Fossil generation developers want a federal court to order the US Environmental Protection Agency to revise a rule on hazardous air pollutants by March 1, 2013, or expedite their case against the agency's Mercury and Air Toxics Standards they claim are impossible to meet in time to secure an exemption from parallel greenhouse gas limits.
The new unit developers said a court order by November 15 would allow for oral arguments in the MATS case early next year and a decision well before EPA's April 12, 2013, deadline for these units to begin construction in order to avoid also having to strap on carbon capture and sequestration equipment.
"As EPA also concedes, petitioners cannot meet the proposed new GHG standards and will face loss of their sunk costs and abandonment of their projects if they become subject to those standards," the developers told the US Court of Appeals for the District of Columbia Circuit Friday in their filing under White Stallion Energy Center v EPA (No. 12-1272).
The filing is in response to EPA's status report to the court last week that it has "made significant progress" in reconsidering its MATS provisions for new units. The agency said it was "in the process of finalizing" draft regulatory text and "remains on track to complete the rulemaking by March of 2013."
But the developers, which include Tenaska Trailblazer Partners, Deseret Power Electric Cooperative, Sunflower Electric Power, Tri-State Generation and Transmissions and Power4Georgians, contend that EPA is "unwilling to meet the deadline."
The DC Circuit in June expedited the new unit developers' case against MATS based on their concerns about coming under the GHG rule, but in September the court agreed with EPA to hold the case in abeyance while the agency reconsidered the controversial parts of the rule.
The MATS limits on hazardous air pollutants for for new coal- and oil-fired power plants are so strict that pollution control equipment vendors are not guaranteeing their technology can fulfill the regulation's requirements, the developers said.
Without these guarantees, financing and ultimately construction of new units are vulnerable to delays that will prevent them from being shovel-ready in time to be exempt from EPA's New Source Performance Standards for the GHGS, they said.
New unit developers now "face imminent irreparable harm from EPA's unlawful rules, with their ability to finance construction reduced with every passing day that EPA stalls on reconsideration," the companies told the court.
