Texas Pipeline Association Thure Cannon President March 15, 2019 Submitted via https://www.regulations.gov Docket ID No. EPA-HQ-OAR-2013-0495 U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, D.C. 20460 Re: Review of Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units; Request for Comments on Endangerment Finding Interpretation Dear Sir or Madam: The Texas Pipeline Association ("TPA") is taking this opportunity to submit the following comments in this rulemaking to address a single legal issue raised by U.S. Environmental Protection Agency ("EPA") in the preamble for this rulemaking,1 related to the proper interpretation of the endangerment finding requirement in Section 111 of the Clean Air Act ("Act"). Specifically, EPA indicated that it will consider comments on the issue of whether it is correct to interpret Section 111 as requiring that an endangerment finding is only made once, at the time EPA lists the source category, or whether EPA must make a new endangerment finding each time it regulates an additional pollutant from an already-listed source category.2 This issue is vitally important to TPA and its members. TPA is an organization composed of over 40 members who gather, process, treat, and transport natural gas and hazardous liquids materials through intrastate pipelines in Texas. Its members are subject to various New Source Performance Standards ("NSPS") promulgated for the oil and gas source category. EPA has not only expanded the oil and gas source category over time, but it has also increased the number and types of pollutants that it regulates under an NSPS for this source category. EPA justifies all of that activity by having made a single endangerment finding in 1979 for the then-identified "oil and gas production sites" source category. The most recent pollutant to be covered by the oil and gas source category NSPS is methane,3 a greenhouse gas ("GHG"). Because GHGs are at issue in the instant rulemaking, TPA believes that these comments are particularly germane to the underlying legal support for this rulemaking. Although the instant rulemaking concerns a proposed revised NSPS for electric 1 83 Fed. Reg. 65424 (Dec. 20, 2018). 2/J.at65432n.25. 3 See 40 CFR Part 60 Subpart OOOOa. 604 West 14th Street, Austin, Texas 78701 phone: (512)478-2871 fax:(512)473-8476 Email: thure.cannon@texaspipelines.com
rulemaking. Although the instant rulemaking concerns a proposed revised NSPS for electric generating units, the underlying legal issue is identical. Hence, TPA submits these comments in an effort to provide relevant information to EPA about TPA's views on the legal underpinnings for this rulemaking. I. TPA believes that the correct interpretation of Section 111 is that EPA must make a new endangerment finding prior to regulating a new pollutant under the NSPS program. EPA has asked for comments on whether the Act requires EPA to make an endangerment finding only once - when the agency originally lists a source category - or instead, whether EPA must make a new endangerment finding each time EPA wishes to regulate an additional pollutant emitted from that source category.4 As explained below, TPA believes that the latter position is correct. In the 2016 Subpart OOOOa rulemaking, EPA established NSPS for methane without making an endangerment finding for methane emissions from oil and gas sources.5 TPA and other industry groups filed comments pointing out EPA's omission in failing to make a Section 11 l(b) endangerment finding for the new pollutant subject to regulation under NSPS.6 By imposing NSPS requirements for a new pollutant without first establishing that that pollutant "may reasonably be anticipated to endanger public health or welfare" (i.e., making an endangerment finding), EPA's action was at odds with the very purpose of the NSPS program, which is to regulate pollutants from source categories that endanger public health and welfare.7 The NSPS program is obviously not intended to regulate emissions that cause a lesser harm,8 yet that is the result that could be reached should the interpretation of Section 11 l(b) prevail that allows EPA to regulate a new type of emission without first determining whether that particular type of emission poses any threat to public health. When EPA regulates a new type of emission under the NSPS program while skipping the crucial step of making an endangerment finding for that particular kind of emission, EPA fails to follow the steps laid out by Section lll(b) of the Act and exercises power that Congress did not confer upon the agency.9 EPA's position can lead to unjustified regulations. In the Subpart OOOOa rulemaking, for example, EPA concluded that it had authority to regulate oil and natural gas sources for a new pollutant, methane. EPA's basis for this conclusion was the fact that EPA, in its initial listing of the oil and gas source category in 1979, had determined as a general matter that the oil and natural 4 See 83 Fed. Reg. 65432 n.25 (Dec. 20, 2018). 5 40 CFR 60.5360a et seq. 6 See comments submitted by Thure Cannon, President, Texas Pipeline Association (Dec. 4, 2015), Docket No. EPA-HQ-OAR-2010-0505-6927. 7 See Asarco, Inc. v. EPA, 578 F.2d 319, 327 (D.C. Cir. 1978). 8 See Coalition for Responsible Regulation v. EPA, 684 F.3d 102, 135 (D.C. Cir. 2012), aff'dinpart, rev'd in part, Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014); see also Act 11 l(b). 9 See Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 374 (1986) (an administrative agency "literally has no power to act... unless and until Congress confers power upon it").
gas source category contributes to pollution that may endanger public health or welfare.10 But that finding, made some 40 years ago, did not address the environmental impact of GHG emissions; indeed, GHGs were barely in the public consciousness at that time and were certainly not regulated as pollutants by EPA. To the contrary, the 1979 finding which EPA claimed to be a basis for Subpart OOOOa concerned a list of various pollutants but did not review the impact of methane emissions as a GHG. Yet EPA's view in 2016 was that no further review of the environmental impact of methane as a GHG was required. Imposition of NSPS for a new pollutant should be based on EPA's consideration of the potential dangers caused by emissions of that particular pollutant. EPA's reliance on a decadesold finding that did not even consider whether methane emissions as a GHG per se were harmful to the environment is without justification and is arbitrary and capricious.11 We urge EPA to review its interpretation of Section 11 l(b) of the Act and conclude that it requires EPA to make a new, pollutant-specific endangerment finding before it establishes NSPS for a new pollutant whose impact was not considered in a previous endangerment finding. II. EPA may not circumvent the endangerment finding requirement by employing a "rational basis" standard that is not in Section 111. EPA claimed that it had authority to establish NSPS for methane because there was, in its view, a "rational basis" for doing so. Specifically, EPA concluded that it need not make an endangerment finding to add a new pollutant to an existing source category; rather, EPA viewed a finding that there is a "rational basis" to regulate a new pollutant to be an adequate substitute for an endangerment finding.12 EPA did not cite any statutory authority for its position because there is none. The words "rational basis" do not appear in Section 111. To the contrary, what the Act says is that, before an NSPS requirement may be imposed upon a source, EPA must find that the source will "causef]... or contribute^ significantly to... air pollution which may reasonably be anticipated to endanger public health or welfare."13 Because the Act calls for a determination of whether the "air pollution" at issue "may reasonably be anticipated to endanger public health or welfare," a pollutant-specific endangerment finding is required. Obviously, a determination of whether a source will cause or 10 81 Fed. Reg. 35833 (June 3, 2016) (concluding that "the 1979 listing of this source category provides sufficient authority for this action"). 11 EPA is taking comments on "whether GHG emissions are different in salient respects from traditional emissions such that it would be appropriate to conduct a new 'endangerment finding' with respect to GHG emissions from a previously listed source category." 83 Fed. Reg. 65432 n.25 (Dec. 20, 2018). The answer is yes. The uniqueness of GHG emissions in this context is that only recently have they been regulated by EPA as a pollutant. Thus, prior EPA findings are irrelevant and cannot form the basis for NSPS for methane emissions. It would be improper to impose new regulations on a pollutant based on an endangerment finding that was made at a time when the emission in question was not even a regulated pollutant. 12 81 Fed. Reg. 35842, 35877 (June 3, 2016); see also 80 Fed. Reg. 64530 (Oct. 23, 2015). 13 Section 11 l(b)(l)(a) (emphasis added).
contribute to dangerous air pollution cannot be made without an assessment of the characteristics and potential health impacts of the particular pollutant emitted by that source.14 The Subpart OOOOa rulemaking provides an example of how the statutorily-unfounded "rational basis" standard can lead to inappropriate results. Contending that it did not have to make a methane-specific endangerment finding, EPA instead pointed to its 2009 GHG endangerment finding and found that it had a "rational basis" to regulate methane emissions in Subpart OOOOa.15 The 2009 endangerment finding, however, did not analyze the environmental impacts of methane standing alone, but rather concluded that six different greenhouse gases, "taken in combination" as emitted from motor vehicles, contribute to pollution that threatens public health and welfare.16 Thus the 2009 finding, which neither assessed the impact of methane emissions standing alone nor analyzed stationary sources of any kind (let alone stationary oil and gas sources), was nonetheless deemed by EPA to justify imposition of NSPS for methane from stationary oil and gas sources. Simply put, EPA's application of the "rational basis" standard opened the door for it to regulate a single pollutant, emitted by stationary oil and gas sources, on the basis of a 2009 analysis of an "atmospheric mix" of six different pollutants, emitted from motor vehicles.11 To coin a phrase, a sort of "endangerment finding creep" seems to have occurred, whereby a finding aimed at a mixture of pollutants from one type of source purportedly provided a "rational basis" for regulating a single pollutant from a different kind of source. We do not believe that this was rational. More to the point, it was not consistent with Section 11 l(b). In sum, the Act requires EPA to regulate according to an endangerment finding for particular pollutants; only if EPA concludes that the particular pollutant at issue "may reasonably be anticipated to endanger public health or welfare" may it regulate that pollutant via NSPS issued under Section lll(b)(l)(a). Accordingly we believe that EPA acted without authority when it effectively rewrote the Act to insert a "rational basis" standard into Section 11 l(b). See Utility Air Regulatory Group v. EPA, 583 U.S. 302, 328 (2014) (reaffirming "the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate"). We urge EPA to conclude that Congress did not authorize EPA to substitute a "rational basis" finding for an endangerment finding, and also to conclude that EPA must make an endangerment finding before imposing NSPS on a new pollutant emitted from a previously listed source category. 14 Citing National Lime Ass 'n v. EPA, 627 F.2d 416, 431-32 n. 48 (D.C. Cir. 1980), the preamble notes that EPA has previously taken the position that EPA may regulate particular pollutants as long as EPA provides a "rational basis" for doing so. 83 Fed. Reg. 65432 (Dec. 20, 2018). But National Lime is misapplied in this context because the decision does not address the question presented here: what does the Clean Air Act require EPA to do when it wishes to regulate under the NSPS program a new pollutant from an alreadylisted source category? In National Lime the court determined that a prior endangerment finding was supported by a rational basis; it did not say that no such endangerment finding need be made. Id. at 431-32n.48. 15 81 Fed. Reg. 35842, 35877 (June 3, 2016). 16 74 Fed. Reg. 66496 (Dec. 15, 2009). 17 81 Fed. Reg. 35842-43 (June 3, 2016).
III. Conclusion. TPA appreciates the opportunity to express our views on this important subject. Imposition of NSPS requirements creates costly new burdens on regulated sources. Such burdens should not be imposed unless EPA has carefully considered whether the new requirements are truly necessary and are authorized by the Act. In our view, Section lll(b) provides that a basic part of that consideration is EPA's assessment of whether the particular pollutant under consideration is one that threatens to endanger public health and welfare. We urge EPA to reject and withdraw the erroneous interpretation that EPA may skip the endangerment finding step in this context. We further urge EPA to clarify that a statutory prerequisite for regulation of a new pollutant under the NSPS program is an endangerment finding for that particular pollutant. Finally, and as a separate matter, TPA urges EPA to revisit the legal underpinnings for the Subpart OOOOa standards as we believe EPA did not follow the statutory prerequisites for the adoption of such standards. Accordingly, those standards are illegal as being outside of the agency's authority, and as such should now be withdrawn. Yours truly, Thure Cannon President