U.S. EPA’s Revised NESHAP for Stationary RICE Has Opponents on Both Sides of the Table

U.S. EPA promulgated a revised reconsidered version of 40 CFR Part 63, Subpart ZZZZ – National Emission Standards for Hazardous Air Pollutants (NESHAP) for Stationary Reciprocating Internal Combustion Engines, the so called RICE MACT, on January 30, 2013.  In a previous blog post , Ron Harding discussed the possibility of opposition to the reconsidered rule.  Specifically, Ron discussed potential opposition to the revisions relating to expanded demand response operation of uncontrolled diesel generators.  In addition, opposition also exists around the revisions to operating limits on engines at remote offshore locations because of the potential to impact eastern states’ progress toward attaining and maintaining compliance with the National Ambient Air Quality Standards (NAAQS).

Since taking effect on April 1, 2013, the revised reconsidered RICE MACT has garnered concerned comments from numerous parties, including, but not limited to, the Conservation Law Federation (CLF), State of Delaware, and National Rural Electric Cooperative Association (NRECA).  Such concerns pertain primarily to the revision to the demand response provisions included in the reconsideration and the resulting potential impact on demonstrating and maintaining compliance with the NAAQS.

Regarding demand response, opposition is based on both theoretical and regulatory grounds.  Opponents believe that “true” demand response should lower energy demand, or meet spikes in energy demand, through the use of renewable sources instead of meeting demand through use of small, uncontrolled generators.  There is concern that if demand is not reduced, emission of regulated air pollutants would increase.  Opponents to the reconsidered demand response provisions feel that the rule should ensure that “emergency RICE may only be dispatched during genuine grid emergencies,” and claim that the exemption allowing sources to participate in demand response programs without installing pollution controls is unlawful.

With respect to the NAAQS, opponents maintain that the exemptions for engines operating in remote locations such as the Outer Continental Shelf (OCS) could result in emissions of regulated air pollutants to be transported onshore to locations that are striving for attainment with the NAAQS, such as Delaware.  Opponents further maintain that this scenario could expose the public to emissions of air toxics above regulated thresholds.  A situation that opponents attest is avoidable by requiring such engines to be fit with the required control technologies and/or implementation of the required work practices.

A number of additional disputes have presented themselves since the reconsidered RICE MACT took effect.  For example, opponents of the RICE MACT are challenging the RICE MACT reconsideration on the grounds that the revised provisions are in violation of Section 112 since, opponents maintain, Section 112 does not allow the reconsidered exemption provisions.  Opponents also contest that the rule allows for a delay in reporting requirements until 2016, when reporting is an essential feature of the Maximum Achievable Control Technology (MACT) program.  Lastly, the provisions within the rule that currently allow use of non-ultra low sulfur diesel fuel obtained prior to January 1, 2015 “until depleted” is being challenged on the grounds that the current rule language could provide for “fuel hoarding.”

If you would like additional information on how these revisions affect your compliance with the RICE MACT, you can contact Ron Harding  at (610) 933-5246 (ext. 119) with any RICE related questions. Ron is our resident expert on the RICE regulations, and the leader of the ALL4 RICE Initiative Team.