September 23-29, 2023
In this week's issue:
- NACAA Offers Early Input to OECA on FY 2024-2025 National Program Guidance (September 29, 2023)
- Federal Government Shutdown Beginning October 1, 2023 Becomes Increasingly Likely (September 29, 2023)
- D.C. Circuit Denies Motions to Stay Effectiveness of EPA’s Good Neighbor Plan (September 25, 2023)
- EPA Publishes Second Interim Final Rule to Stay Effectiveness of Federal Good Neighbor Plan in Six More States (September 29, 2923)
- EPA Announces Third Round of Funding – at Least $500 Million – for Clean School Buses (September 28, 2023)
- “Stop EV Freeloading Act” Introduced in Senate (September 21, 2023)
- Environmental Groups Sue EPA to Compel Review of NOx Criteria and NAAQS (September 28, 2023)
- Regan Testifies Before House Science Committee (September 27, 2023)
This Week in Review
In a letter from NACAA”s Enforcement Committee, the Association has offered early input in advance of EPA’s development of the National Program Guidance (NPG) for the Office of Enforcement and Compliance Assurance (OECA). NACAA’s comments call for EPA to align its priorities with shared goals and needs of the state and local agencies. It recommends EPA develop metrics and goals for improving protections for vulnerable communities, and “focus its attention on situations where state and local agencies are not the appropriate entities or lack the national-scale resources to be effective, especially for issues that are nationally significant rather than regional.” NACAA reinforced its prior concerns about the make-up and implementation of OECA’s National Enforcement and Compliance Initiatives for FY 2024-2027, and calls for the office to “strategically address areas of continued widespread noncompliance, including wood stoves, mobile source tampering, and exposure to well-understood health-harming substances like asbestos.” NACAA calls for regional consistency, greater transparency and stronger cooperation in implementing enforcement priorities between our agencies and EPA. Finally, the letter urges EPA to support NACAA’s efforts to see adequate funding restored to state and local agencies, whose federal funding has been essentially flat since 2004, and for EPA to invest in its own overextended and understaffed enforcement workforce. EPA will issue proposed NPGs for its offices (including OECA) for public comment in Spring 2024.
For further information:
https://www.4cleanair.org/wp-content/uploads/NACAA-Early-Input-FY-24_25-OECA-NPG-9_29_23.pdf
A shutdown of the federal government on October 1, 2023, including most operations at EPA, becomes more likely with each passing day, since Congress has yet to adopt appropriations legislation to fund the federal government for FY 2024, which begins this Sunday. If, by September 30, Congress fails to pass appropriations legislation or a measure to temporarily continue funding at FY 2023 levels (known as a “Continuing Resolution” or a CR), federal agencies could cease most operations and furlough all but essential employees. It is possible that some agencies have funds in reserve to allow operations to continue for a limited time after September 30, but details on how this may pertain to EPA are not yet available publicly. If EPA workers are furloughed, this would include headquarters, regional and other staff, except those deemed essential. Negotiations in Congress are ongoing: the Senate has reached agreement on a CR that would continue funding at FY 2023 levels until November 17, 2023, but the House has not come to internal agreement and negotiations do not seem to be headed for imminent resolution. Both houses will ultimately have to agree to identical legislation for final passage and Presidential signature. Congress will continue to work through the weekend to resolve the impasse.
For further information:
https://www.whitehouse.gov/omb/information-for-agencies/agency-contingency-plans/
and
https://appropriations.house.gov/
and
The U.S. Court of Appeals for the District of Columbia Circuit issued an order denying motions from various petitioners in Utah v. EPA and consolidated cases seeking to stay the effectiveness of EPA’s March 2023 federal Good Neighbor Plan for the 2015 8-hour ozone National Ambient Air Quality Standards until litigation challenging the Plan is resolved. The order, issued by the three-judge panel – consisting of Judges Cornelia T.L. Pillard, Justin R. Walker and J. Michelle Childs – states that the “Petitioners have not satisfied the stringent requirements for a stay pending court review.” It is also noted in the order that, “Judge Walker would stay the federal implementation plan in question.” The Good Neighbor Plan has already been stayed by EPA in 12 states in which the agency’s disapprovals of those states’ Good Neighbor State Implementation Plans (SIP) have been challenged in various circuit courts around the country, which, in turn, have stayed those EPA SIP disapprovals pending judicial review (see related article in the September 17-23, 2023, Washington Update). However, the Good Neighbor Plan, which took effect in August, remains in effect in California, Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia and Wisconsin. The Good Neighbor Plan (a Federal Implementation Plan to address the interstate transport requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act) was signed by EPA on March 15, 2023, and published in the Federal Register on June 5, 2023, with an effective date of August 4, 2023.
For further information:
EPA published in the Federal Register (88 Fed. Reg. 67,102) a second interim final rule (IFR) to stay the effectiveness of the final federal Good Neighbor Plan for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS), this time in response to judicial stays of EPA’s disapprovals of Good Neighbor State Implementation Plans (SIPs) for six additional states: Alabama, Minnesota, Nevada, Oklahoma, Utah, and West Virginia. On July 31, 2023, EPA took similar action for emission sources in Arkansas, Kentucky, Louisiana, Mississippi, Missouri and Texas, where there are also judicial stays of EPA’s Good Neighbor SIP disapprovals. Sources in all 12 of these states are not required to comply with the Good Neighbor Plan at this time. Accordingly, as of September 21, 2023, the Good Neighbor Plan’s “Group 3” ozone-season NOX control program for electric generating units is being implemented in Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin. This IFR will is now effective; EPA will also take comment on it until October 30, 2023. The stay of the Good Neighbor Plan for the 12 states covered by the two IFRs will remain in effect until litigation over EPA’s disapprovals of the states’ Good Neighbor SIPs is resolved.
For further information:
https://www.govinfo.gov/content/pkg/FR-2023-09-29/pdf/2023-21040.pdf
EPA announced the availability of “at least” $500 million in funding under the Clean School Bus Program, “to further improve air quality in and around schools, reduce greenhouse gas pollution fueling the climate crisis, and help accelerate America’s leadership in developing the clean vehicles of the future.” The Clean School Bus Program was established under the Bipartisan Infrastructure Law, which provides $5 billion to “transform” the nation’s school bus fleet. The Program funds electric school buses and propane and natural gas buses. Like the previous two rounds of funding, this third round will also be competitive; and like the second round of funding this round will be a rebate program. Funding under this program will cover buses – up to $325,000 per bus – as well as workforce development costs and infrastructure costs for selected applicants that request electric school buses. The amount of funding awarded will be based on an applicant’s “prioritization” status and the type and size of bus replacements. Priority will be given to applications to replace buses serving low-income, rural and Tribal communities and large school districts with communities of concentrated poverty, provided the application seeks to provide buses to those communities. Complete information is available in the Program Guide. Applications will be accepted until 4 PM on January 31, 2024.
For further information:
https://www.epa.gov/cleanschoolbus/clean-school-bus-program-rebates
and
Senator Deb Fischer (R-NE) introduced the “Stop EV Freeloading Act” to tax the sale of electric vehicles and batteries. Under S. 2882, a one-time tax of $1,000 would be imposed on light-duty electric vehicles (EVs) sold by the manufacturer, producer or importer. In addition, a one-time tax of $550 would be imposed on each EV battery module weighing over 1,000 pounds that is sold by the manufacturer, producer or importer and intended for use in an EV. All revenue collected would transferred to the Highway Trust Fund. In a statement, Senator Fischer is quoted as saying, “It’s not fair to force the millions of Americans who don’t drive EVs to foot the bill for those who do. Our legislation will stop EVs from freeloading and force them to pay into the Highway Trust Fund like other vehicles. If the Biden administration plans to continue pushing EVs on the American people, the least Congress can do is require EVs to support the upkeep of our nation’s infrastructure.” Joining Senator Fischer as co-sponsors of the “Stop EV Freeloading Act” are Senators Pete Ricketts (R-NE), John Cornyn (R-TX) and Cynthia M. Lummis (R-WY).
For further Information:
https://www.fischer.senate.gov/public/_cache/files/1980e112-30ff-4108-aa2a-79e3ddc49d09/gai23464.pdf
and
https://www.fischer.senate.gov/public/index.cfm/news?ID=BA0257EA-2CE7-4EC3-8B0C-DD4B6BA3DEF2
and
Three environmental groups filed a complaint in the U.S. District Court for the Northern District of California charging that EPA has failed to meet Clean Air Act deadlines to complete a thorough review of the air quality criteria and National Ambient Air Quality Standards (NAAQS) for nitrogen oxides (NOx); as appropriate, revise the NOx criteria and NAAQS; and publish of notice of these actions in the Federal Register. In their complaint, the Center for Biological Diversity, Sierra Club and Center for Environmental Health explain that under the Clean Air Act EPA is required to complete these mandatory duties “at five year intervals”; EPA last completed a review for NOx over five years ago, in April 2023. The plaintiffs now ask that the court declare that EPA is in violation of the Clean Air Act and issue a mandatory injunction requiring that the agency perform these duties by dates certain.
For further Information:
https://www.4cleanair.org/wp-content/uploads/Litigation-NOx_NAAQS-Enviros_Complaint-092823.pdf
EPA Administrator Michael Regan appeared before the House Committee on Science, Space and Technology to discuss the role of science and technology in the agency’s regulatory decision-making processes and to field questions on a wide range of topics. It was his first time appearing before the Science Committee, and the first appearance of any EPA Administrator before that body since 2019. In his prepared testimony, Regan emphasized EPA’s scientific research efforts in the areas of polyfluoroalkyl substances (PFAS), wildfires (including the AirNow Fire and Smoke Map), climate change and reducing lead exposure. He stated that “science is the backbone of all that we do at EPA.” During over two-and-half hours of questioning by Committee members, Regan spoke at length on air and climate-related topics, including the proposed methane rule and the CAA Section 111(d) power plant rule. He stated that he expects the agency to finalize an endangerment finding on leaded aviation fuel by the end of this year. He responded to many questions from members about the agency’s efforts to protect environmental justice communities and spoke of the agency’s disbursement of funds from the Bipartisan Infrastructure Law and Inflation Reduction Act. He also stressed the deleterious effects that a government shutdown would have on EPA’s public health functions.
For further information: https://science.house.gov/2023/9/full-committee-hearing-science-and-technology-at-the-epa