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EPA working on fix for mercury emissions rule

Melissa Nann Burke
Detroit News Washington Bureau

Washington — The Environmental Protection Agency says by April it will have developed a plan for how to account for compliance costs in its regulations for mercury emissions from coal-fired power plants, as required by a recent Supreme Court ruling.

In late June, the high court ruled 5-4 against the EPA, concluding it had “unreasonably” disregarded cost in its analysis of whether regulation of mercury and other pollutants was “appropriate and necessary” under the Clean Air Act.

The initial case was filed by utility companies, and 21 states, led by Michigan, objecting to the standards as too costly and burdensome.

The justices sent the case back to the U.S. Court of Appeals for the D.C. Circuit. This week, lawyers for the EPA told the lower court that the agency has an “ambitious” schedule for addressing the high court’s concerns.

“EPA intends to submit a declaration establishing the agency’s plan to complete the required consideration of costs for the ‘appropriate and necessary’ finding by spring of next year,” the lawyers wrote, noting that the EPA’s record in developing the mercury rule already contains “extensive” documentation relating to compliance costs.

The left it up to the EPA as to how it considers costs, and “explicitly declined” to limit the agency’s discretion to that end, the EPA noted. “The agency has not yet determined how it will do so,” the EPA lawyers added.

The EPA says the rule remains in effect as the lower court determines whether to vacate it as the agency is working out how to handle the cost issue.

“The question at issue at this stage of the proceedings is not whether the rule is or is not valid; the question is whether the court will vacate the rule during remand,” the EPA lawyers wrote.

“Indeed, keeping the rule in full effect on remand is in the public interest because it will continue to require power plants to reduce emissions of hazardous air pollutants that have serious health and environmental consequences.”

A spokeswoman for the Michigan Attorney General’s Office declined to comment on the filing Tuesday.

Following the Supreme Court’s ruling, EPA Administrator Gina McCarthy stressed that most power plants are on track to reduce emissions three years after the rule was issued in 2012.

“The rule still stands in place,” McCarthy told the Detroit News at the time. “We're going to get the reductions that the American public deserves.”

The EPA this week was responding to an emergency motion filed with the lower court by Tri-State Generation & Transmission Association Inc., which faces a deadline for a coal-fired power plant it operates in remote Nucla, Colorado.

Under an agreement with Colorado’s environmental agency, Tri-State has until Sept. 1 to decide whether to install pollution controls or shut down the station, and until April 16 to comply with the EPA’s regulations, according to court documents.

Tri-State wants the lower court to suspend its compliance obligations in light of the Supreme Court’s ruling. The Nucla station meets federal standards for mercury and non-mercury metals but doesn’t meet the EPA’s hydrochloric acid limits.

“To require Nucla Station to spend millions of dollars to install controls or to shut down before EPA completes its analysis of whether it is ‘appropriate and necessary’ to regulate such plants when taking into account the cost of such regulation would make a mockery of the Supreme Court’s decision,” lawyers for Tri-State argue in their motion.

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