Clean Air Act: Facility Emissions During Periods of Start Up, Shutdown, and Malfunction
In December 2008, the United States Court of Appeals for the District of Columbia Circuit (PDF) (21 pp, 65K), issued a decision setting aside the provisions in 40 C.F.R. Sections 63.6(f)(1) and 63.6(h)(1), which exempt sources from the requirement to comply with affected section 112(d) emission standards during periods of startup, shutdown and malfunction. Certain industry parties to that litigation sought rehearing of the Court's decision (PDF) (12 pp, 548K) and the Court denied (PDF) (1 pp, 30K), the request for a rehearing on July 30, 2009 (PDF) (1 pp, 30K). On August 5, 2009, EPA filed a motion seeking a 60-day stay of the effective date of the Order. On August 6, 2009, Industry Intervenors filed a motion to stay the effective date of the Order pending their appeal of the decision to the United States Supreme Court. Until the D.C Circuit issues an order that puts the court's decision into effect, 40 CFR 63.6(f)(1) and (h)(1), remain in effect.
EPA's Office of Civil Enforcement issued a letter (PDF) (10 pp, 703K) addressing concerns that have been raised regarding the impact of that decision if the court's decision is made effective. An announcement of EPA's letter appears in the Federal Register (Vol. 74, No. 164, page 43124, August 26, 2009). The decision of the Circuit Court of Appeals for the District of Columbia Circuit (PDF) (1 pp, 703K) was made effective on October 16, 2009 when this "Mandate" was issued. Industrial petitioners shortly thereafter filed this Petition for a Writ of Certiorari (PDF) (19 pp, 1MB) with the Supreme Court of the United States. This is the memo concerning the Interpretation regarding Aluminum Industry (PDF) (3 pp, 181K).
For questions or concerns about this issue, please contact Charlie Garlow, Attorney, Air Enforcement Division, 202-564-1088.