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This decision on the Mercury and Air Toxics Rule at the DC Circuit Court of

Appeal... a 'slam dunk' victory for President Obama, the U.S. EPA and Department

of Justice.

We have a President who knows how to get environmental protection done, and

does it.  

President Obama's commitment to Clean Air Act (CAA) leadership and stewardship

makes even Bill Clinton look like a CAA slacker.

A full appreciation of this DC Circuit decision, which is a milestone in the

history of the Clean Air Act, requires consideration of the following

factors and events:

1.   First, the 2012 final Mercury & Air Toxics rule was not the first time that

mercury from power plants was subject to regulation under the Clean Air Act.

Before the Clean Air Act amendments of 1990, mercury from power plants

was required to be permitted, regulated and controlled with Best Available Control

Technology when such power plants went through New Source Review permitting

for new major stationary sources and major modifications of such power plants if emissions

were over the significance level, which was 0.1 tons mercury per year

2.  Although mercury was a regulated New Source Review pollutant back then, the

other thing that was going on beginning in the 1980's through the first decade of

this century was that the electric utility industry and the petroleum refining industry

were engaged in a massive amount of cheating on complying with EPA's requirements

for getting major modification Prevention of Significant Deterioration

permits (covering several pollutants).   Because of the

endemic industry cheating, the PSD controls on mercury emissions were not as

affective as they should have been because of deliberate industry evasion of the requirements.

3.   Notwithstanding the circumstances of #2, some PSD permits regulating mercury from

power plants and other sources would have been issued prior to the 1990 Clean Air Act

Amendments.  However with the passage of the 1990 amendments, mercury became a hazardous air

pollutant (HAP) regulated under Section 112 of the CAA.   Also enacted in the 1990

Amendments was Section 112(c)(6) of the Clean Air Act, which required that

hazardous air pollutants (like the newly designated mercury as HAP) were not subject

to the requirements of the Prevention of Significant Deterioration provisions (including

Best Available Control Technology) that were previously in effect.  

4.   Because of Congress' action to designate mercury as a HAP and the action of

Section 112(c)(6), the 1990 Clean Air Act amendments had the effect of deregulating

and rendering federally unenforceable all previously established federally approved State

Implementation Plan rules that controlled mercury in New Source Review permittting.  

Also, because of CAA Section 112(c)(6), all mercury emission limitations contained

in permits issued prior to the 1990 CAA Amendments became federally unenforceable

and thus were removed from previously issued permits in new Title V permits to be

issued.  [For example, state-issued mercury emission limitations set for the Detroit

Incinerator when it was built were thus rendered federally unenforceable when the

1990 Amendments passed.]

5.  Because of the events & circumstances under item #4, after 1990 when mercury was made a HAP

by Congressional action, the passage of the 1990 CAA Amendments left no federally

enforceable mercury emission limitations that were previously in effect in place....nothing.

In the closing days of the Clinton Administration, an effort to trigger the beginning of

a rulemaking process for mercury Maximum Achieveable Control Technology

from power plants began.  Through several steps with

reports and a completely failed effort by the Bush Administration to set mercury rules

for power plants which were struck down

as illegal by the DC Circuit years ago, then President Obama pushed final rules out

in 2012 that were then upheld by the DC Circuit on 04/15/2014.

So it took 22 years after the 1990 CAA was passed to put mercury controls into

effect and binding on power plants.  Plants will have to comply in 3-4 years with

mercury emission reduction requirements.

6.   The 04/15/2014 DC Circuit decision is a big victory by President Obama

over the efforts of Governor Rick Snyder and Michigan Attorney General

Bill Schuette, who were petitioners on behalf of the State of Michigan

to overturn EPA's Mercury and Air Toxics Rule in this present case.   The proper

question for the press to be asking Snyder and Schuette right now is how do they

like losing this issue at the DC Circuit and are they planning a Supreme Court

Appeal of the DC Circuit final order.

7.  For context, all Michigan citizens should understand that when Rick Snyder and

Bill Schuette attack the Clean Air Act in federal courts, they are not representing

the concerns of Michigan citizens and their environment.   What Rick Snyder and

Bill Schuette are doing in their attack on the Clean Air Act

is to represent the interests of the Mackinac Center, Russ

Harding, DTE Energy, Consumers Energy,  and the Koch-Brothers--funded American

Legislative Exchange Council.    

1:13 PM PT: Go here to EPA's Mercury and Air Toxic's rule Web Page:

Here is a more detailed history of the development of the MATS rule:

3:19 PM PT: Here is EPA TRI data showing mercury and mercury compound emissions from all of the power plants in the United States reporting mercury emissions.

Note that a majority of the very largest, top ten mercury-emitting power plants are under jurisdiction of Governor Rick Perry in Texas, which was a petitioner seeking overturn of the rule

Originally posted to LakeSuperior on Fri Apr 18, 2014 at 11:24 AM PDT.

Also republished by DK GreenRoots, Motor City Kossacks, and Kosowatt.

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