EPA Splits the Baby on Backup Generators: Still Allows 100 Hours Use, But Now Requires Ultra Low Sulfur Diesel

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Yesterday, EPA finalized revisions to the National Emissions Standards for Hazardous Air Pollutants for stationary reciprocating internal combustion engines, or – one of my new favorite acronyms – RICE.  The biggest dispute over the rule was the extent to which it would allow backup diesel generators to run for demand response purposes.

As we had noted previously, EPA proposed last May to allow backup generators to run for up to 100 hours for demand response purposes without being subject to emissions limits.  Both the Electric Power Supply Association and environmentalists raised concerns about allowing such extensive use of backup generators.  However, EPA clearly felt that backup generators do play an important role in demand response.

In the final revisions released yesterday, EPA compromised in a way that might actually satisfy most stakeholders.  As summarized in EPA’s Fact Sheet, EPA

  • Will allow emergency engines to operate for demand response up to 100 hours per year
  • Provided tighter definitions regarding the precise circumstances when backup generators may operate
  • Will Require backup generators to use ultra low sulfur diesel fuel beginning in 2015

EPSA indicated to E&E News that it might still litigate over the 100-hour provision, but Mark Crisson, president of the American Public Power Association was quoted in Daily Environment Report as saying that

EPA is fulfilling its obligation to protect public health while providing the electricity industry the flexibility it needs to prevent unnecessary electrical outages….”

My sense is that EPA struck a reasonable balance here.  In the modern world, there is always someone willing to sue, but I think the rule will generally be accepted and should certainly survive judicial review if it is challenged.

 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

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