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Sunday, February 10, 2008

Environment - "EPA's mercury rule struck down" [Updated]

On Friday the Court of Appeals for the DC Circuit threw out the USEPA mercury rule. Here are some quotes from the story that ran in the Indianapolis Star:

WASHINGTON -- A federal appeals court struck down an Environmental Protection Agency regulation on mercury emissions Friday that environmentalists had criticized as weak and illegal.

The decision marked a victory for 14 states, environmental groups and American Indian tribes that had challenged the EPA's Clean Air Mercury Rule. But it did not guarantee the deep cuts in mercury emissions those groups seek.

Coal-burning power plants are the single largest domestic source of mercury emissions. Nearly 500 plants supply about half the nation's electricity.

A three-judge panel on the U.S. Circuit Court of Appeals for the District of Columbia ruled the EPA violated the Clean Air Act in 2005 when it exempted coal-burning power plants from the act's most stringent requirements for cleaning up hazardous pollutants.

Friday's decision means the EPA must start over in crafting a regulation to cut mercury emissions.

The judges also invalidated the agency's plan to adopt a "cap and trade" program to cut mercury emissions from power plants. The program would have allowed power plants to buy and sell mercury pollution credits.

A Star sidebar notes:
About 95 percent of Indiana's electricity comes from coal-fired plants. In 2005, Indiana's mercury emissions totaled 6,435 pounds. That puts the state fourth nationwide in mercury emissions.

In October, Indiana's Air Pollution Control board set a goal of a 66 percent reduction in mercury emissions from coal-fired power plants. However, that was based on the EPA plan to allow the buying of pollution credits. That plan was struck down Friday, sending the federal agency back to the drawing board.

Here is a comprehensive story from the Environment News Service. Also the LA Times, the NY Times, and NPR.

Here is a link to the 18-page opinion, New Jersey v. USEPA.

Here is a summary of the opinion prepared by Barnes & Thornburg LLP:

On February 8, 2008, the U.S. Court of Appeals for the D.C. Circuit vacated two major EPA air quality rules: the "Delisting Rule" and the "Clean Air Mercury Rule (CAMR)." In 2005, EPA delisted coal- and oil-fired electric utility steam generating units (EGUs) from the list of source categories regulated by the Maximum Achievable Control Technology (MACT) standards for Hazardous Air Pollutants (HAPs) under Section 112(c) of the Clean Air Act (CAA) (the "Delisting Rule"). Subsequently, EPA promulgated the CAMR to regulate the coal-fired EGUs under Section 111 of the CAA in lieu of Section 112. The Section 111 requirements included performance standards for new coal-fired EGUs, general mercury limits for States and certain tribes, and a voluntary cap-and-trade program for new and existing coal-fired EGUs.

In today's decision, the D.C. Circuit determined that EPA did not properly delist the coal- and oil-fired EGUs in 2005, because, by EPA's concession, it did not make the necessary findings to do so. Specifically, EPA failed to make a determination under Section 112(c)(9) that EGU emissions do not exceed adequate levels to protect public health or cause adverse environmental effects. The Court found that such determinations rigidly apply to "any listed source" under Section 112(c) and EPA does not have discretion to avoid making them - even to reverse previous EPA determinations. By failing to delist EGUs properly, they must remain on the list of sources covered under Section 112(c) of the CAA. Sources listed under Section 112 cannot be regulated under Section 111, thus invalidating the entire CAMR as well.

[Updated] Note that the 31-page Indiana Air Pollution Control Board rule, LSA #05-116, which "adds 326 IAC 24-4 concerning mercury emissions from coal-fired power plants to implement the federal Clean Air Mercury Rule (CAMR)," took effect Feb. 3rd, 2008.

Posted by Marcia Oddi on February 10, 2008 12:42 PM
Posted to Environment