![](https://www.4cleanair.org/wp-content/uploads/2021/01/nacaa-internal-banner-1024x210.jpeg)
October 1-7, 2022
In this week's issue:
- NACAA Letter To EPA on Inflation Reduction Act Calls For Strategic Investment, Skillful Implementation, and Federal-State-Local Partnership From Design To Completion (October 5, 2022)
- EPA Releases Proposed Reconsideration Rule Addressing Fugitive Emissions in NSR Permitting (October 7, 2022)
- EPA Proposes Endangerment Finding for Lead Emissions from Aircraft Engines (October 7, 2022)
- EPA Publishes Final Determinations of Attainment Under 2008 and 2015 Ozone NAAQS (October 7, 2022)
- EPA Includes Discussion of Title VI of Civil Rights Act in Proposal to Disapprove Certain Elements of San Joaquin Valley’s Serious Area Plan for 2012 PM2.5 NAAQS (October 5, 2022)
- Supreme Court Asks Biden Administration to Weigh in on Proper Venue for Climate Change Cases (October 3, 2022)
- EPA Publishes Final Amendments to Boiler MACT Air Toxics Rule (October 6, 2022)
- OECA Issues Fenceline Benzene Monitoring Tool; EJ Metrics In ECHO (October 2, 2022)
- EPA Releases Climate Adaptation Plans for Offices, Regions (October 6, 2022)
- EPA Seeks Nomination of Elected Officials or Political Appointees to Serve on Local Government and Small Communities Advisory Panels (October 4, 2022)
- Research Study Finds Black Carbon Particles in Fetal Blood and Tissue (October 6, 2022)
This Week in Review
![](https://www.4cleanair.org/wp-content/uploads/White-House-2-490x328.jpeg)
NACAA has written a letter to EPA Administrator Michael Regan offering input and recommendations from our state and local agency members about how funds authorized through the recently passed Inflation Reduction Act (IRA) can be strategically invested to advance climate action, clean air, equity and prosperity. The letter makes several recommendations about how EPA can engage with states to design programs skillfully, to avoid overburdening itself and our agencies, to support both state and local agencies (including those which may have had unfunded mandates under existing grant programs), that leverages state and local expertise and capacity, gives agencies adequate implementation timeframes, and allows them to invest in the people, infrastructure, and tools they need most. Above all else, it urges EPA to invest IRA resources strategically to ensure that programs maximize the benefits for addressing the climate crisis, advance our most urgent clean air needs, and protect the most vulnerable communities. “We must emphasize that capitalizing on the once-in-a generation opportunities afforded by the IRA cannot be accomplished if its funding resources are not implemented skillfully and in a manner that maximizes the state-local federal relationship,” the letter says.
For further information:
https://www.4cleanair.org/wp-content/uploads/NACAA-IRA-letter-to-EPA-10_5_22.pdf
EPA issued a proposed rule that addresses how fugitive emissions are treated when determining whether a proposed change at a stationary source is considered a “major modification” subject to New Source Review (NSR) permitting requirements. Fugitive emissions are defined by Clean Air Act regulations as emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening. The proposed rule would require all existing major stationary sources to count fugitive emissions toward total emissions when determining whether a change is a major modification. The proposal is the result of EPA’s reconsideration of a 2008 rule requiring only certain types of industrial source categories to include fugitive emissions in the total emissions calculation (including, among others, petroleum refineries, large fossil-fuel fired steam electric plants and Portland cement plants). After the 2008 rule was finalized, the Natural Resources Defense Council (NRDC) submitted a petition for administrative reconsideration to EPA, as well as a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit. EPA agreed to convene reconsideration proceedings, and in the interim period, issued a series of administrative stays that prevented the 2008 rule from taking effect (except for a brief period in 2009). In addition to requiring all sources to count fugitive emissions toward major modification thresholds, the proposed reconsideration rule would remove a regulatory provision established in 1980 that exempts certain stationary sources from substantive major NSR requirements if the only reason a change is considered a “major modification” is due to the inclusion of fugitive emissions. The proposed rule will be subject to a 60-day public comment period upon publication in the Federal Register.
For further information:
https://www.epa.gov/nsr/proposed-reconsideration-fugitive-emissions-rule
EPA announced a proposed finding that lead emissions from aircraft engines that operate on leaded fuel cause or contribute to air pollution that may reasonably be anticipated to endanger public health and welfare under Clean Air Act section 231(a). Consideration of an endangerment finding is a first step in the process of exercising EPA’s and the Federal Aviation Administration’s (FAA) statutory authorities to address lead pollution from aircraft. EPA has stated that this “proposed finding, if finalized, would not apply new requirements to entities other than EPA and FAA” and notes that it is not, at this time, proposing lead emission standards for aircraft engines. Should EPA agency finalize the endangerment finding it would then take action to propose regulatory standards. A final finding of endangerment would also trigger FAA’s statutory mandate to set standards for the composition or properties of an aircraft fuel or fuel additive that would control or eliminate aircraft lead emissions. FAA has a set of integrated efforts underway focused on a safe transition of the piston-engine aircraft fleet to a lead-free future: 1) the Piston Aviation Fuels Initiative (PAFI) and 2) the FAA-industry partnership to Eliminate Aviation Gasoline Lead Emissions (EAGLE). FAA has also approved the safe use of an unleaded fuel that can be used in many piston-engine aircraft, as well as other aircraft-specific unleaded fuels. Of today’s announcement, EPA Administrator Michael S. Regan stated, “When it comes to our children the science is clear, exposure to lead can cause irreversible and life-long health effects. Aircraft that use leaded fuel are the dominant source of lead emissions to air in the country. Today’s proposal is an important step forward as we work to reduce lead exposure and protect children’s health.” EPA currently plans to accept public comments for 90 days after the proposed finding is published in the Federal Register and to hold a virtual hearing 15 days after publication. Specific dates will be provided in the published proposal.
For further information:
https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-lead-emissions-aircraft
and
EPA published in the Federal Register (87 Fed. Reg. 60,926 and 87 Fed. Reg. 60,897) final determinations of attainment for certain areas classified as nonattainment under the 2008 and 2015 National Ambient Air Quality Standards (NAAQS) for ozone. Regarding the 2008 ozone NAAQS, EPA has finalized actions for six areas that were classified Serious nonattainment and were to have attained by July 20, 2021. Based on monitoring data for 2018 through 2020 EPA has determined that the Greater Connecticut, CT area attained the 2008 ozone standard by July 20, 2021 and that five areas – Dallas-Fort Worth, TX; Denver-Boulder-Greeley-Ft. Collins-Loveland, CO; Houston-Galveston-Brazoria, TX; New York-Northern NJ-Long Island, NY-NJ-CT; and Morongo Band of Mission Indians – failed to attain the 2008 standard by July 20, 2021, and will be reclassified, as of November 7, 2022, as Severe nonattainment with a new attainment date of July 20, 2027. Regarding the 2015 ozone NAAQS, EPA has finalized actions for 28 areas that were classified Marginal nonattainment and were to have attained by August 3, 2021. Based on monitoring data for 2018 through 2020 EPA has determined that five areas – Atlanta, GA; Southern Wasatch Front, UT; Amador County, CA; San Francisco Bay, CA; and Yuma, AZ – attained the 2015 standard by August 3, 2021. EPA has granted the request of Uinta Basin, UT, for a one-year attainment date extension to August 3, 2022. EPA has determined that the following 22 areas failed to attain the 2015 standard by August 3, 2021 and will be reclassified, as of November 7, 2022, as Moderate nonattainment with a new attainment date of August 3, 2024: Allegan County, MI; Baltimore, MD; Berrien County, MI; Chicago, IL-IN-WI; Cincinnati, OH-KY; Cleveland, OH; Dallas-Fort Worth, TX; Denver Metro/North Front Range, CO; Greater Connecticut, CT; Houston-Galveston-Brazoria, TX; Louisville, KY-IN; Mariposa County, CA; Milwaukee, WI; Muskegon County, MI; North Wasatch Front, UT; Pechanga Band of Luiseño Mission Indians of the Pechanga Reservation; Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE; Phoenix-Mesa, AZ; San Antonio, TX; Sheboygan County, WI; St. Louis, MO-IL; and Washington, DC-MD-VA.
For further information:
https://www.govinfo.gov/content/pkg/FR-2022-10-07/pdf/2022-20458.pdf
and
https://www.govinfo.gov/content/pkg/FR-2022-10-07/pdf/2022-20460.pdf
In a Federal Register notice (87 Fed. Reg. 60,494), EPA proposes to disapprove certain planning requirements of the Serious nonattainment area State Implementation Plan (SIP) for the 2012 PM2.5 National Ambient Air Quality Standards (NAAQS) for the San Joaquin Valley (SJV) in California. The current proposal is a reversal of a December 29, 2021, action in which EPA proposed to approve these SIP elements, and includes portions that address topics that may be of interest to areas beyond SJV. One such topic is Title VI of the Civil Rights Act. In particular, at the end of the 38-page notice, EPA includes a nearly four-page discussion of environmental justice considerations, explaining that the agency is required by various Executive Orders from 1994 and 2021 1) “to identify and address disproportionately high and adverse human health or environmental effects of [its] actions on minority and low-income populations,” 2) “to assess whether, and to what extent, [its] programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups” and 3) “to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.” EPA describes how it conducted a screening-level analysis, using EJSCREEN, to identify environmental burdens and susceptible populations in underserved communities in the SJV nonattainment area to gain a better understanding of its proposed action, finding that all eight counties in the SJV scored above, and in some cases well above, the national averages for the EJSCREEN Demographic Index, PM2.5 index and PM2.5 EJ index, and most scored above the 80th percentile for each of 11 additional EJ indices included in the EJSCREEN analysis. EPA also reports that on January 28, 2022, it received a letter from 13 organizations, commenting on EPA’s original proposal of December 2021, urging the agency to disapprove SJV’s Serious area SIP “because it failed to require CARB/SJV to provide necessary assurances that the [SIP] complies with Title VI of the Civil Rights Act” and “point[ing] to past precedent in which EPA has considered compliance with Title VI . . . in the SIP context through CAA section 110(a)(2)(E).” EPA “acknowledges” that it has not issued any national guidance or rules regarding what might be required for purposes of implementing section 110(a)(2)(E) as it relates to consideration of Title VI and disparate impacts on the basis of race, color, or national origin in the context of the SIP program, but that “[s]uch guidance is forthcoming and will address CAA section 110(a)(2)(E)’s necessary assurance requirements as they relate to Title VI.” EPA concludes by writing, “In the interim, CARB and the [SJD] District may find existing EPA and DOJ Title VI and environmental justice resources useful, even though these documents do not relate specifically to CAA section 110(a)(2)(E). Additionally, the EPA’s [External Civil Rights Compliance Office] is available to provide technical assistance regarding Title VI compliance to CARB and/or the [SJV] District as they develop the revised Serious area plan for the 2012 annual PM2.5 NAAQS.”
For further information:
https://www.govinfo.gov/content/pkg/FR-2022-10-05/pdf/2022-21492.pdf
The U.S. Supreme Court has requested that the U.S. Solicitor General file a brief expressing the Biden Administration’s views to assist in the Court’s consideration of a petition by Suncor Energy and Exxon Mobil Corporation to review a decision by the U.S. Court of Appeals for the Tenth Circuit concerning whether climate change lawsuits brought by states and cities belong in state or federal court. The case arises out a lawsuit filed against the energy companies in Colorado state court by the City and County of Boulder and San Miguel County. They claim the companies violated state common law and a state consumer-protection law by failing to disclose the risks posed by global climate change in association with the sale and promotion of fossil fuels. As with many similar cases across the country, the energy companies removed the case to federal court, arguing among other things that the plaintiffs’ claims exclusively arise under federal common law. The Tenth Circuit ultimately rejected that argument, finding that under Supreme Court precedent in American Electric Power v. Connecticut, the Clean Air Act has displaced federal common law in the area of transboundary climate change. As a result, the case was remanded to Colorado state court, and the energy companies filed a writ for a petition of certiorari in the Supreme Court. The Solicitor General is the official at the U.S. Department of Justice responsible for representing the United States in all Supreme Court litigation. A brief expressing the United States’ views on the matter can help persuade the Supreme Court whether or not to take the case.
For further information:
https://www.supremecourt.gov/orders/courtorders/100322zor_fcgj.pdf
EPA has published in the Federal Register a final rule amending the Maximum Achievable Control Technology (MACT) standard for Major Source Industrial, Commercial, and Institutional Boilers and Process Heaters (87 Fed. Reg. 60816). The rule was announced on July 21, 2022 but was not published until now. The effective date of the regulation is December 5, 2022. The rule is in response to three remands by the D.C. Circuit Court. Two were in 2016 in U.S. Sugar Corp. v. EPA and one was in 2018 in Sierra Club v. EPA. The amended rule includes 34 recalculated emission limits for certain subcategories of boilers (the court had ruled that EPA improperly excluded certain sources when calculating the MACT floor). The rule also provides explanations to satisfy the court’s findings 1) that EPA did not respond to a comment related to potentially available control technologies to reduce emissions of organic hazardous air pollutants (HAPs) without affecting carbon monoxide (CO) and whether the best performing boilers might be using alternative controls to reduce organic HAPs and 2) regarding the establishment of 130 parts per million as the most stringent emission limit for CO consistent with the requirements of the Clean Air Act.
For further information:
https://www.govinfo.gov/content/pkg/FR-2022-10-06/pdf/2022-19612.pdf
and
EPA’s Office of Enforcement and Compliance Assurance (OECA) has taken two actions to make more data available to the public from its enforcement tools. The first action is the integration of environmental justice (EJ) metrics into the publicly-facing elements of the Enforcement and Compliance History (ECHO) tool. The new functionality allows users to search for facilities in areas with possible EJ concerns, investigate pollution sources in areas with possible EJ concerns, examine and create EJ enforcement-related maps, and analyze trends in compliance & enforcement EJ data. EPA also issued a video tutorial to assist communities and individuals in using these tools. The second action OECA took was the deployment of a new Benzene Dashboard that shares fenceline pollutant information that EPA has been collecting at petroleum refineries since 2015. The new Benzene Dashboard provides public access to program data concerning benzene emissions along refinery fencelines and allows for detailed analysis of that data.
For further information:
and
https://www.youtube.com/watch?v=ldG6_kFddMs
and
EPA has released its overall Climate Adaptation Implementation Plan, developed by its major offices, including national program offices and all 10 regional offices. In total, the 20 office and regional plans update EPA’s 2021 Climate Adaptation Action Plan and provide details on the specific actions each office will take to increase climate resilience in the agency. The EPA says that “Taken together, the 20 Implementation Plans provide a roadmap for the specific actions EPA will take over the next four years with other federal agencies and its partners across the nation to continue to protect human health and the environment under future climate conditions, with a particular focus on advancing environmental justice.” The Office of Air and Radiation’s (OAR) plan specifically addresses adaptation in OAR’s programs in response to climate change. It calls on OAR to address how its programs “will continue to strive to protect public health and the environment given a changing climate.” Specific steps include strategic planning, public education and outreach, improving building and infrastructure resilience, community capacity building on indoor air quality, developing wildfire-related implementation tools, promoting PM2.5 & Ozone Advance programs, protecting infrastructure funded through the Diesel Emissions Reduction Act (DERA), and advancing adaptation in research and modeling conducted by OAR, among other actions.
For further information:
https://www.epa.gov/climate-adaptation/climate-adaptation-plans
and
EPA published in the Federal Register (87 Fed. Reg. 60,159) a request for nominations for two agency advisory panels: 1) the Local Government Advisory Committee (LGAC) and 2) the Small Communities Advisory Subcommittee (SCAS). Qualified candidates for these panels are local, tribal, state or territorial elected officials; consideration will also be given to individuals who serve as a political appointee in a full-time government position. Members of LGAC and SCAS provide EPA with advice and recommendations on a wide range of issues related to protecting public health and the environment. In the coming year, topics will include, among others, advancing environmental justice, developing local capacity for technical assistance, reducing greenhouse gas emissions, strengthening resilience to the effects of climate change, supporting local governments in assessing and remediating PFAS chemicals and improving infrastructure to provide drinking water and wastewater services. The agency seeks to fill up to 10 seats on the LGAC and up to six on the SCAS. Terms begin in January 2023 and last one or two years. Additional selection criteria, the time commitment required to serve and the application process are detailed in the Federal Register notice. To be considered, nominations must be submitted to EPA by October 31, 2022.
For further information:
https://www.govinfo.gov/content/pkg/FR-2022-10-04/pdf/2022-21491.pdf
Research published in The Lancet Planetary Health reported findings of black carbon particles in the circulatory systems of fetuses even at the earliest points in the pregnancies studied. The report further found the substances in fetal liver, lung and brain tissue, indicating that maternally inhaled particles cross the placenta and enter the fetal bloodstream and organs. According to the researchers, “These findings are especially concerning because this window of exposure is key to organ development.” The study looked at sets of samples from babies at birth as well as at seven-20-weeks’ gestation, from mothers who had never smoked. In the study of babies at birth, the researchers found a strong correlation between the particle load and residential ambient exposure to black carbon during pregnancy. They noted that particulate matter from combustion is ubiquitous in the air and it appears maternal exposure can have adverse impacts on pregnancy and birth outcomes, possibly linked to disease risk later in the life of the infant.
For further information:
https://www.thelancet.com/journals/lanplh/article/PIIS2542-5196(22)00200-5/fulltext