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DC Circuit Decision on Section 126 Rule (5/22/01)

On May 15, 2001, the DC Circuit Court of Appeals issued its decision regarding EPA’s section 126 rule. As you may recall, EPA issued its final rule to control NOx emissions from a variety of stationary sources on December 18, 2000. Numerous petitioners challenged practically every aspect of the rule. A copy of the DC Circuit Court’s decision can be downloaded from our FTP Library.

Although the Court upheld most aspects of the section 126 rule (codified as 40 CFR Part 97), the Court remanded the rule to EPA and directed the Agency to address two components of the rule. Specifically, the Court directed EPA to: "(1) properly justify either the current or a new set of EGU utilization growth factors to be used in estimating utilization in 2007, and (2) either alter or properly justify its categorization of cogenerators that sell electricity to the electric grid as EGUs."

Note that the Court did not postpone the section 126 CEMS certification and compliance deadlines (i.e., May 1, 2002 and May 1, 2003, respectively) to coincide with the associated deadlines specified in the NOx SIP Call (codified as 40 CFR Part 96). RMB understands that an appeal has been made directly to the EPA Administrator, encouraging her to make the section 126 timeline congruent with the NOx SIP Call timeline.

RMB’s current experience is that CEMS and DAHS vendors are citing backlogs of approximately 4 to 6 months. However, as these various compliance deadlines approach, equipment delivery times will likely increase. Furthermore, the implementation of the NOX Budget programs (section 126 and the NOX SIP call) is coinciding with a trend in replacing/upgrading CEMS equipment in the electric utility industry. This fact may further extend CEM equipment delivery schedules.

A copy of RMB’s NOx trading program "white paper" is also available in our FTP library. The paper provides an introduction to the compliance issues associated with the NOx budget programs established by 40 CFR Parts 96 and 97.

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RMB Consulting & Research, Inc.
Last Revised: June 14, 2001