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EPA Proposes Consent Decree (10/23/09)

On October 22, 2009, EPA Administrator Lisa Jackson provided notice that her Agency intends to lodge with the Court a proposed consent decree in the matter of AMERICAN NURSES ASSOCIATION, et al. (Plaintiffs) v. ENVIRONMENTAL PROTECTION AGENCY (Defendants). To refresh your memory, Plaintiffs filed a compliant in the D.C. District Court on December 18, 2008. The complaint alleged that EPA failed to perform a non-discretionary duty by failing to promulgate final maximum achievable control technology (MACT) emission standards for hazardous air pollutant (HAP) emissions from coal- and oil-fired electric generating units (EGUs). The proposed consent decree would establish the following EPA obligations:

  • No later than March 16, 2011, EPA must sign for publication in the Federal Register a notice of proposed rulemaking setting forth the Agency’s proposed MACT emission standards for coal- and oil-fired EGUs.

  • No later than November 16, 2011, EPA must sign for publication in the Federal Register a notice of final rulemaking setting forth the Agency’s final MACT emission standards for coal- and oil-fired EGUs.

Thankfully, before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federal Register and an opportunity for public comment pursuant to the Clean Air Act §113(g). After the close of the comment period, EPA must consider any written comments in determining whether to withdraw or withhold consent to this Consent Decree. RMB staff have been involved with EPA and EGU rulemakings for 30 plus years. The schedule in the proposed Consent Decree, particularly the 6 months between the proposed rule and the final rule borders on insanity. Over the last three decades, what major rule has EPA finalized in 6 months following proposal? If anyone can provide a correct answer to this question, RMB would appreciate hearing from you, because we surely cannot name one!

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Last Revised: February 05, 2012