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September 15, 2009 |
One Small Step for USEPA; A Giant Leap Toward Coordinated Regulation of Air Emissions for the Power Sector On September 4, 2009, the U.S. Court of Appeals for the D.C. Circuit granted in New York v. EPA, D.C. Cir. No. 06-1148, the United States Environmental Protection Agency's (USEPA's) voluntary request to remand a 2006 rule setting emissions standards for steam generating units at power plants. USEPA reasoned in its request that it plans to revisit these standards and others in an attempt to coordinate the various air emissions regulations that have hit the power sector in recent years. The 2006 rule set new source performance standards (NSPS) for emissions of nitrogen oxides (NOx), sulfur dioxides (SO2), and particulate matter for electric steam utility generating units (among other categories of sources) and was issued by USEPA on February 27, 2006, at 40 C.F.R. Part 60, Subparts Da, Db, and Dc (71 Fed. Reg. 9866). In response to the regulations promulgated in 2006, California, Massachusetts, Oregon, the City of New York, several other states, and the District of Columbia filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit. The petitioners alleged that USEPA did not identify "the best system of emission reduction" for the category of sources and that USEPA made other errors in setting the standards.1 The lawsuit also challenged USEPA's determination that it lacked legal authority to regulate greenhouse gases from utility and industrial boilers and, therefore, USEPA's failure to adopt carbon dioxide ("CO2") emissions standards for power plants. The greenhouse gas issues, however, were consolidated into a different docket. New York v. EPA, No. 06-1322. In its motion for voluntary remand, filed August 19, 2009, USEPA asserted that upon further examination, some parts of the rule need more work. Issues to revisit include technical aspects of the SO2 and NOx standards and the Bush administration's decision not to establish a separate emission limit for fine particulate matter (PM2.5) and condensable particulate matter. USEPA is currently drafting a rule that would limit the emissions of air toxics from power plants and believes it would be appropriate to consider a new NSPS rule in conjunction with that rulemaking process. The air toxics rule would set maximum achievable control technology (MACT) standards for mercury and other air toxics and is intended to address two other federal air rules that have been remanded by the D.C. Circuit - the Clean Air Mercury Rule (CAMR) and the Clean Air Interstate Rule (CAIR). CAMR employed an emissions trading system to reduce mercury emissions, while CAIR established an interstate emissions trading program for nitrogen oxides and sulfur dioxide in order to reduce the transport of precursor emissions of ozone and fine particulate matter. The USEPA expects that, together, revised new source performance standards and MACT standards would address all air pollutants from the electric power industry. For questions regarding this Environmental Update, please contact any of the attorneys in Schiff Hardin's Environmental Group. RECENT ENVIRONMENTAL PUBLICATIONS
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