A three judge panel at the U.S. Court of Appeals for the D.C. Circuit on Dec. 15 decided to keep the Mercury and Air Toxics Standards (MATS) in effect while the U.S. Environmental Protection Agency works to meet a mandate imposed by the U.S. Supreme Court in a June decision.
The high court had decided that EPA did not show it had done a cost of compliance review related to MATS, but left the rule in place while it remanded the matter to the appeals court. Parties weighing in on the case since then have included Tri-State Generation and Transmission Association and the Utility Air Regulatory Group (UARG).
The appeals court on Dec. 15 issued an order remanding the matter to EPA without vacatur of the MATS final rule. The judges noted that EPA has said that it is on track to issue a final finding by April 15, 2016, on the issue identified by the Supreme Court.
UARG said in a Dec. 2 filing in this case that in Michigan v. EPA, the Supreme Court affirmed Congress’s unique treatment of electric generating units (EGUs) and rejected EPA’s decision to regulate them. The opinion requires that, on remand, EPA consider costs and benefits of specific EGU regulations in order to resolve whether “such regulation” of EGUs is “appropriate.”
In contrast, said UARG, EPA proposes a proceeding, frozen in the past, where EPA: considers only the 2011 cost information in the MATS”) docket; and considers those costs only for the purpose of making a decision to list EGUs, a decision which will result in the same §112(d) regulation for EGUs as other industries.
EPA’s decisional standard for listing announced in the remand proposal would ratify EPA’s MATS without regard to their “appropriateness” for EGUs, UARG added. The Supreme Court’s decisional criteria governing §112(n)(1)(A) findings requires a new rulemaking record that supports a new threshold decision, said the utility group. “EPA may not rely on an outdated record to justify EGU regulation at a cost that it says is ‘per se reasonable,’ regardless of amount,” it said.
EPA published in the Dec. 1 Federal Register a proposed finding that takes into account costs to comply with MATS. EPA is soliciting comment on a proposed supplemental finding that consideration of cost does not alter the agency’s previous conclusion that it is appropriate and necessary to regulate coal- and oil-fired electric utility steam EGUs under section 112 of the Clean Air Act (CAA).
In light of the U.S. Supreme Court decision earlier this year in Michigan v. EPA, the EPA has taken cost into account in evaluating whether such regulation is appropriate. In the Dec. 1 document, the EPA sets forth its proposed supplemental finding and requests comment on all aspects of that finding and the supporting legal memorandum in the docket for this action. This proposed supplemental finding, if finalized after consideration of comments, will conclude that coal- and oil-fired EGUs are properly included on the CAA section 112(c) list of sources that must be regulated under CAA section 112(d).
Comments on this proposal must be received within 45 days of the publication in the Federal Register.
Sanjay Narayan, Managing Attorney at the Sierra Club, said in a Dec. 15 statement: “Most power plants have already installed the necessary controls, and the court confirmed today that it makes no sense to switch them off while EPA completes an assessment of MATS’ costs. Eliminating the standards would have exposed children to toxic pollution that can cause life-long neurological damage. MATS’ evidence-based approach to what plants can and should do to reduce toxic pollution reflects Congress’ decision to protect the American public, via the Clean Air Act, from the deeply troubling harms of mercury, hydrochloric acid, and other similar hazardous pollutants. Today’s decision allows the EPA to address the the Supreme Court’s decision, while ensuring that communities stay protected against extraordinarily harmful and long-lived toxic pollution.”