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

 Air Emissions  Clean Air Act ◦ Common pollutants (PM, SO 2, O 3, 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

 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

 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

 Reduce power plant emissions (SO 2 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 (O 3 ) – upheld ◦ 2005:summer NOx (O 3 ), year-round NOx and SO 2 (PM 2.5 ) – 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

 Strict standards  D-e-l-a-y-e-d Implementation  Example: PM 2.5 ◦ New standard 1997 ◦ Implementation delayed ~ 10 years  Example: SO 2 ◦ 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

 Proposed CO 2 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

 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

 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