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Court Remands 50-Hour Engine Exemption to EPA
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On September 23, the U.S. Court of Appeals for the District of Columbia Circuit granted EPA’s request for a voluntary remand of a regulatory exemption allowing use of stationary engines without emissions controls, but left the exemption in place for now over the objections of the Conservation Law Foundation, Calpine Corp., PSEG Power LLC and the Delaware Department of Natural Resources and Environmental Control, which wanted the exemption to be vacated.  The exemption, included in the EPA's 2013 national emissions standards for hazardous air pollutants (NESHAP) for reciprocating internal combustion engines and new source performance standards for stationary internal combustion engines allows engines to operate without emissions controls for up to 50 hours per year to provide non-emergency electricity to power providers.


EPA asked the court to remand the 50-hour exemption following a May D.C. Circuit decision that found EPA acted arbitrarily and capriciously when it allowed stationary engines to operate for up to 100 hours per year without pollution controls as part of an emergency demand-response program.  The agency said there were “closely related” issues that it needed time to review, even though there were different rationales for establishing the 50-hour and 100-hour exemptions. 


The petitioners had argued that EPA's motion for a voluntary remand without vacatur would leave a flawed exemption in place for an unspecified amount of time.  The court ordered EPA to file a report every 90 days on the status of the remand proceedings.  Once the agency completes its action on remand, all parties will be required to file motions to govern future proceedings in the litigation within 30 days.

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