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Multiple Parties Seek One Year Delay of EPA MACT Rule

On October 13 and 14, 2011, the National Mining Association (“NMA”), twenty-five states and Guam, and other public interest groups submitted amicus briefs to the United States District Court for the District of Columbia, in support of Utility Air Regulatory Group’s (“UARG”) motion for a one year extension of the Environmental Protection Agency’s (“EPA”) deadline for promulgating a rule establishing Maximum Achievable Control Technology (“MACT”) standards for electric generating units (“EGUs”), which EPA is calling its Mercury and Air Toxics Standards rule (“MATS”). 

Currently the EPA is operating under a 2009 consent decree with a November 16, 2011 deadline to issue a final rulemaking on standards for hazardous air pollutants from EGUs.  On October 7, 2011, UARG filed a motion asking the District Court to re-open the consent decree and push back the publication of the final rule by one year.  UARG argued that EPA will need the extra time in order to comply with its statutory obligation to provide “adequate participation by the public (including UARG) and due consideration of the public’s comment.”  UARG also asserts the EPA has made “egregious errors” in its analyses and not fully assessed the impact of MATS on reliability while ignoring concerns from other agencies.

The twenty-five states argued that the current deadline does not allow EPA the time to read and address the more than 20,000 comments before publishing a final rule.  The NMA also took particular issue with recently available information concerning the effect of the MATS rule on the reliability of the electric grid.  In August, information was released from the Federal Energy Regulatory Commission (“FERC” or the “Commission”) and other agencies that questions whether electric reliability will be impaired by the MATS implementation.  Since this information was not available when the original deadline was made, NMA contends that EPA has not adequately considered the effect of the MATS, and NMA believes that the EPA has underrepresented the number plant retirements that will be caused by implementing MATS.

 A copy of the NMA brief is available here, and the brief for the twenty-five states is available here.