Under an amended consent decree, the U.S. Environmental Protection Agency (EPA) is under a January 14, 2013, deadline to finalize proposed amendments to its 40 CFR 63, subpart ZZZZ standards for Reciprocating Internal Combustion Engines (RICE), which includes a proposed increase in the hours that “emergency” RICE may operate for non-emergency purposes and retain their emergency-status exemption. However, the deadline for compression ignition RICE to seek compliance extensions under 40 C.F.R. § 63.6(i)(4),based on the need for additional time to install controls, is January 3, 2013. This situation creates an obvious conflict for engines that intend to operate as emergency RICE under EPA’s proposal, but may decide to install controls (and need extra time to do so) if EPA finalizes something less than the proposal, because they will not have a final rule to decide between these options until after the January 3 extension-request deadline.
In response, EPA has issued a letter providing that those considering operating engines as emergency RICE should be allowed to submit compliance-extension requests if the final rule substantially differs from the proposal. Thus, if EPA’s final rule is the same as its proposal, any requests for compliance extensions based on the need for more time to install controls must still be submitted by January 3. But if the final rule substantially differs from the proposal, engines that might then reconsider operation as emergency RICE and decide to install controls should be able to submit requests after the rule is finalized. EPA’s position is based on language in 40 C.F.R. § 63.6(i)(4) that allows late-filed extension requests to still be considered if the need for the compliance extension arose after the extension-request deadline, before the applicable compliance date, and as a result of circumstances beyond reasonable control of the owner or operator.
For more information contact Joseph Brown.