As the baseball great Yogi Berra once said, “It’s déjà vu all over again.”
On February 8, the U.S. Court of Appeals for the D.C. Circuit dismissed the Clean Air Mercury Rule (CAMR). The U.S. Environmental Protection Agency (EPA) wrote the CAMR assuming that mercury should be regulated under Clean Air Act (CAA) Section 111, which sets national emission standards for new stationary sources. But the court reinstated a more stringent regime under CAA Section 112, which governs hazardous air pollutants (HAPs). Section 112 regulation of mercury requires meeting maximum achievable control technology (MACT) standards—and eliminating the mercury cap-and-trade program.
In the wake of this decision, coal-fired power projects currently in their planning or permitting phases may need to reevaluate whether their mercury control technology approach complies with their state’s standard. New federal regulations under Section 112 aren’t expected for several years.
The EPA lost a fight with 15 states, which convinced the U.S. Court of Appeals for the Washington, D.C., circuit that both the CAMR and an EPA rule removing power plants from the list of sources of HAPs (placing them beyond the jurisdiction of Section 112) violate the CAA. On February 8, the court issued a decision that vacated both rules effective March 14, 2008. This leaves in place the original December 2000 judgment by the EPA that electric utilities should be regulated under Section 112. A case-by-case MACT for HAPs may be required for new solid-fuel facility permits.
The EPA is currently reviewing the decisions and evaluating their possible impacts. Many anticipate the new regulatory regime will require major new sources of HAPs, including power plants, to conduct case-by-case preconstruction reviews of their mercury control strategies until a new MACT standard is developed and promulgated.
States take center stage
At least 21 states have proposed, finalized, or implemented mercury limits or allocation procedures that are more stringent than the CAMR. In addition to the CAMR and state-specific rules, consent decrees between certain sources and regulatory agencies also have affected the mercury control technology landscape.
Some coal-fired power plants recently have been issued air permits that limit their emissions of mercury. In most cases, the limits were established prior to the February ruling. For some permits, the limits were based on recently updated New Source Performance Standards (NSPS) for electric utility steam generating units that in turn are based on the unit’s generating technology and fuel. In other cases, the limits were established as part of a MACT evaluation for mercury.
Several new coal-fired power plant projects currently in their permitting phase are now assessing the implications of the recent court ruling. Some of the recently issued air quality permits call for the use of a specific mercury control technology. Many specify the injection of a sorbent such as activated carbon or halogenated activated carbon for mercury control.
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