Senate Republicans question EPA on ‘sue and settle’ procedure

Sen. David Vitter, R-La., the top Republican on the Environment and Public Works Committee, and Sen. Jeff Sessions, R-Ala., Ranking Member of the Subcommittee on Clean Air and Nuclear Safety, want the U.S. Environmental Protection Agency to better explain its latest “sue-and-settle” deal with an environmental group.

On April 1 they wrote to Gina McCarthy, the Obama Administration’s nominee to head the EPA and the agency’s current Assistant Administrator of the Office of Air and Radiation, regarding the “Startup, Shutdown, and Malfunction” (SSM) rule proposed in response to a “sue-and-settle” agreement the EPA made with the Sierra Club in 2011.

“Oddly, it appears that, instead of defending EPA’s own regulations and the SSM provisions in the EPA-approved air programs of 39 states, EPA simply agreed to include an obligation to respond to the petition in the settlement of an entirely separate lawsuit,” wrote the senators. “In other words, EPA went out of its way to resolve the SSM petition in a coordinated settlement with Sierra Club.”

EPA’s new SSM proposal would eliminate the longstanding exemption for excess emissions during periods of startup, shutdown, and malfunction, thus placing a federalized regulatory burden on states to comply without receiving their input, the senators said. They noted that Republicans on the environment committee have shown concern regarding the administration’s practice of entering “sue-and-settle” agreements with special interest groups.

Their latest concern is over a Feb. 12, 2013, proposed rule, “Startup, Shutdown, and Malfunction: Proposed Response to Petition for Rulemaking, Findings of Inadequacy, and Call for Plan Revisions.”

EPA’s new approach, embodied in the SSM proposal, contravenes four decades of prior EPA practice, the senators wrote. The SSM exemption has been approved by EPA since 1972 and has been a key element of most EPA-approved State Implementation Plans (SIPs). In fact, EPA has included SSM exemptions in EPA’s own standards, including the New Source Performance Standards, for decades, they noted.

“Notwithstanding 40 years of precedent to the contrary, EPA has now decided that the SIPs of 36 states are legally inadequate because of their SSM provisions,” the senators told McCarthy. The U.S. Court of Appeals for the D.C. Circuit recently explained the primary role of the states when it invalidated EPA’s Cross-State Air Pollution Rule (which likewise sought to override the states), the senators noted. “EPA’s latest proposal on SSM exemptions would suggest that EPA believes the States have been relegated to mere regional offices of the EPA,” they wrote.

The senators also said they find unacceptable the “unreasonably brief time period” for public comments on the SSM proposal. EPA is allowing just 30 days for public comment and, if requested, just one public hearing-in Washington, D.C. “More time is required for a proposal changing four decades of EPA precedent and the SIPs of 36 states,” they added. “We have heard rumors of a short extension, but we would ask that, at a minimum, EPA grant an extension of the public comment period to at least 120 days, as requested by the Attorneys General of seventeen states (including Alabama and Louisiana) in a letter to you dated March 15, 2013.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.