EPA takes aim at air standards, permitting program

Source: Maxine Joselow and Sean Reilly, E&E News reporters • Posted: Thursday, October 26, 2017

Mid-term Evaluation of Greenhouse Gas Emissions Standards for Model Years 2022-2025 Light-duty Vehicles noted on page 11 of report.

U.S. EPA building in Washington. Photo credit: EPA/FlickrU.S. EPA headquarters in Washington. EPA/Flickr

U.S. EPA this afternoon publicly released its report on rules that could be repealed or reformed because of the impact to domestic energy production.

The report from EPA Administrator Scott Pruitt calls for re-evaluating the New Source Review permitting program under the Clean Air Act as well as national ambient air quality standards (NAAQS). The report also announces the formation of task forces to review each issue.

The document comes in response to President Trump’s high-profile “energy independence” executive order, which directed agencies to review all federal rules that potentially hamper U.S. energy producers.

“EPA is committed to President Trump’s agenda,” Pruitt said in a statement. “We can be both pro-jobs and pro-environment. At EPA, that means we are working to curb unnecessary and duplicative regulatory burdens that do not serve the American people — while continuing to partner with states, tribes and stakeholders to protect our air, land and water.”

The report comes one month after the deadline for submitting the report to the White House. At that time, an EPA spokeswoman confirmed the report was being submitted, though it was not yet publicly available (Greenwire, Sept. 25).

New Source Review

Chief among the report’s recommendations is reassessing the New Source Review, which puts utilities on the hook for upgrading their pollution controls if they make major modifications to a power plant.

The Commerce Department previously targeted the NSR in a report on streamlining the permitting process for manufacturers, calling the program’s requirements “complex, onerous, inefficient and lengthy” (Greenwire, Oct. 13).

EPA built on these concerns in its own report, noting that the agency heard several concerns about the NSR in comments on Trump’s energy independence order in the Federal Register.

Many commenters said the NSR permitting process is “unduly lengthy and complex” and can discourage utilities from making upgrades to facilities, according to the report. The comments are no longer publicly accessible.

“The potential costs, complexity and delays that may arise from the NSR permitting process can slow the construction of domestic energy exploration, production or transmission facilities that must undergo review,” the report said.

During the George W. Bush administration, EPA made several attempts to weaken the NSR that were ultimately struck down by the U.S. Court of Appeals for the District of Columbia Circuit.

John Walke, director of the climate and clean air program at the Natural Resources Defense Council, was involved in much of the major Bush-era NSR litigation. He criticized the report as trying to repeat a quest that had already failed once.

“We’ve seen this movie and we know how it ends — EPA losing in court,” Walke said in an email. “The Trump EPA remake of a B-grade Bush EPA movie will face the same negative reception with courts and Americans. It’s the same obsessive-compulsive disorder concerning Clean Air Act permitting, the same antagonism to clean air health standards.”

Air rules

The report also faulted the current framework for setting and implementing NAAQS for ozone, particulate matter and four other “criteria” pollutants, saying it imposes higher costs on oil and gas facilities, coupled with “greater uncertainties in making future plans.”

Under the Clean Air Act, EPA is supposed to review NAAQS every five years in light of the latest research on the health effects of individual pollutants. While the agency rarely meets that timetable, some commenters raised concerns about the “short review time between revisions” as well as EPA’s slowness in approving state implementation plans for meeting the standards, the report said. Others objected that EPA “will second-guess” state permitting decisions, thus fostering delays and financial risks for applicants.

An immediate target is the 70 parts per billion standard for ground-level ozone, set in 2015 after EPA concluded that the lung irritant was dangerous at lower levels than previously thought. Key contributors to ozone formation are volatile organic compounds produced by oil and gas operations; critics of the tighter standard contend that it’s so strict, some parts of the country may have difficulty meeting it because of high levels of “background ozone” not directly attributable to man-made emissions.

Under Pruitt, EPA has already moved to ease the impact of implementation. Saying that it’s still working with states, the agency has delayed attainment designations that were originally due at the beginning of this month without setting a new deadline (Greenwire, Oct. 3). Pruitt has also created the Ozone Cooperative Compliance Task Force, which — behind closed doors — is weighing other options for addressing compliance requirements.

Already, EPA is planning to streamline approval of the state plans “through a nationally consistent process that includes setting performance targets,” the report said.

The task force is also exploring ways to allow states “to enter into cooperative agreements with EPA to provide regulatory relief and meaningfully improve ozone air quality,” the report said.

During much of George W. Bush’s administration, EPA used one type of those agreements — which substituted customized cleanup milestones for the Clean Air Act’s typical compliance schedule — in a number of areas that had failed to meet an earlier ozone threshold. The agency dropped that approach after environmentalists challenged it in court.

Smart Sectors

The report highlights the creation of the Smart Sectors program within the Office of Policy as a step toward meaningful regulatory reform at the agency.

The Smart Sectors team was established last month to “re-examine how EPA engages with industry” (Greenwire, Sept. 25).

The industries covered by the team include agriculture, automotive, chemical manufacturing, forestry and paper products, mining, oil and gas, and utilities and power generation.

Don Parrish, senior director of regulatory relations with the American Farm Bureau Federation, said he was pleased to see the Smart Sectors team emphasized in the report.

“We were not very impressed with the last administration’s ability to communicate with agriculture, and we welcome any opportunity to improve that communication and exchange of information,” Parrish said.

“Anything they can do to work with industry — whether it’s the energy industry or the agriculture industry — the better.”

Reporter Kevin Bogardus contributed.