EPA issues new rule for Texas plants in likely test for Pruitt

By Sean Reilly | 12/12/2016 01:34 PM EST

U.S. EPA is again seeking to impose new pollution control requirements on Texas coal-fired power plants under its regional haze program, potentially triggering a high-stakes test of the incoming Trump administration’s attitude toward air quality regulation.

U.S. EPA is again seeking to impose new pollution control requirements on Texas coal-fired power plants under its regional haze program, potentially triggering a high-stakes test of the incoming Trump administration’s attitude toward air quality regulation.

In a proposed rule released late Friday, EPA regional officials laid out a plan to require 14 plants to adopt "best available retrofit technology" (BART) to reduce sulfur dioxide and particulate matter emissions that interfere with visibility in large national parks. The proposal, required under a 2012 consent decree to a lawsuit brought by environmentalists, would apply to nine coal-burning plants, along with five others fueled by natural gas. EPA estimates that the required cleanups, which would all have to be completed within five years, would improve visibility in national parks and wilderness areas in Texas, Arkansas and New Mexico, as well as a wildlife refuge in Oklahoma.

The proposal "requires the operators of some of Texas’ oldest and dirtiest coal plans to finally do something about" pollution that contributes to hazy conditions in national parks, Chrissy Mann, a senior representative of the Sierra Club’s Beyond Coal campaign, said in a news release.


Some of those same plants are covered by a separate haze reduction rule now tied up in litigation brought by utilities and Texas state officials. At the Texas Commission on Environmental Quality, which is among the challengers to the earlier rule, officials are reviewing EPA’s latest proposal, spokeswoman Andrea Morrow said in an email.

Luminant Generation Co. LLC, which owns three East Texas plants — Big Brown, Martin Lake and Monticello — that could have to install or upgrade SO2 scrubbers under both the earlier rule and EPA’s new proposal, is also reviewing the draft rule, according to a spokeswoman who otherwise declined to comment this morning. Luminant, which is Texas’ largest power producer, is a branch of Vistra Energy.

The proposed rule will carry a 60-day public comment period when published in the Federal Register. EPA has already scheduled a combined Jan. 10 information session and public hearing in Austin, Texas.

Under the consent decree, EPA officials must have the final version in place by September, or about eight months after President-elect Donald Trump takes office.

During the election campaign, Trump complained of burdensome government regulations and at one point suggested that EPA should be abolished. Last week, he tapped Oklahoma Attorney General Scott Pruitt (R) as his choice to head the agency.

Pruitt, who will need Senate confirmation to take the job, waged an unsuccessful three-year legal battle to block a related EPA haze plan for his state, arguing that it represented federal overreach and would drive up electricity rates. He has also joined in lawsuits challenging EPA’s latest ozone standard and other air quality rules.

"We expect that there’s going to be a fight to keep the [proposed haze rule]," Earthjustice attorney Mary Whittle said in an interview. Earthjustice represented the Sierra Club and other environmental groups in the lawsuit. But if a Republican-led EPA attempts to water down the proposal, Whittle said, agency officials will have to explain the reasons why, "and we will hold them to that."

The haze program, which dates back to 1999 in its current form, aims to restore natural visibility conditions to 156 large national parks and wilderness areas by 2064. It has led to repeated regulatory and legal clashes between states and EPA.

Under the earlier rule, which EPA published in January to meet "reasonable progress" goals under the haze program, eight coal-fired plants will have to upgrade or install SO2 controls. But in response to the lawsuits brought by the state and utilities, the 5th U.S. Circuit Court of Appeals stayed implementation of the rule. Earlier this month, facing the likelihood that the court will throw out the rule altogether, EPA attorneys asked for permission to voluntarily remand it (Greenwire, Dec. 5). As of this morning, that motion was pending.

EPA has projected that the "reasonable progress" rule will ultimately cut sulfur dioxide emissions by an annual total of 230,000 tons. State regulators and environmentalists generally agree that the compliance price tag will be around $2 billion.

The proposed BART rule released Friday does not include estimates on the combined compliance price tag for the plants in question or the total expected emission reductions. Based on data in the proposal, however, the Sierra Club projects that the tighter controls could cut SO2 releases by more than 180,000 tons per year, Mann said in an email.

In addition, EPA recently designated the areas surrounding the three Luminant plants as in nonattainment for the 2010 one-hour air quality standard for sulfur dioxide. Those designations, slated for publication in tomorrow’s Federal Register, could eventually act as a separate lever to force Texas regulators to crack down on plant pollution or again risk federal intervention.

Under the BART proposal, EPA predicts visibility benefits in Big Bend and Guadalupe mountains national parks in Texas; the Wichita Mountains Wildlife Refuge in Oklahoma; the Caney Creek and Upper Buffalo River wilderness areas in Arkansas; and the Carlsbad Caverns National Park and the Salt Creek and White Mountain wilderness areas in New Mexico.