By Kate E. Beatty, Bingham Greenebaum Doll LLP
On December 3, 2014, the U.S. EPA published an interim final rule with a request for comment concerning the tolling of the Cross-State Air Pollution Control Rule (CSAPR or Transport Rule) compliance deadlines by three years. (1)
The request to toll the compliance deadlines stems from the lengthy litigation over CSAPR. The U.S. Court of Appeals for the D.C. Circuit stayed the implementation of the rule in December 2011 while it heard litigation over CSAPR in EME Home City Generation, L.P. v. EPA. In August 2012, the D.C. Circuit invalidated the rule. However, the Supreme Court later reversed the D. C. Circuit’s ruling. In response, the EPA requested that the D.C. Circuit lift the stay of CSAPR and delay the CSAPR compliance deadlines by three years. The proposed interim rule will amend CSAPR to clarify the D.C. Circuit’s order lifting the stay and tolling the rule’s deadlines.
The interim rule tolls by three years only those dates that have not already passed as of December 30, 2011, the date of the D.C. Circuit’s previous stay order. Therefore, compliance with CSAPR Phase 1 emissions budgets will be required in 2015 and 2016, rather than in 2012 and 2013, and compliance with the initial Phase 2 emissions budgets and assurance provisions will commence in 2017 rather than 2014.
The EPA has called the compliance deadline amendments “ministerial” but requests public comments concerning the consistency of the amended dates and year with the D.C. Circuit’s order tolling the CSAPR deadlines by three years. The comment period will remain open until February 2, 2015.
Additionally, the EPA issued a final rule - notice of data availability - which resets pollution allowances for individual power plants to compensate for the three-year delay in implementation of CSAPR. (2)
Meanwhile, pending litigation still continues regarding the remaining CSAPR lawsuits. Initial briefs were due December 10, 2014 for industry and states opposed to the rule. Final briefs are slated to be due by February 6, 2015.
(1) 79 Federal Register 71663.
(2) 79 Federal Register 71674.
This post was written by Kate E. Beatty, Bingham Greenebaum Doll LLP. If you would like to submit content or write an article for the Environmental Law Section page, please email Mary Kay Price at firstname.lastname@example.org.