MATS Marches On

UPDATED 01.05.2016 Comments due January 15, 2016

On November 20, 2015 the EPA proposed a supplemental finding to its Mercury and Air Toxics Standards (MATS) in which EPA considers the compliance costs (on a system-wide basis) associated with regulating mercury and other hazardous air pollutant emissions from coal- and oil-fired electric utility steam generating units (EGUs) and determines that such consideration does not alter the agency’s previous conclusion that it is appropriate and necessary to regulate these sources under Section 112 of the Clean Air Act (CAA).  The proposed supplemental filing was published in the Federal Register on December 1, 2015.

EPA proposed the supplemental finding in response to the Supreme Court’s 5-4 decision in Michigan v. EPA, 135 S. Ct. 2699 (2015).  In Michigan v. EPA, the Court reversed White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014), a U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) decision upholding the rule in its entirety.  The Court remanded the case back to the D.C. Circuit on the grounds that EPA must consider costs, including cost of compliance, before deciding whether regulation is appropriate and necessary and that EPA acted unreasonably when it deemed cost irrelevant to the decision to regulate power plants.

EPA is seeking comment on its proposed supplemental finding, cost analysis, and supporting legal memorandum, but is not opening comment on any other aspect of the rule.  Comments will be due 45 days after the proposal is published in the Federal Register.

In related news, the D.C. Circuit has scheduled oral argument in the remanded White Stallion Energy Center for December 4, 2015.  The court will be considering whether it should vacate the MATS rule.

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