Even Best-Performing Units Cannot Meet Mercury, Air Toxics Standards, Brief Says

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By Jessica Coomes  

The Environmental Protection Agency's mercury and air toxics standards for new coal-fired power plants are so stringent that even the best-performing existing plants cannot meet them, energy companies that are developing five new plants are arguing (White Stallion Energy Center LLC v. EPA, D.C. Cir., No. 12-1272, brief filed 7/27/12).

The companies argued in a July 27 brief that the new source limits for mercury, particulate matter, and hydrogen chloride are so flawed that a federal court should vacate the limits entirely.

EPA appears to agree with some of the arguments and announced July 20 it would reconsider the standards. The agency had asked the U.S. Court of Appeals for the District of Columbia Circuit to hold in abeyance the legal challenges to the new source standards during the reconsideration process, but the companies have opposed delaying the case (141 DER A-16, 7/24/12).

In December 2011, EPA issued a final rule setting numeric emissions limits for mercury, filterable particulate matter as a surrogate for toxic metals, and hydrogen chloride as a surrogate for acid gases (77 Fed. Reg. 9,304; 246 DER AA-1, 12/22/11).

The emissions limits for new sources are more stringent than for existing sources, and issues specific to new plants are being litigated under an expedited briefing schedule, separately from other issues being raised in consolidated cases challenging the rule (White Stallion Energy Center LP v. EPA, D.C. Cir., No. 11-1302, response filed 7/3/12).

“[M]ore than five months after EPA issued the standards and stymied Petitioners in their efforts to commence construction of their projects (and only after this Court granted expedited review), EPA has recognized that these analytical flaws undermine the validity of the new source standards by announcing the Agency will, in the future, reconsider those standards,” the petitioners' July 27 brief said. “This Court's task in vacating the standards should not be difficult.”

Standards Not Met.

The Clean Air Act requires EPA to set an emissions standard for new sources that is based on emissions from the best-performing existing unit in practice. When setting the particulate matter standard, EPA gathered six emissions tests from the best-controlled similar coal unit, Chambers Cogeneration Boiler 2 in Carney's Point, N.J. The agency then based the standard on the single lowest emissions test, the petitioners said.

The agency took the same approach in setting the hydrogen chloride standard, evaluating six tests from the best-controlled unit, Logan Generating Station Unit 1 in Swedesboro, N.J., and basing the standard on the best result.

The standards purportedly can be met 99 percent of the time. However, the brief points out that, in practicality, the best-performing units only met the standard in one out of six tests.

“The other five results…show that these units would fail to meet the applicable standards,” the brief said. “EPA never explained how a standard that a facility failed to meet in five out of six tests can possibly reflect the emissions performance of that facility 'in practice.' ”

Results Not Achieved in Practice.

The brief argued that the standards actually cannot be “achieved in practice” by the best-performing unit, as the Clean Air Act requires.

Similarly, the mercury standard was based on just one test at Logan, which was identified as the best-controlled unit. The petitioners said “that standard also is not reflective of the emissions performance of that unit over time 'in practice.' ”

Part of the problem is that the tests EPA used to base the standards on were short-term tests, whereas the standards are meant to be met continuously. Conditions change over long periods, including variations in input fuel used and operating conditions, which could affect emissions, the brief said.

Pollution control vendors have said they cannot guarantee their equipment can monitor and control emissions to meet such stringent standards.

“Without such guarantees, Petitioners will be unable to obtain financing for their projects and so will be prevented from undertaking development,” the brief said.

Pollutant-by-Pollutant Approach.

In addition, the petitioners argued against EPA's pollutant-by-pollutant approach, under which the agency set emissions limits based on what individual existing plants can achieve for each of the three pollutants--not based on what one single plant can achieve for all three pollutants.

“It is as if EPA determined the 'best' baseball player by determining the player with the highest batting average, the highest fielding percentage and the lowest earned run average--no such player exists in reality,” the brief said.

The petitioners urged the D.C. Circuit to vacate the standards and remand them to EPA. They said the standards for new coal-fired power plants, overall, “are so deficient that they cannot be fixed.”

The petitioners are White Stallion Energy Center LLC, Sunflower Electric Power Corp, Tri-State Generation and Transmission Association Inc., Power4Georgians LLC, Deseret Power Electric Cooperative, and Tenaska Trailblazer Partners LLC. They are developing five new coal-fired power plants in Texas, Kansas, Georgia, and Utah.

By Jessica Coomes  

The July 27 brief is available at http://op.bna.com/fcr.nsf/r?Open=jcos-8wpjv8.