ELR Citation: 40 ELR 20036
No(s). 09-51079 (5th Cir. Nov 23, 2010)

The Fifth Circuit held that an energy company's current and ongoing construction of a coal-fired power plant, for which no maximum achievable control technology (MACT) determination has ever been made, violates CAA §112(g). In ordinary circumstances, there would be no question as to whether §112(g)'s requirement of a MACT determination applied to the plant. But in March 2005, EPA issued a rule removing coal and oil-fired electric utility steam generating units from the list of sources whose emissions are regulated under §112. As a result of EPA's delisting rule, the state environmental agency concluded that a MACT determination was not required, even though the company submitted an application for a MACT determination. But in February 2008, one month after construction of the plant began, the D.C. Circuit vacated EPA's March 2005 delisting rule. Accordingly, because §112(g)(2)(B) prohibits the act of construction, not merely the commencement thereof, the company's current and ongoing construction of a major source without a final MACT determination violates the plain language of the statute.