1 

April 1, 2013 

VIA CERTIFIED AND ELECTRONIC MAIL 

The Honorable Bob Perciasepe 

Acting Administrator, EPA 

Office of the Administrator 

U.S. Environmental Protection Agency 

Room 3000 

Ariel Rios Building 

1200 Pennsylvania Ave., NW 

Washington, DC 20460 

Melanie King 

Energy Strategies Group 

Sector Policies and Programs Division (D243-01) 

U.S. Environmental Protection Agency 

Research Triangle Park, NC 27711 

Lorie Schmidt 

Associate General Counsel, Air and Radiation Law Office 

Office of General Counsel 

Mail Code: 2344A 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave., NW 

Washington, DC 20460 

Re: National Emission Standards for Hazardous Air Pollutants for Reciprocating 

Internal Combustion Engines; New Source Performance Standards for Stationary 

Internal Combustion Engines, 78 Fed. Reg. 6674 (Jan. 30, 2013) 

Pursuant to Section 307(d)(7)(B) of the Clean Air Act,1

 Clean Air Council, Citizens for 

Pennsylvania’s Future (PennFuture), Conservation Law Foundation (CLF), Environmental 

Defense Fund (EDF), Natural Resources Defense Council (NRDC), Pace Energy and Climate 

Center (Pace), Sierra Club, and West Harlem Environmental Action, Inc., (WE ACT) 

(hereinafter “Environmental Groups”) petition the Environmental Protection Agency (EPA) for 

reconsideration of its January 30, 2013 final rule amending the National Emission Standards for 

Hazardous Air Pollutants (NESHAP) for Reciprocating Internal Combustion Engines (RICE). 

As explained below, the purpose of this petition is to address issues of central relevance to the 

outcome of the final rule (“the Amendments”), and to strengthen provisions that could allow 

excessive operation of uncontrolled stationary RICE. 

 

1

 42 U.S.C. § 7607(d)(7)(B). 
2 

With the exception of the issues raised in Part VI, infra, the grounds for the objections 

raised in this petition arose after the period for public comment and are “of central relevance to 

the outcome of the rule,”2

 and therefore meet the statutory criteria for mandatory reconsideration. 

With respect to each objection, the regulatory language and EPA interpretations that render the 

rule arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law 

appeared for the first time in the final rule published on January 30, 2013.3

 The grounds for the 

objections raised in this petition thus arose after the period for public comment. Because this 

petition was filed by the April 1, 2013 deadline for filing petitions for review,4

 the grounds for 

the objections also arose “within the time specified for judicial review.”5 Moreover, each 

objection is of “central relevance” to the outcome of this rule, because — consistent with EPA’s 

interpretation of that term — each objection presents “substantial support for the argument that 

the regulation should be revised.” 6 The Administrator must therefore convene a proceeding for 

reconsideration of the Amendments and afford a new opportunity for public comment on the 

issues raised below.7

 

I. Introduction 

Our organizations have consistently advocated for comprehensive and protective 

standards for emissions from stationary RICE. Diesel exhaust from compression ignition (CI) 

engines is highly hazardous to human health and the environment, containing over 600 

hazardous air pollutants as well as high levels of particulate matter and ozone-forming 

pollutants.8 Pollution from CI engines has also been classified as a human carcinogen and causes 

a wide variety of non-cancer effects.9 Similarly, spark ignition (SI) RICE units also emit 

harmful criteria pollutants and air toxics, which contribute to ambient ozone and carbon 

monoxide levels and put public health at risk.10 The public health and environmental 

implications of increasing the use of uncontrolled CI and SI RICE units in demand response 

(DR) programs and SI RICE in remote areas could be significant. 

For these reasons, several of our organizations filed extensive joint comments on EPA’s 

June 7, 2012 proposal to amend the RICE NESHAP. These comments urged EPA: (1) not to 

finalize the proposed exceptions from rigorous emission standards for emergency stationary 

RICE engaged in DR; (2) not to waive pollution control requirements for SI RICE units located 

in remote areas; and (3) to require registration and reporting from all new and existing RICE 

 

2

Id.

3

 National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines; New 

Source Performance Standards for Stationary Internal Combustion Engines; Final Amendments, 78 Fed. Reg. 6674 

(Jan. 30, 2013). 

4

Id. at 6674. 

5

 42 U.S.C. § 7607(d)(7)(B).

6 Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 125 (D.C. Cir. 2012) (citing EPA’s Denial of the 

Petitions to Reconsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act, 75 Fed. Reg. 49,556, 49,561 (Aug. 13, 2010)). 

7

 42 U.S.C. § 7607(d)(7)(B). 

8

 Comments of Citizens for Pennsylvania’s Future, Clean Air Council, Environmental Defense Fund, Group Against 

Smog and Pollution, Natural Resources Defense Council, Pace Energy & Climate Center, Piedmont Environmental 

Council, and Sierra Club, Document ID No. EPA-HQ-OAR-2008-0708-1090, at 5-7 (filed Aug. 9, 2012). 

9

Id. 

10 EPA, Regulatory Impact Analysis (RIA) for Existing Stationary Spark Ignition (SI) RICE NESHAP at 4-4 (Aug. 

2010). 
3 

units.11 CLF filed separate comments, primarily opposing the 100-hour emergency demand 

response operating allowance.12 

Though it reflects important improvements over the proposed rule, the January 30, 2013 

final rule amending the RICE NESHAP continues to pose serious concerns for our organizations. 

We appreciate EPA’s decision to require that emergency RICE utilize ultra low-sulfur diesel 

(ULSD) fuel, and to require compliance reporting for emergency RICE larger than 100 

horsepower (HP) that are operated or contractually obligated to be available for DR or to support 

local grid reliability. We also strongly support EPA’s decision not to finalize a provision 

allowing uncontrolled emergency RICE to participate in commercial “peak shaving” programs. 

However, other provisions of the final rule fail to provide the rigorous protections for public 

health and the environment that are called for under section 112 of the Clean Air Act. This 

petition respectfully urges EPA to strengthen new provisions of the Amendments that were not 

made available for public comment and that are of central relevance to the outcome of the Rule, 

and to reform such elements that could lead to excessive operation of uncontrolled stationary 

RICE. Key objections raised in this petition for reconsideration include: 

• The 50-hour operating allowance for emergency engines operating without modern 

controls lacks important safeguards to protect human health. On reconsideration, 

EPA should replace the 50-hour allowance with a provision that is more carefully and 

clearly delineated to ensure uncontrolled emergency RICE may only be dispatched 

during genuine grid emergencies, while still allowing local grid operators to address 

legitimate reliability concerns. 

• The Amendments should accelerate the ULSD requirements, currently implemented 

in 2015. Below, we ask EPA to require that emergency RICE begin utilizing ULSD 

immediately, with a strictly limited allowance for non-ULSD fuel purchased as of the 

date of the proposed reconsideration. 

• The Amendments unjustifiably postpone the deadline for filing compliance reports 

for three years – and waive reporting entirely for emergency RICE operations that 

occur between the effective date of the RICE NESHAP and January 1, 2015. We ask 

EPA to accelerate this deadline, ensure that owners of emergency RICE report their 

compliance status for all periods in which they are subject to the NESHAP, and ensure 

that reporting includes a detailed account of utilization of ULSD and non-ULSD fuel. 

• EPA should commit to re-assess the public health impacts of the Amendments after 

the first full year of implementation drawing from the availability of the informative 

compliance reporting under the final rule. 

• The Amendments inappropriately waive pollution control requirements for remote 

existing SI RICE, without addressing the potential risk of public exposure due to 

harmful emissions from engines that are likely capable of meeting otherwise 

applicable emission standards. We ask EPA to eliminate this categorical exclusion or 

more judiciously limit it to SI RICE that are demonstrated to be so isolated as to pose no 

risk of human exposure. 

 

11 Id. at 36. 

12 Comments of Conservation Law Foundation, Document ID No. EPA-HQ-OAR-2008-0708-1101 (filed Aug. 9, 

2012). 
4 

We also continue to oppose the provisions of the final rule that allow emergency RICE 

units to participate in emergency DR programs for as much as 100 hours per year without 

installing cost-effective emission control technologies. To be sure, our organizations understand 

the importance of grid reliability. However, it is inappropriate to allow extensive operation of 

emergency RICE for reliability purposes without installing readily available, indeed 

commonplace, advanced pollution controls. Demand response programs are economic in nature, 

and revenues earned by RICE units in these programs are sufficient to offset the cost of pollution 

controls and other compliance activities. RICE units can meet modern pollution control 

requirements cost-effectively and without compromising availability, as commenters on the 

proposed rule indicated. Moreover, comprehensive emission standards are essential to ensure 

that DR programs encourage clean energy and do not lead instead to increased utilization of 

uncontrolled stationary RICE emitting high levels of air toxics, particulates, and other pollutants 

— pollutants whose impacts are only heightened by the frequent “clustering” of these units near 

schools and residential neighborhoods.13 

II. The New 50-Hour Operating Allowance for Local Transmission or Distribution 

Constraints Lacks Important Safeguards to Protect Human Health 

Environmental Groups have concerns regarding a provision of the Amendments that 

allows existing emergency RICE at area sources to operate for up to 50 hours per year, without 

modern pollution controls to protect human health and the environment, under circumstances 

that are not clearly delineated. This provision, which appeared for the first time in the final rule,

was adopted in response to comments, particularly those submitted by the National Rural 

Electric Cooperative Association (NRECA). 14 

We appreciate the absolutely critical importance of reliability. The operation of these 

engines without modern pollution controls to protect human health warrants careful delineation 

to ensure that the engines are judiciously utilized in emergency applications or, alternatively, to 

provide for modern pollution controls in the event they are utilized more expansively. In 

particular, we request that EPA provide a clearly delineated, objective definition of the 

emergency conditions that could warrant dispatch of emergency RICE and provide the public 

with an opportunity to comment on such definitions to ensure that RICE engines without modern 

pollution controls are utilized in well delineated emergency applications. Absent further 

clarification from EPA on these issues, neither the public nor regulators have an adequate degree 

of certainty that engines dispatched under this provision are actually providing emergency 

service. 

 Indeed, the open-ended nature of this new operating allowance contrasts with the 100-

hour allowance for emergency DR operation, which is limited to objective, verifiable situations: 

in order for a RICE owner to avail itself of the 100-hour allowance, the local balancing authority 

must either declare a Level 2 Energy Emergency Alert under Federal reliability rules, or observe 

 

13 See Nancy E. Ryan, Kate M. Larsen, & Peter C. Black, Smaller, Dirtier, Closer: Diesel Backup Generators in 

California vii (EDF, 2002) (finding the “risk zone” around a diesel generator operated for just 100 hours per year 

can extend for 63 to 118 acres, or 10 to 20 average city blocks). 

14 Id.
5 

a 5% deviation in voltage or frequency.15 Further, in responses to comments on the proposed

100-hour allowance, EPA rejected calls for vague, ambiguous definitions of emergency 

circumstances – noting specifically that “a lack of a specific [alert] condition would make the 

regulation very difficult to enforce and more susceptible to abuse.”16 

Because of these concerns and the lack of opportunity to comment, reconsideration of 

this provision is necessary. On reconsideration, EPA should replace the 50-hour allowance with 

a provision that is more carefully and clearly delineated to ensure uncontrolled emergency RICE 

will only be dispatched during genuine grid emergencies, while still allowing local grid operators 

to address legitimate reliability concerns. 

 

III. EPA Should Accelerate Reporting Requirements for Emergency RICE and Ensure 

Detailed Reporting of Fuel Usage 

As noted above, we strongly support expansive compliance reporting by all owners of 

emergency RICE. However, we also have concerns regarding the protectiveness and rigor of the 

reporting requirements, which were not made available for public comment. We respectfully 

request that EPA accelerate the reporting requirement such that it coincides with other 

requirements in the NESHAP, and also ensure that reports include information on fuel utilization 

that will be necessary to estimate emissions from emergency RICE. 

The Amendments require annual reporting from owners and operators of stationary 

emergency engines larger than 100 horsepower (HP) that operate, or are required by contract to 

be available to operate, more than 15 hours per year (up to a maximum of 100 hours per year) for 

emergency DR or that use the local grid reliability allowance.17 Such owners and operators must 

report annually to EPA on the dates and times the engines operated for emergency purposes 

(including DR and local grid reliability), beginning with operation during the 2015 calendar 

year.

18 In addition, “[t]he report must also identify the entity that dispatched the engine and the 

situation that necessitated the dispatch of the engine.”19 As EPA notes in the final rule, reporting 

is essential to ensure that uncontrolled emergency RICE do not operate outside the limits 

prescribed in the NESHAP.20 Indeed, reporting is the only mechanism in the NESHAP that 

allows the public and EPA to verify that emergency RICE operation is in fact based on 

emergency application. Furthermore, the reports will for the first time provide comprehensive 

 

15 Petitioners oppose the 100-hour allowance, which poses significant risks to public health and the environment. 

CLF Comments at 3-7. Uncontrolled diesel RICE is also effectively subsidized in competition for DR financial 

incentives by this allowance, crowding out emission-controlled and renewable sources. Id. at 14-17. Payments 

under DR programs could recoup the cost of emissions controls in as little as a year, even for RICE that operate for 

less than 100 hours per year. Joint Comments of EDF et al., at 26-27. While the 100-hour allowance is superior to 

the 50-hour allowance in that it has verifiable limits, this comparison should not be construed as an endorsement of 

the 100-hour allowance. 

16 U.S. EPA, Response to Public Comments on Proposed Amendments to National Emission Standards for 

Hazardous Air Pollutants for Existing Stationary Reciprocating Internal Combustion Engines and New Source 

Performance Standards for Stationary Internal Combustion Engines 93, 97-98 (Jan. 14, 2013) [hereinafter “RTC”]. 

17 78 Fed. Reg. at 6681. 

18 Id. at 6680-81. 

19 Id. at 6686. 

20 Id.
6 

public information on the location, operation, and health impacts of these engines — a point 

discussed further in Part V of this petition. 

Our principal concern regarding the reporting requirements is the lengthy delay EPA has 

allowed for submission of the first reports. At present, owners and operators that are subject to 

the requirement need not submit their initial annual reports until March 31, 2016, for engine 

operation in the 2015 calendar year. As a result of this delay, regulators and the public will have 

to wait three years to obtain basic information regarding the location, operation, and compliance 

status of emergency RICE. Of equally great concern, the Rule does not require retrospective

reporting of emergency RICE operation prior to 2015 – even though the RICE NESHAP takes 

effect on May 3, 2013 and October 19, 2013. For the initial 17 months of implementation of the 

RICE NESHAP, EPA and the public will have no practical means of verifying compliance with 

the emergency RICE provisions. 

EPA provides no reasoned explanation why such an essential provision of the NESHAP 

cannot be implemented earlier. Under the 2010 RICE NESHAP, owners of emergency RICE 

were already required to install non-resettable hour meters and to keep records of their hours of 

operation.21 Other basic information that must be reported under the 2013 Rule is readily 

available, or should already be in the possession of RICE owners. The additional reporting 

requirement in the Final Rule imposes only a minimal burden, and this fundamental information 

should promptly be made available to the public. 

In defense of the delayed requirement, EPA stated that it had decided to provide 

additional time for compliance “[i]n those situations where the EPA is not finalizing revisions as 

proposed.”22 EPA also claimed that delaying the start of the reporting period to 2015, instead of 

synchronizing it with the implementation of the NESHAP in 2013, will “provide sources with 

appropriate lead time” to institute the requirement.

23 EPA did not, however, adequately explain 

why “appropriate lead time” would be needed to phase in the reporting requirement, or why it 

considered a two-year deferral of the requirement to be “appropriate.” Reporting is an essential 

feature of NESHAP compliance. Moreover, even if EPA were to require reporting beginning 

with the 2013 calendar year, reports would not be due until first quarter of 2014 – which should 

be more than enough lead time for emergency RICE owners to prepare to report, and for EPA to 

make any needed adjustments to its reporting systems. 

 Because a two-year delay is unwarranted, EPA should accelerate the reporting 

requirement and synchronize it with the implementation of the NESHAP. The reporting period 

should begin immediately, and initial annual reports should be due in early 2014 (for calendar 

year 2013 operations). 

Second, EPA should clarify the reporting requirement for CI engines to make it clear that 

the type and amount of diesel fuel used must be reported. The current requirement in 40 C.F.R. 

§ 63.6650(h)(2)(viii) and (ix) calls simply for the reporting of any “deviations from the fuel 

 

21 National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines; Final 

Rule, 75 Fed. Reg. 51,570, 51,575 (Aug. 20, 2010).

22 RTC at 247. 

23 Id.; see also 78 Fed. Reg. at 6681. 
7 

requirements . . . that apply to the engine . . . .”

24 Environmental Groups believe that EPA 

should collect information about the type of fuel that these engines are using, in addition to any 

deviations, or lack thereof, that may occur during the reporting period. Collecting this 

information will facilitate EPA’s ability to assess the health impacts of the engine emissions, 

which is a stated rationale for the reporting requirement.25 Consequently, EPA should amend the 

requirement for CI engines to expressly require the type and amount of diesel fuel to be reported, 

along with any “deviations.” 

Neither of these objections could be raised during the comment period, because the 

reporting requirement appeared in the final rule for the first time. As demonstrated above, the 

protectiveness and rigor of the reporting requirement lacks record justification and fails to take 

account of relevant factors. Accordingly, reconsideration to strengthen this provision is required. 

IV. EPA Should Accelerate the Clean Fuel Requirements for Emergency RICE 

We strongly support the new requirement in the Amendments that stationary emergency 

CI engines use ULSD fuel.26 This requirement will significantly reduce emissions of air toxics 

such as nickel, zinc, lead, and benzene, and is an especially vital health protection given the 

extended operating allowances that EPA provided in the Final Rule.27 As EPA acknowledged, 

“requiring cleaner [ULSD] fuel for these stationary emergency CI engines will significantly limit 

or reduce the emissions of regulated air pollutants emitted from these engines, further protecting 

public health and the environment.”28 However, we respectfully request that EPA open a 

reconsideration proceeding for the tailored purpose of strengthening the timing of the ULSD 

requirement. 

As with the reporting requirement, EPA has delayed the mandatory use of ULSD until 

January 1, 2015,29 even though the rest of the NESHAP will be implemented in 2013. This 

unwarranted delay will deprive the public of the benefits of the ULSD requirement for almost 

two years. EPA proffers two rationales for its decision, both lacking support in the record. First, 

EPA asserts that affected sources need “appropriate lead time” to institute the requirement and 

“make any physical adjustments to engines and other facilities like tanks or containment 

structures, as well as any needed adjustments to contracts and other business activities.”30 Yet 

EPA offers no evidence indicating that emergency RICE need to invest in modifications. Indeed, 

in prior RICE NESHAP rulemakings EPA has concluded that ULSD can be used in most RICE 

engines without any physical adjustments. For example, EPA’s Regulatory Impact Assessment 

for the 2010 RICE NESHAP assumes no cost to RICE owners from switching to ULSD. EPA 

concluded that the incremental costs of ULSD fuel (including any additives needed to enhance 

 

24 Id. at 6706. 

26 Id. (applicable to engines with a site rating of more than 100 HP and a displacement of less than 30 liters per 

cylinder that operate or are required by contract to be available to operate for more than 15 hours per year (up to a 

maximum of 100 hours per year) for emergency demand response, or that operate for local system reliability). 

27 Id.

28 Id. 

29 Id. 

30 78 Fed. Reg. at 6686. 
8 

lubricity) would be offset by lower maintenance costs associated with the use of this cleaner 

fuel.31 In the same rulemaking, EPA rejected as unsupported industry comments asserting that 

pre-1996 engines have fuel seals and other features that “cannot tolerate ULSD.”32 EPA’s vague 

reference to “physical adjustments” provides no reasoned justification for departing from its 

prior conclusions regarding the feasibility of switching to ULSD. 

Second, EPA asserts a general policy of providing additional lead-time for requirements, 

such as ULSD, that were “not contemplated at proposal.”33 That the ULSD requirement was not 

in the proposal does not justify the lengthy lead-time EPA has provided. Absent a compelling 

demonstration of infeasibility, EPA should require sources that are subject to the clean fuel 

requirement to begin using ULSD immediately. 

In addition to the timing of the ULSD requirement, our organizations are also concerned 

about the provision of the Rule that allows “any existing diesel fuel purchased (or otherwise 

obtained) prior to January 1, 2015, [to] be used until depleted.”34 At present, this rule could be 

interpreted to allow “hoarding” of non-ULSD fuel, which could be used well past the January 1, 

2015 deadline. As EPA noted, the most recent U.S. Energy Information Administration data 

“show that significant amounts of non-ULSD are still being purchased by end users that typically 

operate stationary combustion sources, including stationary emergency CI engines.”35 To 

prevent sources from stockpiling significant amounts of non-ULSD for use after January 15, 

2015, EPA should simply allow the depletion of any non-ULSD fuel that was purchased as of the 

date reconsideration is proposed. Without such a change to the NESHAP, the use of non-ULSD 

in CI engines could continue long after the January 1, 2015 deadline, delaying the health and 

environmental benefits that will accrue from requiring ULSD. 

As with the reporting requirement, these objections could not be raised during the period 

for public comment. Accordingly, reconsideration to strengthen the ULSD provision is required. 

V. EPA Should Commit to Promptly Reassess the RICE NESHAP 

Environmental Groups have commented extensively on the human health risks posed by 

diesel pollution from stationary RICE units. In the rulemaking process for the RICE NESHAP, 

EPA was not able to estimate the health impacts that will result from the many exemptions for 

emergency RICE and remote areas RICE. This gap was mostly due to a lack of data. EPA stated 

in the rulemaking that it does not have proper data on the location, hours of use, HAP emissions, 

or participation trends in DR programs by existing stationary RICE units.36 We believe a strong 

reporting requirement will help alleviate that information gap. However, we also believe it is 

crucial that EPA make the reported RICE data publicly available, as soon as practicable after it is 

collected. 

 

31 2010 CI RIA, at 4-26 to 4-29. 

32 RTC on 2010 CI NESHAP, at 263-64. 

33 Id.

34 Id. at 6680. 

35 Id. at 6688. 

36 See 77 FR 33,831. 
9 

Many emergency RICE units are located in densely populated cities and communities 

near schools, hospitals, playgrounds, and other places where those most vulnerable to diesel 

pollution impacts congregate. Allowing those communities to be fully aware of the location, 

numbers, running time, and emissions rates of the stationary diesel engines near them is 

necessary to help protect public health. The data can also be used by states and municipalities to 

make informed decisions about pollution abatement programs needed to protect public health 

from toxic air pollution exposures and meet National Ambient Air Quality Standards. 

We also note that in its RIA and response to comments, EPA said it would use 

information reported by emergency RICE owners to assess the health impacts of these units. We 

therefore petition the Agency to commit, by regulation, to a timeline for re-evaluating the 

impacts of the emergency DR engines that operate without modern pollution controls after the 

first full year of implementation and reporting. This review should include a comprehensive 

assessment of location of units, hours of use, HAP and criteria emissions, human exposure, and 

health risks. The agency should also identify the trend in participation of DR programs by 

emergency RICE. This report and the underlying reporting data should be available for public 

review and comment. 

This objection to the Amendments could not be raised during the period for public 

comments, because the re-evaluation called for above is only possible as a result of the inclusion 

of reporting requirements in the final rule. This objection also presents substantial support for a 

revision to the Amendments, because it will help rectify data deficiencies that affected the 

development of the Amendments. Accordingly, reconsideration of this aspect of the 

Amendments is required. 

VI. EPA Should Eliminate or Limit the Categorical Exclusion that Allows Remote 

RICE to Operate without Modern Pollution Controls 

EPA’s decision to establish a new subcategory of “remote” RICE, and prescribe 

management practices in lieu of modern emission standards for that subcategory, will 

substantially curtail the emission reduction benefits of the 2010 Rule and expose the public to the 

risks of continued toxic emissions from these engines. The new subcategory consists of 

“remote,” existing 4-stroke rich burn (4SRB) spark ignition (SI) RICE located at area sources. 

Because many existing SI RICE provide compression for pipelines, EPA defined a “remote” 

engine for this purpose as one that is situated in a “Class 1” location under regulations issued by 

the Pipeline and Hazardous Materials Safety Administration (PHMSA).37 For non-pipeline 

engines, EPA defined “remote” to include engines with five or fewer buildings intended for 

human occupancy within a 0.25-mile radius. In explaining this new subcategory, EPA asserted 

that these remoteness criteria are “adequate in protecting public health.”38 Moreover, EPA 

argued that the creation of this subcategory is justified because the costs of emission controls, 

testing, and continuous monitoring “may be unreasonable” for remote engines, which “may be 

 

37 A “Class 1” location is defined as an offshore area or any class location unit that has 10 or fewer buildings 

intended for human occupancy and no buildings with four or more stories within 220 yards (200 meters) on either 

side of the centerline of any continuous 1-mile (1.6 kilometers) length of pipeline. 78 Fed. Reg. at 6675. 

38 78 Fed. Reg. at 6682 
10 

difficult to access, may not have electricity or communications, and may be unmanned most of 

the time.”39 

As explained below, neither justification is adequately supported by the record. Existing 

SI engines are currently responsible for almost 25,000 tons per year of hazardous pollutants, 

516,000 tons per year of CO, and almost 1 million tons of NOx, with more than 80 percent of 

those emissions coming from area sources.40 As a result of the Final Rule, the HAP and volatile 

organic compounds (VOC) emission reductions expected from SI engines will be 70 percent less 

than under the 2010 Rule; NOx reductions will decline by 90 percent; and CO reductions will 

decline by 80 percent.41 Yet EPA’s chosen definition of “remote” does not ensure that human 

exposure to emissions from SI RICE engines will be minimized. Neither does the definition 

limit the subcategory to engines for which installation of emission controls is impracticable, 

which was the principal justification EPA offered for the creation of the subcategory. 

Accordingly, we urge EPA to reconsider this aspect of the 2012 Amendments by either (1) 

eliminating the categorical exclusion of modern pollution controls for the remote area source, or 

(2) significantly narrowing the definition of “remote” to ensure that it only applies to engines 

that pose no risk to public health and have adequately demonstrated the infeasibility of installing 

modern emissions controls. 

A. EPA’s Definition of “Remote” Leaves the Public Exposed to Harmful Air 

Toxics. 

 EPA’s conclusion that its definition of “remote” adequately protects public health is not 

justified by the record. First, as commenters on the proposed Amendments pointed out, 

PHMSA’s safety regulations are used to determine which segments of pipeline are sufficiently 

close to human populations to warrant heightened precautions against leaks, ruptures, explosions, 

and other catastrophic incidents.42 There is no reason to assume that the 220-yard distance that 

PHMSA considers “safe” for such purposes also minimizes public health risks from air toxics. 

Indeed, commenters on the 2012 Amendments cited evidence indicating that some HAPs, such 

as formaldehyde, can be found at elevated concentrations as far as 50 km away from an emission 

source.

43 Further, commenters cited a 2002 study finding that the “risk zone” for elevated cancer 

rates around a single diesel backup generator extends from 63 to 118 acres (10 to 20 city blocks), 

even when operated for only 100 hours per year.44 A circular “risk zone” of this area would have 

a radius of between 935 and 1,279 feet – substantially greater than the 220-yard distance 

specified for Class 1 pipeline segments. The risk zone would be even larger in cases where 

multiple engines are located close together or where engines are operated on a more frequent 

basis.45

 

In response to these facts, EPA conceded that PHMSA and EPA regulations do not share 

the same purpose; however, EPA defended its adoption of PHMSA’s Class 1 definition by 

 

39 Id. 

40 EPA, “Regulatory Impact Analysis (RIA) for Existing Stationary Reciprocating Internal Combustion Engines 

(RICE) NESHAP,” (2010); Table 4-8, Page 4-37. 

41 78 Fed. Reg. at 6676. 

42 See generally 49 C.F.R. Part 192. 

43 Joint Comments of EDF et al., at 35. 

44 Id. at 25. 

45 Id. 
11 

asserting that their intent is “similar”, and that the PHMSA classifications are a “wellestablished” system that is currently in use.46 Neither of these rationales, however, justifies 

EPA’s conclusion that the Class 1 definition (or the 0.25-mile radius) adequately protects public 

health, or rebuts the evidence presented by commenters. EPA presented no public health studies 

of its own to show that air toxics from remote RICE would be minimized outside Class 1 

locations (or the 0.25-mile radius that EPA adopted for engines not located along a pipeline). 

Nor did EPA estimate how many people live or work within Class 1 areas or within 0.25 miles of 

non-pipeline engines, and would be exposed to heightened emissions from RICE under the Final 

Rule. 

EPA did cite to a 3-page memorandum prepared by a consultant for the Interstate Natural 

Gas Association of America (INGAA), which presented the results of dispersion modeling 

carried out in 2002 and 2003 for two hypothetical natural gas-fired 4-stroke RICE units.47 This 

industry modeling has numerous flaws: it was carried out over a decade ago using ISC3, a model 

that has been superseded by AERMOD; did not provide numerical concentration levels at 

various distances, or indicate whether those levels are hazardous; failed to characterize the 

dispersion of particular air toxics of concern, such as formaldehyde; and did not characterize 

pollutant dispersion for non-natural gas-fired engines. Because of these limitations, EPA erred 

in relying on the memorandum to conclude that its remoteness definition adequately protects 

public health. 

B. EPA’s Definition of “Remote” Includes Engines That Could Feasibly Install 

Modern Emission Controls. 

EPA’s definition of “remote” is also arbitrary because it includes engines that are likely 

capable of installing advanced pollution controls. As noted above, EPA said this subcategory 

was necessary to exempt from pollution controls those RICE that “may be difficult to access, 

may not have electricity or communications, and may be unmanned most of the time.”48 For 

such engines, EPA asserted that the costs of emission controls, testing, and monitoring “may be 

unreasonable.”49 Yet as commenters on the Proposed Amendment pointed out, NSCR emission 

control devices have been installed on tens of thousands of existing SI RICE located in remote 

areas, and have operated successfully for years.50 EPA never responded directly to this evidence, 

nor did it present evidence of its own regarding the costs or infeasibility of requiring pollution 

controls on RICE units meeting EPA’s definition of “remote.” What is more, EPA’s definition 

of “remote” bears no clear relationship to accessibility, infrastructure, or staffing considerations. 

Rather, the definition merely excludes pipeline engines that are located within a relatively small 

distance of a minimum number of occupied buildings, or non-pipeline engines that are located 

within 0.25 miles of a minimum number of occupied buildings. This definition could easily 

deem as “remote” engines that are capable of complying with standards for non-remote engines. 

 

46 RTC at 183. 

47 Memorandum from Jim McCarthy and Jeff Panek, IES to Lisa Beal, INGAA, Document ID No. EPA-HQ-OAR2008-0708-0849 (July 27, 2011). 

48 Amendments, 78 Fed. Reg. at 6,682. 

49 Id. 

50 See RTC at 177 (citing comments of Delaware Department of Natural Resources and Environmental Control and 

the Manufacturers of Emissions Controls Association). 
12 

EPA’s flawed definition of “remote” also represents an unexplained departure from 

EPA’s past policy and practice regarding subcategorization of emission sources under section 

112. In previous section 112 rulemakings, EPA has stated that “normally, any basis for 

subcategorization . . . must be related to an effect on HAP emissions that is due to the difference 

in class, type, or size of the units.”51 EPA has also stated that it is inappropriate for the Agency 

to subcategorize under section 112 where “sources can achieve the same level of emission 

reductions notwithstanding a difference in class, type, or size.”52 Here, as commenters on the 

Proposed Amendments made clear, many engines located in remote areas have demonstrated an 

ability to achieve the same level of emission reductions as other engines. Moreover, EPA’s 

proposed definition of “remote” rests on factors that are loosely related to the technical 

feasibility of installing emission controls. Accordingly, this provision of the rule should be 

eliminated or strictly limited to units that have demonstrated they pose no risk of human 

exposure. 

VII. Alternative Request for Rulemaking 

If EPA determines that reconsideration of any of the issues above is not compelled under 

section 307(d)(7)(B), Environmental Groups request that EPA regard the relevant portions of this 

filing as a request for rulemaking under the Administrative Procedure Act, 5 U.S.C. § 553(e). 

We may bring suit under section 304(a) of the Clean Air Act to compel EPA action on any such 

requests for rulemaking if the Agency does not respond to them in a timely manner. 

VIII. Conclusion 

We appreciate EPA’s consideration of this request. 

Respectfully submitted, 

Joseph Otis Minott, Esq. 

Executive Director 

Clean Air Council 

135 S. 19th St. 

Ste. 300 

Philadelphia, PA 19103 

(215) 567-4004 

Joe_minott@cleanair.org

Christina E. Simeone 

Director, PennFuture Energy Center 

Citizens for Pennsylvania’s Future 

1500 Walnut Street, Suite 502 

Philadelphia, PA 19102 

(215) 545-2013 

simeone@pennfuture.org 

 

51 National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam 

Generating Units and Standards of Performance for Fossil Fuel-Fired Electric Utility, Industrial-CommercialInstitutional, Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed Reg. 9,304, 9,378 (Feb. 16, 

2012). 

52 Id. 
13 

N. Jonathan Peress 

Vice-President, Clean Energy and Climate 

Change 

Conservation Law Foundation 

27 North Main Street 

Concord, NH 03301-4930 

(603) 225-3060 

NJPeress@clf.org 

Tomás Carbonell, Attorney 

Shannon Smyth, Legal Fellow 

Hilary Sinnamon, Consultant 

Environmental Defense Fund 

1875 Connecticut Ave., NW 

Sixth Floor 

Washington, DC 20009 

(202) 385-3500 

tcarbonell@edf.org 

ssmyth@edf.org 

hilary@redmtngroup.com 

John Walke, Clean Air Director 

Emily Davis, Staff Attorney 

Natural Resources Defense Council 

1152 15th St. NW Ste. 300 

Washington, DC 20005 

(202) 289-6868 

jwalke@nrdc.org 

edavis@nrdc.org 

Jackson D. Morris 

Director of Strategic Engagement 

Pace Energy & Climate Center 

744 Broadway 

Albany, NY 12207 

(914) 539-1985 

jmorris@law.pace.edu 

Mark Kresowik 

Deputy Director, Eastern Region 

Sierra Club's Beyond Coal Campaign 

Sierra Club 

50 F St., NW Eighth Floor 

Washington, DC 20001 

202-675-7914 (o) 

mark.kresowik@sierraclub.org

Peggy Shepard 

Executive Director 

West Harlem Environmental Action, Inc. 

(WE ACT for Environmental Justice) 

1854 Amsterdam Avenue, 2nd Floor 

New York, New York 10031 

(212) 961-1000 

Jalonne@weact.org