Pollution-Monitoring Window Under Fire at DC Circuit

WASHINGTON (CN) — The D.C. Circuit scrutinized the government Monday over the four-hour window it gives power plants to track pollution spewed out by their generators. 

The Environmental Protection Agency reports that power plants account for large proportions of toxins like mercury, arsenic and hydrogen chloride clogging the atmosphere. But at oral arguments in Washington this morning, a lawyer for the EPA said measuring technology is not dependable before steam-electric power boilers, fueled by burning coal and oil, are fully up and running. 

Before the four-hour mark, said Justice Department attorney Meghan Greenfield, smokestacks are in a state of flux that makes measuring toxins ineffective. 

But the argument did not appear to satisfy U.S. Circuit Judge Cornelia Pillard, an Obama appointee.

“If there are large emissions that are irregular but nonetheless substantial … why does it matter if they can go into the atmosphere?” Pillard asked.

Greenfield held firm that earlier measurements are not feasible because boilers are unstable, referring to a method called scanning electron microscopy that the EPA uses to measure air particles. 

“We acknowledge that the SEM is reporting numbers,” Greenfield said, abbreviating the method. “We just don’t believe that those numbers are meaningful.”

But the environmental groups argue that the EPA relied on faulty technical analysis when it issued the rule with the four-hour startup period in 2014. They say the EPA waited until after the public-comment period to reveal that it relied on a study of “best performing” air pollution control devices, which calculate the average amount of time needed for all power plants to measure emissions.

“When EPA engages the wrong best-performance analysis, that’s of central relevance,” Patton Dycus, an attorney for the nonprofit Chesapeake Climate Action Network, said at Monday’s hearing. 

As evidence the EPA explanation falls short, Dycus pointed to an acid rain provision under the Clean Air Act, which requires power plants to start measuring sulfur dioxide and nitrogen oxide emissions during generator startup and count any pollution outputs toward federal compliance standard. 

Judge Pillard asked Dycus to differentiate between the case at hand and a decision the court issued last year upholding an EPA rule on industrial boilers.

The attorney said the circuit’s 2018 ruling in Sierra Club v. EPA did not tackle claims he presented Monday, among them the comparison to the Clean Air Act acid rain provision. 

A brief from the environmentalists makes the same point, saying the 2018 case involved the EPA lacking information to identify boilers that could measure emissions.

“Here, by contrast, EPA takes the position that it can determine that power plants as a class cannot measure their emissions during the extended startup period,” the brief states. “Nothing in Sierra Club even suggests that EPA may ignore relevant data and its own repeated contrary conclusions in making such a finding.”

U.S. Circuit Judge Pillard was joined on the panel by U.S. Circuit Judge David Tatel, a Clinton appointee, and U.S. Circuit Judge Robert Wilkins, an Obama appointee.

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