Pennsylvania Mercury Rule Struck Down – Or Is It?

On January 30, 2009, Commonwealth Court Judge Dan Pellegrini ruled that Pennsylvania’s regulations limiting mercury air emissions from coal-fired Electric Generating Units (EGUs) were unlawful, invalid, and unenforceable.  The primary basis for the ruling was the District of Columbia Circuit Court’s decision that U.S. EPA had improperly delisted EGUs from the Clean Air Act (CAA) Section 112 list of source categories that are subject to Maximum Achievable Control Technology (MACT) standards.  In the judge’s opinion, since EGUs were technically still regulated under Section 112, Pennsylvania had not properly promulgated its regulations.  

This decision is not a final action (pending appeal) and Pennsylvania has 30 days to respond to the decision.  The State could have sought a settlement of the case or could have requested a review of the decision by the full 3-judge panel of the Commonwealth Court.  However, on February 6, 2009, the State chose to appeal the Commonwealth Court’s decision to the Pennsylvania Supreme Court.  Considering the complexity of the inter-relationship between the Federal CAA and the State Air Pollution Control Act, the State Supreme Court may be a better venue for the Commonwealth’s arguments for the need to act in the absence of Federal rules. 

Now that the State has filed an appeal, it is up to the State Supreme Court to decide if it should hear the appeal.  If the State Supreme Court agrees to hear the appeal, this agreement will act as an automatic stay of the Commonwealth Court decision to vacate Pennsylvania’s mercury regulations.  This means that any company affected by the Pennsylvania mercury regulations should continue taking actions to be in compliance with the mercury regulations.  Stay tuned for updates.