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May 27-June 2, 2023
In this week's issue:
- NACAA and AAPCA Jointly Seek 30-Day Comment Period Extension for EPA’s Power Plant GHG Proposal (May 30, 2023)
- EPA Extends Comment Period for Proposals for Commercial Sterilizers (June 1, 2023)
- EPA Announces Availability of Draft Policy Assessment for Secondary NOx, SOx PM NAAQS Review (May 31, 2023)
- Court Revives Juliana “Kids’ Climate” Lawsuit (June 1, 2023)
- Environmental Groups File Title VI Petition Seeking to Bar Use of SILs in Permitting by Louisiana and Texas (May 30, 2023)
- EPA Seeks Comment on Proposed Consent Decree to Settle Citizen Suit Over Ethylene Oxide Emission Standards for Commercial Sterilizers (May 31, 2023)
- EPA Publishes Correction to Final Test Method Revisions Rule (May 30, 2023)
This Week in Review
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NACAA and the Association of Air Pollution Control Agencies (AAPCA) have jointly submitted a letter to regulations.gov and EPA requesting additional time for the Associations and their member agencies to prepare comments in response to EPA’s recently proposed “New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units: Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule.” EPA proposed this rule (Docket ID No. EPA-HQOAR-2023-0072) on May 11, 2023, and when published in the Federal Register on May 23, 2023, the proposal stipulated a 60-day comment deadline of July 24, 2023. “Addressing the substantial policy, legal, and technical components of a rulemaking of this magnitude requires significant work to coordinate staff analysis and draft comments,” the letter says. “State and local agency timelines for review may also need to accommodate multiple interagency approval processes. Providing a full 90 days for comment will improve meaningful, applicable input from state and local air agencies, which have expertise that will be critical to successful implementation of the final rule.” The Associations seek an additional 30 days, until August 21, to allow for thorough review of the proposal and the development of substantive comments.
For further information:
EPA has published in the Federal Register a notice that it is extending by 15 days the public comment period for proposed National Emission Standards for Hazardous Air Pollutants for ethylene oxide (EtO) emissions standards for Commercial Sterilizers and a companion measure – a Proposed Interim Decision (PID) and draft risk assessment addendum for EtO under the Federal Insecticide, Fungicide, and Rodenticide Act (88 Fed.Reg. 35,808). The comment deadline, which had been June 12, 2023 is now June 27, 2023.
For further information: https://www.govinfo.gov/content/pkg/FR-2023-06-01/pdf/2023-11619.pdf,
and
EPA published a notice in the Federal Register (88 Fed. Reg. 34,852) announcing the availability of “Policy Assessment for the Review of the Secondary National Ambient Air Quality Standards for Oxides of Nitrogen, Oxides of Sulfur and Particulate Matter – External Review Draft (PA).” Preparation of this document is part of the current review of the secondary NAAQS for the three pollutants. When final, the PA is intended to offer a range of potential policy options to inform the Administrator’s decisions regarding the secondary standards that provide the “requisite” protection of public welfare, including for direct effects of the pollutants in ambient air as well as the effects of the pollutants deposited into aquatic and terrestrial ecosystems. Table 7-1 on p. 7-32 of the 601-page document provides a summary of the current standards and the draft range of potential policy options for consideration. EPA will accept comments on the draft PA through July 31, 2023.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-05-31/pdf/2023-11391.pdf
and
https://www.4cleanair.org/wp-content/uploads/NAAQS-Sec_NOx_SOx_PM_Draft_PA-053123.pdf
A Judge in the U.S. District Court for the District of Oregon has issued a ruling that plaintiffs in Juliana v. United States (Case No. 6:15-cv-01517-AA) can amend their complaint, allowing the case to proceed after it had been dismissed in the 9th U.S. Circuit Court of Appeals in 2020. The plaintiffs are a group of 21 young people who sued the Federal Government in 2015 arguing that their constitutional rights had been violated as a result of Federal subsidies and incentives for burning fossil fuels and damaging the climate. That 9h Circuit decision found that the courts did not have the authority to grant the relief sought by the challengers, despite their “compelling evidence”, because they lacked standing. The June 1, 2023 decision in the Oregon District said that revisions to their case, dropping demands for the government to remediate the harms caused by these emissions, were enough to allow them to have legal standing for their claims. “This court finds that plaintiffs’ proposed amendments are not futile: a declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would itself be significant relief,” the decision says.
For further information:
https://www.4cleanair.org/wp-content/uploads/ruling-in-juliana.pdf
A coalition of environmental groups filed a petition with EPA under Title VI of the Civil Rights Act charging that the states of Louisiana and Texas have abused EPA’s Significant Impact Levels (SILs) Guidance in their permitting of industrial facilities. These practices, the groups allege, are causing disproportionate harm to Black, Latino, Indigenous and other communities of color and low-income communities, in violation of environmental justice and civil rights mandates. EPA’s 2018 Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration (PSD) Permitting Program establishes emissions levels (SILs) below which EPA believes it is reasonable to conclude that the source will not “cause or contribute” to a violation of the corresponding National Ambient Air Quality Standard (NAAQS) or PSD increment for that pollutant. If an agency uses SILs in a permitting action, it must justify the values and their use in the administrative record. In their Title VI petition, the environmental groups claim that Louisiana and Texas are limiting their PSD review to compliance with SILs thresholds and avoiding their obligation to use case-specific discretion, despite using SILs in areas at risk of violating or contributing to violations of the public health-based NAAQS. As a result, the groups claim, the states are issuing PSD permits when modeling shows that new sources will cause or contribute to NAAQS violations, while also “failing to take any other remedial measures to cure the NAAQS and increment violations that appear in new sources’ air quality modeling or to collect and account for SILs use data.” They ask for EPA to use its statutory authority under both the Clean Air Act and Title VI to remedy the harms to disproportionately burdened environmental justice communities. In particular, they call on EPA Region 6 to direct the Louisiana Department of Environmental Quality (LDEQ) and Texas Commission on Environmental Quality (TCEQ) on the factors that constitute a “basis of concern” under the SILs Guidance and to bar the agencies from using SILs at the preliminary screening level in air permitting. They also ask EPA to perform a Title VI compliance review and investigate specific recent permitting actions.
For further information:
https://www.4cleanair.org/wp-content/uploads/Title-VI-petition-Louisiana-SILs.pdf
EPA published notice in the Federal Register (88 Fed. Reg. 34,853) of a proposed consent decree to settle a Clean Air Act citizen suit that seeks to compel EPA to finalize revisions to the National Emission Standards for Hazardous Air Pollutants (NESHAP) limiting ethylene oxide (EtO) emissions from commercial sterilizer facilities (“Sterilization Facilities NESHAP”). The lawsuit was filed December 14, 2022 in the U.S. District Court for the District of Columbia by California Communities Against Toxics, Clean Power Lake County, Rio Grande International Study Center, Sierra Club and Union of Concerned Scientists (see related article in the December 10-16, 2022 Washington Update). The Clean Air Act requires EPA to review and revise the standards, if necessary, at least every eight years. However, the NESHAP for the source category, which was originally issued in 1994, has not been revised since 2006. On April 13, 2023, EPA published proposed amendments to the NESHAP designed to reduce EtO emissions and protect workers based on new, significantly higher risk estimates. The proposed consent decree, if finalized, would require EPA to sign a final rule on its review and “necessary revisions” to the Sterilization Facility NESHAP by March 1, 2024. Written comments on the proposed consent decree are due by June 30, 2022.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-05-31/pdf/2023-11493.pdf
EPA published in the Federal Register (88 Fed. Reg. 34,452) corrections to a final rule published on March 29 (88 Fed. Reg. 18,396) that promulgated revisions to test methods, performance specifications and associated requirements for source testing of emissions under various EPA rules. Specifically, the “Error Corrections Rule” included amendments to typographical and technical errors, updates to outdated procedures and revisions to add clarity and consistency with other monitoring requirements. The rule addresses Methods 1, 4, 7, 19, 25, 25C, 26, 315, and 323; Performance Specifications 1, 2, 4B, 6, 12A and 16; and Procedures 1 and 5 of Appendix F. The correction published on May 30 modifies an amendatory instruction and corresponding regulatory text.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-05-30/pdf/2023-11407.pdf (corrections to final rule published May 30),
https://www.govinfo.gov/content/pkg/FR-2023-03-29/pdf/2023-04956.pdf (final Test Method Revisions Rule published March 29)
and