Catch-22: New EPA Mercury Rule Ties Up Plant Washington

Guest Blog | April 4, 2013 | Coal, Energy Policy
On March 28, the U.S. Environmental Protection Agency (EPA) announced a revised final Mercury and Air Toxics Standard (MATS) rule for new air emission sources (i.e. new power plants). The revised final rule is slightly weaker than the original December 2011 rule, due in part to power plant developers’ complaints that the original standard was unattainable, but still provides protection for public health.

For Plant Washington, the proposed Washington County, Georgia coal-fired power plant, the new MATS regulation puts the plant’s progress in a “Catch-22”: developers must meet a tight two-week timeline to engineer the plant for strict (but achievable) mercury emission controls, and still commence construction by April 13 in order to attempt to avoid greenhouse gas emission limits it cannot meet. For Plant Washington, whose developers claimed such a catch-22 meant they would “face the imminent loss of their projects,” it is yet another indication that Plant Washington is a doomed venture and a poor investment for its boosters, in addition to being a threat to the quality of Georgia’s air, water, and climate. (As we were writing this blog, the Macon Telegraph published this story confirming that Plant Washington won’t break ground before April 13 deadline.)

EPA’s original MATS rule was finalized in December 2011. In the original regulation, new power plants would have had to start strictly limiting their mercury emissions, as well as emissions of a handful of other toxins, starting in April 2015.  In response to the original MATS rule, EPA received multiple petitions for reconsideration, including petitions from pollution control equipment vendors, air emissions experts, and power plant developers (which included Power4Georgians, the developers of Plant Washington).  Plant developers complained that no emission control vendor would guarantee its product could effectively achieve the stringent control levels, and emission control vendors echoed that sentiment, stating they could not offer guarantees that their products would meet the new standards.

Simultaneously, over 30 petitions for review of the MATS rule were filed in United States Court of Appeals for the D.C. Circuit, by many of the same parties who submitted petitions to EPA. What’s more, complainants asked the court to expedite its usual decision making timeline, citing the so-called regulatory catch-22 created by the MATS rule.  The D.C. Circuit granted the motion to expedite – an action that was quickly followed by a letter from EPA stating that it would be reopening the MATS rule for reconsideration in response to the petitions it received.  Since EPA was attempting to address the same complaints raised in the lawsuits, the D.C. Circuit stayed all lawsuits related to the MATS rule while EPA accepted public input on how to craft a more achievable standard.

It would appear that even though Power4Georgians agreed in an April 2012 settlement to build Plant Washington so it would comply with the new rule, it was holding out on finalizing the design – hoping that they along with other power plant developers could apply enough pressure on EPA to get a less-stringent rule as quickly as possible. In its April 27 Court of Appeals motion to expedite EPA’s mercury rule reconsideration, co-filed with developers of White Stallion Energy Center in Texas and several others, Power4Georgians (one of the “New-Unit Developers” below) actually says that it cannot proceed if EPA takes its usual time to review the rule:

“Absent expedited consideration, New-Unit Developers will suffer irreparable injury for two reasons. First, they stand to become subject to the new-unit GHG [Greenhouse Gas] performance standards that EPA specifically acknowledges that New-Unit Developers cannot meet. Second, apart from the impact of the GHG NSPS [New Source Performance Standard] rule, a delay of one to two years to litigate the rules in the normal course risks the continued viability of  their projects.”

Unfortunately for Power4Georgians, EPA’s reconsideration meant that the final MATS rule was enacted just two weeks before the developer must commence construction on the plant. There’s already been one casualty: developers of White Stallion Energy Center announced in February that the Texas plant proposal was canceled due to the delayed regulation. Will Plant Washington be next, or was it crying “wolf”?

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