EPA Official Says Implementation Questions To Remain Even if Cross-State Rule Upheld

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By Jessica Coomes  

The Environmental Protection Agency’s top air official said July 10 that, even if a federal appeals court upholds the Cross-State Air Pollution Rule, questions will remain about how to implement the program that never went into effect on the planned start date.

Observers are expecting the U.S. Court of Appeals for the District of Columbia Circuit to issue a ruling any day now on the legality of the cross-state rule, which requires 28 states to reduce power plant emissions of nitrogen oxides and sulfur dioxide that cross state lines (EME Homer City Generation L.P. v. EPA, D.C. Cir., No. 11-1302, oral arguments 4/13/12; 72 DER A-14, 4/16/12).

“We feel pretty confident that rule will be upheld,” Gina McCarthy, EPA assistant administrator for air and radiation, said at a conference of state energy and environmental officials. “When that happens, we’ll be talking about 'What do we do now?' How do we get that restarted?”

Just days before the Jan. 1 compliance date, the D.C. Circuit stayed the rule, and now that the year is half over, observers do not expect the rule to be implemented in 2012. A second compliance period was set to begin in 2014, and questions also remain about the feasibility of that deadline.

Compliance Timelines at Issue.

McCarthy said the agency “will be very sensitive to the fact we need to get this up and running” if the rule is upheld, but EPA does not intend to implement an unmanageable timeline.

McCarthy said the court could ask EPA for its opinion on how to proceed, although she said EPA has not made a determination on when the first and second phases should now start.

McCarthy also said she would hope the court specifically addresses the implementation issues in its decision, so EPA does not need to proceed with another rulemaking process. She was speaking at a joint conference of the National Association of Clean Air Agencies, the National Association of State Energy Officials, and the National Association of Regulatory Utility Commissioners.

While the cross-state rule is stayed, its precursor program, the Clean Air Interstate Rule, remains in place to regulate interstate transport of pollution. EPA published the final cross-state rule in August.

State Officials’ Views Vary.

Kari Bennett, commissioner of the Indiana Utility Regulatory Commission, said July 9 at the conference that the state would not have been able to reduce emissions in just five months, between August 2011 and January 2012. Indiana is one of the states challenging the rule in court.

Bennett said short compliance deadlines have the potential to force retirements of coal-fired power plants.

Also speaking July 9, Collin O’Mara, the Delaware environment and energy secretary, said his state and New England states have already required power plants to install pollution controls, and they still cannot meet air quality standards because of pollution from power plants in other states that crosses state lines.

The cross-state rule is intended to help downwind states meet national ambient air quality standards for ozone and fine particulate matter. O’Mara called the rule an “issue of fundamental fairness.”

By Jessica Coomes