Like death and taxes, there are certain inescapable realities of operating a power plant.
For example, coal-fired plants often exceed emission limits during startup, shutdown or malfunction (SSM). Similar to an engine in a car, emission control equipment in a power plant must warm up before the plant can effectively control emissions. The chemical reactions required for controlling emissions cannot occur in the cold.
It’s a technical reality associated with the operation of combustion boilers and has long been recognized by EPA rules that exempt utilities from exceeding emission limits during SSM events.
EPA freely acknowledges the most efficient power plants are unable to meet emission standards outside of normal operation. Some states provide utilities an “affirmative defense” against enforcement actions and citizen lawsuits stemming from SSM events while other states unilaterally exempt emissions during SSM events.
Yet, the EPA last year proposed a new rule that would require 36 states to eliminate affirmative defenses for emission violations during startup and shutdown. Affirmative defenses for equipment malfunctions were preserved under the initial proposal. But just last month, the agency altered its proposal to prohibit the use of affirmative defenses against emission violations resulting from malfunctioning equipment.
EPA made the change after the D.C. Circuit Court ruled in NRDC v. EPA that affirmative defenses cannot be used to shield companies from private lawsuits and penalties for Clean Air Act (CAA) violations caused by malfunctioning equipment. It is up to the courts, not the EPA, to determine the penalty awarded in a private civil suit, the court found.
In its supplemental notice of proposed rulemaking, published last month in the Federal Register, EPA said: “Neither states nor the EPA have authority to alter either the rights of other parties to seek relief or the jurisdiction of the federal courts to impose relief for violations of CAA requirements.”
The proposed rule is scheduled to be finalized by May 22, 2015. Utilities could be fined as much as $37,500 for each violation, under the proposed rule.
The SSM proposal is a sharp reversal of decades-old policy that offered reasonable protections to U.S. power producers charged with providing homes and businesses a reliable supply of electricity. It recognized the science and chemistry surrounding the operation of a power plant.
EPA now believes utilities should be able to anticipate excessive emissions resulting from a planned startup or shutdown and can take appropriate steps to maintain continuous compliance. The EPA’s misguided goals are not based on sound science. Science fiction would be a more fitting description of the agency’s proposal. The technical realities involved in controlling emissions from power plants haven’t changed much in the last 30 years. Emission control systems work only under specific conditions. Those conditions cannot be achieved during startup or shutdown – not then or now. To paraphrase Benjamin Franklin, it’s as certain as death and taxes.
Not Surprisingly, EPA’s proposal is a response to a 2011 petition by the Sierra Club, which claims the exemptions are loopholes designed to benefit power producers and expose the public to harmful emissions. It’s another example of a legal tactic known as “sue and settle” that is being abused by the EPA and environmental groups engaged in a calculated campaign against the power sector.
In a sue-and-settle lawsuit, the plaintiff’s cause is supported by the defendant. In this case, the defendant is the EPA, which agreed to a prearranged settlement with the Sierra Club. In the end, both sides get what they want.
EPA and the Sierra Club have a lot in common. Both are fully engaged in a campaign against the most important segment of power generation industry – coal. The EPA’s SSM proposal is part of the Obama administration’s War on Coal, a conflict borne from real rulemakings and real policies.
I think Benjamin Franklin, America’s first environmentalist, would agree.
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