REGULATORY MEMORANDUM

House Bill Would Delete International Regulatory Provisions From Clean Air Act, And Other Recent CAA Developments

House Bill Would Delete International Regulatory Provisions From Clean Air Act: Stating that "this assault on our Constitution and states' rights must be stopped," Representative Scott Perry (R-PA) on February 11, 2016, introduced a bill that would deny the U.S. Environmental Protection Agency (EPA) "the ability to bypass Congress and take control of every states' energy program." The Energy Sovereignty Act (H.R. 4544) seeks to do so by eliminating Section 115 of the Clean Air Act (CAA). This provision addresses international air pollution and has been cited by some as legal grounds for implementation of the Clean Power Plan and other Obama Administration climate change initiatives. The bill's introduction comes on the heels of the U.S. Supreme Court's February 9, 2016, stay of the Clean Power Plan. In the wake of this decision, some are calling on EPA to exercise its authority under CAA Section 115 to address climate change. Section 115 would appear to authorize EPA to require states to reduce air pollution emissions that cross international boundaries if other countries are taking reciprocal action. Some argue that this "reciprocal action" has been taken via the climate agreement reached in Paris in December 2015. Perry's legislation, if implemented, would remove this authority.

EPA Adds Three Materials To List Of Categorical Non-Waste Fuels: In a final rule issued on February 8, 2016, EPA amended its Non-Hazardous Secondary Materials (NHSM) rule under the Resource Conservation and Recovery Act (RCRA) to add three categories of materials that will be regulated as fuels rather than wastes when burned. 81 Fed. Reg. 6687. Promulgated by EPA in 2011 and codified at 40 C.F.R. Part 241, the NHSM rule establishes standards and procedures for identifying whether NHSM are solid wastes when burned as fuels in combustion units. Those NHSM categorized by EPA as solid wastes when combusted must be burned in units meeting the CAA Section 129 standards for solid waste combustion units. NHSM EPA identifies as fuels can be combusted in units meeting the less stringent CAA Section 112 standards for commercial, industrial, and institutional boilers or, if the combustion unit is a cement kiln, the CAA Section 112 emissions standards for Portland cement kilns. In the final rule, EPA added construction and demolition (C&D) wood processed from C&D debris according to best management practices to the list of categorical non-waste fuels. EPA also added paper recycling residuals generated from the recycling of recovered paper, paperboard and corrugated containers and combusted by paper recycling mills whose boilers are designed to burn solid fuel and creosote treated railroad ties (CTRT). To qualify as a non-waste fuel, however, railroad ties must be processed and combusted in units designed to burn both biomass and fuel oil as part of normal operations and not solely as part of start-up or shut-down operations. CTRTs can also qualify for the designation if they are combusted at units at major source pulp and paper mills or power producers subject to 40 C.F.R. Part 63, Subpart DDDDD that combust CTRTs and have been designed to burn biomass and fuel oil, but are modified to use natural gas instead of fuel oil, as part of normal operations and not solely as part of start-up or shut-down operations. The rule became effective on March 9, 2016.

 
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