Appeals court says EPA must reconsider standards for utility boilers during startups

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit on March 13 ruled that the Environmental Protection Agency (EPA) must reconsider exemptions from numerical limits on hazardous air pollutants (HAPs) for coal- and oil-burning power plant utility boilers during their startup periods.

In order to regulate the emission of toxic pollutants considered hazardous to public health, the Clean Air Act created a list of HAPs and required EPA to promulgate restrictions on their emission by various sources.

At issue before the appeals court was a 2014 final rule that established emission regulations under the CAA section 112 as a part of EPA’s Mercury and Air Toxics Standards (MATS). As part of that 2014 final rule, EPA exempted the plants’ four-hour startup periods from numerical limits on emissions of HAPs.

The Chesapeake Climate Action Network and other petitioners submitted comments on the proposed rule regarding the feasibility of establishing numerical limits.

The EPA ultimately finalized two alternative “startup” definitions and imposed qualitative work practice standards rather than numerical limits during plant startups.

The final rule’s work practice standards that required facilities to use clean fuels at the initiation of the startup process and the maximum amount of clean fuels until the startup process is complete. The EPA used an analysis of the processes used by the best performing plants to reach its conclusion.

The Chesapeake Climate Action Network and the other petitioners submitted an administrative petition for EPA reconsideration of the final rule’s alternative, extended startup definition.

They challenged the EPA’s finding that it was not feasible to require power plants to abide by numeric emissions requirements when they first fire up because those emissions cannot be reliably measured during the four-hour startup period.

Specifically, the petitioners objected to EPA’s selection of the best performing power plants and objected to the EPA’s conclusion that number-alternative work practice standards were lawful.

The EPA denied the petition in 2016 on the grounds that the petitioners did not raise their objections with sufficient specificity during the public comment period.

The D.C. Circuit panel determined that the “final rule’s reliance on an identified list of best performing power plants was not a logical outgrowth” of the proposed rule, and “[t]here was simply no opportunity for Petitioners to weigh in on whether additional factors … should be considered when determining which sources are the best performing.” That is, EPA did not follow proper procedural requirements.

The panel, which remanded the rule for EPA’s reconsideration, concluded that the EPA made the wrong call in denying the petitioners’ bid for reconsideration because it was impracticable for them to raise their relevant objections during the notice and comment period.