Clearing the Air

(as states tend to do) and implemented their own rules. Some included allowance trading programs, others didn’t. Some SIPs were more stringent than CAMR, others were equivalent. (See the figure on page 6.)

Any state’s rule that included adoption of CAMR by reference, in whole or in part, will now be left in legal limbo by the effect of the court’s decision.

Dozens of prevention of serious deterioration (PSD) construction permits have been issued since the promulgation of CAMR. Each of these facilities must determine how their state enacted mercury regulation, either by following EPA’s “model” rule or with a customized mercury rule.

Dozens more PSD construction permit are pending. The permit for AECI’s Norborne power plant was issued on February 22, 2008, two weeks after the Court’s ruling. The state of Missouri used a bold wait-and-see approach: In the event that the CAMR was vacated permanently, AECI is required to take appropriate action, as required by EPA, or complete a

case-by-case maximum achievable control technology (MACT) analysis for hazardous air pollutants. Missouri told AECI to act within 90 days of the court’s final mandate.

Some states may delay issuing pending permit applications, hoping that EPA will act to resolve the current morass. The resulting uncertainty will lead to delays in construction and could impact vendor delivery for major equipment orders. It is not unimaginable that a U.S. company whose permit is in limbo could lose its equipment production slot to a foreign firm that does not have such hindrances.

What’s a Power Plant to Do?

The potential vacatur of CAMR has left a void as to the appropriate mercury limits for new coal-fired boilers. The Clean Air Act clearly requires that MACT now be determined on a case-by-case basis. However, the mechanism proscribed is in conjunction with the Title V permit program, not the New Source Review (NSR) program. The 45-day appeal period

on the D.C. Court’s ruling must first expire and then a mandate to EPA can be issued by the Court. At that point, EPA can issue guidance to the industry, likely this month.

The most likely outcome is that each facility will need to conduct a case-by-case MACT analysis, and possibly not just for mercury, but for all hazardous air pollutants. These case-by-case determinations are by definition not cookie-cutter. They take a considerable amount of time and effort to reach conclusion. The wise utility might begin its case-by-case determinations now, to keep in its back pocket. Such pre-planning may soon become invaluable.

 

References:

1. www.epa.gov/hg/health.htm

2. http://pacer.cadc.uscourts.gov/docs/ common/opinions/200802/05-1097a. pdf

3. http://www.epa.gov/region07/ programs/artd/air/nsr/archives/2008/ fi nalpermits/aeci_norborne_fi nal_psd_ permit.pdf

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