EPA Agrees to Reconsider Mercury, Air Toxics Standards for New Power Plants

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The Environmental Protection Agency July 20 agreed to reconsider the mercury and air toxics standards it set for new power plants.  

The Institute of Clean Air Companies, the International Brotherhood of Boilermakers, and others have asked EPA to reconsider the mercury limits for new sources because current technology cannot continuously monitor mercury concentrations so low, which they said could prevent new coal-fired plants from being built (84 DER A-13, 5/2/12).

The mercury emissions limits for new sources are more stringent than for existing sources. EPA does not intend to reconsider aspects of the rule as it relates to existing power plants.

Gina McCarthy, EPA assistant administrator for air and radiation, said in a July 20 letter granting reconsideration that EPA wants to ensure the standards for new sources are “achievable and measurable.”

“Our expectation is that under the reconsideration rule new sources will be required to install the latest and most effective pollution controls and will be able to monitor compliance with the new standards with proven monitoring methods,” McCarthy wrote.

Rulemaking Completed by March 2013

EPA will take comment on the reconsideration and intends to complete the rulemaking by March 2013. The agency said it will publish a notice in an upcoming issue of the Federal Register staying the emissions standards for new plants for three months.

In the July 20 letter, McCarthy said EPA specifically is granting “reconsideration of certain new source issues, including measurement issues related to mercury and the data set to which the variability calculation was applied when establishing the new source standards for particulate matter and hydrochloric acid, that may affect the new source standards.”

EPA in December issued a final rule setting numeric emissions limits for mercury, filterable particulate matter as a surrogate for toxic metals, and hydrogen chloride as a surrogate for acid gases (246 DER AA-1, 12/22/11).

EPA said in a news release July 20 that the reconsideration is expected to “provide greater certainty” for five planned power plants in Georgia, Kansas, Texas, and Utah. It did not specify the five power plants.

New Plants Challenging Standards

Several energy companies that are developing new coal-fired power plants are litigating issues specific to new plants separately from the other issues being raised in consolidated cases challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit (White Stallion Energy Center v. EPA, D.C. Cir., No. 12-1272, statement filed 7/9/12).

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 (126 DER A-11, 7/2/12).

“EPA's recognition that there are serious technical difficulties with the rule--which are precisely those we plan to raise in the litigation--is helpful,” Eric Groten, an attorney with Vinson & Elkins LLP representing White Stallion Energy Center, told BNA July 20. “We're very pleased to have [reconsideration] granted, but, unfortunately, it doesn't mean that we can abandon or even delay our legal claims.”

Petitioners Caught in 'Catch 22'

The petitioners told the D.C. Circuit they are caught in a “Catch-22” between EPA regulations for mercury and a separate proposed greenhouse gas standard. EPA April 13 proposed new source performance standards for greenhouse gas emissions that would limit new fossil fuel-fired power plants to emitting 1,000 pounds of carbon dioxide per megawatt-hour.

The petitioners said they are unable to begin construction on their coal-fired plants because the mercury limits are unattainable, but they must begin construction by April 2013 to avoid being subject to an unattainable greenhouse gas standard.

The petitioners' first brief in the case is due July 27.

“The air quality control vendors have made a very strong case that they'll have a difficult time meeting such an unreasonable standard,” Tri-State spokesman Lee Boughey told BNA July 20. “So perhaps it took the threat of imminent court action to convince EPA to reconsider the new source rules.”

By Jessica Coomes  

The July 20 letter granting reconsideration is available at http://epa.gov/mats/pdfs/20120720letter.pdf.

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