Five Questions for EPA

Issue 6 and Volume 114.

By Robynn Andracsek, P.E., Burns & McDonnell and Contributing Editor

At this year’s Coal-Gen conference to be held in Pittsburgh from August 10-13, the Environmental Protection Agency’s Robert Wayland, Ph.D., is scheduled to give a keynote address outlining EPA’s upcoming regulatory agenda.

The timing of his topic seems particularly appropriate. After all, uncertainty has been the watchword for much of the coal-fired industry ever since the Obama administration took office. I plan to attend his speech and hope Dr. Wayland addresses these five issues, which have been raised repeatedly by industry.

1. Who should regulate greenhouse gases (GHGs) – EPA or Congress? Utilities are already forced to comply with regulations that are a moving target. EPA’s rules are subject to court overrule (for example, Clean Air Interstate Rule, CAIR; Clean Air Mercury Rule, CAMR). EPA’s “tailoring rule” is likely to see legal challenges from groups that think it is too lenient. EPA has already suggested the applicability threshold be raised, somewhat arbitrarily, from 25,000 tons per year of CO2 to 75,000. Members of Congress have voiced concern about the prudence of EPA taking on GHG regulation under Clean Air Act authority.

EPA is still dealing with the aftermath of CAIR v1.0 in which utilities initiated compliance through emissions trading and retrofit projects. Then CAIR was initially vacated and ultimately remanded by the courts, an action neither side sought, but was left in place until EPA issues a new replacement rule. One lesson from the CAIR experience is that EPA must consider its programs’ resiliency to legal scrutiny. Therefore, given the shaky legal footing of the “tailoring rule,” wouldn’t utilities have more certainty if GHGs were regulated by legislation passed by Congress?

2. Will EPA integrate and coordinate the multiple rules that will affect coal-fired boilers? If yes, how will it do so and over what period of time? Some regulations that could affect a given coal-fired boiler include:

  • Maximum Achievable Control Technology (MACT) for control of hazardous air pollutants
  • National Ambient Air Quality Standards (NAAQS), specifically 1-hour averages for SO2 and NO2
  • Reasonably Available Control Technology (RACT) for non-attainment areas
  • Best Available Retrofit Technology (BART) to protect visibility.


Each of these rules can require retrofitting control devices onto existing boilers, but to different control levels for the same pollutant and for multiple pollutants. A coordinated effort would possibly create its own synergies to the benefit of all parties. When this might happen and how EPA might accomplish it are of keen interest.

3. Will EPA ever define, in statute and in detail, what constitutes routine maintenance repair and replacement (RMRR)? Although an exemption from New Source Review (NSR) is clearly allowed for in the case of RMRR, the crucial definition (what does “routine” mean) is absent. Imagine if RMRR applied to legally operating your car. You could be ticketed based on how fast you’ve been driving the last two years, when your last oil change took place, who the mayor is of the town you’re driving through and how many passengers are in the car. The WEPCo decision, which is used as a rough substitute for a clear definition, is 20 years old. Isn’t it time to codify the meaning of “routine?”

4. What provisions will EPA allow to make utility MACT implementation feasible? This rule could create a need for 800 baghouse and 600 scrubber retrofits. The compliance timeline for MACT is three years from promulgation. A timeline of five years is just long enough to get a single project done, which means all these projects will need to be done in parallel and simultaneously. The sudden increase in retrofit demand may well increase the cost for raw materials and create a dearth of equipment and engineering design talent. Will EPA grant provisions to mothball a unit until a retrofit becomes feasible without demanding a PSD permit? In meeting the utility MACT, priority will likely be given by vendors to larger utilities. Will EPA grant extra compliance time to smaller power generators who are initially shut out of the market? Will extensions be allowed to modify a plant’s “Unit A” if “Unit B” is shut down?

5. How can today’s EPA insulate utilities from the change in priorities of future EPA administrations? The current EPA has plans and priorities that likely will differ from its successors. NSR reform is needed, but most Bush-era NSR reforms have been rolled back by the Obama administration (PM2.5 grandfathering, aggregation, reasonable possibility, fugitive emissions and so on). There will be a new administration in Washington D.C. in either two or six years. How will EPA insulate upcoming initiatives (CAIR replacement, utility MACT, tailoring rule, among others) from judicial repeal and ensure continuity—and certainty—for the utility industry?

Rhetorically I ask these final questions: At what point do humans become a threatened and endangered species? In this era of anti-coal rhetoric, how do utilities meet their mandates to keep the lights on and essential services (water treatment facilities, traffic lights, bank computers, refrigeration) operating? What will EPA do to simultaneously protect our environment and our way of life?


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