The US Enviornmental Protection Agency (EPA) has sent for White House Office of Management & Budget (OMB) review its proposed revisions to its emissions rules for the Portland cement sector, ahead of a tentative 15 June deadline for issuing the revisions in line with a proposed consent decree with industry.
The agency in September 2010 first issued a national emission standard for hazardous air pollutants rule to reduce the sector's air toxics, alongside a new source performance standard to cut criteria pollutant emissions. Industry and environmentalists then filed suit over the rules and also petitioned EPA for administrative reconsideration of the rules, asking it to make several major changes to the policies.
In May 2011, the EPA granted the petitions in part and denied them in part. Legal challenges over the provisions that the agency agreed to reconsider were largely put on hold, but industry continued its challenge to numerous aspects of both rules that were not reconsidered, including how a related air rule for solid waste incinerators could potentially alter the cement rule's emission limits.
In a 9 December ruling, the US Court of Appeals for the District of Columbia remanded the cement air toxic rule back to EPA, finding that EPA erred by not granting industry's request to reconsider the potential regulatory overlap with the incinerator rule. The court also ordered the agency to stay its emission standards for clinker storage piles at cement facilities pending reconsideration.
The court has delayed the deadline for industry to seek rehearing or en banc review of the ruling pending the outcome of EPA's administrative reconsideration process. In a proposed consent decree with industry published in the May 8 Federal Register, industry agrees not to seek rehearing if the agency satisfies deadlines and other requirements for the pending proposed reconsideration rule. The notice is available on page 2 of InsideEPA.com.
Among the requirements in the decree are: EPA must issue a proposed rule by June 15, EPA agrees to either propose to "reset the compliance timeframe for existing sources" subject to the rule "to at least September 9, 2015," which would be a two-year delay of the compliance timeframe for the rule, or take comment "on whether the existing source compliance deadlines should be extended and make clear that the final rule may include such an extension if justified."
The pending proposed revised rules undergoing OMB review will address not only the remand but also EPA's May 2011 partial reconsideration of the cement rules – including standards for open clinker storage piles and start-up and shutdown monitoring requirements – as those provisions included in the recent proposed consent decree with industry.
In the Register notice on the consent decree, EPA says it "would also agree to propose to extend the existing source compliance date of September 10, 2013, or in any case to discuss the possibility of extending that date, and to take final action by December 20, 2012 regarding the date of compliance" if such provisions are "supported by the administrative record."
While stalling the compliance deadline would be a win for industry, it would likely draw protests from environmentalists supportive of the current air toxics rule.
The deadline for comments on the proposed consent decree is 7 June.
