Court Supports Strict Interpretation of Clean Air Provisions

A judge for the U.S. District Court for the Southern District of Indiana ruled that commonly but infrequently conducted maintenance cannot be considered routine under the existing exemptions to the new source review (NSR) provisions of the Clean Air Act. 

Routine maintenance is exempted from NSR requirements, and as such, the U.S. Environmental Protection Agency’s (EPA) Policy and Air offices have sought to clarify and broaden that exemption.

The EPA enforcement office, however, continues to enforce the rules as strictly as the courts will allow.  In United States v. Cinergy Corp., the company contended that maintenance conducted at most power plants, even if only once during the plant’s lifetime, should be considered routine.

The judge disagreed and also rejected Cinergy’s claim that the internal disputes regarding NSR policy at EPA resulted in failure to notify sources of what rules to follow. 

Contact Tom Carter.

The House Transportation and Infrastructure Committee yesterday approved by voice vote a four-year $66.2 billion Federal Aviation Administration (FAA) reauthorization bill (H.R. 2881).

The Committee-approved measure authorizes $15.8 million for the Airport Improvement Program (AIP) over four years, $3.8 billion in FY 2008 and adding $100 million each year through 2011.  AIP is the principal construction program for eligible airports.

The bill allows airports to raise the maximum allowable passenger facility charge (PFC) from $4.50 to 7.00.  Revenue derived from PFCs can be used for construction purposes.  The airlines that collect the PFCs on behalf of the airports oppose this provision.

The Committee recommended that the Federal excise taxes on general aviation jet fuel and gasoline be increased by 41 percent and 25 percent, respectively.  The Committee recommendations must be approved by the House Ways and Means Committee, which has jurisdiction over tax rates.

Approval of the bill immediately triggered a veto threat from the Administration concerning language reopening contract negotiations between the FAA and the air traffic controllers union.

Last week the House Science and Technology Committee approved legislation (H.R. 2698) authorizing FAA research programs, including research for concrete airfield pavements.  H.R. 2698 will likely be folded into the underlying FAA reauthorization bill during House Floor consideration.

The Senate Commerce, Science, and Transportation Committee recently approved its FAA reauthorization bill (S. 1300).

Contact: David Hubbard or Gary Mitchell.

U.S. Senate Republicans on Tuesday blocked a bill that would allow labor unions to organize workplaces without a secret ballot election.

Under current labor law, if 30 percent of employees in a workplace express interest in union representation, then the National Labor Relations Board supervises an election and the determination is made by the majority of workers, who are allowed to cast votes privately.

Democrats were unable to get the 60 votes needed to force consideration of the Employee Free Choice Act (aka Card-Check), ending organized labor's chance to win its top legislative priority from Congress. The final vote was 51-48. 

The outcome was not a surprise, with Senate Minority Leader Mitch McConnell (R-Ky.) saying for months that he would stop the legislation in the Senate.

The White House also made clear that the bill would be veto if it were passed by Congress.

Contact Robert Sullivan.

The U.S. House Science and Technology Committee on Wednesday approved four bills to expand research and demonstration projects for carbon dioxide capture and storage; to conduct studies on biofuels and solar power; and to revise existing federal climate change research.

The measures are expected to be included in a broader energy package being readied by House Speaker Nancy Pelosi (D-Calif.) for House floor consideration after the July 4 recess.

The carbon sequestration bill (H.R. 1933) approved by the Committee would expand an ongoing Department of Energy program that is researching potential U.S. sites for large-scale collection and storage of carbon dioxide emitted from coal-fired power plants.

The committee approved four amendments to the sequestration bill, including one from the bill's author, Rep. Mark Udall (D-Colo.), to ensure that the added carbon sequestration research and demonstration projects are coordinated with projects already underway at DOE.

Udall's amendment also clarified funding authorization levels in the bill, which as amended would authorize $100 million annually for four years for large-scale carbon capture technologies beginning in fiscal 2008. Another $140 million a year would be authorized beginning in fiscal 2008 for sequestration research under the amendment.

The committee also approved an amendment from Rep. Mike Ross (D-Ariz.) providing $10 million in grants for university sequestration research; and an amendment from Rep. Eddie Bernice Johnson (D-Texas) to ensure at least two of the three carbon capture demonstration projects are awarded to electricity generation plants.

Another bill approved by the committee (H.R. 906) is designed to revise the U.S. Global Change Research Program. It calls for better coordination of existing federal climate change research, which focuses on the impact of global warming on the economy and the environment. Introduced by Rep. Udall, the bill directs federal agencies to ensure that regional and state vulnerabilities to climate change are specifically addressed by the program.  

Contact Deidra Ciriello.

The U.S. House Energy and Commerce Committee yesterday rejected a Republican amendment to increase vehicle fuel economy, but approved energy policy legislation aimed primarily at saving energy from appliances, buildings, and the electric transmissions system.

Among other things, the legislation would require tougher energy-efficiency standards for home heating and cooling systems, include incentives for use of waste heat, and expand loan guarantees for developing advanced technology batteries for automobiles.

Six separate bills made up the package of energy legislation marked up by the committee, with three dealing with appliance and building energy efficiency, electricity transmission, and loan guarantees. The other three bills address renewable energy infrastructure, plug-in hybrids, and energy information.

The committee approved the final three bills after defeating an amendment offered by Ranking Member Joe Barton (R-Texas) that would have raised automobile fuel economy standards to 35 miles per gallon by 2022 from the current 27.5 miles per gallon.

House Speaker Nancy Pelosi (D-Calif.) said she supports Senate-passed legislation (H.R. 6) to increase combined car and light truck corporate average fuel economy (CAFE) standards to 35 miles per gallon by 2020.   Meanwhile, House Energy and Commerce Committee Chair John Dingell (D-Mich.) said the Committee would consider a CAFE increase in the fall.

The energy legislation is part of the House Democrats' energy independence package announced on June 28 by Speaker Pelosi. Pelosi said the House will consider the energy independence package beginning in July.

Contact Deidra Ciriello.

The Mine Safety and Health Administration’s (MSHA) focus on increasing enforcement activities within the regulated mining community—which includes cement, stone, sand and gravel (CSSG) operators—continued last week with the agency’s disclosure of how it will screen for patterns of violation, or POVs. 

The pattern of violations enforcement order is described in section 104(e) of The Mine Act.

The MSHA recently posted online two key documents: 'Pattern of Violations Procedure Summary” and "Pattern of Violations Screening Criteria and Scoring Model - 2007."  The two documents outline the complex framework the agency will use to administer the POV enforcement tool.  MSHA notified the public on June 14 that the agency sent notices to eight mine operators notifying each of them of the potential to be put on a POV subject to the provisions of section 104(e).

The POV order has never been issued by MSHA in the past, but is arguably the most serious type of civil enforcement action that MSHA has in its arsenal of penalties, virtually ensuring that an operator must cease operations for an extended period of time.  Although MSHA has sent notices of potential POV orders to operators in the past, the agency has never followed through with issuing a violation of section 104(e). 

For the first time, the agency has revealed its criteria for POV issuance.  MSHA’s announcement that eight operators have the potential to be placed on a section 104(e) pattern discloses a certainty that this enforcement tool will be used in the future.

Contact Tom Harman and Tom Carter.

House Blocks Funding for Implementation of Air Standards

During floor debate of the Fiscal Year 2008 Interior-Environment appropriations bill this week, an amendment was accepted, as expected, that blocks U.S. Environmental Protection Agency funds to implement changes to the “once in, always in” policy. 

This policy was issued by EPA in the mid-1990s and has had the effect of limiting the application of emission reduction technologies at facilities that emit hazardous air pollutants. It was initially put in place to prevent facilities classified as “major sources” of hazardous air pollutants from subsequently being classified as an area or lower emitting source. 

The amendment, offered by Rep. Eddie Bernice Johnson (D-Texas), was approved by a vote of 252 to 178 Roll no. 556). 

NACA partner, the Portland Cement Association, lobbied against the amendment.

Contact Andy O'Hare or David Hubbard.

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