Petitioners Ask Court to Set Deadline for EPA To Finalize Reconsidered Mercury Rule

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Energy companies that are developing new coal-fired power plants have asked a federal appeals court to set a deadline by which the Environmental Protection Agency must finalize a rule reconsidering mercury and air toxics standards for new plants (White Stallion Energy Center LLC v. EPA, D.C. Cir., No. 12-1272, motion filed 10/19/12).

EPA has said it is on track to issue the final rule by March 2013, but the companies said in an Oct. 19 motion that EPA should be under a court order to ensure it meets the deadline.

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 must begin construction by April 12, 2013, to avoid being subject to unattainable greenhouse gas standards.

EPA is reconsidering the mercury and air toxics standards for new plants, following complaints that the mercury limits are so low that they cannot be continuously monitored. Legal challenges in the U.S. Court of Appeals for the District of Columbia Circuit have been put on hold during the administrative reconsideration.

EPA Cited 'Significant Progress.'

In a status report Oct. 12, EPA told the D.C. Circuit that it has made “significant progress” on the proposed reconsidered rule. The agency said it has prepared a draft rulemaking package, and it is working to finish the draft preamble, regulatory text, and technical support documents. It also said it “remains on track” to issue a final rule by March (200 DEN A-1, 10/17/12).

However, the industry petitioners said EPA's status report “lends credence to Petitioners' fear that EPA will not act in time.” EPA now has five months to complete the rulemaking process.

“Given the many administrative steps EPA must climb before it can publish a final rule on reconsideration, EPA's refusal to vacate the unlawful rule in the interim, and now EPA's report of scant progress in the past three months, Petitioners face the real risk that their projects will be regulated into oblivion without any meaningful opportunity for judicial review of EPA's unlawful action,” the Oct. 19 motion said.

Briefing Requested in Alternative.

If the court does not order EPA to promulgate the rule by March 1, the petitioners said the court should reinstate an expedited briefing schedule that was suspended when the case was placed in abeyance.

EPA in December 2011 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. 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, 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 Oct. 19 motion in White Stallion Energy Center LLC v. EPA in the U.S. Court of Appeals for the District of Columbia Circuit is available at

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