Coal, Gas

PE Exclusive: EPA proposes to change enforcement focus away from power plants

After 20 years, $21 billion, and 113 plants (as shown in the below figure), EPA proposes to remove power plants from its National Compliance Initiative list. From the pre-publication notice:

“The New Source Review (NSR) and Prevention of Significant Deterioration (PSD) requirements of the CAA require certain large industrial facilities to install state-of-the-art air pollution controls when they build new facilities or make significant modifications to existing facilities. The EPA began this initiative as it relates to the power sector in 1998, after EPA investigations revealed that many facilities had failed to install pollution controls after modifications, causing them to emit pollutants that can impact air quality and public health.

“The EPA and state regulatory approaches and enforcement efforts in this sector have resulted in a 90 percent reduction in sulfur dioxide emissions and an 83 percent reduction in nitrogen oxide emissions since 1997, while gross generation has increased by 10 percent…Accordingly, the Agency believes that this [National Compliance Initiative] no longer presents a significant opportunity to affect nonattainment areas or vulnerable populations nationwide. The EPA proposes to return work in these areas to the core program in FY 2020. EPA will continue to monitor the progress of existing settlement agreements to ensure actions required under those settlements are implemented and air pollution reduction targets are met.”

Note the following in the above explanation:

1.       EPA implies existing plants are as controlled as they can be and do not need further scrutiny. Intervenor groups are sure to disagree.

2.       EPA pledges to reexamine this decision in FY2020. It is more likely that the next Democratic administration will again emphasize power plant emission reductions. Attention to electric generation air emissions seesaws with political power shifts.

3.       EPA states that existing settlements will continue to be enforced. Not mentioned is how ongoing lawsuits, if any, will be affected.

As a refresher, this initiative began during the Clinton administration as a way to force power plants to retrofit control devices. Power plants thought activities such as boiler tube replacements were “routine” maintenance; however, “routine” was never defined. EPA reinterpreted the regulations and established through litigation that “routine” was a much narrower set of activities as described which should be analyzed based on a four factor test (nature and extent, purpose, frequency, and cost).

Reprioritizing the enforcement focus does not solve the underlying problem: New Source Review regulations are badly written, confusing, and omit key definitions. Power plants should interpret EPA’s proposal not as a reprieve from enforcement but only as a temporary pause.

About the author: Robynn Andracsek is a regular contributing editor and P.E., Burns & McDonnell.