Wyo vs EPA: State resists EPA plan targeting coal to cut haze
Wyoming government leaders and the state’s coal-heavy utility allies appear destined for litigation against the U.S. Environmental Protection Agency unless the agency backs off from what many agree is an “aggressive” stance on combating regional haze.
If EPA holds its ground and wins potential litigation challenges (so far no lawsuits have been filed), power company representatives predict a dire outcome.
Coal-fired power units in the state will have to be retired much sooner than companies had planned, because the EPA’s preferred strategy for cutting regional haze will impose such high costs, representatives of PacifiCorp and Basin Electric Power Cooperative say.
And the net result will not be an appreciable difference in visibility, the power company spokesmen say – though that is the ultimate goal of the effort.
“Our view is EPA’s proposed rule is extreme and an unlawful interpretation of the regional haze program,” PacifiCorp spokesman Dave Eskelsen told WyoFile.
Some citizens and environmental groups, however, support EPA’s stance, although they say the agency could do better by pushing for further efforts to reduce haze reduction.
Maria Katherman of Converse County, spoke in favor of EPA’s more aggressive stance on regional haze at EPA’s hearing in Casper on Friday. She contends that Douglas, which is downwind from Rocky Mountain Power’s Dave Johnston coal-fired power plant, has the highest rate of childhood asthma in Wyoming.
“I heard a lot of people today say they are speaking for the people of Wyoming and I have yet to hear anybody speak for me,” said Katherman. “We used to see Cloud Peak, reliably (from Casper Mountain). I have not seen it in five or 10 years. … I’d gladly pay triple my electric bill if it meant my sons didn’t have to live with asthma.”
EPA’s new regional haze plan is something that Wyoming’s elected officials — representing a state with a fossil fuel-dependent economy — are more than willing to fight against, relying on the view that states can retain primacy to implement federal laws such as the Clean Air Act.
But the Sierra Club touted a recent 10th Circuit Court of Appeals ruling against Oklahoma Gas and Electric, saying it sets precedent and confirms EPA’s authority to force PacifiCorp — Wyoming’s largest utility — to retrofit its coal-fired power plants in Wyoming. “When people and national parks suffer from coal pollution, the 10th Circuit has strongly affirmed EPA’s authority to ensure that states provide strong cleanup rules for power plants,” Sierra Club said in a prepared statement on July 19.
“Citing the Clean Air Act and its legislative history, the 10th Circuit concluded that ‘the EPA may reject Best Available Retrofit Technology determinations that do not comply with the guidelines,’” the Sierra Club continued. “The court squarely rejected arguments made by PacifiCorp and other coal industry groups that EPA lacked the authority to ensure that state programs meet federal requirements.”
Slow and hazy
The federal regional haze program was developed in the 1970s under the Clean Air Act. At that time Congress set a date of 2064 to return visibility in national parks and wilderness areas back to natural conditions. Congress allowed states to craft their own plans for how they will meet the federal regional haze goals, but they still must be approved by EPA.
Visibility in places like the Grand Canyon and Yellowstone National Park have gone from 140 miles to 35-to-90 miles due to pollutants from vehicles and industrial fuel combustion, according to EPA. The loss of visibility is regarded by the agency and others as a drain on vital tourism economies in the West.
After decades of slow state and agency work on regional haze, environmental groups such as the Sierra Club and WildEarth Guardians in recent years have sued EPA for missing deadlines to implement rules in the program, forcing EPA and states to set out firm plans.
In 2012, EPA accepted most of Wyoming’s state implementation plan (SIP), but rejected some portions, instead insisting on a more aggressive timeframe and more aggressive pollution limits – outlined in EPA’s federal implementation plan (FIP). Right away in 2012, EPA heard criticism from all stakeholders and agreed to review comments and reconsider its plan. EPA also recalculated its cost-benefit analysis then issued its “re-proposal” for regional haze a few months ago, unveiling what Wyoming air quality regulators and utilities consider is an even more aggressive and economically-unjustified plan.
Rather than ratchet down haze-contributing pollutants on a glide path to 2064, EPA’s “re-proposal” would require major retrofits at coal-burning units of Wyoming power plants. Specifically, the latest EPA proposal would call for applying selective catalytic reduction (SCR) technology at certain units to scrub nitrogen oxides.
During the past decade, PacifiCorp — which operates as Rocky Mountain Power in Wyoming — and Basin Electric Power Cooperative have spent hundreds of millions of dollars upgrading emission controls at their Wyoming coal-fired power plants, adding bag-houses to curb particulates and controls for nitrogen oxides and sulfur dioxides to meet a whole range of other tougher emission standards coming down from the federal EPA.
Rocky Mountain Power, alone, spent some $900 million from 2005 to 2012 to upgrade emission controls at its Wyoming coal units.
Utilities say that those upgrades were carefully crafted to also help them meet the EPA’s path on regional haze, but that instead EPA quickly changed course to a much more aggressive strategy.
“Originally it was supposed to be a gradual process to achieve (natural visibility) by 2064. What EPA proposed is a much more aggressive timeframe and more stringent controls,” which must be applied by 2020, said Eskelsen.
He added that all the additional cost and effort would be “in our view for marginal benefit.” An imperceptible amount of haze reduction would be achieved at excessive cost, the utilities say.
By contrast, the utility companies much prefer Wyoming’s SIP. The state plan would still meet federal regional haze visibility goals way ahead of the original 2064 date, according to Eskelsen, and it would cost about $1.2 billion less than EPA’s plan to implement over 20 years.
While utilities and the state of Wyoming say that EPA’s cost-benefit analysis in its re-proposal is seriously flawed, environmental groups contend EPA’s plan is reasonable, and could go even further.
For example, the Sheridan-based landowner advocacy group Powder River Basin Resource Council has submitted its own criticisms of EPA’s new plan saying that, among other things, it over-estimates the cost of required retrofits.
In general, however, the group supports the EPA re-proposal.
“Ultimately, EPA agreed with many of the comments in our expert reports resulting in the issuance of a re-proposed regional haze rule by addressing many of the technical and legal deficiencies with its original proposal,” Powder River Basin Resource Council organizer Shannon Anderson told WyoFile via email.
EPA recently conducted hearings in Wyoming at the request of Wyoming Gov. Matt Mead.
“First and foremost, EPA’s proposed federal plan for Wyoming for regional haze harms rate payers, including the most economically vulnerable people – that alone is unconscionable,” Gov. Mead stated in the transcript prepared for his July 17 testimony to the EPA. He went on to argue that EPA’s regional haze requirement “turns a blind eye to Congressionally-mandated state primacy.”
EPA held a second public hearing Friday in Casper where utilities laid out their analysis of EPA’s allegedly flawed justification for curbing regional haze in coal-rich Wyoming.
“Unlike the Wyoming SIP, the EPA’s FIP requires uneconomic controls that will lead to the early retirement of units,” PacifiCorp Energy president Michael Dunn testified at the EPA hearing on Friday.
A thorough evaluation of the pros and cons of new reduction requirements, as required by the Clean Air Act, would also have included “an analysis of the impacts these retirements will have on local jobs, the economy, and the communities surrounding the affected facilities,” Dunn testified.
A consultant for Basin Electric Power Cooperative laid out an extensive analysis of what it would take to retrofit the Laramie River Station power plant with selective catalytic reduction technology. He said applying the technology to the center of three in-line units would require near-reconstruction of the plant, and added that EPA failed to identify some $460 million in resulting costs of the agency’s plan at the Laramie River Station alone.
Gov. Mead, along with several county — and city — elected officials in the state, allege that by overriding Wyoming’s plan for regional haze, EPA is brazenly carrying out an Obama administration agenda to pinch coal out of America’s electric generation fuel portfolio. Wyoming’s pro-coal alliance says that the Obama administration is not only imposing unnecessary costs to utilities and their customers, but also using the federal regional haze program — which is supposed to be aimed only at visibility and not health concerns — as a political weapon against coal.
“EPA’s proposal is a product of selective public comments – a plan developed behind closed doors or at least doors closed to the State of Wyoming and the expertise at the Wyoming Department of Environmental Quality (DEQ),” Mead said in his written testimony.
“This is not a health-based program,” Wyoming DEQ administrator Todd Parfitt testified on Friday regarding the regional haze program. “There are other programs in place to address that. This is not a climate change program. There are other programs that address that.”
Parfitt also alleged that EPA, in its re-proposal on regional haze earlier this year, used a different kind of “SCR” – not “selective catalytic reduction” technology but a “selective comment response” tactic – in developing its new regional haze strategy and unfairly left Wyoming DEQ and the governor’s office out of the decision process.
In addition, Gov. Mead’s administration accuses EPA of playing along with a so-called “sue and settle” scheme whereby environmental groups file lawsuits against EPA insisting on tougher standards, resulting in a binding court settlement.
Reached by phone for comment, Jeremy Nichols of WildEarth Guardians — which was among plaintiffs that filed suit against EPA regarding regional haze implementation — said that Wyoming’s charges of sue-and-settle and being blocked from discussions with EPA are both unsubstantiated.
“It’s beyond insane,” said Nichols. “I don’t know how to respond to that. This is loony. There’s no sue-and-settle. EPA missed a deadline and we sued them just like industry sues them for missing deadlines.”
As for Gov. Mead’s administration being cut out of EPA’s decision-making process, Nichols said, “For the state to cry victim in this is incredibly disingenuous. Wyoming’s had chance after chance to put its best foot forward and what you see is its reluctance to hold polluters accountable.”
EPA’s two recent hearings in Wyoming garnered comments from many local elected officials and businesses that see coal as a mainstay of Wyoming’s economy. Many testified that they believe EPA is simply using regional haze as another regulatory tool to be misused against coal mining and against coal-burning utilities — industries that drive Wyoming’s $1 billion per year coal industry.
Many commenters also said they believe the most significant regional haze is in the summer, and the contributors to that haze are wildfires and pollutants emitted from industrial sources throughout the world.
“I believe the main contributions to regional haze are wildfires, and pollution coming from overseas,” Gary Cox, representing IBEW Local 57 union members at Rocky Mountain Power’s Naughton coal-fired power plant, testified at the EPA hearing in Casper last week. “If the federal government truly wanted to reduce regional haze it would (manage forests to reduce wildfires).”
Anne MacKinnon, a Casper-based natural resources consultant and chairwoman of WyoFile, testified to EPA on Friday that she supports EPA’s recent actions for moving forward on regional haze.
“A good deal of (Wyoming’s) revenue comes from coal, but a good deal more comes from other resources, and Wyoming has a diverse portfolio of energy resources,” said MacKinnon. “People say ‘You can’t eat the scenery;’ well, people eat it every day. There’s a lot of winter tourism use, so it’s not true that you can’t eat the scenery, but you need to be able to see it.”
EPA is accepting public comment on its proposed regional haze plan until August 26. It is expected to make a final decision on the regional haze rule sometime in November.
— UPDATE, August 2, 2013: On Friday August 2, 2013, Wyoming Gov. Matt Mead sent a letter to EPA Administrator Gina McCarthy insisting that the agency’s actions (and inactions) on Wyoming’s state implementation plan skirt cooperative federalism. He accused EPA of taking part in a “sue and settle” scheme, suggesting the agency used its “close relationship” with the Sierra Club so that the group would sue EPA giving it the opportunity to sign a settlement imposing more stringent standards on regional haze than Wyoming’s regulators proposed.
“EPA rolled over and agreed to settle the case,” Gov. Mead wrote. “EPA has a poor track record, which includes neglecting state plan submissions, exposing itself to lawsuits, and changing the requirements before acting on good state plans that are already on the table.”
Click this link for the governor’s full letter.
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