Court Will Not Set Deadline for Changes To Air Toxics Rules for Coal-Fired Plants

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A federal appeals court issued an order Jan. 7 saying it will not set a deadline for the Environmental Protection Agency to finalize a rule revising mercury and air toxics standards for new coal-fired power plants (White Stallion Energy Center LLC v. EPA, D.C. Cir., No. 12-1272, order issued 1/7/13).

EPA has said it would issue the final rule by March, but energy companies that are developing new coal-fired power plants asked the U.S. Court of Appeals for the District of Columbia Circuit on Oct. 19 to set a court-ordered deadline to ensure the agency actually completes its work by March (204 DEN A-1, 10/23/12).

The D.C. Circuit said the claim is not ripe for adjudication, partly because it is based on future delay of the final rule. The court also cited EPA's statements that the rule will be finished by March.

The March deadline is significant because the companies cannot secure financing to begin construction because the mercury and air toxics standards are so stringent. At the same time, they said they must begin construction by April 12, 2013, to avoid being subject to unattainable greenhouse gas standards.

Proposed Rule Issued

EPA signed a proposed rule Nov. 16 revising the mercury and air toxics standards for new plants, following complaints that the mercury limits are so low that they cannot be continuously monitored. Among other revisions, the agency proposed revising the mercury standard for new units that do not use low-rank virgin coal to 0.003 pound per gigawatt hour (77 Fed. Reg. 71,323; 222 DEN A-15, 11/19/12).

Legal challenges in the D.C. Circuit have been put on hold during the administrative reconsideration.

The court also denied petitioners' request to reinstate an expedited briefing schedule that was suspended when the case was placed in abeyance, saying “petitioners have not demonstrated that resumption of briefing is warranted.”

EPA in December 2011 issued a final rule at 40 C.F.R. pt. 63 setting numeric emissions limits for mercury, filterable particulate matter as a surrogate for toxic metals, and hydrogen chloride as a surrogate for acid gases.

The emissions limits for new sources are more stringent than for existing sources, and issues specific to new plants are being litigated separately from other challenges to the rule.

The new power plant petitioners are White Stallion Energy Center LLC, Sunflower Electric Power Corp., Tri-State Generation and Transmission Association Inc., Power4Georgians LLC, Deseret Power Electric Cooperative, and Tenaska Trailblazer Partners LLC. They are developing five new coal-fired power plants in Texas, Kansas, Georgia, and Utah.

By Jessica Coomes  

The Jan. 7 order in White Stallion Energy Center LLC v. EPA filed in the U.S. Court of Appeals for the District of Columbia Circuit is available at

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