Energy and Environment Monitorwww.eem.jacksonkelly.com

Court Denies Motion to Supplement Complaint With Hendryx Studies

On January 23, 2012, a federal judge denied a motion by anti-mining groups to add a NEPA-based health effects claim to a pending challenge to a “fill” permit issued by the Corps of Engineers. In Ohio Valley Environmental Coalition, et al. v. U.S. Army Corps, et al., Civil Action No. 3:11-0149 (S.D. W.Va. 2012), Doc. No. 84 (“Order”), the Court ruled that the proposed additional claim was “futile.” This case involves a challenge to a permit issued by the Corps of Engineers under Clean Water Act §404 permit for Highland Mining Company’s Reylas Surface Mine located in Logan County, West Virginia. Plaintiffs’ motion claimed that the Corps violated the National Environmental Policy Act (“NEPA”) by failing to supplement its Environmental Assessment (“EA”) of the Reylas permit in light of “new” studies authored by West Virginia University Professor Michael Hendryx. Hendryx, who has three psychology degrees but none in medicine, toxicology or epidemiology, has published several controversial papers purporting to find correlations between health conditions and proximity to coal mining. Even though Hendryx’s papers do not claim that mining “causes” the health effects examined, many blogs and news outlets have cited the reports as evidence that mining is causing health effects such as cancer and birth defects.

The most recent iteration of the Reylas permit was issued by the Corps on September 20, 2011 after the Corps suspended an earlier version of the permit to reexamine portions of its decision document. Soon after the Corps re-issued the permit, OVEC filed a motion for a preliminary injunction and moved to supplement an earlier complaint with its NEPA-based health effects claim.

NEPA is triggered by “major federal actions” and requires an Environmental Impact Statement when such an action will “significantly affect the quality of the human environment.” The Corps’ permit action is considered a “federal action.” Here, the Corps evaluated the application and determined in an EA that the permitted action would not have a significant effect, thereby concluding that no EIS was necessary. OVEC sought to force a reexamination of that decision by relying on the recent Hendryx publications.

NEPA regulations require a federal agency to supplement draft or final environmental impact statements when there are “significant new circumstances or information relevant to the proposed action or its impacts.” 40 C.F.R. §1502.9. The Supreme Court previously held that no supplementation is required if there is no remaining federal action. SUWA, 542 U.S. 55, 72 (2004). The Court ruled that “[t]he major federal action which triggers NEPA compliance in this case is the issuance of a permit, not the mining activity.” Order, p. 3. Determining that the permit had been issued, the Court held that there was no remaining major federal action and hence no new NEPA “trigger.”

Plaintiffs advanced two arguments: (1) that the duty to supplement the EA continued because the impacts of the proposed action were not completed; and (2) that the permit was effectively an “ongoing action” because the Corps retained oversight authority and the power to revoke or modify Highland’s permit at any time. Order, p. 4-5. The Court rejected Plaintiffs’ arguments, determining that “[n]either of Plaintiffs’ inconsistent positions can be correct.” According to the Court, Plaintiffs’ first argument “simply cannot be correct in a world where the impacts of permitting decisions are potentially permanent.” Order, p. 4. Rejecting Plaintiffs’ second argument, the Court observed that while the Corps retains oversight authority, the issuance of the permit is the major federal action requiring NEPA compliance. Order, p. 5. Additionally, the Court stated that following Plaintiffs’ interpretation of relevant case law, applying NEPA after the issuance of the permit, would “render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Order, p. 5.

An interesting sidelight to the NEPA claim was the on-going effort by Highland Mining to examine the underpinnings of Hendryx’s work. Highland had issued subpoenas to West Virginia University and to Hendryx. WVU and Hendryx moved to quash the subpoenas as unduly burdensome and as seeking “privileged” peer-review comments. A judge in the Northern District of West Virginia had denied the motion to quash and ordered WVU and Hendryx to produce responsive documents on February 6, 2012. The Court’s ruling denying the motion to add the supplemental claim has mooted the bases of the subpoenas, and may slow or thwart efforts to examine Hendryx’s work in detail.

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author see here.

USEPA’s MACT and CSAPR Rules are Flawed

On January 24, 2012, Gene Trisko, the General Counsel to Unions for Jobs and The Environment, made a presentation to the UJAE Board of Directors, which analyzed the basis and effect of USEPA’s final utility MACT and CSAPR rules.  UJAE is an association of 12 national labor unions, including IBW, Mine Workers, Boilermakers, Utility Workers and most other coal related energy unions.  For a copy of Trisko’s presentation, click here.  

Key points raised by this presentation are:  

(1)        The MACT standards for future plants are supposed to reflect the performance of a group of best performing plants;  however, the final MACT standards for new plants are so stringent that coal is effectively eliminated as a fuel option for future generation.  This portion of the presentation was based on the comments of American Electric Power submitted on August 4, 2001 with respect to the proposed MACT rule, which analyzed new coal units built since 2001 and determined that based on air permit limits for these 40 newest units, none could meet all of the new source standards.  For a copy of AEP’s comments, click here.  

(2)        Relying on air quality monitoring data, prepared for the Midwest Ozone Group, Trisko presented slides that showed that the air quality objectives of the CSAPR rule have already been achieved by the states.  For a copy of the data of the Midwest Ozone Group, click here.  In December 2001, environmental commissioners for the states of West Virginia, Indiana, Ohio, Louisiana and Texas prepared an op ed piece which stated that the CSAPR rule wasn’t needed to address interstate transport.  For a copy of the op ed published in the Fort Wayne Journal Gazette on December 22, 2001, click here.  

EPA has published job and plant retirement figures that are subject to significant doubt.  EPA’s regulatory impact statement indicated that the utility MACT rule would create between 31,000 and 40,000 construction jobs and that plant closures would be 4.7 GW.  The most recent estimate by the Edison Electric Institute, however indicates that plant closures related to this rule should be on the order of 50 GW.  

This article was authored by David M. Flannery, Jackson Kelly PLLC. For more information on the author see here.

EPA Announces Timing for Draft EGU GHG Permit Rule

EPA Assistant Administrator for Air Gina McCarthy, speaking at a briefing on January 19, 2011, hosted by ICF International, announced that EPA is nearing completion of a draft Greenhouse Gas permitting rule for new, modified, or reconstructed power plants. She said that the agency target has been the end of January and that the agency is “close to that timeline,” adding that the proposed GHG permitting rule is now under review at the Office of Management and Budget. She noted that the new rule will not apply to plants that are being modified to install controls as a result of the recently published EGU Mercury and Air Toxics Standard (MATS).  It is not clear whether the GHG permitting rule will apply to units affected by the recently finalized Cross State Air Pollution Rule. 

McCarthy said that the agency is currently focused on the power sector but will follow the EGU GHG rule with a proposed rule for refineries, noting that EPA is required to deal with the issue of GHG permitting as a result of the April 2, 2007, Supreme Court decision in the case of Massachusetts V. EPA. McCarthy characterized that decision as one in which the court “determined that the EPA has the authority, and the duty, to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act because the emissions meet the statute's definition of a ‘pollutant,’…” She added that GHG permitting of existing plants is a much more daunting issue and said that EPA is discussing the schedule with the litigants and hopes to reach an agreement soon. 

McCarthy reportedly closed her briefing with the statement that "[w]e think regulating greenhouse gases from power plants is a reasonable and appropriate thing to do, and one that can help in terms of providing certainty to investments moving forward. I will say that [the power] sector dwarfs all other sectors in terms of the amount of greenhouse gases that they emit on the stationary side." 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.

Environmental Groups Notify EPA of Planned Coal Ash Suit

On January 18, 2012, Earthjustice notified the EPA of its intent to sue the agency over an alleged failure to properly regulate coal ash under the Resource Conservation and Recovery Act (“RCRA”).   Earthjustice sent the notice on behalf of eleven different environmental groups, including the Sierra Club, Kentuckians for the Commonwealth and Appalachian Voices. 

In the written notice, Earthjustice alleges that EPA is required to review and revise RCRA regulations relating to coal ash every three years (note: RCRA actually requires only that regulations be reviewed and revised every three years “where necessary”).  Earthjustice alleges that EPA has failed to fulfill this responsibility, noting that the agency has failed to follow through on proposed rulemaking aimed at coal ash.  EPA is currently in the process of reviewing and evaluating more than 450,000 comments it has received regarding potential coal ash regulation by the agency.  

On a related front, the US House of Representatives passed a bill in October 2011 that would prevent EPA from regulating coal ash as a hazardous waste.  Supporters of that legislation note that coal ash has long been used beneficially in products such as concrete and wallboard.  The coal industry often uses coal ash with alkaline properties in the reclamation process. Currently, the bill – which has been criticized by the Obama Administration -- remains stuck in committee in the US Senate.    

According to Earthjustice, the EPA has failed to move forward on the regulation of coal ash due to “politics and pressure from corporate lobbyists.”  Earthjustice did not comment on the lobbying efforts of the Sierra Club or other affiliated organizations opposed to coal or coal ash.  In 2011, New York City Mayor Michael Bloomberg donated $50 million to the Sierra Club to be used for its anti-coal campaign. 

RCRA requires citizens to provide 60 days’ notice of their intent to file suit.  The letter from Earthjustice was issued to comply with RCRA’s notice requirement.    

This article was authored by M. Shane Harvey, Jackson Kelly PLLC. For more information on the author see here.

Sierra Club Seeks to Impose Conductivity and Sulfate Limits on Discharges from Kentucky Mines

The Sierra Club and Kentuckians for the Commonwealth have appealed an NPDES permit issued to a coal operator in Kentucky which could have industry-wide implications in that State.  The appeal raises two issues that should concern everyone in the coal business. 

Chronic vs. Acute Water-Quality Based Effluent Limits

The appeal claims that the permit should likely include water quality based limits for the chronic water quality criteria, but instead includes limits based only on the higher acute criteria.  The appeal says that chronic standards are based on 96 hours of exposure, and that a “reasonable potential” (to violate the standard) analysis must show that there will not be 96 hours or discharge before it can impose limits only to meet the acute standards. 

Conductivity, TDS and Sulfate Limits

The appeal claims that the permit should include limits for total dissolved solids (TDS), specific conductance (conductivity) and sulfate to prevent a violation of the narrative water quality standard.  This claim is apparently similar to one raised in a challenge in West Virginia to an NPDES permit in West Virginia. There, the Sierra Club relied on testimony from Margaret Palmer (U. Md.), Emily Bernhardt (Duke) and Ryan King (Baylor) to argue that there is a high degree of correlation between unacceptable benthic impacts and conductivity at levels as low as 277 μS/cm.  The in-stream limits that the Sierra Club seeks to impose through this process are generally considered unachievable by the mining industry without reverse osmosis—a technology not affordable to the surface mining industry.  

The West Virginia Environmental Quality Board originally ruled that the West Virginia Department of Environmental Protection (WVDEP) should impose effluent limits on conductivity, TDS and sulfate, but the case has been remanded to the Board by the Circuit Court of Kanawha County.  See http://eem.jacksonkelly.com/2011/12/wv-eqb-lifts-conductivity-stay-but-probably-provides-no-real-help-to-mine-operators.html. 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

USEPA Releases Formerly Confidential Business Information under TSCA

In September 2009, EPA Administrator Lisa P. Jackson announced changes to EPA’s chemical management program under the Toxic Substances Control Act (TSCA).  As part of these changes, EPA has both increased public access to chemical information submitted by companies to EPA and tightened EPA’s Confidential Business Information (CBI) policy under TSCA.  On January 21 and then on May 27, 2010, EPA issued new guidance and then revised this guidance with regard to reviewing and challenging CBI claims by companies under TSCA.  Under the new guidance policy, EPA is reviewing both existing and new CBI claims and intends to deny CBI claims where the health and safety studies show a substantial risk to human health and the environment and have been previously disclosed in the TSC Chemical Inventory.  Where the CBI claims are denied after review, EPA then intends to make both the chemical name and health and safety study available to the public. 

Under TSCA, companies may claim that information they have submitted to EPA should be treated as CBI and not be disclosed to the public.  Under Section 8(e) of TSCA, companies that manufacture, process, or distribute chemicals are required to immediately notify EPA when they learn that a chemical represents a substantial risk of injury to health and/or the environment.  The Section 8(e) reports are available on EPA’s website, but when a CBI claim has been made by a company, the chemical name is removed from the public report. 

As of October 2011, the identities of 577 formerly confidential chemicals are no longer confidential and more than 1,125 health and safety studies are now accessible to the public.  These studies were previously unavailable or only available in limited circumstances.  Furthermore, EPA reports that 100 percent of incoming TSCA filings are being reviewed and CBI claims are being challenged by EPA, where appropriate.  In these cases, where the companies do not voluntarily relinquish their CBI claims, EPA can initiate administrative action under Section 14 of TSCA.  To date, more than 35 companies have agreed to review previously submitted filings containing health and safety studies and “voluntarily” determine if any CBI claims are no longer necessary.  The newly available information can be accessed under a new "declassified tab" using EPA’s Chemical Data Access Tool.  Additional information is available at http://www.epa.gov/oppt/existingchemicals/pubs/transparency.html and http://www.epa.gov/oppt/existingchemicals/pubs/transparency-charts.html. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

Essroc Cement Company to Pay $1.7 Million Penalty to Resolve Clean Air Act Violations

On December 29, 2011, the U.S. EPA and U.S. DOJ announced that Essroc Cement Company has agreed to pay a $1.7 million penalty and invest approximately $33 million in pollution control technology to resolve alleged violations of the Clean Air Act (CAA).  

In January 2009, EPA issued a Notice of Violation to Essroc alleging that Essroc modified its Bessemer plant without first complying with CAA pre-construction obligations that include obtaining pre-construction permits and installing and operating state-of-the-art pollution control technology.  

Essroc agreed to permanently retire two kilns at the Bessemer plant and the following projects estimated to cost the company $33 million will be undertaken: 

• Installation and continuous operation of new Dry Scrubber/Lime Injection systems at seven kilns
• Installation and continuous operation of selective non-catalytic reduction (SNCR) at five kilns
• Demonstration of selective catalytic reduction system (SCR) at the two long wet kilns 

U.S. EPA estimates the projects will reduce nitrous oxides (NOx) emissions by 5,000 tons and reduce sulfur dioxides (SO2) by 5,600 tons.  

The projects will occur at Essroc’s six cement plants in Indiana, Pennsylvania, Puerto Rico, and West Virginia. 

In addition, Essroc will spend $745,000 to replace old engines in several off-road vehicles at its plant sites as a mitigation project.  The replacement engines are estimated to achieve approximately 50-80 percent reduction in NOx on each engine. 

This action was a result of the U.S. EPA Cement Manufacturing Enforcement Initiative.  Beginning in 2008, U.S. EPA has pursued a integrated compliance and enforcement strategy to address Clean Air Act New Source Review compliance issues at the nation’s cement manufacturing facilities.   U.S EPA has reached settlements with five other companies.  

This article was excerpted from publically available information, and was authored by Joyce Gentry, Acacia Environmental Group LLC.  For more information on the author see here.

West Virginia’s Agriculture Commissioner Criticizes EPA Enforcement Actions Against Poultry Farms

The Chesapeake Bay Total Maximum Daily Load (“TMDL”) is tasked with reducing pollution (specifically nitrogen, phosphorous, and sediment) in the Bay’s 64,000 square mile watershed.  EPA has described the project as the largest and most complex TMDL ever attempted. Last month, EPA notified four poultry farms in West Virginia’s eastern panhandle that they are concentrated animal feeding operations (“CAFO’s”) that must obtain NPDES permits. 

EPA officials had toured these farms and found man-made ditches leading from poultry houses and manure sheds to local waterways.  After a storm event, EPA claimed, these ditches would discharge pollutants, including nitrogen and phosphorus, into nearby waterways.  It does not appear from EPA’s press release that these operations were actually discharging pollutants at the time of the inspection, but were instead designed in such a way that EPA anticipated that they might discharge pollutants during future storms.  EPA conducted similar site visits in the summer of 2010 in Virginia’s Shenandoah Valley, resulting in administrative orders commanding two CAFO’s to cease discharges into local waterways. 

Commenting on its recent actions, EPA claimed that educating farmers about their responsibilities to reduce stormwater runoff under the CWA is necessary.  “Based on our experience, educating farmers on the requirements of the Clean Water Act goes a long way in helping them to protect and improve local water quality and increase compliance.”   

West Virginia’s Commissioner of Agriculture, Gus R. Douglass, released a statement on December 15, 2011 that characterized EPA’s recent enforcement actions in West Virginia as “unnecessary, misguided, and potentially outside of EPA’s authority.” Commissioner Douglass went on to say that “EPA is loosely using technicalities in the Clean Water Act – not evidence of pollution – to put these farms under a command and control regime. Simply having an arbitrary number of animals on a farm is no reason to have to get a NPDES permit.”
Douglass also took issue with EPA’s insistence that it is simply trying to educate farmers of their responsibilities under the CWA.  “If they were really trying to help farmers, they would find specific instances of farm pollution and provide funding to implement best management practices (BMPs) that alleviate those problems, rather than hiring an army of permit writers and inspectors.” 

As detailed in a previous article on this blog, the United States Court of Appeals for the Fifth Circuit recently ruled that EPA lacks authority under the CWA to order CAFO’s to apply for NPDES permits unless they are  actually observed discharging pollutants.  Current EPA policy requires CAFO’s that “propose to discharge” (i.e., are designed or operated in a way that EPA believes they will likely discharge pollutants at some indefinite point in the future) to obtain NPDES permits. 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.

Identifying TSCA Priority Chemicals

Under the Toxic Substances Control Act (TSCA) as well as the Pollution Prevention Act (PPA), (see www.epa.gov/opptintr/existingchemicals/pubs/basicinfo.html) USEPA has statutory authority to address pollution prevention, risk assessment, hazard and exposure assessment and characterization, and risk management for chemical substances in commercial use.  Specifically, TSCA directs EPA to: 

• Maintain the Chemical Substances Inventory, which is a list of existing chemicals in commerce. (Chemicals not already listed on the TSCA Inventory are considered "new chemicals" under TSCA and must go through a review process before they can be added to the Inventory and become "existing chemicals."
• Require testing of chemical substances where necessary to evaluate potential human health or environmental hazards.
• Regulate (including restricting or banning) the manufacture, importation, processing, distribution, use, and/or disposal of any chemical substance that presents an unreasonable risk of injury to human health or the environment.
• Coordinate certain actions on chemical substances under TSCA with actions taken under other federal laws, including those administered by other federal agencies as well as other laws administered by EPA. If risk on a chemical substance is already managed effectively under a different statute, regulation under TSCA generally is not used. 

As outlined by EPA (www.epa.gov/opptintr/existingchemicals/pubs/enhanchems.html), on September 29, 2009, Lisa Jackson, EPA Administrator, announced that EPA is putting in place a comprehensive approach to enhance the Agency’s current chemicals management program under TSCA.  This approach includes the following activities:  

1. New regulatory risk management actions.
2. Development of Chemical Action Plans.
3. Submittal of information.
4. Increased public access to information about chemicals.
5. Identification of Priority Chemicals for review and assessment. 

The purpose of this blog article is to discuss in further detail EPA’s proposed actions with regard to Item 5 above.  On September 7, 2011, EPA hosted a webinar to obtain public input regarding its new approach, a two-step process, to identify priority chemicals for review and assessment under TSCA.  Step 1 would consist of the identification of an initial group of chemicals (estimated to be in the “several hundreds” by EPA during the webinar) based on specific data sources and Chemical Action Plan priority factors, which are: 

• Chemicals identified as potentially of concern for children’s health (e.g., chemicals with reproductive or developmental effects).
• Chemicals identified as persistent, bioaccumulative, and toxic (PBT).
• Chemicals identified as probable or know carcinogens.
• Chemicals used in children’s products.
• Chemicals used in consumer products.
• Chemicals detected in biomonitoring programs. 

EPA states (www.epa.gov/opptintr/existingchemicals/pubs/chempridiscguide.html) that “chemicals meeting one or more of these Action Plan prioritization factors would become part of the initial group of specialty chemicals for review.”  Under Step 1, EPA proposes to use a broad range of domestic and international data sources to identify chemicals for further review.  Some of these data sources include: 

• Integrated Risk Information System (IRIS).
• TRI PBT Rule.
• Great Lakes Binational Toxics Strategy Canadian Categorization.
• Chemicals proposed to UNECE LRTAP POPs and Stockholm Convention on POPs.
• Voluntary Children’s Chemical Evaluation Program.
• California Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986).
• Washington State Children’s Safe Products Act.
• Danish Consumer Products Studies.

 Under Step 2, EPA would refine the group of specialty chemicals identified using a broader range of data sources to further analyze and select specific chemicals for further assessment.  EPA identifies the following types of exposure data source categories that will be used: 

• Uses.
• Environmental releases.
• General human exposures, including indoor air contaminants.
• Worker exposures.
• Environmental exposures.
• National Library of Medicine Databases.
• TSCA Test Submission Database (TSCATS).
• USEPA:
• Office of Pesticide Programs
• Ambient Water Quality Criteria Documents
• Drinking Water Standards Health Effects Support Documents
• ECOTOX database
• IPCS Concise International Chemical Assessment Documents (CICADS) 

As summarized by Lynn L. Bergeson in the November and December 2011 editions of Pollution Engineering (see Legal Outlook, pages 10 and 11 respectively), as commercial and industrial users of existing chemical compounds in the U.S. consider the implications of EPA’s proposed new approach to identifying priority chemicals for review and assessment under TSCA, the following issues should be considered: 

• A potentially large list of chemicals (estimated by EPA to be in the “several hundreds”) will initially be generated for review.
• The process to be used by EPA to select which chemicals will be evaluated is not clear.
• EPA states it will consider “risk-based prioritization factors” in Step 1.  However, how EPA will integrate “risk-based prioritization factors” into the process is also not clear. 

Finally, as with other revisions to TSCA proposed by EPA over the last several years, there could be potentially important impacts on the commercial and industrial use of chemicals in the U.S.   One such impact could ultimately be the development of a “chemicals of concern” list under Step 1, with the potentially adverse impacts associated with the development of such a list by EPA.  Furthermore, under TSCA, it should be noted that EPA has the statutory authority to regulate (including restricting or banning) the manufacture, importation, processing, distribution, use, and/or disposal of any chemical substance that presents an unreasonable risk of injury to human health or the environment.  Therefore, continued monitoring of EPA’s proposed revisions to TSCA is recommended as EPA moves the process forward. 

This article was authored by Greg Tieman, Acacia Environmental Group LLC. For more information on the author see here. 

EPA Announces Final Mercury and Air Toxics Standards for Power Plants

On December 21, 2011, the U.S. Environmental Protection Agency (EPA) announced its final rule requiring power plants to reduce emissions of mercury and other air toxics. The final rule, which EPA is calling the Mercury and Air Toxics Standards (MATS), replaces the Clean Air Mercury Rule that was promulgated by the Bush Administration using a cap-and-trade system predicted to reduce mercury emissions by 70% over thirteen years.  The D.C. Circuit, however, vacated the Bush rule, and the new MATS will require coal-fired power plants to reduce mercury emissions by 90% in four years.  Coal-fired power plants, the coal industry, coal states like West Virginia, and others dispute EPA’s claims that the presumed health and economic benefits of MATS outweigh its costs and have raised concerns over the impact of MATS on the supply of electricity.  Unless successfully challenged, MATS will be the first national air standards on power plant mercury emissions. 

Earlier this year, the American Coalition for Clean Coal Electricity released an initial analysis by National Economic Research Associates (NERA) of the combined impacts of EPA’s Cross-State Air Pollution Rule (CSAPR) that goes into effect in January 2012 and MATS, then known as the Utility Maximum Achievable Control Technology or MACT Rule.  NERA used the government’s own data and found that these two proposals would: increase coal unit retirements by about 48 gigawatts (GW); increase electricity sector costs by $17.8 billion per year; decrease coal-fired generation in 2016 by about 13%; decrease electricity sector coal demand in 2016 by about 10%; increase natural gas-fired generation in 2016 by about 26%; increase natural gas prices in 2016 by about 17% which would increase natural gas expenditures by residential, commercial, and industrial sectors by $8.2 billion per year; increase average U.S. retail electricity prices in 2016 by about 12%, with regional increases as much as about 24% in some areas of the United States that rely on coal for electricity; and reduce net employment in the U.S. by more than 1.4 million job-years over the 2013-2020 period, with sector losses outnumbering sector gains by more than 4 to 1.   The NERA estimates are significantly higher than EPA’s numbers.  For more information on the NERA initial analysis, click here. 

The final MATS rule applies to coal- and oil-fired electric generating units (EGUs) with a capacity of 25 megawatts (MW) or greater.  EPA estimates that there are approximately 1,100 existing coal-fired units and 300 oil fired units for a total of 1,400 affected units at about 600 power plants.  According to EPA, about 60% of coal-fired units already comply with the final standards while 40% lack state-of-the-art controls.  The 40% are older plants and will likely be shut down resulting in a loss of utility worker jobs and tax revenue.  EPA projects retirements of 4.7 GW out of more than 1,000 GW that make up the nation’s electric generating capacity or less than one half of one percent of the nation’s generating capacity.    

The final rule sets standards for all hazardous air pollutants (HAPs) emitted by coal- and oil-fired EGUs with a capacity of 25 megawatts or greater.  Under the final rule, affected power plants must reduce emissions of mercury and other heavy metals, including arsenic, chromium, and nickel, and acid gases, including hydrochloric acid and hydrofluoric acid.  In addition to reducing emissions of mercury and other air toxics, the final rule will reduce emissions of sulfur dioxide 41% beyond the reductions expected from CSAPR and fine particulate matter that is directly emitted from power plant stacks.  

The final rule will take effect 60 days after publication in the Federal Register.  EPA states in a Fact Sheet on its website that the final rule will be published in January or early February 2012.  See Fact Sheet: Clean Air and Reliable Electricity.  However, it has been reported that during a stakeholder call conducted on December 21, 2011, Assistant Administrator for the Office of Air and Radiation Gina McCarthy informed participants that EPA anticipates the rule will be published in the Federal Register in late February or early March 2012.  

Existing sources will then generally have up to four years or until early 2016, if they need it, to comply with MATS.  This includes the standard three years provided to all sources by the Clean Air Act, and an additional fourth year that EPA is “encouraging permitting authorities to make…broadly available for technology installations.”  If more time is needed, EPA has issued an enforcement policy document that provides a pathway for units critical to reliability to obtain, on a case-by-case basis, a schedule with up to an additional fifth year to achieve compliance. Further, EPA states that if there are still “other situations where sources cannot come into compliance on a timely basis,…EPA will address individual noncompliance circumstances (if there are any) on a case-by-case basis, at the appropriate time, to determine the appropriate response and resolution.”  See Fact Sheet:  Benefits and Costs of Cleaning Up Toxic Air Pollution from Power Plants and Fact Sheet:  Mercury and Air Toxics for Power Plants.  

For coal-fired EGUs, both new and existing, the rule establishes numerical emission limits for mercury, PM (a surrogate for toxic non-mercury metals), and HCl (a surrogate for all toxic acid gases).  MATS also sets numerical emission limits for oil-fired EGUs.  The standards set work practices, instead of numerical limits, to limit emissions of organic air toxics, including dioxin/furan, from existing and new coal- and oil-fired power plants.  The work practice standards require an annual performance test program for each unit that includes inspection, adjustment, and/or maintenance and repairs to ensure optimal combustion.  When fully implemented, EPA projects MATS will reduce emissions of mercury from coal-fired power plants by 90% and emissions of acid gases from power plants by 88%.  

EPA expects power plants will comply with MATS through a range of strategies including the use of existing emission controls, upgrades to existing emission controls, installation of new pollution controls, and fuel switching.  EPA emphasizes that the final standards are based on “existing, commercially proven technologies” that are “widely available” and “frequently used” in the electric utility industry, including electrostatic precipitators, fabric filters (baghouses), flue gas desulfurization (scrubbers), or dry sorbent injection.  To install and maintain these controls, EPA estimates that MATS will create 46,000 short-term construction jobs and 8,000 long-term utility jobs.  According to EPA, the total national annual cost of the final rule will be $9.6 billion, which is about a billion dollars less than the proposed standards.       

EPA estimates that when fully implements in 2016 MATS will prevent 4,200 to 11,000 premature deaths, 2,800 cases of chronic bronchitis, 4,700 heart attacks, 130,000 asthma attacks, 5,700 hospital and emergency room visits, 6,300 cases of acute bronchitis, 140,000 cases of respiratory symptoms, 3.2 million restricted activity days, and 540,000 missed work or “sick” days per year.  EPA estimates the health benefits associated with meeting the standards for air toxics are $37 billion to $90 billion in 2016 (2007$).     

As for electricity rates, EPA projects they stay within normal historical fluctuations. EPA states its modeling indicates that MATS will result in relatively small changes in the average retail price of electricity (approximately 3 percent).  EPA concludes that the increased demand for natural gas will keep electricity prices below 1990 levels. 

 For EPA’s Fact Sheets that accompanied MATS, see (1) Fact Sheet:  Benefits and Costs of Cleaning Up Toxic Air Pollution from Power Plants; (2) Fact Sheet:  Mercury and Air Toxics for Power Plants; (3) Fact Sheet: Clean Air and Reliable Electricity; and (4) Fact Sheet: Adjustments from Proposal to Final.                                                                                                                             

For a discussion of EPA’s proposed rule, known as the Utility Maximum Achievable Control Technology or MACT rule, see articles titled “EPA Proposes 91% National Reduction for Mercury As Well As Reductions of Other Toxics from Power Plants And Claims That Program Will Reduce Future Cost Of Power,” and “EPA Proposed Emission Standards for Hazardous Air Pollutants from Fossil Fuel-Fired Power Plants,” posted on March 16, 2011, and May 16, 2011, respectively, on the Jackson Kelly PLLC Energy & Environment Monitor. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.