Mining Association Sues To Stop Cross-State Air Pollution Rule

Oct 3: National Mining Association (NMA) President and CEO Hal Quinn announced that the association was filing a petition in the United States Court of Appeals for the District of Columbia Circuit for reconsideration and stay and petition for review of U.S. EPA's "Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals." [76 FR 48208-48483, 8/8/11]. Quinn said, "NMA today requested the U.S. Environmental Protection Agency (EPA) reconsider and stay its Transport Rule because new information demonstrates EPA's assessments of grid reliability and resource adequacy as a result of the rule are incomplete, inaccurate and lack credibility. NMA further contends EPA, in violation of administrative law requirements, has either not consulted with other agencies responsible for ensuring electricity reliability or, if it has done so, has not subjected those consultations to public scrutiny."

    NMA said, "Five alarming facts have emerged from this new information that compel EPA to reconsider and stay the rule" [as follows]:

• EPA failed to consider the cumulative impact of its power sector regulations on grid reliability, as recommended by Federal Energy Regulatory Commission (FERC) staff. Even after FERC staff estimated possible retirement of as much as 40 percent of the entire coal-based generation fleet, EPA did not pursue a rigorous analysis of reliability impacts;
• EPA incorrectly assumed power can be transmitted freely within broad geographic regions of the country—discounting cautions raised by FERC, Regional Transmission Organizations (RTO) and Independent System Operators (ISO);
• FERC has only provided "preliminary" and "tentative" analysis to EPA that is "inadequate to use as a basis for decision making," according to FERC Chairman Jon Wellinghoff and contrary to EPA's assertions;
• FERC staff have questioned whether the compliance deadlines set forth in EPA's regulations were too expedited to allow utilities sufficient lead-time to replace retiring resources -- raising additional reliability concerns; and
• EPA disclosed none of the consultations that occurred with FERC or other agencies responsible for grid reliability, nor is there a public record of those consultations, contrary to EPA's assertion it would operate in a "fishbowl" and in violation of EPA's rulemaking responsibilities.

    Quinn said, "A safe, reliable and affordable supply of electricity -- underwritten by the energy attributes of coal -- is essential. In its rush to regulate, EPA has failed in its responsibilities to the American people by jeopardizing the foundation of our economy. Aside from the legal requirements unmet by EPA, the rule should be reconsidered and stayed on public policy grounds."

 

    When EPA announced the rule on July 7, 2011 [See WIMS 7/7/11], the Agency said the Cross-State Air Pollution Rule (CSAPR, a.k.a. Transport Rule) "will protect communities that are home to 240 million Americans from smog and soot pollution, preventing up to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 cases of acute bronchitis, 400,000 cases of aggravated asthma, and 1.8 million sick days a year beginning in 2014 -- achieving up to $280 billion in annual health benefits."

 

    EPA Administrator Lisa Jackson said, "No community should have to bear the burden of another community's polluters, or be powerless to prevent air pollution that leads to asthma, heart attacks and other harmful illnesses. These Clean Air Act safeguards will help protect the health of millions of Americans and save lives by preventing smog and soot pollution from traveling hundreds of miles and contaminating the air they breathe. By maximizing flexibility and leveraging existing technology, the Cross-State Air Pollution Rule will help ensure that American families aren't suffering the consequences of pollution generated far from home, while allowing states to decide how best to decrease dangerous air pollution in the most cost effective way."

 

    On September 12, in a lengthy company release, Luminant, the largest power generator in Texas that employees approximately 4,400 employees throughout the state (2,580 in coal plant and mining operations) announced the need to close facilities and layoff workers to comply with U.S. EPA's recently finalized Cross-State Air Pollution Rule (CSAPR, a.k.a. Transport Rule) [See WIMS 7/7/11]. The company said the action will cause the loss of approximately 500 jobs.

 

    On September 23, despite strong opposition from House Democrats [See WIMS 9/21/11] and an Office of Management and Budget (OMB) "Statement of Administration Policy" opposing and recommending a veto of H.R. 2401 -- the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (i.e. the TRAIN Act), the U.S. House of Representatives approved the bill by a vote of 249 to 169. Among other provisions the bill includes language to delay implementation of CSAPR and requires consideration of the rule's economic and job impacts [See WIMS 9/23/11].

 

    Access a release from NMA and link to a 37-page letter to the EPA Administrator and the 5-page petition for review of the rule (click here). Access a 7/7/11 release from EPA (click here). Access the FR announcement (click here). Access the EPA docket for this action with comments and documents (click here). [#Air]

 

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