On Friday, April 15, EPA issued non-binding guidance on its Reciprocating Internal Combustion Engines (RICE) regulations. The guidance relates to the D.C. Circuit’s decision last summer in Delaware v. EPA, 785 F.3d 1 (D.C. Cir. 2015),* overturning the provisions that would have allowed emergency RICE engines to operate for up to 100 hours per year for demand response or deviations in voltage or frequency (100-hour provision). Shortly after issuing its decision in Delaware, the D.C. Circuit agreed, at EPA’s request, to stay the issuance of a mandate vacating the 100-hour provisions until May 1, 2016. With only two weeks left before the stay expires, EPA issued guidance stating that it expects the court to issue a vacatur mandate on May 2, 2016 (May 1 is a Sunday) after which the 100-hour provision “will cease to have any legal effect.”
The guidance states that after the mandate is issued, the engines that qualified as “emergency engines” under the 100-hour provisions may no longer operate unless their operations either: (a) comply with the emission standards and other applicable requirements for a non-emergency engine; or (b) qualify under the remaining valid criteria for emergency engines (e.g., emergency use, limited hours for maintenance checks/readiness testing, or limited hours to supply non-emergency power as part of a financial arrangement with another entity).
The guidance further states that engines that become non-emergency engines due to the mandate may be subject to numerical emission limits or work-practice standards, notifications, and performance testing, but that the regulatory requirements that will apply to a particular engine will depend on that engine’s technical specifications (e.g., engine type, horsepower, and age). The compliance deadlines for filing initial notifications and performing initial performance testing are short. The guidance directs owners/operators of engines that will become non-emergency engines because of the mandate to EPA’s Regulation Navigation Tool for the RICE NESHAP for assistance in determining which regulatory requirements are applicable.
EPA’s issuance of guidance so close to the end of the stay is telling. When EPA initially requested the court to stay the vacatur mandate, it did so, in part, on grounds that it needed “reasonable time to evaluate the need for—and potentially promulgate—a rule” addressing the use of emergency engines for voltage and frequency deviations. EPA is not intending at this time to propose new or amended provisions in response to the vacatur.
In addition to the 100-hour provision, the guidance also discusses another regulatory provision related to RICE emergency engines—the provision allowing up to 50 hours of non-emergency use to “supply power as part of a financial arrangement with another entity” if certain conditions are met. The review of the 50-hour provision was initially consolidated for review with the 100-hour provision, but the D.C. Circuit severed the issue into a separate case under the title Conservation Law Foundation v. EPA, Docket No. 13-1233. After the order in Delaware was issued, EPA asked, and the court agreed, to voluntarily remand without vacating the 50-hour provision; the court also ordered EPA to provide regular status reports. In the April 15th guidance, EPA notes that because the 50-hour provision was not vacated, emergency engines may continue to operate under it. EPA is still considering the 50-hour provision.
*Chief Judge Garland sat on the Delaware v. EPA panel.