... ENERGY & ENVIRONMENT

Seventh Circuit NSR Decision Conflicts with Fourth Circuit; EPA Submits Hourly Rate Proposal Language

The U.S. Court of Appeals for the Seventh Circuit issued a ruling last week in a new source review (NSR) enforcement case that directly conflicted with an earlier decision by the Fourth Circuit Court. In the earlier Duke Energy case, the Fourth Circuit defined the emission increase necessary to trigger NSR requirements as an increase in potential hourly emissions. The Seventh Circuit, in deciding the Cinergy case, held that the appropriate test is whether actual emissions increased.

The Supreme Court has already agreed to hear the Duke Energy case and could take the opportunity to issue a definitive ruling as to the proper emission-increase test. On the other hand, the high court could also decide the case on jurisdictional grounds only. In a recent example of the uncertainty on this issue, a U.S. District Court this week stayed the proceedings in the East Kentucky Power Cooperative NSR enforcement case pending resolution by the Supreme Court.

EPA faces an interoffice dilemma as to this matter. The Agency’s enforcement office is pursuing the cases and contending that the utility defendants should be held to the more rigid actual-emission test. EPA policy makers, however, support the hourly test and are developing a rulemaking to codify the Fourth Circuit Duke Energy decision. EPA proposed preamble language for the hourly-rate rule last year, but just last week sent draft rule language to the White House for approval as a prerequisite for officially proposing the rule.

Contact Tom Carter

White House Official Talks Up Asia Pacific
Partnership Program in India

Jim Connaughton, Chairman of the White Council on Environmental Quality, was in India this week to promote the Asia Pacific Partnership (APP) Program. The program was initiated in January 2006. India, along with Australia, China, Japan, Korea and the United States are engaged in the effort which seeks to promote energy efficiency and sustainable communities. The cement industry is one of several sectors engaged in the program.

Mr. Connaughton met with the Federation of Indian Chambers of Commerce and Industry and explained that the APP program was “a results oriented partnership…..to develop and accelerate deployment of cleaner and more energy efficient technologies to meet national pollution reduction, energy security and climate change concerns in ways that reduce poverty and promote economic development.”

He went on to explain that India could provide valuable lessons to other participating nations, noting that the Indian cement industry is one of the most modern in the world. The APP cement industry task force is slated to meet in China in September to refine its work plan and discuss anticipated collaborative activities.

Contact Andy O’Hare or Tom Gibson

Hill Confirmed as FMCSA Chief

Before adjourning for its August recess, the Senate confirmed John Hill as the Administrator of the Federal Motor Carrier Safety Administration (FMCSA), providing the agency with a full-team leader for the first time since Annette Sandberg’s resignation in April.

Administrator Hill faces a number of challenges including pending lawsuits on FMCSA’s driver hours-of-service rule and issuance of controversial rulemakings covering electronic onboard recorders and supporting documentation for hours-of-service enforcement.

In 2003, Hill was appointed the agency’s chief safety officer, prior to that he served with the Indiana State Patrol for 19 years where he acted as the state’s top commercial vehicle enforcement officer.

Source: Transport Topics

Contact: Robert Sullivan

OSHA Issues Final Rule on Respiratory Protection Standard

On August 24, OSHA issued a final rule revising its existing Respiratory Protection Standard to add definitions and requirements for Assigned Protection Factors (APFs) and Maximum Use Concentrations (MUCs). The revisions also supersede the respirator selection provisions of existing substance-specific standards with these new most APFs.

According to the final regulation, the APFs provide employers with critical information to use when selecting respirators for employees exposed to atmospheric contaminants found in general industry and construction as well as other applications. Proper respirator selection using APFs is an important component of an effective respiratory protection program.

Accordingly, OSHA concludes that the final APFs are necessary to protect employees who must use respirators to protect them from airborne contaminants.

The final rule becomes effective November 22, 2006.

Contact Randy Pence

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