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| July 26, 2009 |
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EPA Announces How it Will Address D.C. Air Pollution Ruling
By Amy E. Romig |
The EPA announced the availability of a letter addressing how it will apply a decision from the U.S. Court of Appeals for the District of Columbia decision vacating two provisions of federal air pollution control law. 74 F.R. 43124. On December 19, 2008, in an appeal by the Sierra Club, the D.C. Circuit vacated the general provisions of 40 CFR 63.6(f)(1) and (h)(1) which excuses area sources from compliance with otherwise applicable National Emission Standards for Hazardous Air Pollutants (“NESHAPs”) during startup, shutdown, and malfunction (‘SSM”) events for those NESHAPs that incorporate those general provisions by reference. The affected NESHAPs include, among others, those for the gasoline distribution industry (Subpart R), the steel pickling industry (Subpart CCC), publicly owned treatment works (Subpart VVV), Municipal Solid Waste Landfills (Subpart AAAA), and pharmaceutical Manufacturing (Subpart GGG).
The EPA’s July 22, 2009 letter states its belief that the vacatur of these rules will affect many source categories given that their compliance demonstration periods are long enough that SSM events will not likely result in emission exceedences or because SSM events do not always affect pollution control equipment. The EPA letter also states that for sources that will be affected by the vacatur and cannot comply with the NESHAP standards during SSM events, the EPA will determine appropriate responses based upon, in part, the good faith efforts of the sourse to minimize emissions during these SSM events.
The EPA has filed a motion seeking a 60-day stay of the court’s mandate to vacate the general rules, and industry intervenors have sought a stay pending their appeal of the decision to the United States Supreme Court.
Given that the D.C. Circuit struck down the general provisions for SSM events, the EPA is currently reviewing other specific regulations regarding SSM events as well.
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