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Appeals court upholds EPA rule on mercury and air toxics emissions


From the April 16, 2014 issue of Public Power Daily

Originally published April 16, 2014

By Robert Varela
Editorial Director

A federal appeals court yesterday rejected challenges to the Environmental Protection Agency’s standard for emissions of mercury and other air toxics from fossil fuel-fired power plants (known as the EGU MACT rule or MATS rule). The U.S. Court of Appeals for the District of Columbia Circuit upheld EPA’s finding that the rule was "appropriate and necessary" and—with one member of the three-judge panel dissenting—the agency’s position that it was not required to consider costs in setting the standard.

With regard to Kansas City Power & Light’s challenge that EPA should have given public power utilities more time to comply with the rule because state contracting laws lengthen the process of installing pollution controls, the court held EPA did not have to grant public power utilities a one-year extension. The three-judge panel stated "industry petitioners did not show – and likely could not show – that an extension is necessary for the installation of controls at every public power company. On the contrary, EPA’s data indicated that ‘most units will be able to fully comply’ within the three-year period established by EPA." EPA’s decision to not issue a blanket extension "therefore was not arbitrary or capricious," the court said.

On procedural grounds, the court did not address APPA’s assertion that EPA violated Section 307(d)(6)(B) of the Clean Air Act when it failed to respond to APPA comments on the need for more time to comply with the rule. The court noted that the issue "was first raised in a pending petition for reconsideration." Because EPA has not ruled on the petition, the claim is not ripe for judicial review, the court said.

APPA "is extremely disappointed that the court did not rule on APPA’s arguments because of our pending petition for reconsideration," said Joe Nipper, the association's senior vice president of Regulatory Affairs and Communications. "Given that the MATS rule takes effect in just one year, we hope EPA will rule on our petition, which has been pending before the agency for almost two years."

Public power utilities need more time to comply with the rule, yet "they face the prospect of enforcement action because EPA has failed to rule on our petition for reconsideration," Nipper said. These utilities will have no legal redress until the agency rules on the petition, he added.

The court’s decision in White Stallion Energy Center, LLC v. EPA is available online

 

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Vice President, Integrated Media and Communications
Meena Dayak
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Robert Varela
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