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Costs of MATS Don’t Change Rule Justifications, EPA Says

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The Environmental Protection Agency (EPA) on Nov. 20 issued a supplemental finding that consideration of costs does not affect its previous conclusion that regulation of coal- and oil-fired power plants is “appropriate and necessary” under section 112 of the Clean Air Act. The finding was in response to a June decision by the U.S. Supreme Court that the agency erred in not considering costs as part of its rulemaking for the Mercury and Air Toxics Standards (MATS).

In the June decision, the Court reversed an earlier finding by the D.C. Circuit Court of Appeals and held that the Clean Air Act required consideration of costs for such a rule. The EPA had argued that it did not need to consider the costs of MATS in its “appropriate and necessary” finding because it planned to consider costs in crafting the actual rule. The Court held that to be error.

However, the Court did not decide how the EPA needed to consider costs or what its ultimate finding should need to be, holding that this fell within agency discretion. That left it to the EPA to decide whether to begin a new rulemaking taking into account the costs of MATS or simply reconsider its previous deliberations.

In its Nov. 20 statement, the EPA said that it “has taken cost into account in evaluating whether such regulation is appropriate and has determined that including such consideration does not alter the EPA’s original conclusion that it is appropriate to regulate hazardous air pollutant (HAP) emissions” from coal- and oil-fired power plants. This decision essentially leaves the original MATS rule in place, though litigation over the move appears certain given the previous opposition to MATS.

The EPA is accepting comments on the revised finding for 45 days after publication in the Federal Register, and is considering holding a public hearing in mid-December.