EEI, power industry colleagues request EPA move forward on nation’s mercury standards

Published on July 11, 2018 by Kim Riley

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Since the Mercury and Air Toxics Standards (MATS) became effective in 2012, the owners and operators of coal- and oil-based electric generating plants have spent upwards of an estimated $18 billion to comply with the Environmental Protection Agency (EPA) rule originally forged under the Clean Air Act.

The EPA standards require that coal-burning power plants, for instance, reduce emissions of lethal material – including mercury, lead and cadmium – via plant updates with advanced control technologies or by plant closures.

In 2015, 21 states and numerous industry groups went to court over MATS. The U.S. Supreme Court sent the rule back to the EPA after determining that the agency hadn’t adequately considered costs regarding whether to regulate toxic emissions from power plants. But in 2016, the Obama administration issued a supplemental finding under the Clean Air Act’s (CAA) section 112 that determined MATS were “appropriate and necessary,” regardless of costs.

Since 2017, litigation over the CAA section 112 supplemental finding has been held in abeyance at the U.S. Court of Appeals for the District of Columbia Circuit, which took that action to give the Trump administration time to get up to speed on the issue.

But as of this spring, William Wehrum, assistant administrator of the EPA’s Office of Air and Radiation, publicly said the Trump administration hasn’t yet decided how to move forward on MATS, although the EPA has indicated to the D.C. Circuit Court of Appeals that it intends to address the final supplemental finding for MATS.

Hopefully, action by the EPA will happen sooner rather than later as the delay is creating business uncertainty for other power industry players, including investor-owned electric companies and community-owned, not-for-profit electric utilities, according to several industry leaders.

Given the hefty financial investment made by the owners and operators of coal- and oil-based electric generating units, coupled with the nearly 90-percent reduction they’ve made in mercury emissions over the last decade, “regulatory and business certainty regarding regulation under CAA section 112 is critical,” according to the Edison Electric Institute (EEI), the American Public Power Association (APPA), the National Rural Electric Cooperative Association, the Clean Energy Group, the Class of ‘85 Regulatory Response Group, the International Brotherhood of Electrical Workers (IBEW), and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers.

Such certainty is necessary, the groups wrote in a July 10 letter sent to Wehrum, because many of the same electric generating units “are part of ongoing rate reviews regarding the generating fleet operated by investor-owned electric companies.”

“In the case of public power utilities and rural electric cooperatives (even those that are rate regulated by state commissions), compliance costs are directly borne by their customers,” wrote EEI, APPA, and their industry colleagues in the letter.

Toward providing such certainty to the industry, the groups asked that the EPA complete the statutorily mandated Residual Risk and Technology Review (RTR) for power plants “as expeditiously as possible,” according to their letter. The CAA requires the EPA to complete the RTR by April 16, 2020.

“We believe a complete and robust RTR will recognize the capital investments already made for compliance and will allow the industry to continue full implementation of the MATS rule, which was completed in April 2016,” their letter states, noting that all covered plants have implemented the regulation and that any needed pollution controls have been installed and are in operation.

“The industry already has invested significant capital — estimated at more than $18 billion — in addition to these operating costs, and states are relying on the operation of these controls for their air quality plans,” the organizations wrote. “Therefore, we urge EPA to move forward with an RTR for power plants under CAA section 112 and to leave the underlying MATS rule in place and effective.”

The power groups also urged the EPA to consider making technical revisions to MATS while at the same time ensuring that the standards are being met. One suggestion they offered was for EPA to consider whether performance tests could be done less frequently if electric generating units were running less frequently, for instance.

“We believe this approach can provide the regulatory and business certainty our members need as they continue to provide safe, reliable, affordable, and increasingly clean energy to their customers,” the groups wrote.