Expect New Mercury Rules by 2011

In a major air regulatory development, the Environmental Protection Agency has agreed to issue rules by November 2011 to reduce mercury and other hazardous air pollution from coal- and oil-fired power plants under a settlement agreement resolving a lawsuit filed by a host of environmental organizations.

The agreement, lodged in the U.S. District Court for the District of Columbia Circuit, will lead to rules requiring coal- and oil-fired power plants to install pollution controls sufficient to meet a maximum achievable control technology (MACT) standard for emissions of mercury and other hazardous air pollutants (HAP) such as arsenic, lead, nickel, chromium and hydrochloric acid.

Attorneys at the Chesapeake Bay Foundation, Clean Air Task Force, Earthjustice, Natural Resources Defense Council (NRDC), Southern Environmental Law Center and Waterkeeper Alliance forced the EPA action by filing the lawsuit last December on behalf of their organizations and nine other environmental and public health groups.

“Cleaning up dirty coal-burning power plants is the best way to make the air healthy for the American people,” said NRDC Senior Attorney John Walke. “This rule will drive deep cuts not just in mercury pollution, but dangerous soot pollution that leads to asthma, bronchitis, heart attacks and strokes.”

Edison Electric Institute spokesman Dan Riedinger said the consent decree puts EPA on a fast track for issuing regulations to reduce utility mercury emissions. Typically, an agency will have a full year to finalize a rule after it’s been proposed. In this case, EPA will have eight months, which will include a likely 60-day comment period.

In the interim, EPA has indicated that it will issue an information collection request to get more current emissions data from utilities, which will require stack monitoring and sampling.

“The accelerated timetable under the consent decree could squeeze us a bit in terms of the time we’ll have to get EPA the data it wants,” Riedinger said. “We support the agency’s data collection effort, because we think it’s critical to a thorough rulemaking process.”

The Clean Air Act’s MACT standard provisions require new power plants to adopt at a minimum the emission control that is in use at the “best-controlled similar source,” and requires existing plants to adopt controls equal to the average emissions reduction achieved by the best-performing 12% of the universe of similar plants. Under this standard, most affected power plants likely will have to reduce their emissions of mercury, for example, by 85% to 90% within three years of the date of the final MACT rule.

Environmentalists interviewed by Energy Daily said they expect EPA to state in its MACT rule that coal- and oil-fired power plants will have to install multiple control devices, including baghouses, scrubbers and activated carbon injection systems, to meet a MACT standard for mercury and dozens of other HAPs emitted by these plants

Greens said that in addition to controlling utility HAP emissions for the first time, the rule also will lead to significant reductions in sulfur dioxide (SO2) and particulate matter pollution because of the likely requirement to include scrubbers in the suite of controls.

Roughly one-third of U.S. power generating capacity was equipped with SO2 scrubbers at the end of 2006, and EPA had estimated that number would climb to 50% by 2010 and 66% by 2015 to meet emission reductions needed to comply with regulations issued by the Bush administration. However, several of these rules, including a rule to reduce mercury emissions, were successfully challenged in court.

The EPA under the Clinton administration late in December 2000 issued a regulatory determination that concluded that the MACT standard was the best approach for controlling utility mercury and other HAP emissions and added coal- and oil fired power plants to a list of HAP sources that Congress has stipulated must be subject to the stringent standard.

However, the Bush administration in 2005 reversed the Clinton-era finding, removing coal- and oil-fired power plants from the HAP source list and issuing a rule that required industry-wide mercury emission reductions of 70% by 2018 and allowed power companies to trade mercury emissions-reductions to reduce their compliance costs.

Environmentalists challenged the mercury trading rule, and in February 2008 the U.S. Court of Appeals for the District of Columbia Circuit threw out the regulations and reinstated the Clinton EPA decision to include power plants in the list of HAP sources subject to a MACT standard.

After EPA failed to issue a new mercury rule, the environmental groups in December sued to force the agency to act, leading to the settlement agreement.

Chris Holly is a reporter for COAL POWER’s sister publication, The Energy Daily.

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