Over the past several months, EPA has significantly increased its enforcement focus on generator usage and the emergency use classification. As a result of a court order stemming from Delaware Department of Natural Resources and Environmental Control v. EPA, 785 F.3d 1 (D.C. Cir. 2015) EPA recently amended the federal regulations applicable to generators. These changes were affected the rules at 40 C.F.R. § 63, Subpart ZZZZ, and 40 C.F.R. § 60, Subarts IIII and JJJJ.
These amendments tightened the scope of what constitutes an “emergency situation.” This was changed with the intention of limiting usage of emergency generators beyond the 100 hour limit to extremely specific situations. As a result of this narrowing “EPA has been finding numerous violations of the applicable Clean Air Act requirements” and have “assessed substantial penalties for facilities that have failed to comply.” Relevant decisions which reflect this change include Hamilton Sundstrand de Puerto Rico, Inc. (2022), Green Mountain power Corporation (2021), and J.K. Merrill & Sons, Inc. (2020).
If emergency generator non-emergency usage is in excess of the annual 100 hour limit without a qualifying emergency situation, that generator could be reclassified as a non-emergency generator. This reclassification may require costly performance tests, fuel restrictions, semi-annual reporting and possible refurbishment. Some of the situations that may not constitute an emergency is the use of generators to allow for the installation of CHP units, replacement equipment, or to operate at the request of and to aid LUMA.
If you have any situation where you need assistance in determining the proper classification of the use or if you have any questions, contact us.
