A group of electric utility companies is asking the U.S. Court of Appeals for the D.C. Circuit to compel the EPA to take final action on their petition to reconsider aspects of the mercury air toxics standard (MATS) for fossil-fuel-fired power plants.  Lacking that action by March 2013, a date promised by the Agency, construction projects planned by the companies will likely become subject to another rule—the standards of performance for GHG emissions for new power plants (GHG NSPS), which were proposed by the EPA on April 13, 2012.  Under that action, fossil-fuel plants for which construction commences 1 year later—after April 12, 2013—become subject to emissions limits that may make it impossible to construct a traditional fossil-fuel power plant. 

Cannot be ‘achieved practice’

The petitioners’ request to reconsider the MATS is based on two arguments:

• The EPA failed to account adequately for variability in emissions, such that the new-unit standards for acid gases, particulate matter, and mercury are not “achieved in practice” by the very units the EPA selected as the “best controlled similar source.”
• The EPA erred in adopting a “pollutant-by-pollutant” approach to establish the new-unit standards, yielding new-unit standards based on a collection of different sources rather than any single best controlled similar source, again such that no single source can meet all the standards simultaneously

The petitioners described the situation as a Catch-22—construction must begin soon to avoid the GHG NSPS, but construction cannot begin until the EPA removes the above “illegal” aspects of the MATS.  The main problem, according to the petitioners, is that the EPA is dragging its feet in reconsidering the MATS.  In July 2012, the Agency said the reconsideration process would last 8 months, and at best, companies would have a “matter of weeks” to commence their projects before the GHG NSPS deadline hits. 

EPA’s status report

But in their petition to the court, the companies complain that EPA’s October 12, 2012, status report indicates that the Agency has made scant progress in its reconsideration despite the April 2013 deadline.  The petition to the court states:

“Conspicuous mainly for memorializing what the Agency has not accomplished, the Status Report compels the conclusion that EPA is far from ‘finalizing’ even a ‘draft rulemaking package’:  Work remains under way not only on the ‘draft preamble’ and ‘regulatory text,’ but also the ‘associated technical support documents’—i.e., the entire package.” 

“Moreover, the draft rule is only the ‘first step in the administrative process,’” add the petitioners, who cite “mounting evidence that EPA is unwilling to meet its self-imposed deadline on reconsideration.”

Accordingly, the petitioners are asking the D.C. Circuit to compel the EPA to meet the April 2013 deadline.  Alternatively, if the court declines to issue such an order, the petitioners ask that they be given the opportunity in court to present their arguments for vacating the MATS.