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Cross State Air Pollution Rule Update


As reported in the last issue of the Greenebaum Air Quality Letter, on July 7, 2011, EPA issued the Cross State Air Pollution Rule (CSAPR) to reduce emissions of SO2 and NOx from fossil fuel-fired electric generating units in 27 eastern states, including Kentucky.  Known as the Clean Air Transport Rule when it was proposed in July, 2010, the final CSAPR rule was significantly different from the proposed rule and utilized a new approach for allocating SO2 and NOx emission allowances for the state emission budgets.  As a result, the final rule has generated Congressional concern and petitions for judicial review from states, cities, industry groups and power providers.  As of October 7, the deadline for filing petitions for review, petitioners included various states (including Indiana, Ohio and Michigan), two cities, the National Mining Association, the Utility Air Regulatory Group, the United Mine Workers of America, and numerous power providers (including one Kentucky utility).  The challenges to the rule are consolidated in the United States Court of Appeals for the District of Columbia Circuit under EME Homer City Generation L.P. v. EPA, D. C. Cir., Case No. 11-1302.  Before the court at the time of this publication were various motions to stay the underlying final rule pending resolution of the challengers’ claims.

In the October 14, 2011 Federal Register, EPA proposed to revise CSAPR to increase allowances in Florida, Louisiana, Michigan, Mississippi, Nebraska, New Jersey, New York, Texas and Wisconsin.  EPA has also proposed to revise certain unit-level allocations in six states, including Kentucky, affected by federally enforceable consent decrees to assure that the allowances are available for compliance with CSAPR.  The proposed revision would also amend the compliance date for assurance penalty provisions from 2012 to 2014.  Public comments on the proposal are due by November 28, 2011.  On November 10, 2011, the U.S. Senate defeated a proposal by Senator Rand Paul (R-KY) to nullify the rule.


To view a complete PDF of the Third Quarter 2011 issue of the Air Quality Letter, click HERE.


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