June 17-23, 2023
In this week's issue:
- NACAA Provides EPA with Recommendations and Comments on Proposed Updates to Mercury and Air Toxics Standards (June 22, 2023)
- NACAA Comments on Proposed Air Toxics Rule for Hazardous Organic NESHAP; EPA Extends Comment Period to July 7, 2023 (June 22, 2023)
- NACAA Submits Comments on Proposed Air Toxics Rule for Ethylene Oxide from Commercial Sterilizers (June 22, 2023)
- EPA Announces Final RFG “Set” Rule; eRins Not Included (June 21, 2023)
- Senate Fails to Override President Biden’s Veto of Congressional Joint Resolution to Disapprove EPA’s Final Rule Setting More Protective NOx Standards for Heavy-Duty Trucks (June 21, 2021)
- House Oversight Subcommittee Holds Hearing to Examine EPA’s Proposed Emission Standards for Light-, Medium- and Heavy-Duty Vehicles (June 21, 2023)
- Senate Bill Would Revise When and How NAAQS Are Reviewed, Revised and Implemented (June 22, 2023)
- House Energy and Commerce Subcommittee Holds Hearing on Administration’s Vehicle and Fuel Programs (June 22, 2023)
- D.C. Circuit Strikes Down QR-Code and Refillable-Cylinder Provisions of HFC Phasedown Rule (June 20, 2023)
This Week in Review
NACAA submitted comments on EPA’s proposal to update the National Emission Standards for Hazardous Air Pollutants for Coal- and Oil-Fired Electric Utility Steam Generating Units (EGUs), also known as the Mercury and Air Toxics Standards (MATS), which was proposed on April 24, 2023. NACAA expressed support for EPA’s efforts to make improvements to the existing MATS, specifically endorsing measures to strengthen the surrogate standard for non-mercury metal hazardous air pollutants (HAPs) by lowering the filterable particulate matter (fPM) standard and requirements for lignite-fired EGUs to meet the same mercury emission standard as non-lignite EGUs. NACAA also articulated a need for improvements to continuous emission monitor (CEMs) technology if EPA wishes to require CEMs for demonstrations of compliance for the proposed fPM standards. Finally, NACAA suggested EPA retain the typical three-year schedule for compliance.
For further information:
https://www.4cleanair.org/wp-content/uploads/MATS-Letter-NACAA-June-22-2023.pdf
and
https://www.epa.gov/stationary-sources-air-pollution/mercury-and-air-toxics-standards
NACAA has submitted comments to EPA on the proposed revisions to the New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry (commonly known as the Hazardous Organic NESHAP – or the “HON”) and Group I & II Polymers and Resins Industry, which were proposed on April 25, 2023. In the comments, NACAA expressed support for measures to significantly reduce emissions of EtO and other hazardous air pollutants (HAPs) from HON sources and recommended that EPA accelerate the research needed to develop accurate monitoring, sampling and analytical methods for EtO and improve the understanding of the formation, prevalence and role of background EtO concentrations. NACAA also supported EPA’s plan to require fenceline monitoring to provide nearby communities, regulatory agencies and the facilities with important information about emissions levels, exposure and the efficacy of control equipment. NACAA supported EPA’s community-based risk assessment that expanded the analysis of the impacts of emissions to include other operations and pollutants beyond the source category but recommended that it be expanded in the future to include other types of sources (e.g., mobile sources) and other routes of exposure beyond inhalation. Finally, NACAA endorsed EPA’s continued reliance on the Integrated Risk Information System (IRIS) toxicity value for EtO when assessing risk. On July 20, 2023, EPA extended the comment period for the proposal to July 7, 2023. NACAA members are encouraged to submit comments from their agency ahead of this deadline, if they wish.
For further information:
https://www.4cleanair.org/wp-content/uploads/HON-NACAA-letter-June-22-2023.pdf
and
and
NACAA submitted comments to EPA on the proposed National Emission Standards for Hazardous Air Pollutants (NESHAP) for ethylene oxide (EtO) emissions standards for Commercial Sterilizers and the associated Residual Risk and Technology Review, which was proposed on April 13, 2023. NACAA expressed support for measures to significantly reduce emissions of EtO and other hazardous air pollutants (HAPs) from commercial sterilizers and offered recommendations pertaining to EPA’s proposal. Specifically, NACAA urged EPA to: accelerate the research needed to develop accurate monitoring, sampling and analytical methods for EtO; improve the understanding of the formation, prevalence and role of background EtO concentrations; call for fenceline monitoring or some sort of ambient monitoring to provide nearby communities, regulatory agencies and the facilities with important information about emissions levels, exposure and the efficacy of control equipment; address off-site emissions, which can be significant, including those from aeration facilities, storage warehouses and other locations; require that area source EtO commercial sterilizers subject to subpart O obtain Title V permits; and expand its analysis of the risks and impacts of emissions to include other operations and pollutants beyond those in the source category. NACAA also endorsed EPA’s continued reliance on the Integrated Risk Information System (IRIS) toxicity value for EtO when assessing risk.
For further information:
https://www.4cleanair.org/wp-content/uploads/Commercial-Sterilizers-NACAA-Letter-June-22-2023.pdf
and
EPA, under court order, issued a final rule, titled “Renewable Fuel Standard (RFS) Program: Standards for 2023–2025 and Other Changes.” The regulatory action, known as the RFS “Set” Rule, sets Renewable Volume Obligations (RVOs) and percentage standards for 2023 through 2025 for cellulosic biofuel, biomass-based diesel, advanced biofuel and total renewable fuel. Compared to the volumes proposed by EPA in December 2022 the final volumes for cellulosic biofuel, advanced biofuel, conventional fuel and total renewable fuel decreased for 2024 and 2025, which EPA largely attributes to the fact that the final rule does not include the proposed “eRin” volumes. Under the proposal, EPA, for the first time, sought to address the generation of qualifying renewable electricity from renewable biomass that is used as transportation fuel for electric vehicles. However, as EPA writes in the final rule, “In light of the significant number of comments provided by stakeholders on EPA’s proposed eRIN approach, and the complexity of many of the topics raised in those comments, and the consent decree deadline on other portions of the rule, we are not finalizing the proposed revisions to the eRIN program at this time. We have adjusted [from the proposal] the final volume requirements for this rulemaking to reflect this decision.” EPA adds, “Given strong stakeholder interest in the proposed eRIN program and the range of potential benefits that the program could provide, EPA will continue to work on potential paths forward for the eRIN program. To that end, EPA will continue to assess the comments received on the proposal. EPA will also seek additional input from stakeholders to inform potential next steps.”
For further information:
and
By a vote of 50 to 50 the U.S. Senate failed to override President Biden’s June 14, 2023, veto of S.J, Res. 11, a congressional joint resolution to disapprove EPA’s January 24, 2023, final rule establishing more protective NOx standards for new heavy-duty vehicles and engines (see related article in the June 10-16, 2023 Washington Update). To override a veto, two-thirds of the members of each chamber of Congress must vote in favor of the override. S.J. Res. 11 was approved by the Senate on April 26, 2023, by a vote of 50 to 49 and by the House on May 23, 2023, by a vote of 221 to 203.
For further information:
https://www.congress.gov/bill/118th-congress/senate-joint-resolution/11/actions
The House Oversight and Accountability Subcommittee on Economic Growth, Energy Policy, and Regulatory Affairs held a hearing, titled “Clearing the Air: Examining the Environmental Protection Agency’s Proposed Emissions Standards.” The hearing was scheduled so that EPA’s Principal Deputy Assistant Administrator for the Office of Air and Radiation, Joseph Goffman, could appear before the Subcommittee after not participating in a May 17, 2023 hearing, “Driving Bad Policy: Examining EPA’s Tailpipe Emissions Rules and the Realities of a Rapid Electric Vehicle Transition.” After providing an oral statement, Mr. Goffman was questioned by Subcommittee members including Chairman Pat Fallon (R-TX), who incorrectly stated that EPA’s proposed rules “would require that electric vehicles comprise 67 percent of all new car sales by 2032” (the agency’s proposed light- and medium-duty vehicle rule includes performance-based CO2 standards that mandate neither the use of any specific technology nor that any percentage of vehicle production be electric vehicles) and issued a press release following the hearing, titled “Fallon: EPA Proposed Emission Rules Hijack Auto & Energy Industries, Remove Consumer Choice.”
For further information:
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Senator Shelley Moore Capito (R-WV), Ranking Member of the Senate Environment and Public Works Committee, introduced the National Ambient Air Quality Standards Implementation Act of 2023, to “amend the Clean Air Act to facilitate efficient State implementation of certain national ambient air quality standards, and for other purposes.” Under S. 2125, the minimum interval between NAAQS reviews would be extended from five years to 10 years and, specifically with respect to the ozone and particulate matter (PM) NAAQS, EPA would be prohibited from completing any review of existing criteria or NAAQS or proposing any revisions until December 31, 2030 for ozone and December 18, 2030 for PM. With respect to the role of the Clean Air Scientific Advisory Committee in reviewing NAAQS, S. 2125 would add a requirement that the EPA Administrator shall explicitly request, and CASAC shall provide, advice regarding any adverse public health, welfare, social, economic, or energy effects that may result from various strategies for attainment and maintenance of the NAAQs. In addition, EPA would be required, concurrent with the publication of any final rule establishing or revising a NAAQS, to publish final implementation rules or guidance that must include information related to the submission and consideration of preconstruction permit applications; new or revised NAAQS would not apply to preconstruction permit applications until these requirements are met. These provisions would not, however, relieve a preconstruction permit applicant from the obligation to install the best available control technology and lowest achievable emission rate technology, as applicable, nor limit the permitting authority of states, localities or tribes to impose more stringent emission requirements than under the federal NAAQS. Other revisions include modifying the Clean Air Act such that the requirement for inclusion of specific contingency measures in nonattainment State Implementation Plans would not apply to Extreme nonattainment areas and, with respect to Reasonable Further Progress plans for Moderate and Serious ozone nonattainment areas, an “economic feasibility” requirement would be added. Six Senators have joined Ms. Capito as cosponsors of the bill: John Barrasso (R-WY), John Cornyn (R-TX), Cynthia Lummis (R-WY), Pete Ricketts (R-NE), Dan Sullivan (R-AK) and Roger Wicker (R-MS).
For further information:
and
The House Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials held a hearing, titled “Driving Affordability: Preserving People’s Freedom to Buy Affordable Vehicles and Fuel,” to discuss with EPA and stakeholders “how we can increase – not limit – people’s choices and access to reliable, affordable transportation fuels and vehicles.” In a statement announcing the hearing Cathy McMorris Rogers (R-WA) and Bill Johnson (R-OH), Chairs of the Committee and Subcommittee, respectively, wrote “Americans need affordable, reliable transportation to get to work, take their children to school, go to the doctor, and live their lives. Today, however, people are struggling to afford some of the highest energy and auto prices in decades as a result of Biden’s energy and inflation crisis. His rush-to-green policies are hurting middle- and low-income families the most. The Environmental Protection Agency’s (EPA) recent regulatory efforts to advance this radical agenda, particularly on the kind of cars Americans can drive and the fuels they can use, risk further disrupting fuel markets and increasing transportation costs.” Witnesses who testified at the hearing were Joseph Goffman, Principal Deputy Administrator of EPA’s Office of Air and Radiation; Chet Thompson, President and CEO of American Fuel and Petrochemical Manufacturers; Neil Caskey, CEO of the National Corn Growers Association; Scott Lambert, President of the Minnesota Auto Dealers Association; and Genevieve Cullen, President of the Electric Drive Transportation Association.
For further information:
In a divided panel opinion, the U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded two provisions in EPA’s “HFC Phasedown Rule,” the October 2021 rule that created a cap-and-trade program to phase down U.S. production and consumption of hydrofluorocarbons (HFCs) by 85% over 15 years, as required by the American Innovation and Manufacturing (AIM) Act of 2020. The court agreed with trade association petitioners that EPA lacked statutory authority to pass two measures contained in the rule: 1) a ban on the use of non-refillable cylinders to transport HFCs, and 2) a mandated QR-code certification and tracking system for HFC distribution. The court rejected EPA’s contention that the AIM Act’s language requiring EPA to “ensure” that HFC production and consumption do not exceed the phasedown cap gave the agency broad authority to enact these provisions, observing that other provisions of the Act explain how the agency is to ensure the cap is met. The court also stated that its conclusion is bolstered when it considers “the breadth of the EPA’s claimed power,” noting that the refillable-cylinder provision alone would likely impose between $441 million and $2 billion in costs on the regulated industry. “To be clear, we do not decide this case under the major-questions doctrine,” the court asserted. Instead, it explained that its conclusion is based on a long-standing rule of statutory construction: “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” The court rejected a challenge by petitioner Choice Refrigerants to EPA’s authority to regulate HFCs within blends, as well as Choice’s argument that Congress impermissibly delegated legislative power to EPA by giving it unguided discretion to distribute HFC allowances. The opinion of the court was filed by Judge Walker. Judge Pillard filed an opinion concurring in part and dissenting in part, in which she explained that she would have upheld the refillable-cylinder and QR-code provisions as falling “squarely within EPA’s statutorily delegated authority.”
For further information:
https://www.4cleanair.org/wp-content/uploads/HeatingACRefrigvEPA-DCCirOpinion-06202023.pdf