-Amicus-Brief-1-20-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Ohio-v.-EPA-Litman-Amicus-Brief-1-20-23.pdf
and
President Biden sent to the U.S. Senate a list of nearly 90 nominees to serve as key leaders in his Administration. Among those nominees are two for top EPA positions: Joseph Goffman, to serve as Assistant Administrator for the Office of Air and Radiation, and David M. Uhlmann, to serve as Assistant Administrator for the Office of Enforcement and Compliance Assurance. The President nominated Goffman and Uhlmann last year and both nominations deadlocked in the Senate Environment and Public Works (EPW) Committee, which was comprised of nine Democrats and nine Republicans. The full Senate ultimately voted to discharge Uhlmann’s nomination (i.e., allow it to proceed to the floor for a confirmation vote) but it was never scheduled for a vote. At the end of 2022, both nominations were returned to the President. With their nominations resubmitted to the Senate, the confirmation process will begin again, starting in the EPW Committee, chaired by Senator Tom Carper (D-DE), which now has a membership of 10 Democrats and eight Republicans.
For further information: https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/23/nominations-sent-to-the-senate-92/
and https://www.senate.gov/general/committee_membership/committee_memberships_SSEV.htm
EPA published in the Federal Register (88 Fed. Reg. 5,336) a notice soliciting nominations of experts for the state air pollution control agency seat on the Clean Air Scientific Advisory Committee (CASAC). CASAC – a charted Federal Advisory Committee – is an independent scientific review panel appointed by the EPA Administrator to, among other things, review air quality criteria and National Ambient Air Quality Standards (NAAQS) and recommend to the Administrator, as appropriate, any new NAAQS and revisions to existing criteria and NAAQS. The Clean Air Act stipulates that among the seven members of CASAC there must be at least one person representing state air pollution control agencies. Nominees should have expertise in one of more of the following disciplines: air quality, biostatistics, ecology, environmental engineering, epidemiology, exposure assessment, medicine, risk assessment and toxicology. EPA is especially interested in those with such expertise who also have knowledge and experience related to criteria pollutants. Terms are for two or three years. Nominations must be received by EPA by February 27, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-01-27/pdf/2023-01725.pdf
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