March 5-10, 2023
In this week's issue:
- Proposed FY 2024 Federal Budget Includes Increases for EPA; Lacks Specifics on Air Grants (March 9, 2023)
- D.C. Circuit Upholds 2021 Revised CSAPR Update (March 3, 2023)
- Researchers Find Virtually Everyone on Earth Faces Exposure to PM2.5 at Levels Exceeding Those Recommended by WHO (March 7, 2023)
- The Guardian Newspaper Reports Results of Its Analysis Identifying U.S. Areas with Worst Air Pollution (March 8, 2023)
- DOE Announces $6 Billion for Industrial Decarbonization (March 8, 2023)
- EPA Publishes Proposal to Grant Governors’ Requests for Removal of Summertime Gasoline Volatility Waiver; NE and IA AGs Threaten Legal Action (March 6, 2023)
- EPA Publishes Official Extension for State ACE Rule Plans (March 9, 2023)
- EPA Publishes Final Action Reaffirming MATS “Appropriate and Necessary” Supplemental Finding (March 6, 2023)
- EPA Announces Final Outcome of Review of NSPS for Surface Coating of Plastic Parts for Business Machines (March 7, 2023)
- EPA Publishes Final Air Toxics Standard for Wood Preserving Area Sources (March 8, 2023)
- EPA Effluent Proposal Under Clean Water Act Would Require New Controls at Coal Fired Power Plants (March 7, 2023)
- State Petitioners Challenging EPA’s Waiver for California’s Advanced Clean Cars Program File Reply Brief in D.C. Circuit (March 10, 2023)
- “Friends of the Court” File Briefs in D.C. Circuit in Support of EPA’s Light-Duty Vehicle GHG Emission Standards Rule (March 3, 2023)
This Week in Review
The Biden Administration issued top-line figures for its proposed FY 2024 budget for the federal government, calling for $12 billion for EPA’s total budget (compared to $10.1 billion in FY 2023), which is an increase of 19 percent. Unlike previous years, the budget announcement did not include specifics about EPA’s programs, such as recommended funding levels for Section 103/105 grants, Targeted Airshed Grants, DERA funding or other programs. However, the budget’s summary did state that the “[b]udget also supports $367 million to assist air pollution control agencies in the development, implementation, and evaluation of programs for the National Ambient Air Quality Standards (NAAQS) and to establish standards for reducing air toxics,” hinting that this may be the proposed amount for state, local and tribal air grants. EPA Administrator Michael Regan made an announcement stating that full details on the budget will be released later in March. His announcement did provide a few details about environmental programs, however, indicating that the federal government’s proposal calls for the following:
- $1.4 billion to “improve air quality and reduce localized pollution, reduce exposure to radiation, and improve indoor air for communities across the country. This includes $180 million to support the development and implementation of national emission standards to reduce air pollution from vehicles, engines and fuels”;
- an increase to EPA’s staff of 2,400 Full Time Equivalents (FTEs) – compared to 2022 – for a total of over 17,000 FTEs;
- nearly $5 billion to address climate change mitigation and adaptation;
- nearly $1.8 billion across numerous programs to support environmental justice efforts;
- $246 million for civil enforcement efforts, $75 million for criminal enforcement measures and $165 million for compliance monitoring; and
- approximately $170 million to combat Per- and Polyfluoroalkyl Substances (PFAS), including increasing EPA’s understanding of PFAS impacts and restricting use to prevent PFAS from entering the air, land and water.
For further information:
https://www.epa.gov/newsreleases/statement-administrator-regan-presidents-fy-2024-budget
and
https://www.whitehouse.gov/wp-content/uploads/2023/03/budget_fy2024.pdf
The U.S. Court of Appeals for the District of Columbia Circuit issued a decision rejecting petitioner Midwest Ozone Group’s (MOG) challenge to EPA’s April 30, 2021 (announced March 15, 2021), Final Revised Cross-State Air Pollution Rule (CSAPR) Update (see related article in the March 13-19, 2021 Washington Update). MOG, the sole petitioner in the case, argued that the Final Revised CSAPR Update should be remanded to EPA because 1) EPA acted unlawfully and arbitrarily after the D.C. Circuit’s remand of the CSAPR Update by taking a number of “shortcuts” in order to meet a March 15, 2021, deadline imposed by a New York district court; 2) EPA’s approach to identifying downwind receptors (Step 1) was arbitrary and inconsistent with the remand in the case of Wisconsin v. EPA; 3) EPA arbitrarily relied on inappropriate monitoring data when making its determination of upwind state significant contribution to downwind state nonattainment or maintenance (Step 2); and 4) EPA’s action imposing additional control requirements on electric generating units (Step 3) was inconsistent with the Wisconsin remand and based on erroneous data. In the D.C. Circuit opinion, written on behalf of the three-judge panel, Judge J. Michelle Childs writes, “MOG contends that the Revised Rule is arbitrary and capricious, and that EPA failed to conduct a legally and technically appropriate assessment as required by the Good Neighbor Provision of the Clean Air Act (CAA). 42 U.S.C. § 7410(a)(2)(D)(i). We disagree. Instead, we hold that the Revised Rule is an appropriate exercise of EPA’s statutory authority under the ‘Good Neighbor Provision,’ and deny the petition on the merits.”
For further information:
In a study published in The Lancet Planetary Health, researchers at Monash University in Melbourne, Australia conclude that in 2019, “only 0.18% of the global land area and 0.001% of the global population had an annual exposure to PM2.5 at concentrations lower than 5 [micrograms per cubic meter] μg/m3, with more than 70% of days having daily PM2·5 concentrations higher than 15 μg/m3. Five μg/m3 is the World Health Organization’s (WHO) recommended annual PM2.5 limit and 15 μg/m3 is WHO’s recommended daily recommended limit. Noting that “short-term exposure to ambient PM2.5 is a leading contributor to the global burden of diseases and mortality” the researchers explain that few studies have offered the global spatiotemporal variations of daily PM2.5 concentrations over recent decades. However, in their study, the Monash University researchers used deep ensemble machine learning (DEML) to estimate global daily PM2.5 concentrations between January 1, 2000 and December 31, 2019, combining ground-level PM2.5 measurements from nearly 5,500 monitoring stations in 65 countries with GEOS-Chem chemical transport model simulations of PM2.5 concentrations, meteorological data and geographical characteristics. “The high-resolution estimates of daily PM2.5 provide the first global view of the unequal spatiotemporal distribution of PM2.5 exposure for a recent 20-year period, which is of value for assessing short-term and long-term health effects of PM2.5, especially for areas where monitoring station data are not available,” write the researchers. In a press release, titled “World first study into global daily air pollution shows almost nowhere on earth is safe,” Monash University Professor Yuming Guo explains that this study is important in that “It provides a deep understanding of the current state of outdoor air pollution and its impacts on human health. With this information, policymakers, public health officials, and researchers can better assess the short-term and long-term health effects of air pollution and develop air pollution mitigation strategies.”
For further information:
https://www.thelancet.com/journals/lanplh/article/PIIS2542-5196(23)00008-6/fulltext
and
As part of its ongoing series, titled “America’s Dirty Divide,” The Guardian newspaper published three related items: 1) “Revealed: the 10 worst places to live in U.S. for air pollution,” 2) “U.S. neighborhoods with more people of color suffer worse air pollution” and 3) “Do you live in an air pollution hotspot? Find out with our interactive map.” According to The Guardian, its identification of “the 10 worst places to live” is based on “an analysis using cutting-edge modelling.” The paper goes on to explain, “These findings – based on a model developed by a team of researchers at institutions including the University of Washington – show that, across the contiguous US, the neighborhoods burdened by the worst pollution are overwhelmingly the same places where Black and Hispanic populations live. Race is more of a predictor of air pollution exposure than income level, researchers have found.” (At the end of this statement, The Guardian cites a December 2021 study, “Disparities in Air Pollution Exposure in the United States by Race/Ethnicity and Income, 1990-2010.”)
For further information:
https://www.theguardian.com/us-news/2023/mar/08/us-air-pollution-people-of-color-census-districts,
https://www.theguardian.com/us-news/series/americas-dirty-divide
and
The U.S. Department of Energy (DOE) has announced funding to support early-stage investments in reducing emissions from industrial sectors including iron and steel, cement and concrete, chemicals and refining, and aluminum. DOE’s new Industrial Demonstrations Program will fund projects focused on these sectors because they have high levels of emissions that are often difficult to reduce. The funding, from the Bipartisan Infrastructure Law of 2021 and the Inflation Reduction Act of 2022, will support first-of-a-kind or early-stage commercial-scale projects. DOE’s Office of Clean Energy Demonstrations will manage the demonstration program and provide up to half of the cost of each project. DOE expects to award up to 65 projects in high-emitting industries and for cross-cutting technologies. Industrial emissions account for about one third of U.S. CO2 emissions, and the White House described this program as the largest investment in efforts to cut industrial emissions in U.S. history. In our January 15, 2021 Transition Letter to the Biden-Harris Administration, NACAA wrote: “Industrial sources are rapidly gaining on transportation and power and will soon be the sector that emits the most GHGs. Most NACAA agencies have little authority to address GHG emissions from these facilities, and it is a sector that must be regulated at the national level. In addressing this, EPA should rely on technology-forcing regulations that create jobs, protect communities and make the U.S. a global leader in industrial innovation.”
For further information:
https://oced-exchange.energy.gov/Default.aspx?source=email#FoaId3d36f88c-0527-4539-b90b-41895ad5edb2
and
https://www.4cleanair.org/nacaas-transition-document-for-the-biden-harris-administration
EPA published in the Federal Register (88 Fed. Reg. 13,758) a notice of proposed rulemaking (NPRM) 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 (E10) 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 its NPRM, EPA proposes to remove the summertime 1-pound-per-square-inch RVP waiver for E10, thereby allowing the year-round sale of E15 in the affected states. EPA also states in the proposal that it 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 on March 21, 2023 and accept written public comments until April 20, 2023. In a related action, also on March 6, 2023, the Attorneys General (AG) of Iowa and Nebraska sent EPA Administrator Michael Regan a notice of intent to sue for the agency’s alleged failure to perform mandatory, nondiscretionary duties under CAA section 211(h)(5), which requires that EPA promulgate regulations waiving the summertime RVP waiver within 60 days of a Governor’s notification requesting such action. The Governors of Iowa and Nebraska notified EPA of their requests on April 28, 2022. The AGs write, “The Administrator’s delay in acting on such a request and the proposed further delay in implementation [to April 28, 2024] constitute arbitrary and capricious action, violate the statutory text, and are in effect a constructive denial of the waiver the Governors requested….Therefore, the States of Iowa and Nebraska urge EPA to change the effective date of the regulations in the covered states to April 28, 2023. If EPA believes it is not able to comply with the Clean Air Act and promulgate the timely regulations, we demand that EPA issue temporary emergency declarations for the 2023 high-ozone season to bridge the gap until the waiver takes place. Should EPA fail to do so within 60 days of this notice, we reserve the right to sue for relief, including an order compelling EPA to promptly perform its mandatory, non-discretionary duties.”
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-03-06/pdf/2023-04375.pdf, https://www.4cleanair.org/wp-content/uploads/NE_IA_NOI-Summer-2024-Start-of-Waiver-of-RVP-Waiver-030623.pdf
and
EPA published in the Federal Register (88 Fed. Reg. 14,918) a direct final rule, announced on March 8, 2023, that extends until April 15, 2024 the due date for the submittal of state plans under the Affordable Clean Energy (ACE) Rule. EPA said that this extension “makes clear that EPA does not expect states to take immediate action to develop and submit plans under Clean Air Act section 111(d) with respect to greenhouse gas emissions from power plants at this time.” EPA promulgated the ACE Rule on July 18, 2019, but the D.C. Circuit vacated the rule on January 19, 2021 and remanded to the agency for further proceedings consistent with its opinion. The now-vacated rule required states to develop plans to limit CO2 at coal-fired electric generating units. ”Because the ACE Rule’s July 8, 2022 deadline passed while the rule was vacated by the D.C. Circuit, and because states had no reason to continue to work on their plans during the period when the ACE Rule was vacated, it is necessary to extend the deadline for state plan submittal,” EPA states in the preamble to this week’s rule. A replacement rule for the ACE Rule is widely expected to be issued in the spring of 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-03-10/pdf/2023-04959.pdf
and
https://www.epa.gov/stationary-sources-air-pollution/affordable-clean-energy-rule
EPA published in the Federal Register (88 Fed. Reg. 13,956) a final action reaffirming its 2016 “supplemental finding” that it is “appropriate and necessary” to regulate emissions of hazardous air pollutants (HAPs) from coal- and oil-fired electric utility steam generating units (EGUs) under section 112 of the Clean Air Act, after considering costs. This action was signed by the EPA Administrator on February 17, 2023. On May 22, 2020, EPA had issued a finding that it was not appropriate and necessary to regulate EGU HAPs under Section 112. This latest action revokes the May 2020 finding. The original appropriate and necessary finding, issued in 2000, formed the legal underpinning for the 2012 Mercury and Air Toxics Standards (MATS). EPA’s 2016 supplemental finding, which took costs into consideration following a decision of the U.S. Supreme Court, concluded that the finding remained correct. Subsequently, however, the agency reversed that decision in the May 22, 2020 MATS Residual and Technology Review (RTR) rule. The agency’s 2020 finding was based on a cost-benefit analysis that considered only “direct” benefits from reducing mercury and other HAPs and not from decreasing particulate matter. In its newly published final action reaffirming that it does remain appropriate and necessary to regulate power plants under Section 112, EPA considered updated information on the public health burden associated with HAP emissions from coal- and oil-fired EGUs as well as the costs of reducing those emissions under MATS; it also concluded that the framework applied in the 2020 finding was “ill-suited to assessing and comparing the full range of advantages and disadvantages” of HAP emissions.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-03-06/pdf/2023-03574.pdf
and
EPA announced a final rule reflecting the outcome of its review of the New Source Performance Standards (NSPS) for the Surface Coating of Plastic Parts for Business Machines. The final rule includes amendments to the NSPS based on EPA’s determination that there are emission reduction techniques used in practice for surface coating operations that achieve emission reductions greater than those currently required under subpart TTT. Accordingly, EPA has set volatile organic compound (VOC) emission limits for prime, color, texture and touch-up coating operations under a new subpart TTTa for affected facilities that begin construction, reconstruction or modification after June 1, 2022 (the publication date of the proposed version of this final rule). Subsection TTT and new subsection TTTa also include a requirement for the electronic submission of periodic compliance reports. This final action will take effect upon its publication in the Federal Register.
For further information:
https://www.epa.gov/system/files/documents/2023-03/FRN_BusinessMachines_Final.pdf
and
EPA published in the Federal Register the final National Emission Standards for Hazardous Air Pollutants (NESHAP) for Wood Preserving Area Sources (88 Fed. Reg. 14,280). This final rule, which was signed by the EPA Administrator on February 27, 2023, is based on the required technical review that must be conducted 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 and, therefore, there are no amendments to the existing NESHAP, except for minor edits and formatting changes to the table of applicable general provisions. This regulation also includes technical corrections to the NESHAP for the Surface Coating of Wood Building Products.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-03-08/pdf/2023-04376.pdf
and
and
EPA issued a proposed rule under the Clean Water Act to strengthen limits on wastewater discharges of toxic metals including mercury, arsenic and selenium from coal-fired power plants, reversing a 2019 rollback of 2015 standards by the previous administration. The 2015 Effluent Limitations Guidelines and Standards established new or additional requirements for wastewater streams from the following processes and byproducts associated with steam electric power generation: flue-gas desulfurization, fly ash, bottom ash, flue-gas mercury control and gasification of fuels such as coal and petroleum coke. The 2023 proposed rule would also establish definitions for liquids stored in coal ash ponds and other surface impoundments, although no discharge limits are set in the proposal. EPA estimates its 2023 proposed rule would reduce the amount of wastewater pollutants by approximately 584 million pounds per year, which would require upgrades of pollution controls at 33 facilities with coal-fired units.
For further information:
https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-2023-proposed-rule
and
https://www.4cleanair.org/wp-content/uploads/coalproprule.pdf
State petitioners in Ohio v. EPA filed their reply brief in the U.S. Court of Appeals for the District of Columbia Circuit. The 17 states, as well as a group of “private petitioners” representing industry, are challenging 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, both of which are 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. In their reply brief, the state petitioners argue that the waiver and Clean Air Act section 209(b) under which it was granted are unconstitutional because “both deny every State except California the right to equal sovereignty.” They also contend that the waiver is in violation of the Energy Policy and Conservation Act of 1975, “which preempts state-law regulations ‘related to’ fuel economy. 49 U.S.C. §32919(a). Because carbon-emission standards are fuel-economy standards, California’s carbon-emission standards are ‘related to’ fuel economy. The waiver is thus unlawful, as it empowers California to enforce preempted regulations.” “The waiver impairs the States’ constitutional and economic interests – it denies them equal sovereignty and forces them to spend more to purchase the many vehicles they need. Those injuries are fairly traceable to the waiver and redressable with a favorable ruling. Therefore, this Court has Article III jurisdiction. It must exercise that jurisdiction and set aside the EPA’s unlawful waiver,” the petitioners further argue.
For further information: https://www.4cleanair.org/wp-content/uploads/Ohio-v.-EPA-State-Petitioners-Reply-Brief-3-10-23.pdf
Eight amicus briefs were filed in the U.S. Court of Appeals for the District of Columbia Circuit in support of respondent EPA, urging the D.C. Circuit to deny petitions for review of the agency’s December 30, 2021, Final Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards. This final rule has been challenged by multiple parties, including a coalition of 16 states, led by Texas, and various petitioners or groups of petitioners from industry and trade associations. The case is captioned Texas v. EPA (No. 22-1031), which consolidates all petitions filed. The “friends of the court” filing briefs supporting EPA’s rule include Senator Tom Carper (D-DE) and Rep. Frank Pallone (D-NJ), Chairman of the Senate Environment and Public Works Committee and Ranking Member of the House Energy and Commerce Committee, respectively; the Constitutional Accountability Center; Consumer Reports; the International Council on Clean Transportation; the Institute for Policy Integrity at New York University School of Law; a coalition of 11 medical organizations; the National League of Cities and U.S. Conference of Mayors; and two “former EPA managers,” Margo Oge (formerly Director of EPA’s Office of Transportation and Air Quality) and John Hannon (formerly Assistant General Counsel in EPA’s Office of General Counsel).
For further information:
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-Carper-Palone-Amicus-Brief-3-2-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-Const.-Acct.-Ctr.-Amicus-Brief-3-3-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-Consumer-Reports-Amicus-Brief-3-3-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-ICCT-Amicus-Brief-3-3-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-Medical-Grps.-Amicus-Brief-3-3-23.pdf,
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-NLC-USCM-Amicus-Brief-3-2-23.pdf
and
https://www.4cleanair.org/wp-content/uploads/Texas-v.-EPA-Oge-Hannon-Amicus-Brief-3-8-23.pdf