Environmental Law and Coal-Fired Power Plants

Rules and Exceptions -The Costs of “Cheap” Coal

Many plants pre-date modern environmental law

Exemptions, lax regulation for decades Pollution costs externalized, borne by public

and environment “War on coal”:

◦ Some exemptions ending◦ Some new regulations – of varying stringency◦ As more costs internalized, more plants closing

“War on Coal” or Long-Overdue Closing of Regulatory Loopholes?

Air Emissions Clean Air Act◦ Common pollutants (PM, SO2, O3, NOx, CO)◦ Hazardous air pollutants (e.g., Hg)◦ Carbon dioxide

Water Pollution Clean Water Act◦ Cooling water –

Intake system – harm to aquatic life Heat discharge – thermal pollution

◦ Coal ash – wastewater discharge

Land and Groundwater Pollution◦ Coal ash disposal – ponds and landfills

Overview of Environmental Impacts

EPA sets National Ambient Air Quality Standards (NAAQS)◦ Standards must protect public health ◦ Ozone, sulfur dioxide, nitrogen oxides, particulate

matter, carbon monoxide, lead◦ Reviewed/revised every 5 years

States must ensure compliance with NAAQS within their boundaries

Permits/technology-based limits for new/modified sources

Clean Air Act: Rules & Exceptions

Coal plants’ response: ◦ Tall stacks interstate impacts◦ Changes without “modification”

permits/technology◦ Legal challenges to regulations and standards

Belated remedies: ◦ Interstate pollution limits◦ Enforcement – modification w/o permit◦ More stringent standards

Rules & Exceptions #2

Clean Air Act – Interstate Limits Reduce power plant emissions (SO2 and

NOx) in upwind states to help downwind states◦ 1990: Acid rain program trading; low-sulfur coal◦ 1998, 2005, 2011: O3 and PM2.5 NAAQS ◦ 1998: summer NOx limits (O3) – upheld◦ 2005:summer NOx (O3), year-round NOx and SO2

(PM2.5) – struck down but temporarily in effect◦ 2011: same coverage as 2005; different approach

Upheld by Supreme Court 2014 Implementation tied up in court

Construction permit/pollution controls required:◦ New plants◦ Existing plants with major modifications

Exception: If “routine maintenance, repair, or replacement” (RMRR)

Expectation: Existing plants retire; new ones use modern technology

Reality:◦ Plants undertook life-extension projects, piecemeal◦ Claimed RMRR to try to avoid pollution controls ◦ Enforcement lawsuits: mixed results

Clean Air Act – Enforcement

Clean Air Act: Revised Standards Strict standards D-e-l-a-y-e-d Implementation Example: PM2.5

◦ New standard 1997◦ Implementation delayed ~ 10 years

Example: SO2◦ Revised 2010 – source-sensitive (power plants)◦ Implementation delays

Atrophied monitoring network Resistance to use of modeling (“conservative”)

◦ Local implementation issues

1990: New and existing plants subject to strict technology controls (MACT), set by EPA

Exception: Before setting standards for coal plants, EPA must study and find it “appropriate and necessary”◦ Dec. 2000: Appropriate and necessary finding

Power plants largest domestic source of mercury emissions◦ 2005: EPA reversed course; trading program for

mercury ◦ 2008: Court vacated 2005 decision ◦ 2012: New appropriate and necessary finding and

regulations -> Supreme Court 2015

Clean Air Act - Toxics

Proposed CO2 emission limits for new and existing power plants◦ “Best system of emission reduction”

◦ New sources – based on carbon capture technology

◦ Existing sources – “111(d)” Rarely-used provision Innovative approach:

Increased efficiency of plants More use of natural gas plants Increased renewable energy Increased energy efficiency

Clean Air Act – CO2 Emissions

Permit required to discharge water pollution Permit limits based on:

◦ Technology-based standards - set by EPA◦ Water quality standards – set by states

Power plants’ ash pond discharge◦ EPA limits – none set for toxic metals in ash◦ Set in 1980s, proposed updates, not yet final

Power plants’ cooling water: exceptions◦ Intake systems – new, weak EPA regulations◦ Heat discharge – variances to avoid water quality

standards

Clean Water Act: Rules, Exceptions

Resource Conservation and Recovery Act:◦ Standards for generators of “hazardous waste”◦ Permits for facilities that treat, store, or dispose of

hazardous waste◦ Exception: EPA to study and submit findings to

Congress regarding coal ash waste before regulating 1993 and 2000: EPA found not necessary to regulate

coal ash as hazardous waste◦ 2008: Coal ash dam collapsed Kingston, TN◦ 2014: EPA signed federal regulations

Weak scheme Congressional attack

Hazardous and Solid Waste:Rules, Exceptions