• EPA Tells Congress that Four Years is Enough for Mercury Controls
  • March 28, 2012 | Authors: Kevin C. Fitzgerald; Peter S. Glaser; Kevin C. Greene; Clifford S. Sikora
  • Law Firms: Troutman Sanders LLP - Washington Office ; Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Washington Office
  • In a hearing before a Senate subcommittee on Tuesday, March 20th, EPA’s top air official, Gina McCarthy, continued to maintain that utility companies will have plenty of time to install new pollution controls required by EPA’s recently promulgated mercury standards.  Those standards, now referred to as EPA’s Mercury and Air Toxics Standards (MATS), require all utilities across the country to meet new standards designed to reduce hazardous air pollutant emissions from coal- and oil-fired units.  Despite sharp criticism from the industry tasked with carrying out those requirements, EPA believes the entire industry can re-tool itself in the 3 years allotted, plus a one-year extension authorized by the agency.

    Senator Lamar Alexander (R-Tenn.) was pointed in questioning why EPA was in such a hurry, noting that the Clean Air Act provides the authority for the Obama Administration to allow a total of six years and that more time might help make the rule more palatable and thus avoid legal challenges associated with the deadline for compliance.  Ms. McCarthy reiterated, however, that “[EPA doesn’t] believe there are circumstances that require time beyond what has already been provided.”  Also testifying in support of EPA was Maryland’s Secretary of the Environment, Robert Summers, who argued that a similar program implemented in his state was completed on time without the need for deadline extensions.

    Disagreeing with EPA was Harry Alford, president of the National Black Chamber of Commerce, who remained concerned that plant closures caused by the rule would disproportionately impact poor communities living near and working in those plants.  Mr. Alford questioned the benefits of the rule, stating that “[p]overty brings far worse health than mercury coming out of a coal plant ... kids that I see are far more likely to get a bullet in their head than asthma.”  Although EPA’s rule is not intended to address asthma-inducing pollutants, the benefits touted by EPA in support of its rule are almost entirely derived from “indirect” benefits associated with reductions in such pollutants (without taking into account similar reductions required by other Clean Air Act programs).

    The MATS rule has already been challenged in the U.S. Court of Appeals for the D.C. Circuit (case number 12-1100) by the National Mining Association, the National Black Chamber of Commerce, the Institute for Liberty, and the White Stallion Energy Center, a proposed power plant in Texas.  Intervening in support of EPA are 12 states, the District of Columbia, New York City, and 16 environmental or health groups.   Further appeals are expected before the April 16 court deadline.