Changing Attitudes at the EPA

Issue 1 and Volume 116.

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

Although I’m sure not much sympathy can be found in this audience, 2011 was a difficult year for the Environmental Protection Agency. With the upcoming presidential election, 2012 could be a lot worse.

These difficulties are seen in the tone of dialogue between the EPA and the White House, which has changed subtly but definitely. The agency seems to have taken a class in public relations and is more forcefully trying to form public opinion. The level of rhetoric has increased, with the EPA shifting from defense to offense.

EPA Administrator Lisa Jackson was not pleased, to say the least, when in September 2011 President Obama asked the agency to withdraw the draft ozone National Ambient Air Quality Standard of 0.06-0.07 ppm. (The current standard is 0.075 ppm.) Jackson released a competing statement that same day. It was brief, but stated ominously, “We will revisit the ozone standard.”

Legally, the standard must be reviewed in 2013. But her words invoke the famous line from the first Terminator film: “We’ll be back.” As with most EPA regulations, the story doesn’t end until the lawsuits are resolved. WildEarth Guardians have already sued to force the EPA to implement the new ozone standards sooner rather than later.

Congressional Republicans tried to reign in the EPA with the Transparency in Regulatory Analysis of Impacts on the Nation, or “TRAIN” Act, which would have provided more oversight on the economic impacts of the EPA’s actions. In response, Jackson published an Oct. 21, 2011 Op-Ed in the Los Angeles Times, where she tries to draw a comparison to the bank bailouts and the current economic frustration.

The Train Act subsequently passed in the House and was referred to the Senate’s Committee on Environment and Public Works. Administrator Jackson repeated the “too dirty to fail” analogy in remarks to the University of Wisconsin-Madison on Nov. 15, 2011, where she issued a call to action for “students, parents, educators and young people” to support the EPA’s initiatives.

In a Nov. 17, 2011 interview with Energy Now News,1 Administrator Jackson stated that the “EPA doesn’t require shutting down of any [coal-fired power] plant.” True, although the stringency of new regulations, such as CSPAR and Utility Boiler MACT, which are specifically directed toward coal combustion, certainly provide negative reinforcement to keeping coal-fired boilers operating.

She goes on to say that the EPA’s role is “to level the playing field so that pollution costs are not exported to the population but rather companies have to look at the pollution potential of any fuel or any process or any plant or any utility when they’re making their investment decisions.”

Is the EPA’s role now to plan industrial development instead of cleaning the air? Does making coal combustion prohibitively expensive create a level playing field or a stacked deck?

Jackson goes on to state, “because of increasing supplies of natural gas, natural gas is becoming an economical way to provide baseload power in our country…”

These new supplies are from fracking, or hydraulic fracturing, which injects millions of gallons of chemical-laced water into a well to release the natural gas. This method of production is currently unregulated, but the EPA, like nature, abhors a vacuum.

The EPA is currently developing Underground Injection Control (UIC) permitting guidance for hydraulic fracturing activities that use diesel fuels in fracturing fluids.2

The EPA now believes “there is value in initiating a proposed rulemaking process… to obtain data on… hydraulic fracturing.”3 New regulation inevitably leads to increased compliance and production costs. How much these new costs will affect the low price of natural gas has yet to be determined.

The EPA had its hand slapped by the DC Circuit Court in an Oct. 26, 2011 ruling on the Cross-State Air Pollution Rule (CSAPR). The state of Texas and several other Texas entities sued the EPA over their inclusion in CSAPR. The EPA filed a motion to dismiss, which this ruling denies.

The ruling states that Texas is likely to succeed on the merits of its claim: Texas did not have adequate notice and the final rule impermissibly requires Texas to reduce more than its share of emissions.

If the EPA had done the modeling correctly, it would have shown that Texas does NOT have a significant impact on Madison County, Illinois for Pm2.5 (i.e. no annual SO2 or NOx requirements but still potential NOx ozone impacts). The bottom line is that it looks likely that Texas will get either a temporary or permanent reprieve from Annual SO2 and NOx CSAPR.

EPA promises to bring resolution to the Industrial Boiler MACT4 and the Utility MACT in 2012.

When finalized, these rules are sure to invite lawsuits simultaneous to industry scrambling to obtain compliance given their very short implementation times.

There is a level of inertia inherent to the EPA. Prevention of Significant Deterioration (PSD) violations for “routine maintenance” look-backs began in 1999 under President Clinton and continued through eight years of President Bush to the current Obama administration. To date, the complaints, Notices of Violation and administrative orders cover 32 plants in 10 states. This issue continues to be a National Enforcement Initiative for EPA during FY2011-13.

While the presidential election of 2012 may bring a new party to power in the White House, do not expect the EPA to immediately reverse its attacks on coal combustion. It will take coordinated efforts in Congress and support from the courts to reverse the agency’s direction. However, a new party in the White House would bring a new EPA administrator and thus a decisive attitude adjustment to the agency.

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