Regulatory Update on DC Circuit Court of Appeals Decision on EPA’s 100-Hour Emergency Demand Response Provision
On July 21, 2015, the DC Circuit Court of Appeals amended its previous decision in favor of EPA stating that the vacatur included only the 100 hour emergency demand response provision and that the hours allowed for maintenance, readiness checks and testing be left as part of the rule. Therefore, the Court is only vacating the part of the rule that allows for 100 hours of operation for emergency demand response.
Then on August 14, 2015, the DC Circuit Court of Appeals granted EPA’s 
motion to stay the mandate allowing the 100 hour emergency demand response provision to remain in effect until May 1, 2016. As stated in the previous article, this will allow for owners and operators the time to install necessary controls to meet the requirements for non-emergency engines. Therefore, beginning May 1, 2016, any engine operating for any type of demand response program will need to comply with the non-emergency provisions of the applicable regulation (NSPS Subpart IIII for newer engines and NESHAP Subpart ZZZZ for existing engines).
In addition, EPA has responded to questions raised by Cerio stating that engines manufactured in 2011 or later are required to be certified to Tier 4 emission standards (either Tier 4 Interim or Tier 4 Final depending on manufacture date) as a non-emergency engine. Therefore, model year (MY) 2011 and later engines previously considered emergency under the 100 hour rule that were only required to be Tier 2 certified will now be required to be Tier 4 certified to continue to operate for demand response. In addition, EPA stated that these engines cannot be retrofit with aftertreatment to meet Tier 4 emission standards but instead must be removed and Tier 4 certified engines installed. Cerio does not agree with this interpretation by EPA and is attempting to resolve this matter in favor of owners and operators by allowing the engines in question to be retrofit with the appropriate aftertreatment and tested in the field to demonstrate compliance with Tier 4 emission standards.
For additional information pertaining to the Court decision or other air quality concerns, please contact us.