Utilities, 25 States Ask Court to Postpone Deadline for Utility MACT Rule Until 2012

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By Andrew Childers

A power plant industry trade group, backed by 25 states, has asked a federal court to postpone until 2012 the deadline for the Environmental Protection Agency to issue a final rule requiring power plants to control emissions of air toxics, including mercury (American Nurses Ass'n v. EPA, D.D.C., No. 1:08-CV-02198, motion filed 10/7/11).

The Utility Air Regulatory Group filed a motion Oct. 7 in the U.S. District Court for the District of Columbia for a delay that was endorsed in an amicus brief by 25 states and one territory.

The states agreed that EPA needs more time to respond to comments on its proposed national emissions standards for hazardous air pollutants for power plants.

EPA is under an order to issue the final rule, which will set the maximum achievable control technology (MACT) standards for power plants, by Nov. 16 as part of a consent decree with environmental and public health groups.

Deadline ‘Unrealistically Short.'

The states and power plants said that is not sufficient time for EPA to respond adequately to the 20,000 comments it received on its proposed rule. The Utility Air Regulatory Group's motion would extend the deadline for the final rule to Nov. 16, 2012.

"The court may not be able to mandate that EPA correct its errors and consider all necessary information, but it should not allow EPA to use the self-imposed deadlines in the consent decree as an excuse for shoddy rulemaking," the Utility Air Regulatory Group said in its motion.

The power plant groups said the schedule to which EPA agreed in the consent decree was “unrealistically short.”

The motion comes after EPA Administrator Lisa Jackson told the Senate Environment and Public Works Committee on June 15 that she would consider delaying the final power plant rule (116 DEN A-9, 6/16/11).

An EPA spokeswoman told BNA Oct. 11 the agency is working to meet the Nov. 16 deadline. She said the agency is "committed to completing" the power plant rule.

Attorneys for the environmental and public health groups could not be reached for comment.

States Cite ‘Substantial Problems.'

The states said in their amicus brief that they identified "substantial technical, practical, and legal problems with the proposed rule." In an exhibit filed with the states' amicus brief, the American Coalition for Clean Coal Electricity estimates EPA's rule as proposed would result in a net job loss of 1.44 million job-years between 2013 and 2020.

The amicus brief was submitted by Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wyoming, and Guam.

The states said a one-year delay would allow EPA additional time to consider how its various power plant rules would affect the power sector and electric reliability. That analysis would be in line with President Obama's Executive Order No. 13,563, which requires federal agencies to consider the economic impact of their regulations.

EPA proposed the power plant rule May 3. The agency estimates it would reduce mercury and acid gas emissions by 91 percent and sulfur dioxide by 53 percent from new and modified power plants (76 Fed. Reg. 24,976; 52 DEN A-8, 3/17/11).

By Andrew Childers

The Utility Air Regulatory Group's motion is available at http://op.bna.com/env.nsf/r?Open=jsml-8mjnu9.

The 25 states' amicus brief is available at http://op.bna.com/env.nsf/r?Open=jsun-8mjlrw.