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November 11-17, 2023
In this week's issue:
- Congress Adopts Continuing Resolution to Continue Federal Funding and Avert a Shutdown/President Signs (November 17, 2023)
- EPA Issues Final Section 111 Implementing Regulations (November 17, 2023)
- EPA Issues Small Business and Reliability Supplemental for Power Plant GHG Proposal (November 15, 2023)
- EPA Seeks Comment on Proposal for Meaningful Public Engagement and Environmental Justice (November 17, 2023)
- EPA Amends Standards for Secondary Lead Smelters (November 10, 2023)
- EPA Publishes Proposed Amendments to Rubber Tire Manufacturing Air Toxics Standards (November 16, 2023)
- EPA Awards $8.8 Million for Independent Testing of New Wood Heaters (November 17, 2023)
- EPA Announces $15 Million in Grant Funds for HFC Reduction Programs (November 17, 2023)
- Environmental Groups Expand Scope of Lawsuit Against EPA for Failing to Act on Regional Haze SIP Revisions (November 10, 2023)
- Industry Groups File Amici Brief in Case Challenging EPA’s Waiver of Preemption for California ACT Regulation (November 13, 2023)
- Four Federal Agencies Announce MOU and Joint Work Plan on Wildland Fire and Air Quality Coordination (November 9, 2023)
- Seventy-Two House Republicans Urge EPA to Withdraw Proposal as Administration Works to Finalize Reconsideration of PM NAAQS (November 14, 2023)
- Public Interest Groups Emphasize Strong Support Protective PM Standards for Light- and Medium-Duty Vehicles (November 15, 2023)
- EPA Extends Comment Period for Proposed Revised NSPS for Volatile Organic Liquid Storage Vessels (November 16, 2023)
- House Energy and Commerce Holds Hearing on Reliability Concerns With EPA’s Power Plant GHG Proposal (November 14, 2023)
- White House Issues New Directives for Regulatory Cost Benefit Analysis (November 9, 2023)
- Fifth National Climate Assessment Cites Faster, Costlier Global Warming in U.S. than Global Average (November 13, 2023)
- European Union Agrees to Methane Emissions Law (November 15, 2023)
- Report: Net Zero by 2050 would save 32,000 Lives, $1 Trillion (November 16, 2023)
- China, U.S., Agree to Climate Cooperation (November 15, 2023)
This Week in Review
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Congress has adopted and the President has signed H.R. 6363, which is a Continuing Resolution (CR) that extends funding for federal government programs at FY 2023 levels until early 2024, thereby avoiding a federal government shutdown that would have begun after November 17 2023. The President signed the bill while in San Francisco for the Asian-Pacific Economic Cooperation summit, where he has met with Chinese President Xi Jinping and other Asian world leaders. The CR provides funding until January 19, 2024 for certain parts of the government and until February 2, 2024 for the rest (the latter including EPA’s budget). H.R. 6363 passed in the House by a vote of 336-95 on November 14 and in the Senate by a vote of 87-11 on November 15. The President signed it into law on November 17, 2023. Legislation to provide FY 2024 funding for federal programs, or another CR, must be adopted by the January 19, 2024 and February 2, 2024 deadlines to avoid federal agency shutdowns. Congress adopted a previous CR on September 30, 2023, the last day of the federal fiscal year, which provided funds until November 17, 2023. The House adopted legislation to provide FY 2024 funding for EPA on November 3, 2024, but the Senate has not yet taken similar action. The House bill calls for $6.17 billion for EPA, while proposed legislation before the Senate would provide $9.9 billion (FY 2023 funding was $10.13 billion). Section 103/105 grants are $231.4 million in the adopted House bill and $249 million in the Senate proposal (FY 2023 was $249 million).
For further information:
https://www.congress.gov/bill/118th-congress/house-bill/6363
EPA has finalized its regulations governing the implementation of rules under Section 111 of the Clean Air Act, and the rule has been published in the Federal Register (80 Fed. Reg. 80480). The amendments include revisions to the timing requirements for state plans; the addition of flexibility mechanisms; and new requirements for meaningful engagement with the public. It also revises and clarifies Remaining Useful Life and Other Factors (RULOF) considerations for states in applying a standard of performance and articulates trading and averaging as potentially approvable compliance pathways. It allows for electronic submission of state plans and provides several other clarifications and minor revisions to the implementing regulations. One of the areas of greatest interest to NACAA was the timeline being proposed for state plan submittal. The proposal had offered 15 months, which NACAA argued in its February 27, 2023 comments was inadequate. NACAA’s comments noted that to accommodate administrative procedures and to reasonably perform meaningful engagement with vulnerable communities, a minimum of 24 months would be needed, along with mechanisms to offer states extensions to accommodate these processes if necessary. EPA’s final rule extends the timeline but only to 18 months (see chart on p. 24 of the final rule) and EPA says that as they are providing those additional three months, they will not offer a mechanism for states to seek the extension flexibilities NACAA called for in its comments (see p. 35 of the final rule.)
For further information:
https://www.epa.gov/system/files/documents/2023-11/eo12866_8606_111dimpregs_final.-_0.pdf
and
https://www.4cleanair.org/wp-content/uploads/NACAA_111d_Implementing_Regs_Comments-_-02272023.pdf
and
EPA has issued a Supplemental Notice of Proposed Rulemaking (SNPRM) on its power pant GHG proposal, NSPS for Greenhouse Gas GHG Emissions from New, Modified, and Reconstructed Electric Generating Units (EGUs) under Clean Air Act (CAA) section 111(b) (EPA Docket EPA-HQ-OAR-2013-0495). A panel convened by EPA’s Small Business Advocacy Review provided feedback that potentially triggers SBREFA (the Small Business Regulatory Enforcement Fairness Act, which provides small businesses with an expanded opportunity to participate in the development of certain regulations.) EPA seeks comment on “on whether to include options to address potential reliability issues raised by small businesses and other commenters”. In addition, EPA is soliciting comment on whether to include options to address potential reliability issues raised by small business and other commenters in respect to the proposed NSPS and the proposed Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units. EPA will be taking public comment on the SNPRM for 30 days after it is published in the Federal Register.
For further information:
https://www.epa.gov/system/files/documents/2023-11/111egu_snprm.pdf
EPA has published a draft update to its Technical Guidance for Assessing Environmental Justice in Regulatory Analysis, which was first published in 2016. In the update, the agency said it is proposing several changes “in order to update the guidance with the latest scientific information and the latest agency thinking on the issue in general”. The draft guidance calls for quantitative analysis of environmental justice during the rulemaking process, but leaves the type of analysis selected to the “best professional judgment” of the agency undertaking the analysis. The guidance calls for environmental justice to be included in the planning phase of risk assessments and that agencies should “strive to characterize the distribution of risks, exposures, or outcomes within each population group, not just average impacts.” The accompanying Federal Register (88 Fed. Reg. 78747) calls for comments on the agency’s draft guidance by January 15, 2024. It calls for responses to three questions:
- How can the EPA’s Meaningful Involvement Approach support meaningful involvement without putting an extra burden on the public, and communities with environmental justice concerns specifically?
- How could the adapted Public Participation Spectrum be enhanced?
- Are there other examples of meaningful public involvement that the EPA should consider in this policy?
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-11-16/pdf/2023-25273.pdf
and
https://www.4cleanair.org/wp-content/uploads/ejguide-EPA-11_15_23.pdf
EPA has issued final amendments to the New Source Performance Standards (NSPS) for Secondary Lead Smelters and has added a new subpart that applies to new or modified facilities. The measure includes requirements for initial and periodic performance tests for particulate matter (PM) and opacity; calls for more stringent PM and opacity emission limits for new and modified sources; requires limits to apply at all times, including during startup, shutdown and malfunction; and makes monitoring, recordkeeping and reporting requirements consistent with the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the source category. Secondary lead smelters recycle lead-bearing scrap material (primarily lead acid batteries) into elemental lead or lead alloys. The process takes place in blast, reverberatory and rotary kiln furnaces. According to EPA, 11 secondary lead smelters in the country are subject to the NSPS and there are two or three new or modified sources expected to conduct secondary lead smelting over the next eight years.
For further information:
EPA has proposed, and published in the Federal Register, amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Rubber Tire Manufacturing, which was issued in 2002 and amended in 2020. The comment deadline for the proposal is January 2, 2024. The proposal is pursuant to a court ruling in Louisiana Environmental Action Network v. EPA, in which the court held that EPA must address unregulated emissions from a source category during the required eight-year technology review. The proposal would establish Maximum Achievable Control Technology (MACT) standards for total hydrocarbons as a surrogate for organic hazardous air pollutants (HAPs) and filterable particulate matter (fPM) as a surrogate for metal HAPs for the rubber processing subcategory (one of four subcategories in the source category). The proposal also includes a metal HAP standard as an alternative to the fPM limit. EPA estimates the proposal will reduce total emissions from the source category by 1,072 tons per year.
For further information: https://www.govinfo.gov/content/pkg/FR-2023-11-16/pdf/2023-25276.pdf
and
EPA announced that it has awarded $8.8 million in funding made available under the Inflation Reduction Act (IRA) to the Northeast States for Coordinated Air Use Management (NESCAUM), which leads a consortium of state and local air agencies from across the country, to support independent testing and data analysis of emissions from new models of woodstoves and wood heating devices currently on the market and coming to market under EPA’s existing New Source Performance Standards. Section 60105(d) of IRA, titled “Emissions from Wood Heaters,” makes funds available “for grants and other activities authorized under subsections (a) through (c) of section 103 and section 105 of the Clean Air Act (42 U.S.C. 7403(a)–(c), 7405) for testing and other agency activities to address emissions from wood heaters.” The funds can be used for EPA activities to address emissions from wood heaters as well as for contracts with outside organizations. The funding awarded to the NESCAUM-led consortium will also allow for results of the independent testing and emissions data analysis to be used “to develop an emissions hierarchy among the existing suite of wood heaters available at retail stores in the United States, allowing state, local, and tribal air agencies to make informed decisions regarding which wood heating appliances to rely upon for emissions reductions when included in appliance change-out programs in their jurisdictions.” The results of the consortium’s work will be made public, including through updates to be provided every six months. In a press statement issued by EPA Joseph Goffman, Principal Deputy Assistant Administrator for the Office of Air and Radiation, is quoted as saying, “Studies estimate that residential wood smoke emissions account for 10,000–40,000 premature deaths annually in the United States. Through this investment under President Biden’s Investing in America agenda, we will help improve our understanding of residential wood smoke so we can better address emissions that primarily impact disadvantaged communities in rural areas.”
For further information:
https://www.epa.gov/grants/grant-funding-emissions-wood-heaters
and
and
https://www.epa.gov/grants/air-grants-and-funding
https://www.epa.gov/grants/grant-funding-emissions-wood-heaters
EPA has announced the availability of a new grant program under the December 27, 2020 American Innovation and Manufacturing (AIM) Act to address emissions of hydrofluorocarbons (HFCs) regulated under the AIM Act and the Kigali Amendments to the Montreal Protocol. The HFC Reclaim and Innovative Destruction Grants will provide $15 million in grants to entities to develop projects for HFC reclamation and innovative destruction technologies. Successful projects should result in climate benefits by increasing the availability of reclaimed HFCs for reuse, thus decreasing the need for production of new HFCs, and reducing emissions of HFCs especially at their end-of-life. This opportunity also sets aside $1.5 million for tribes that are federally recognized. The grant funding opportunity is open until February 16, 2024. EPA will hold a one-hour public informational webinar on December 7, 2023.
For further information:
https://www.epa.gov/inflation-reduction-act/hfc-reclaim-and-innovative-destruction-grants
and
https://www.epa.gov/climate-hfcs-reduction/background-hfcs-and-aim-act
Three environmental organizations filed an amended complaint in the U.S District Court for the District of Columbia expanding the scope of an earlier complaint filed against EPA for failure to take final action on regional haze State Implementation Plan (SIP) revisions for the second planning period of the federal regional haze program. On June 15, 2023, plaintiffs Sierra Club, National Parks Conservation Association and Environmental Integrity Project asked the court to declare that EPA had failed to perform its nondiscretionary duties under the Clean Air Act by not taking final action on regional haze SIP revisions for seven states – Kansas, Massachusetts, Michigan New York, Ohio, Texas and Wisconsin – and to order the agency to complete all required actions “as expeditiously as possible.” In their amended complaint, plaintiffs identify 27 additional states for which they allege EPA has failed to take final action on plan revisions, which are to provide for reasonable further progress toward eliminating visibility pollution in Class I national parks and wilderness areas by 2064. The 27 additional states are Florida, Indiana, Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Maryland, Montana, North Carolina, North Dakota, New Hampshire, Nevada, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia and Wyoming. Plaintiffs’ requested relief is the same as that in their June 2023 complaint.
For further information:
and
Industry groups supporting petitioners in litigation challenging EPA’s granting of a waiver of preemption under the Clean Air Act (CAA) for California’s Advanced Clean Trucks Regulation filed an amici curiae brief in the U.S. Court of Appeals for the District of Columbia Circuit. Amici seek to bolster the argument that EPA’s grant of the waiver was arbitrary and capricious by contending that the CAA allows California to establish emission standards “while requiring EPA to curtail state overreach through federal preemption”; the waiver violates the CAA requirement that protectiveness determinations not be arbitrary and capricious; and that the waiver is arbitrary and capricious because the ACT Regulation is inconsistent with Section 202(a) of the CAA. Those joining the “friends of the court” brief are the Chamber of Commerce of the United States of America; American Trucking Associations, Inc.; Truckload Carriers Association: National Tank Truck Carriers; and Specialty Equipment Market Association & Performance Racing, Inc. Petitioners in this case filed their opening briefs on November 3, 2023 (see related article in the November 4-10, 2023, Washington Update).
For further information:
EPA, the U.S. Department of Agriculture, the U.S. Department of the Interior and the U.S. Centers for Disease Control and Prevention announced a Memorandum of Understanding (MOU) “to strengthen their coordination and implementation of policies, communications, and programs that relate to the use of prescribed fire to benefit restoration of forests and other wildlands, while protecting communities from wildfire and smoke impacts and promoting public health and welfare. With respect to air quality impacts specifically, the Agencies seek to reduce the impact of emissions from wildland fires on concentrations of particulate matter, ozone, and other pollutants of concern.” Along with the MOU, the four agencies released a joint work plan in which they outline the wildland fire-related priorities on which they will focus in fiscal years 2024 and 2025, including community preparedness; ensuring that land management and public health goals are address together; data collection and sharing; and interagency communication and messaging.
For further information:
https://www.4cleanair.org/wp-content/uploads/Wildland_Fire_and_AQ_Coordination-Fed_MOU-110823.pdf
and
As the Biden Administration’s Office of Management and Budget (OMB) continues its interagency review of the final outcome of the reconsideration of the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM), 72 House Republicans weighed in to oppose EPA’s proposal to make the standards more protective. In their November 14, 2023, letter the lawmakers, led by Rep. Paul Johnson (R-OH), Chair of the House Energy and Commerce Subcommittee on Environment, Manufacturing and Critical Minerals, call on EPA Administrator Michael S. Regan to withdraw the agency’s PM2.5 reconsideration proposal. The signatories write that over the past two decades PM2.5 emissions have declined by 37 percent due to “the hard work of businesses and government officials” and, further, that this downward trend will continue through existing programs, including the PM2.5 standards that EPA retained, without revision, in 2020. “Despite these ongoing improvements, the EPA’s discretionary and out-of-cycle PM2.5 reconsideration would dramatically increase so-called nonattainment areas across the country, create permitting gridlock, even where its stringent standards are met, and strain state and local administrative resources,” they wrote. OMB’s Office of Information and Regulatory Affairs began review of EPA’s final PM NAAQS reconsideration rulemaking package on September 22, 2023. EPA has said it anticipates taking final action this fall.
For further information:
https://www.4cleanair.org/wp-content/uploads/PM_NAAQS-House_Rs_Letter_to_MRegan-111423.pdf
A coalition of public interest groups sent a letter to President Biden reemphasizing their strong support for the strengthened particulate matter (PM) emission standards included in EPA’s May 5, 2023, proposed rule for Multi-Pollutant Emission Standards for Light- and Medium-Duty Vehicles (LMDVs) to take effect beginning with model year 2027. In their letter, the 29 organizations write, “Finalizing strong PM standards that drive the deployment of off the shelf, low-cost gasoline particulate filters will save lives and reduce asthma attacks and cancer risk, all while saving our nation billions of dollars in avoided healthcare costs.” The groups also urge EPA to finalize the LMDV rule, “including the strong health-protecting particulate standards, without delay.”
For further information:
and
EPA extended, by 18 days – until December 8, 2023 – the public comment period on proposed revisions to the New Source Performance Standards (NSPS) for volatile organic liquid (VOL) storage vessels. The proposed revisions apply to VOL storage vessels, including petroleum liquid storage vessels, that begin construction, reconstruction or modification after October 4, 2023, the day on which the proposal was published in the Federal Register (88 Fed. Reg. 68,535). The revisions include a new subpart Kc of the NSPS under which vapor pressure applicability thresholds for affected vessels would be reduced and volatile organic compound standards would be reviewed to reflect the best system of emissions reductions. EPA has also proposed additional monitoring and operating requirements intended to ensure continued compliance with the standards. Other proposed revisions include emission controls for degassing; clarification of requirements for startup, shutdown and malfunction; electronic reporting requirements; and amendments to subpart Kb of the NSPS, applicable to VOL storage vessels that began construction, reconstruction or modification after July 23, 1984 and on or before October 4, 2023.
For further information:
https://www.epa.gov/system/files/documents/2023-11/storagetanks_commentperiodextension_proposal.pdf
and
https://www.govinfo.gov/content/pkg/FR-2023-10-04/pdf/2023-21976.pdf
and
State officials testified before the U.S. House Committee on Energy and Commerce’s Subcommittee on the Environment, Manufacturing and Critical Materials to explore reliability issues relating to EPA’s proposal “Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants” (EPA Docket EPA-HQ-OAR-2023-0072). Witnesses included Michelle Walker, Air Director for the Tennessee Department of Environmental Conservation and NACAA’s Program Funding Committee State Co-Chair, as well as Serena McIlwain, Secretary of the Environment for the State of Maryland, David Glatt, Director of the North Dakota Department of Environmental Quality, and Chris Parker, Director of the Utah Public Utilities Commission. Testimony explored the potential feasibility, costs, and impacts of this proposal, with some raising concerns that resource adequacy and system operations would be imperiled, and others noting that flexibilities afforded to states may ameliorate many of these concerns if they are offered to states as part of a final proposal. It was the second hearing conducted by the Subcommittee on the issue; a June 6 hearing featured testimony from fossil fuel energy companies.
For further information:
The White House’s Office of Information and Regulatory Affairs (OIRA) is issuing revisions to Circular A-4, the government-wide guidance on federal regulatory analysis, which will guide how EPA and other federal agencies conduct cost-benefit analyses. The changes include changes to discount rate useage and to how agencies should consider different effects on different communities, and is seen to enable broader consideration of issues like climate change, air pollution impacts, and environmental justice in federal rulemaking. Circular A-4 has not been updated since it was issued in 2003. That 2003 version of Circular A-4 also advised agencies to consider both a 3 percent discount rate and a 7% discount rate, but the updated guidance includes a new default estimate of 2 percent and drops the 7 percent discount rate analysis requirement. Lower discount rates reflect real-world economic conditions, OIRA asserts, and are also important for issues like climate change, where the current costs of reducing GHG emissions are weighed against future benefits more favorably. The update also offers new tools for agencies to determine the distributional effects of regulations to better reflect the needs of disadvantaged and low income communities, and allows for regulatory consideration of effects occurring beyond the borders of the United States. Richard Revesz, OIRA Administrator, said in a statement that the updated guidance “means lower costs for consumers; cleaner food, air, and water; less fraud and exploitation; increased workplace safety; more innovation; and a stronger economy.”
For further information:
and
https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf
Led by the National Oceanic and Atmospheric Administration (NOAA), fourteen Federal agencies released the Fifth National Climate Assessment (NCA), a comprehensive report summarizing scientific research on the impacts of climate change on the United States. The report says the U.S. is warming faster than 60 percent of the rest of the world, the effects of rising temperatures are already “worsening across every region of the United States” and warns that “severe climate risks to the United States will continue to grow.” A new NCA is released every four years by Congressional mandate. The Fifth NCA says that annual US greenhouse gas emissions fell 12 percent between 2005 and 2019, driven by reductions in coal fired power leading to a 40 percent GHG emissions reduction from the electricity sector. Transportation sector surpassed electricity generation as the largest emitter in 2017. In the report, it noted that 2022 had extreme weather events every three weeks that cost over $1 billion. In the 1980s, by comparison, the United States experienced a billion-dollar disaster only once every four months. The Fifth NCA includes a chapter on uneven economic impact distribution that illustrates that climate change is amplifying existing inequalities. The NCA also includes a new online tool that shows the impact in states, cities and counties. “US net greenhouse gas emissions remain substantial and would have to decline by more than 6% per year on average, reaching net-zero emissions around midcentury, to meet current national mitigation targets and international temperature goals”, the report warns, “by comparison, US greenhouse gas emissions decreased by less than 1% per year on average between 2005 and 2019.”
For further information:
The European Union (EU) has concluded negotiations on a law to require methane emission limits from oil and gas production and also imports starting in 2030. The European Parliament also agreed to impose “maximum methane intensity values” by 2030 on producers that sell fossil fuels into the 27 member countries of the EU, which have limited production but which imports most of their fossil energy. The law also introduces new requirements for the oil, gas and coal sectors to measure, report and verify methane emissions, and for mandatory leak detection and repair, as well as a total ban on venting and flaring practices. Each member country will need to collect and report information on whether and how exporter countries/companies are measuring, reporting and abating methane emissions starting in 2025. Once adopted by the European Parliament, it will be published in the EU Official Journal and enter into force 20 days later.
For further information:
https://energy.ec.europa.eu/topics/oil-gas-and-coal/methane-emissions_en
A new report from the Union of Concerned Scientists (UCS) estimates that achieving net-zero emissions by 2050 in the U.S. would result in 32,000 fewer premature deaths, saving more than $800 billion in annual public health savings in the U.S., and nearly $1.3 trillion in avoided climate damages by 2050. Most of the health benefits result from reduced exposure to PM2.5 and air toxics; economic benefits accrued from reduced fuel costs as transportation, power, and buildings transitioned away from fossil fuels. However, the report notes that in its analysis it is “infeasible for direct electrification to replace fully the fuels for long-distance air travel, fertilizer production, steelmaking, or cement manufacturing” by 2050. UCS also acknowledges that all the scenarios it analyzed producing net zero GHG emissions would depend on technologies that have yet to see broad deployment including biofuels/bioenergy, hydrogen, and carbon capture and storage.
For further information:
https://www.ucsusa.org/resources/accelerating-clean-energy-ambition#read-online-content
China, U.S., Agree to Climate Cooperation (November 15, 2023)
In a meeting between President Joe Biden and Chinese President Xi Jinping in Washington DC, China and the U.S. have pledged to cooperating in accelerating efforts to address climate change. The Presidential meeting included a commitment to reduce emissions of methane and other GHGs. China and the U.S. are the world’s two biggest emitters of greenhouse gases and the commitment comes amid a deterioration in ties between the countries over issues including military provocations, trade, cybersecurity, and Taiwan. Both countries “are aware of the important role they play” and “will work together … to rise up to one of the greatest challenges of our time,”, according to a joint statement reiterating a pledge made by the Group of 20 nations to triple global renewable energy capacity by 2030. The U.S. and China will also convene a working group on enhancing climate action in “ the critical decade of the 2020s.” This would include exploring efforts to reduce methane emissions in China, which had previously not addressed emissions of this potent greenhouse gas.
For further information:
and
https://www.state.gov/sunnylands-statement-on-enhancing-cooperation-to-address-the-climate-crisis/