In keeping with President Trump’s energy focused executive orders and new Environmental Protection Agency (EPA) Administrator Lee Zeldin’s “Powering the Great American Comeback” Initiative, the EPA introduced an electronic mailbox to field requests from the regulated community for Presidential Exemptions under Section 112(i)(4) of the Clean Air Act (CAA).¹ To request a Presidential Exemption, regulated facilities must send submissions to the EPA by March 31 and meet specified criteria.

According to Section 112(i)(4) of the CAA, the President may exempt any stationary source from compliance with any Section 112 standard or limitation. To grant an exemption, the President must determine (1) that the technology to implement the CAA Section 112 standard or limitation is not available; and (2) that it is in the national security interests of the United States to grant such an exemption.

Decisions on the merits of each request are to be made by the President evaluating:

• The emissions standards or limitations subject to the request;
• Facility and/or affected source-specific information;
• The length of the compliance period being requested;
• Explanations of why the technology to implement the standard is not available;
• Explanations of why an extension is in the national security interests of the United States.

Presidential Exemptions under Section 112(i)(4) of the CAA may be granted for up to two years, with the potential for additional periods. Exemptions may be extended for one or more additional two-year periods if the President determines such an extension is appropriate. Section 112(i)(4) of the CAA also requires that any exemptions or extensions made by the President be reported to Congress.

An example of the types of standards that may qualify for exemption are “maximum achievable control technology” or “MACT” standards, among others. Generally, Section 112 of the CAA addresses emissions of hazardous air pollutants via technology-based emission control standards issued by the EPA for major sources and certain area sources. One category of such standards is commonly referred to as MACT standards, which require the maximum reduction in emissions of hazardous air pollutants. For example, a request for a Presidential Exemption could invoke a lack of available technology to comply with certain MACT standards applicable to a facility or source. While MACT standards are generally related to this Presidential Exemption initiative, the EPA also specified standards for the regulated community to consider requesting exemptions from.

The EPA highlighted the following standards as part of its Presidential Exemption electronic mailbox initiative for the regulated community to consider. The EPA requested information from facilities or sources subject to the following regulations detailing its qualification for a Presidential Exemption while the EPA reconsiders these rules:

• “National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review of the Residual Risk and Technology Review;”²
• “New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants for the Synthetic Organic Chemical Manufacturing Industry and Group I & II Polymers and Resins;”³
• “National Emission Standards for Hazardous Air Pollutants: Ethylene Oxide Emissions Standards for Sterilization Facilities Residual Risk and Technology Review;”⁴
• “National Emission Standards for Hazardous Air Pollutants: Rubber Tire Manufacturing;”⁵
• “National Emission Standards for Hazardous Air Pollutants: Primary Copper Smelting Residual Risk and Technology Review and Primary Copper Smelting Area Source Technology Review;”⁶
• “National Emission Standards for Hazardous Air Pollutants: Integrated Iron and Steel Manufacturing Facilities Technology Review;”⁷
• “National Emission Standards for Hazardous Air Pollutants: Lime Manufacturing Plants Technology Review;”⁸
• “National Emission Standards for Hazardous Air Pollutants for Coke Ovens: Pushing, Quenching, and Battery Stacks, and Coke Oven Batteries; Residual Risk and Technology Review, and Periodic Technology Review;”⁹ and
• “National Emission Standards for Hazardous Air Pollutants: Taconite Iron Ore Processing.”¹⁰

While it is unclear how many exemptions might be granted, this electronic mailbox initiative for Presidential Exemptions provides a new mechanism for stationary sources to address their CAA Section 112  regulatory compliance obligations.

For more information on the EPA’s Presidential Exemptions initiative, please contact a member of Taft’s Environmental practice group.

 

Notes:

¹Clean Air Act, 42 U.S.C. § 7412(i)(4).

²MATS Rule, 89 Fed. Reg. 38508 (May 7).

³HON Rule, 89 Fed. Reg. 42932 (May 16).

⁴Sterilizer Rule, 89 Fed. Reg. 24090 (Apr. 5).

⁵Rubber Tire Rule, 89 Fed. Reg. 94886 (Nov. 29).

⁶Copper Rule, 89 Fed. Reg. 41648 (May 13).

⁷Iron and Steel Rule, 89 Fed. Reg. 23294 (Apr. 3).

⁸Lime Rule, 89 Fed. Reg. 57738 (July 16).

⁹Coke Ovens Rule, 89 Fed. Reg. 55684 (July 5).

¹⁰Taconite Rule, 89 Fed. Reg. 16408 (Mar. 6).