The basic premise for EJ is that no community should be subject to greater environmental burdens regardless of race, religion, etc. etc. No new regulations have been passed on EJ. However, Title VI of the Civil Rights Act has been used to justify federal interventions on EJ. By executive order, EJ and Climate have to be considered in any federal agency action. EPA issued revised EPA Legal Tools to Advance Environmental Justice.

EPA’s External Civil Rights Compliance Office issued guidance on permitting to point out that a permit may be denied even though all emissions requirements are met if the source does not meet EJ considerations. EPA is modifying its air monitoring plan to include cumulative impact assessments. This concept has been around for nearly 20 years. In this approach, the cumulative effects of all types of emissions and hazards need to be considered (ie traffic, socio-economic situation, etc.). The idea is that certain communities are subject to additional stressors which make it more difficult for them to cope with added environmental issues. Such evaluations would likely be done at the community level (as opposed to the plant level). A screening tool creates an EJ score for each community. Additional data such as health disparities, climate change, and critical services gaps that are not part of the EJ index calculations are being considered for addition. Threshold levels are being calculated. The ECHO database contains a record of violations. A new tool can be accessed and set up to provide an alert of notification if there has been a violation of a particular compound.

The EPA Nexus Tool provides an overlay of the various screens to identify “hot spots”. Some states are adding EJ SCREEN reports to all permit notices. Some states require an EJ assessment as part of the permitting process. California has a proposed EJ component in their permit process by law. Louisiana has gotten a lot of pressure from federal EPA. In one Louisiana Court decision, 14 air permits were denied for a large chemical complex on EJ and CAA grounds.

The EPA issued a 56-page letter suggesting that the Louisiana DEQ is violating Title VI of the Civil Rights Act in their permitting process. The letter recommends including a cumulative impact assessment in their permits. New Jersey requires EJ considerations for permit applications by state law. EPA is investigating Texas for permitting rules for batch concrete plants. One of the key concerns is that many of the requirements are somewhat vague (i.e. conduct an assessment). NGOs are starting to include EJ considerations in their complaints whether a particular facility is near an EJ community or not. Thus, EJ is everywhere. Public engagement is encouraged. Being well prepared well in advance is the best defense. Community involvement is a must. Know and understand your state environment relative to permitting, etc.

Rich Hamel, All4

For reciprocating engines there are MACT standards. There are also NSPS standards with new and existing units. The EPA recently sent out an enforcement alert indicating that there are a number of engines not reporting to EPA, primarily because they did not realize that their particular engine was covered by a regulation. Types of engine (IC or diesel), 2 stroke or 4 stroke, emergency or non-emergency, etc. all have different regulations. Emergency engines are not supposed to be operated in non-emergency situations. If the grid goes down, the emergency engine kicks in. As soon as the power is restored, any operating time counts as “non-emergency” time. There are limits on the amount of time to operate in non-emergency operation. There are around 100 different regulations on these engines. Storm mode operation is used to provide water supply either during or in anticipation of a power outage due to a storm. EPA has determined that anticipation of an outage is not an outage.

Citizens Thermal has 95 engines for their systems. These are both emergency and non-emergency units. Catalysts were installed in 2013. For emergency units, non- emergency operation for readiness, maintenance, and testing is limited to 100 hours. All other non-emergency operation is limited to 50 hours. Various tools were developed to help operations staff understand and follow compliance. Log books, stickers, fact sheets, and FAQ sheets were utilized. Compliance is a “team sport”. The various tools were updated and modified as operations personnel became more familiar with the requirements and related them to operations. Data visualization helps to monitor performance and alert operations staff. Engine maintenance was shifted to an annual basis based on ZZZZ requirements. The maintenance was moved to the 3^rd quarter to allow for full compliance checking by year end. An oil sampling program was developed. Oil has to be changed within 2 days of a non-compliance report. By correlating oil changes with use, oil change schedules for each engine were determined. Stack tests are required every 3 years for non-emergency engines. As a result, 5 non-emergency engines were re-classified to emergency engines.

Ann McIver and David Foster, Citizens Thermal

Regulatory agencies have pushed for more monitoring in general and fenceline monitoring in particular. A bill introduced in the House requires EPA to add fenceline monitoring at 100 industrial sites. EJ considerations also impact the drive for more monitoring. Reporting is mostly hard copy. However, public perception is looking at a dynamic website condition, with the idea that any delay in posting the data is indicative of industry attempting to hide something. Facilities do not operate in a vacuum. There are background levels of contaminant concentrations. Facilities also tend to congregate for supply line considerations. Wind and weather can impact results. There are high lab and capital costs. There may also be particle size or speciation requirements. Accurate wind field data should allow for proper evaluation of background or transport concentrations that come into the site. This could involve upwind monitoring to show concentrations that may net out the facility contributions. Sensor technology needs to be evaluated to control costs.

There are a number of passive and continuous monitoring approaches. For particulates there are beta attenuation techniques and light scattering monitors. The system also takes an air sample for other measurements. Continuous gas analysis systems are available. They can also be solar powered. Passive techniques do not provide continuous analysis. Refineries are required to do fenceline monitoring for benzene. Absorption tubes were used with a 14-day exposure period. Some exceedances were noted at one refinery. The refinery switched to a continuous system combined with wind data to provide much better temporal resolution. This system pinpointed whether the refinery or external sources were the primary contributor. A construction site used a continuous monitoring system combined with data analysis for particulates and heavy metals. Data analysis allowed the inclusion of telemetry data to again show the primary source and then alerts for actions needed to reduce concentrations. Data visualization also helps alert the facilities.

Looking ahead, drones will likely be utilized to collect and send data to data analysis systems. Both sensors and sampling systems can be included on the drones. The evidence of a plume can be isolated and centered. Trees and towers can be a problem for drones.

Rick Osa & Bryan Engelsen, Environmental Resources Management (ERM)

There are a number of issues that are having an impact on requirements for industry in the ozone transport region. The PM2.5 NAAQS current primary and secondary standards were retained by the Trump EPA. The Biden administration has chosen to review the standard. The administration has also revived the CASAC for advice on these issues. They reported a need to reduce the standard, although there were two different positions. The current standard is 12 micrograms/m3. There was one recommendation for 10 – 11 and a second recommendation for 8 – 10. Labor has stated that the standard should be no lower than 10. OMB is reviewing a proposal from EPA. Publication will likely be in the spring of 2023.

The ozone NAAQS final action is expected in March 2023. EPA has proposed disapprovals on 19 states, with requirements for 4 more SIPs. These will be finalized to a FIP the week of December 11, 2022. EPA needs to include more up to date data in their modeling efforts. EPA is pushing states to implement more monitors, especially nearer to roads. Lower NAQQS standards will impact much of the US. Smaller sources will probably need to be targeted. Non- point/dust/and biomass combustion are significant sources. Wild fires in the West are no significant sources. Agriculture is a major contributory in the mid-West. One problem with modeling is that 2016 data is out of date, 2020 data is skewed because of Covid, and 2023 will not be ready in time.

The EPA will be announcing a significant expansion of the Office of Environmental Justice. The EPA has not invited the business community to any meetings so as not to appear to be favoring industry. EPA studies show communities near highways, ports, wildfires, and multiple source industrial sites experience the greatest impact. EPA thinks there are too many synthetic minor sources. All planned EPA activities will likely cause problems and delays in the permitting process, the exact opposite of what is needed.

The OTC Modeling Committee has been revamped. There are two new co-chairs from the NYSDEC, not the most reasonable. Recent VOC modeling for the OTR showed little impact to a 30% reduction in VOC inventory, outside of New York City. The Great Lakes region is still in non-attainment. Modeling of that region continues to show more sensitivity to NOx rather than VOC. EPA’s revised CSPAR rule has been litigated. A decision could be near. On WV v EPA, the Supreme Court remanded the proposed rule from the Obama administration back to the lower courts. The court has asked the parties to come up with a proposal. At the moment, the request is to drop the mandate and await the new proposal from EPA this spring. The WV decision could impact some of the FIP issues, depending on the outcome of any litigation.

Skipp Kropp, Steptoe & Johnson

The GOP now has majority control of the House of Representatives. The Senate remains under the Democrats. This will make it somewhat more difficult to pass legislation. Compromise will be needed. A continuing resolution for funding in the next 2 weeks is likely. The government still needs to be funded. The debt ceiling will have to be released. The Chamber will still be pushing to improve the permitting process. There appears to be bipartisan support for this need. Despite all the climate goals and other objectives, these will not be achieved without a much better permit process. With the House under Republican control, the administration will likely need to issue more regulations and executive orders to achieve their objectives. While the Chamber does not agree with many administration objectives, the Chamber does have a good working relationship with the administration. Nevertheless, the Chamber is not shy about using litigation to support its membership.

The Chamber participated in COP27. The level of engagement from the business community was extensive. Climate activists may have been somewhat distraught (trade show for business?), but these policies, goals, and objectives cannot be achieved without the business community. The reality is that we will continue to need fossil energy and the energy security that those fuels provide for decades to come. The goal should be to reduce emissions, not to reduce the use of fossil fuels.

The debate needs to be changed from government’s need to do more and force businesses to do something to one of developing the necessary technologies, providing the right signals, and applying the appropriate solutions. There are 3 significant needs. The first is improved permitting. The goals cannot be achieved if it takes 5 – 7 years to get a permit for a needed technology. The second is critical materials. Shorter and more secure supply chains will be needed. Labor availability is also key. The third area is natural gas. The Chamber is a strong supporter of natural gas. By greater use of natural gas, the US has significantly reduced its GHG emissions. This fuel must be made available throughout the world, as developing countries attempt to meet their energy needs going forward.

Marty Durbin, US Chamber of Commerce