Murray Energy Sues Over EPA's Ozone Standards

By Patrick Ambrosio

Oct. 26 — Murray Energy Corp., the largest coal mining company in the U.S., is the first party to challenge the Environmental Protection Agency's new ozone standards of 70 parts per billion.

The company filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit Oct. 26 over the revised national ambient air quality standards for ground-level ozone. The litigation was filed on the same day the ozone rule (RIN 2060-AP38) was published in the Federal Register, an action that opened a 60-day period for filing lawsuits (80 Fed. Reg. 65,292).

The EPA estimated that implementing the tighter ozone standards, signed Oct. 1 by EPA Administrator Gina McCarthy, would cost as much as $1.4 billion annually. The decision to set the ozone standards at 70 ppb was criticized by various industry groups that wanted the 2008 ozone standards of 75 ppb retained and public health organizations that wanted the EPA to set even more stringent limits (190 ECR, 10/1/15).

Robert Murray, chairman, president and chief executive officer of Murray Energy, said in an Oct. 26 statement that the ozone rule is the latest in a series of Obama administration regulations targeting the U.S. coal industry.

“This ozone rule is yet another illegal and destructive action aimed at killing these jobs,” Murray said. “We have the law, science, economics, cold hard energy facts, and the Constitution on our side. We will continue to fight to preserve our jobs and livelihoods, and we will prevail in our litigation.”

The EPA told Bloomberg BNA in an Oct. 26 statement that the agency met its Clean Air Act obligations to set the ozone standards at a level that is “requisite to protect health with an adequate margin of safety.”

Attainability of Standards Questioned

Murray Energy's petition for review of the ozone rule does not provide any rationale for the litigation, but the company highlighted several legal arguments against tighter ozone standards in comments to the EPA. Those comments were submitted in response to the EPA's November 2014 proposal to revise the 2008 ozone standards to somewhere within the range of 65 ppb to 70 ppb.

One of the major arguments raised in Murray Energy's comments is the question of whether it is legal for the EPA to set ozone standards that approach background levels and cannot be attained. Many state environmental agencies, including several in the West, have expressed concern that tighter ozone standards could be more difficult, if not impossible, to meet due to high background ozone levels caused by uncontrollable sources of pollution, including naturally occurring ozone, pollution from wildfires and pollution that is transported from Mexico and Asia.

Attorneys told Bloomberg BNA in September that litigation over the 2015 ozone standards, which is expected from both industry groups and public health and environmental organizations, probably would focus on the health effects and attainability of the revised standards (190 ECR, 10/1/15).

Murray Energy contended in its comments that setting the ozone standards within the range of 65 ppb to 70 ppb would be illegal because those levels approach background ozone in parts of the U.S.

“It is clear from legislative history and from the structure of the CAA [Clean Air Act] that Congress did not intend EPA to regulate at or below background levels,” Murray Energy said. “But this is precisely what EPA will be doing.”

The EPA said upon release of the final ozone rule that “only a few” areas in the West would be expected to have difficulty attaining 70 ppb ozone standards due to high background levels.

Reductions from Mercury, Climate Rules

Murray Energy highlighted several other legal arguments against an ozone standard of 70 ppb, including an argument that the proposed rule would be arbitrary and capricious if codified because the agency incorrectly assumed that tighter ozone standards would be attainable in part due to pollution reductions from the agency's mercury and air toxics standards (RIN 2060–AP52, RIN 2060-AR31) and the Clean Power Plan (RIN 2060-AR33). The company said if either of those regulations were to be vacated by a court, the ozone rule would be based on invalid assumptions and invalid modeling.

The Clean Power Plan, the agency's rule to limit carbon dioxide emissions from power plants, was projected by the agency to achieve significant reductions in power plant emissions of ozone precursors (150 ECR, 8/5/15).

The first lawsuits against the Clean Power Plan were filed Oct. 23 by states and industry groups, including Murray Energy (West Virginia v. EPA, D.C. Cir., No. 15-1363, 10/23/15)

The U.S. Supreme Court in June found the EPA erred when it declined to consider the cost of compliance when it determined it was “appropriate and necessary” to regulate power plant emissions of mercury, a decision that led to promulgation of the mercury and air toxics standards. The court remanded that litigation to the D.C. Circuit, which will decide whether the MATS rule will remain in place or be vacated (Michigan v. EPA, 135 S. Ct. 2699, 80 ERC 1577, 2015 BL 207163 (2015); 124 ECR, 6/29/15).

To contact the reporter on this story: Patrick Ambrosio in Washington at pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com