Environmental Groups Sue EPA Seeking Strict Deadline for Mercury MACT

In my opinion the suit should not be necessary. All indications from the Obama transition team, plus the president elect's own policy statement and language during the campaign point to swift action in this regard. The groups filing the lawsuit, lead by Conservation Law Foundation, know their chances are pretty good but they also realize that rule making can take time and they want swift action to begin so a reasonable deadline can be met.

An excerpt form a Boston Globe article on boston.com follows;

A group of conservation and public health groups filed a lawsuit today against the Environmental Protection Agency asking for a strict deadline for the agency to require coal-fired power plants to reduce their emissions of mercury and other toxic pollutants.

The Conservation Law Foundation, a New England-based advocacy group; Environment America, based in Boston; and the Natural Resources Council of Maine were among the 12 organizations that filed the complaint in federal court in Washington, D.C.
[...]
The Clean Air Act required that the Environmental Protection Agency regulate mercury and other toxic air pollutants from new and existing coal-fired power plants by the end of 2002. The Bush administration responded in 2005 with the Clean Air Mercury Rule, which allowed utilities to trade mercury emissions. Under the rule, some large power plants could keep emitting pollutants while buying pollution credits from cleaner plants. A federal court struck down the rule in February as unlawful because it did not impose mandatory, strict controls on mercury pollution for large power plants as the Clean Air Act requires.

The coalition that filed the suit today would like to see the incoming Obama administration fulfill the Clean Air Act by controlling mercury pollution from coal-fired power plants “within two years of taking office,” said Ann Weeks, legal director for the Clean Air Task Force and counsel for the Conservation Law Foundation.

She said the group had already met with Obama’s transition team and was hopeful the next administration would regulate the pollutants. She added: “We filed the lawsuit because it’s the tool we have at hand for making sure that there’s action.” (emphasis added)

Reality Sets In - MACT for Mercury If You Want To Build

See bottom of article for update (12-10-2008).

The writing is on the wall, if you want to have any chance of building a new coal fired EGU in the United States, you better spec in MACT controls for mercury, and even that may not be enough. A large Texas utility, Energy Future Holdings (formerly TXU Corp.), has decided it is better to switch than fight.

In a sign of the times Energy Future Holdings signed a negotiated deal with Sierra Club to go forward and finish the construction of two plants in Texas. These plants were permitted by TCEQ already and potentially could have fought to go forward without the deal. But the sentiment in the country witnessed by the recent ruling in North Carolina with Duke Energy is, CAMR was a misguided regulation, and without further delay, environmentalists through the courts are going to force MACT as stipulated in the Clean Air Act.

A few excerpts from the Dallas News article by Elizabeth Souder follows;

The deal, also negotiated by Public Citizen, marks the second time Energy Future Holdings has struck agreements with environmental groups over plans to build coal-fired power plants. Environmental groups have targeted coal plants as major polluters and carbon dioxide emitters and have won several battles as politicians become more sensitive to environmental arguments.

Luminant, EFH’s power generation business, agreed to meet so-called “maximum achievable control technology” for mercury emissions on two coal units it is building at the Oak Grove site. That plant, which is under construction, already has air permits from the Texas Commission on Environmental Quality.

The company will file for MACT determination with the commission this week.

EFH lawyer Rob Walters said the company won’t change the design of the plants or slow down construction. Instead, the TCEQ will determine whether the plant may operate at full capacity and still meet MACT standards, or whether Luminant must dial down a bit.

When a plant doesn’t operate at full capacity, the plant doesn’t make as much power, but it also doesn’t emit as much pollution.
[...]
Luminant has already received air permits stating that the company will use so-called “best available control technology” on the plants. But since the TCEQ awarded those permits, rules on mercury emissions have changed.

The Sierra Club told Luminant it intended to sue the company because it wouldn’t meet the new standards. Mr. Walters believes the company doesn’t have to meet the new standards, since it received permits under a different set of standards.

The company chose to negotiate a deal rather than risk delaying the new plants because of a lawsuit.

I am sort of surprised Sierra Club yielded to the approach EFH is proposing since it doesn't appear that carbon injection or any other active mercury control is being sought. Limiting power output will reduce emissions and closing other older plants is really at the heart of all good policy. But how long will it be until power demand increases and forces these existing newer assets to produce what they were designed to produce. Perhaps at that point mercury controls will be more mainstream and agreements exist that they will be implemented at that time, although there is no mention of this in the article.

Since these plants were already under construction following an earlier deal EFH cut with Environmental Defense Fund and NRDC the construction will go on with these passive MACT assurances in place. The issue of greenhouse gases is set aside in this case and getting an agreement on mercury when the utility didn't really have to do so is what compromise is all about. I for one, would like to see formal assurances of active mercury control whenever possible.

Update (12-10-2008) - Apparently EFH is installing carbon injection systems at the facilities. This was clarified in another article in the Dallas Business Journal, excerpt below;

Luminant says, at the moment, the Oak Grove plant is installing sorbent injection systems that will use carbon to control the output of mercury emissions.

“This agreement gives us greater legal and regulatory certainty as we complete the Oak Grove generating station, which will help meet growing Texas electricity demand,” said Bill Moore, general counsel for Luminant. “We’re confident that our state-of-the art emissions control technology will continue to meet or exceed all regulatory requirements, reflecting our ongoing commitment to environmental stewardship.”

This Time It Looks Like CAMR Is Really Dead, No, Really!

A short excerpt from a subscription only article on InsideEPA.com explains;

High Court CAMR Deadline Extension Allows For Likely Obama Withdrawal

The Supreme Court's decision to give states and activists more time to respond to EPA and industry petitions for certiorari in their appeal of the clean air mercury rule (CAMR) vacatur boosts state and activist efforts to kill the rule because their deadline to respond is after President-elect Barack Obama takes office, creating an opportunity for his administration to withdraw the government's cert petition altogether.

The high court Dec. 1 granted New Jersey's request to extend the deadline for responses to the cert petitions, which seek review of the agency's mercury rule, vacated earlier this year by federal court.

The new Jan. 21 deadline opens the door for the Obama administration to act immediately to withdraw the Department of Justice's (DOJ's) petition. Obama is expected to withdraw the appeal because close advisors have opposed CAMR, which established a cap-and-trade program to address mercury emissions from power plants. For example, former EPA Administrator Carol Browner, who sits on Obama's transition team, has urged an evaluation of the need for a strict new mercury emissions control program.
[...]
if Obama were to withdraw the petition on his inauguration day, that would send a strong signal that DOJ is conducting an about face on its strategy of defending controversial Bush EPA policies, supporting recent arguments by former Justice officials for just such a move. Lois Schiffer, a senior DOJ official under Clinton, and Richard Lazarus, who worked in the department during the administrations of Jimmy Carter, Ronald Reagan and George H.W. Bush, recommended the abandonment of dubious legal arguments even in ongoing cases under the next administration, in a recent article in the Harvard Law & Policy Review.

While some observers say a change in legal arguments could damage DOJ politically, Schiffer and Lazarus say, “[I]n some circumstances changes of position in either enforcement or defended cases may well be warranted.”

The case for CAMR has been a long shot all along. It has taken on a catlike identity in that its death has been proclaimed several times. But the lives are running out and MACT seems to be in order for mercury controls.

EPA Shocks Environmentalists - Gets It Right!

This story goes under the heading of "man bites dog." It has been very rare these last few years to hear a well respected environmentalist say good things about an EPA ruling. So this needed to be posted upon.

It appears the EPA back in mid-November decided to crack down on medical waste incinerators. It originally issued standards for these sites back in 1997 (a ruling that was successfully challenged in court by Sierra Club), and the result then was that most small operations, those run at individual hospitals, shut down and shipped their wastes to larger operations. But this latest ruling, published in the Federal Register yesterday takes it all to a new level.

In an article from the Washington Post some startling excerpts follow;

"This is the first time I've ever seen them do an air toxic rule right," said Jim Pew, a lawyer at Earthjustice, a Calif.-based environmental advocacy group that sued the agency over its initial proposal for regulating the incinerators more than a decade ago. "It's a big cut in emissions."
[...]
EPA estimates that the proposed rule would cut the amount of air pollution from medical incinerators by 468,000 pounds to 1,520,000 pounds per year, though it did not provide an estimate of current emissions. Mercury emissions, which cause neurological damage in children, would drop by 637 to 682 pounds annually, and cancer-causing dioxin emissions would drop by about 40 grams.

According to an agency fact sheet, "The proposed emission limits would require improvements in performance for all of the 57 currently operating" medical incinerators. It will cost these facilities $21.1 million a year to comply with the new standards, though they could use alternative disposal methods to meet the rules at half the cost, the agency said.

The rules represent a significant change from the EPA's 1997 proposal, which Earthjustice successfully challenged in court on behalf of the Sierra Club. In almost every instance, the agency has reduced the amount of allowable pollutants by at least a factor of 10: Acceptable hydrogen chloride levels will drop from 15 parts per million in the atmosphere to 0.75 per million.

"This is really remarkable," Pew said.

What's next?