This Week in Review October 1-5, 2012

Transcription

1 This Week in Review October 1-5, 2012 (1) EPA Petitions Court for Rehearing En Banc of CSAPR Decision (October 5, 2012) EPA filed a petition in the U.S. Court of Appeals for the District of Columbia Circuit seeking a rehearing en banc of the court s August 21, 2012 decision vacating and remanding to EPA the Cross-State Air Pollution Rule in the case of EME Homer City Generation, L.P., et al., v. EPA, et al. (No ). In its petition, EPA argues that the court panel s majority decision on EPA s authority to issue Federal Implementation Plans is inconsistent with circuit precedent; the panel lacked jurisdiction to determine that states were not required to submit transport State Implementation Plans; the panel exceeded its proper role in statutory interpretation; the panel s decision on significant contribution issues violates applicable waiver, exhaustion and law-of-the-circuit doctrines; petitioners waived their statutory claims on these issues; and the panel erred in choosing its own construction of an ambiguous statutory term over an agency construction previously upheld by the court. For further information: (2) NACAA Holds Fall Membership Meeting, Elects Board of Directors for (October 1-3, 2012) NACAA held its 2012 Fall Membership Meeting in Stevenson, Washington. Highlights of the meeting included a 90-minute opendialogue session with Gina McCarthy, Assistant Administrator of EPA s Office of Air and Radiation, as well as sessions focused on a legislative update on the CAA and what we may expect next Congress under Obama and Romney Administrations; the latest information on the National Ambient Air Quality Standards and other implementation-related issues; integrating energy and air quality planning; the role of natural gas now and into the future; state and local experiences with environmental justice and permitting; innovative and replicable state and local initiatives; the U.S. House of Representatives Clean Air Act Forums; APTI-Learn, EPA s new online training management tool; and how to address the impacts of the vacature of the Cross-State Air Pollution Rule. In addition, NACAA held its Business Meeting on Tuesday afternoon, October 2, 2012, during which the membership elected its new Board of Directors to serve for the next year: Co-Presidents: Dave Shaw (NY Region 2) Barry Wallerstein (Los Angeles, CA)

2 2 Co-Vice Presidents: Tad Aburn (MD Region 3) Merlyn Hough (Springfield, OR) Co-Treasurers: Stu Clark (WA Region 10) Thomas Huynh (Philadelphia, PA) Directors: Mark Asmundson (Mt. Vernon, WA) Mike Bates (AR Region 6) Rick Brunetti (KS Region 7) Anne Gobin (CT Region 1) James Goldstene (CA Region 9) David Klemp (MT Region 8) John Paul (Dayton, OH) Richard Stedman (Monterey, CA) Barry Stephens (TN Region 4) Co-Past Presidents: Bruce Andersen (Kansas City, KS) Vince Hellwig (MI Region 5) Please join us in congratulating our new Board! Meeting presentations will be available on Air Web shortly. (3) President Signs Six-Month Continuing Resolution (September 28, 2012) President Barack Obama signed H.J. Res. 117, a Continuing Resolution (CR) to extend federal funding at approximately current levels until March 27, The CR is necessary because Congress has not adopted a bill to fund the federal government after October 1, 2012, which is the start of FY The CR provides increases of 0.6 percent for most federal agencies. (See September 24-28, 2012, Washington Update for additional details). For further information: (4) Industry Groups Petition for Rehearing of Court Decision to Dismiss Challenge of EPA Approval of E15 Waiver (September 28, 2012) Industry petitioners asked the U.S. Court of Appeals for the District of Columbia Circuit to reconsider an August 13, 2012 court decision dismissing various industry groups petitions for review of a final EPA action approving a waiver for E15 (gasoline containing 15 percent ethanol) to allow the fuel to be introduced into commerce. In Grocery Manufacturers Association, et al., v. EPA (Nos and , consolidated with Nos , , and ), petitioners, which included trade associations representing the auto, oil, outdoor power equipment and food industries, among others, argued that EPA s approval of E15 was premature and that the agency did not have authority to grant partial waivers allowing the introduction of E15 for use only in model-year 2001 and newer lightduty vehicles. Petitioners also argued that EPA s approval would harm the members of their respective associations. In his ruling, Chief Judge David Sentelle dismissed the case stating that no petitioner has standing to bring these claims. In their petition for a rehearing, a subset of the original petitioners including the Grocery Manufacturers Association, American Frozen Food Institute, American Meat Institute, American Petroleum Institute, National Chicken Council, National Council of Chain Restaurants of the National Retail Federation, North

3 3 American Meat Association, National Pork Producers Council, National Turkey Federation and the Snack Food Association takes issue with the majority opinion of the court, alleging that 1) the majority failed to follow recent Supreme Court decisions, perpetuated a conflict within the D.C. Circuit Court and deepened a circuit split on the issue of whether prudential standing is jurisdictional, 2) the majority s prudential-standing rule is contrary to the precedents of this court and the Supreme Court and 3) the majority s conclusion that the petroleum group petitioners lacked Article III standing departs from prior precedent and restricts regulated entities ability to challenge rogue agency action. For further information: IndustryPetitionforRehearing.pdf (4) EPA Issues Modification to Shell Minor Source Air Permit for Outer Continental Shelf Drilling (September 28, 2012) EPA Region 10 issued a modified minor source air permit to Shell, allowing the company to begin drilling in the Outer Continental Shelf in the Beaufort Sea off the Alaskan coast. The permit, which covers operations of the company s Kulluk drillship and associated support vessels, was modified in response to earlier requests by Shell. The modifications allow the use of catalyzed diesel particulate filters in place of oxidation catalysts, revise monitoring and reporting requirements and revise incinerator emissions for actual waste combusted daily. According to EPA, emissions are expected to decrease under the modified permit. For further information: (5) ACEEE Releases Scorecard on State Energy Efficiency Policies (October 3, 2012) The American Council for an Energy-Efficient Economy (ACEEE) released its annual scorecard ranking states on their efforts to promote energy efficiency. The top 10 energy efficiency states are Massachusetts (in its second year atop the rankings), California, New York, Oregon, Vermont, Connecticut, Rhode Island, Washington, Maryland and Minnesota. The three most improved states are Oklahoma, Montana and South Carolina, all of which significantly increased their budgets for electric efficiency programs in In addition, Oklahoma put in place natural gas efficiency programs for the first time in 2011, and Montana dramatically increased its budgets for these programs. In the report, ACEEE examines six of the primary policy areas in which states typically pursue energy efficiency: utility and "public benefits" programs and policies; transportation policies; building energy codes; combined heat and power policies; state government-led initiatives around energy efficiency; and appliance and equipment standards. For further information: (6) EPA to Reconsider Elements of PVC MACT (September 28, 2012) EPA Administrator Lisa Jackson has decided to grant reconsideration of the final Polyvinyl Chloride and Copolymers Production (PVC) MACT rule that was published on April 17, The decision comes in response to petitions for reconsideration from four groups that questioned whether the public had the opportunity to comment on some of the emission limits for process vents, process wastewater and stripped resin for major and area sources. In a letter to the

4 4 petitioners, Jackson states that she is granting reconsideration on at least those issues and that EPA will publish a Federal Register notice to initiate the reconsideration and seek comment on the issues. Jackson also notes that the agency is reviewing additional issues in the rule and will take final action on all of the reconsidered issues at the same time. For further information: (7) EPA Reopens Public Comment Period on RICE to Seek Input on Issues Related to Offshore Vessels (October 3, 2012) EPA published a Federal Register notice (77 FR 60341) announcing the reopening of the public comment period on the Reciprocating Internal Combustion Engines (RICE) proposed rule to accept input on specific provisions relating to existing engines on offshore vessels. On June 7, 2012, EPA proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for RICE. During the public comment period, EPA received recommendations related to Outer Continental Shelf (OCS) sources, on which it is now seeking input. Specifically, to the extent that marine vessel engines become subject to the NESHAP as a result of the OCS regulations, some commenters recommended that they be allowed to meet the standards through management practices, rather than being subject to numeric emission limits. EPA is seeking input on the information the commenters provided, specifically on the technological feasibility of existing sources meeting the standards in the June 7, 2012 proposal. The comment period is open until November 2, For further information: /pdf/ pdf (8) EPA Adopts New Policy on Timely Obligation, Award and Expenditure of EPA Grants (September 28, 2012) EPA issued a new grants policy, Timely Obligation, Award and Expenditure of EPA Grant Funds (GPI 12-06), which took effect on October 1, The policy relates to the speed with which EPA awards grant funds and state and local agencies expend them. It resulted from congressional scrutiny of unexpended balances within EPA s grants, as well as state concerns about delays in receiving awards. EPA s Office of Grants and Debarment (OGD) will offer training on this policy in October (dates to be determined). The policy is the result of a workgroup process among OGD, the media national program managers, the Environmental Council of the States and several state representatives. The workgroup focused on EPA s delays in obligating and awarding grants, states accumulations of unexpended grants and the need for states to accelerate grant outlays. Among the issues the policy addresses are the amount of funds for which a state can apply (i.e., based on the President s budget or the previous year s amount), negotiations related to recurring activities, the encouragement of multi-year awards, electronic submissions of applications, changes to amounts that will not require revised work plans or applications, conditional approvals, electronic award notifications, elimination of signed affirmation of awards, approval of pre-award costs, outlay strategies and drawdowns. For further information: Final.pdf

5 5 (9) EPA Settles Clean Air Act Violations of New Jersey Glass Manufacturer (October 1, 2012) Durand Glass Manufacturing Company, Inc., has agreed to install emissions control equipment on its three glass furnaces in New Jersey and pay a $300,000 civil penalty to resolve alleged violations of the Clean Air Act. The emissions control equipment is projected to reduce more than 173 tons of nitrogen oxides and 23 tons of particulate matter per year and includes the first selective catalytic reduction device on a tableware glass furnace in the U.S. EPA and New Jersey partnered in the settlement, which was lodged in the U.S. District Court for the District of New Jersey and is subject to a 30-day public comment period and final court approval before taking effect. For further information: (10) EPA Settles Allegations of Clean Air Act Violations at Two Dairies in Puerto Rico (October 1, 2012) Suiza, a dairy corporation in Puerto Rico, has agreed to pay a $275,000 penalty and spend $3.75 million to settle allegations that it violated the Clean Air Act at two of its dairies. The proposed consent decree deals with allegations that, among others, the two dairies failed to have required risk management plans to address releases of anhydrous ammonia; that in May 2007, one of the facilities released approximately 1,146 pounds of anhydrous ammonia, which resulted in at least 14 nearby residents seeking medical attention; and that in June 2006, EPA received at least four complaints from residents nearby the other facility of adverse health effects consistent with exposure to anhydrous ammonia. Suiza will also spend approximately $3.75 million on projects that will significantly improve the refrigeration systems at both facilities, considerably reduce the amount of anhydrous ammonia in the systems at both facilities, improve alarm and ammonia release notification procedures and provide medical training and/or equipment to medical personnel to treat persons affected by exposure to anhydrous ammonia. Suiza will also conduct emergency drills in the communities located adjacent to the facilities, to train community members on what to do in the event of an accidental release of anhydrous ammonia. For further information: SUIZA_DAIRY_FILED_COMPLAINT.PDF (complaint) and SUIZA_DAIRY_CONSENT_DECREE_LODGED.PDF (proposed consent decree) (11) ICLEI Releases Protocol for Measuring Community GHG Emissions (October 4, 2012) ICLEI-Local Governments for Sustainability released a protocol that communities can use for creating a greenhouse gas (GHG) emissions inventory. The U.S. Community Protocol for Accounting and Reporting of Greenhouse Gas Emissions provides flexibility for a community interested in creating a GHG inventory, by providing options for a basic methodology and minimum reporting requirements or for reporting a wider range of GHG reduction activities and conducting a deeper analysis of GHG emissions. ICLEI is holding a free webinar on November 7, 2012, from 1 to 2:30 p.m. Eastern time to review the Protocol. For further information:

6 6 protocol/community-protocol/us-community-protocol-for-accounting-and-reportingof-greenhouse-gas-emissions (protocol) and (webinar) The Week Ahead Columbus Day Holiday October 8, 2012 WESTAR Council and University of Nevada Conference on Western Ozone Transport, in Reno, NV October 10-12, 2012 NACAA 444 North Capitol Street, NW, Suite 307 Washington, DC Tel: (202) /Fax: (202)