EPA Updates Cross-State Air Pollution Control Rule (CSAPR) Compliance Deadlines
By Kate E. Beatty, Attorney, Bingham Greenebaum Doll LLP
On Dec. 3, 2014, EPA published an interim final rule with a request for comment concerning the tolling of the Cross-State Air Pollution Control Rule’s (CSAPR or Transport Rule) compliance deadlines by three years. 79 Federal Register 71663.
EPA’s “ministerial amendments” to the dates stem from 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 arguments on CSAPR in EME Home City Generation, L.P. v. EPA. In August 2012, the D.C. Circuit invalided the rule. However, the Supreme Court later reversed the D. C. Circuit’s ruling. In response, 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 Dec. 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.
EPA has called the compliance deadline amendments “ministerial” but requests public comment concerning the consistency of the amended dates with the D.C. Circuit’s order. The comment period will remain open until Feb. 2, 2015.
Additionally, EPA issued a notice of data availability, which provides updated allocations of emission allowances for individual power plants to compensate for the three year delay in implementation of CSAPR. 79 Federal Register 71674.
Meanwhile, pending litigation continues in the remaining CSAPR lawsuits with briefing to be completed in February 2015.