EPA Steam-Plant Emission Rules Survive Utility Challenge

U.S. rules governing emissions from steam-generating power plants survived a court challenge brought by utilities and the state of Texas, which said the regulations were improperly devised.

The U.S. Court of Appeals in Washington today said that the Environmental Protection Agency didn’t violate rule-making procedures in setting standards for particulate matter.

The ruling affirms part of a February 2012 package of EPA air pollution rules for power plants. Still pending are decisions on standards for mercury and other hazardous emissions.

The challengers to the particulates rule alleged that the EPA made errors in establishing benchmarks, including standards for measuring the degree to which smokestack emissions block light, in the 2012 regulations, as well as in a set of rules issued three years earlier.

“Even assuming the EPA did stumble procedurally during the rulemaking for the 2009 rule, it made up for any procedural error during the rulemaking for the 2012 rule,” Circuit Judge Merrick Garland wrote for a three-judge panel. “There is no dispute that during the latter, EPA offered all interested parties an opportunity to comment on both the opacity standard and the opacity monitoring requirements.”

Lauren Freeman, an attorney for the Utility Air Regulatory Group, a coalition of power companies and others affected by the regulations, which challenged the EPA rule-making, didn’t immediately respond to a phone message seeking comment on the decision.

Texas Reviewing

“We are reviewing the court’s decision and considering our options for appeal,” Lauren Bean, a spokeswoman for Texas Attorney General Greg Abbott, said in an e-mailed statement.

The ruling, while “a good win for the EPA,” is narrow because a number of issues raised by the utilities are still under administrative appeal and weren’t ruled on by the court, said John Walke, an attorney for the Clean Air Council, a nonprofit environmental advocacy group which intervened in the case on behalf of the EPA.

In addition, today’s ruling applies only to “new source” pollution from plants built or modified since the rules came out.

The particulates case was heard on the same day and by the same panel as a related petition challenging mercury and air toxics standards for fossil-fuel burning plants, a higher profile issue with multibillion-dollar implications for the power industry.

The particulates case is Utility Air Regulatory Group v. EPA, 12-1166, U.S. Court of Appeals for the District of Columbia (Washington).

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