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.  

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).

EPA noted that section 112(j) does not apply after a MACT standard is
promulgated. 

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.

With the other three vacaturs, the MACT standards should also be
promulgated before any section 112(j) permits would be issued.  

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

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.

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

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.

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.  

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.  

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.  

All AHFA members were encouraged to submit Part 1 applications after the
vacaturs, but very few states have taken action.  

The EPA representatives were not aware of anyone filing an intent to sue
on failure to act on section 112(j).

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