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Summary of Discussion from 

4/27/2010 Section 112(j) Meeting with AHFA (American Home Furnishings Alliance) 

Date of Meeting: April 27, 2010

Time: 10:00 am – 11:00 am

Purpose: The purpose of the meeting was for AHFA to discuss their questions and concerns

about the proposed section 112(j) amendments.

Participants: 

Rick Colyer, EPA/OAPQS

Lisa Conner, EPA/OAQPS

Beth Friedman, EC/R (EPA Contractor)

Eric Ginsburg, EPA/OAQPS

Bill Huang, EC/R (EPA Contractor)

Shiela Igoe, EPA/OGC

Dean Kaiser, Stratus Environmental

Bill Lane, Kilpatrick Stockton LLP

Alan McConnell, Kilpatrick Stockton LLP

Bill Perdue, AHFA

Summary

 AHFA provided background on the trade association and their main concern, which is the 

status of the proposed boiler MACT and how implementation of that rule will affect current 

(or planned) section 112(j) permits. 

o AHFA membership ranges over the U.S., with concentrations in several states such 

as California, and Wisconsin

 EPA provided some background on the section 112(j) process. EPA had successfully 

promulgated several years ago all of the standards required to avoid triggering the section 

112(j) “hammer,” but the recent vacaturs of some standards reinstated the need for the 

section 112(j) provisions. EPA’s position is that vacatur of a rule is equivalent to a failure to 

promulgate a rule. The purpose of the proposed section 112(j) amendments is to address 

those source categories affected by vacaturs by clarifying their section 112(j) obligations 

and to create a backstop in the case of any future vacaturs.

 AHFA asked about the time table for implementing section 112(j).

o EPA noted that section 112(j) does not apply after a MACT standard is promulgated. 
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o Of the 4 vacaturs, the Boiler MACT will be the first to be promulgated, in December 

2010. Section 112(j) also is expected to come out around the end of the year, and it 

is likely that the Boiler MACT will be finalized before the section 112(j) amendments 

are promulgated. Therefore, boiler sources would not have to file permit 

applications because they would be subject to a MACT standard.

o With the other three vacaturs, the MACT standards should also be promulgated 

before any section 112(j) permits would be issued. 

o Effectively, section 112(j) will only affect future vacaturs.

o AFHA urged EPA to avoid any unnecessary overlaps in rulemaking that result in 

unneeded section 112(j) compliance obligations.

 The group discussed the status of state efforts to address the section 112(j) provisions of 

the Clean Air Act.

o North Carolina has an active section 112(j) program.

o AHFA expressed concern with North Carolina’s position that once a new boiler 

standard is proposed, NC will make the case-by-case section 112(j) MACT consistent 

with the proposed rule.

o EPA clarified that it defers to the state in terms of determining case-by-case MACT 

and that its main focus is that the state correctly follows the section 112(j) process. 

o States are free to follow section 112(j) guidance from 1994 that says they should 

consider any proposed regulations by EPA in developing the MACT, and use any 

available information, as defined in the section 112(j) rule.

 AHFA said that current section 112(j) MACT determinations in NC are based on the original 

boiler MACT, with a health based compliance option. They are concerned that if NC 

changes the basis for the MACT determination, that companies could be subject to different 

compliance options. They were also concerned that the state would seek to accelerate 

adoption of the Boiler MACT for sources that already have section 112(j) permits.

 AHFA’s bottom-line: They want certainty, not avoidance. 

o Industry feels there is an advantage to the environment by putting section 112(j) 

permits in place with defined compliance obligations, in case promulgation of the 

Boiler standard is delayed. 

o All AHFA members were encouraged to submit Part 1 applications after the vacaturs, 

but very few states have taken action. 

o The EPA representatives were not aware of anyone filing an intent to sue on failure 

to act on section 112(j).