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By Jessica Coomes
The Environmental Protection Agency is continuing to prioritize the enforcement of its new source review permitting program at coal-fired power plants, an agency official said Jan. 24.
Although the agency also is taking action to address similar violations at cement kilns, acid plants, and glass furnaces, the possible emissions reductions from those three sectors pale in comparison to those of coal-fired power plants, Phillip Brooks, director of the air enforcement division in the EPA Office of Civil Enforcement, said.
The coal-fired power plant enforcement initiative since 1999 has led to more than 20 settlements that are expected to reduce emissions of sulfur dioxide and nitrogen oxides by 2.4 million tons per year, Brooks said during a webinar sponsored by the American Bar Association Section of Environment, Energy, and Resources.
While the new source review enforcement initiative has been successful for many years, EPA has been “pushing the envelope” in several recent cases that now are coming before appeals courts, David T. Buente Jr., an attorney for Sidley Austin LLP, said during the webinar.
For example, the U.S. District Court for the Western District of Pennsylvania in October dismissed an EPA lawsuit against the current and former owners of a Pennsylvania power plant accused of modifying two electric generating units without required permits and emissions controls (United States v. EME Homer City Generation LP, W.D. Pa., No. 2:11-cv-19, 10/12/11; 199 DEN A-12, 10/14/11).
The power plant's former owners modified the units in the 1990s but did not apply for prevention of significant deterioration permits. Under the Clean Air Act's new source review permitting program, new and modified industrial sources in areas that meet air quality standards must obtain prevention of significant deterioration permits to demonstrate that their emissions would not significantly degrade air quality.
The district court said the statute of limitations had passed for the government to seek civil penalties and the government cannot hold the current owners liable for alleged Clean Air Act violations by the former owners. The case has been appealed to the U.S. Court of Appeals for the Third Circuit.
By comparison to the emissions reductions possible from coal-fired power plants, there are about 400,000 tons per year of sulfur dioxide and nitrogen oxides emissions at stake from the cement, acid, and glass sectors combined, Brooks said.
He said EPA has launched a “very aggressive investigation” into the cement sector, and the agency has issued information requests to 87 percent of cement manufacturing facilities. He said the agency has found “widespread noncompliance,” including few modern pollution controls and few new source review permits.
The agency has agreed to six settlements, including a December settlement with Essroc Cement Corp. that resulted in $33 million in injunctive relief, a $1.7 million penalty, and the expected reduction of nitrogen oxides and sulfur dioxide emissions by 7,000 tons (250 DEN A-9, 12/30/11).
In the acid sector, EPA has begun investigations into 93 percent of facilities with eight settlements, Brooks said.
And for glass manufacturers, the agency is finding aging plants and few new source review permits.
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