By Mary Ellen Ternes
On March 22, 2011, EPA published its proposal to approve and disapprove portions of Oklahoma’s February 19, 2010, proposal to comply with EPA’s regulations implementing the U.S. Clean Air Act’s “Visibility Protection” provisions, known as the “Regional Haze Rule.” EPA is disapproving Oklahoma’s proposed “Best Available Retrofit Technology,” “Long-Term Strategy” and “BART Alternative,” substituting its own federal implementation plan imposing SO2 emission limits on six Oklahoma SO2 emission sources. Central to the dispute is primarily the timing and manner of compliance.
The Regional Haze Rule originates from Congress’ 1977 Clean Air Act addition of Section 169, which declared as a new national goal, “the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from man-made air pollution.” EPA initially adopted visibility protection regulations in 1980 addressing discrete emission sources or small groups of emission sources. Then, in 1990, Congress added CAA Section 169B inspired by the decreasing visibility in the Grand Canyon. In 1996, the Grand Canyon Commission provided EPA with strategies to address regional haze created by lots of emission sources, prompting EPA to adopt its “Regional Haze Rule” in 1999. This rule requires review, modeling and control of sources emitting pollution which may cause or contribute to haze within a state’s national parks, and also in states downwind from a state. While the regional haze rule may end up improving air quality, the purpose of the regional haze rule is aesthetic.
Oklahoma has one designated “national wilderness area,” the Wichita Mountains Wildlife Refuge across Highway 35 from Turner Falls. In its February proposal, the Oklahoma Department of Environmental Quality (ODEQ) included revised state implementation plan (SIP) provisions allowing several Oklahoma power plants to convert from coal to natural gas, switching fuel to avoid burning the higher sulfur coal and prevent creating SO2 that might cloud up our vistas over the Wichita Mountains. On March 22, 2011, EPA proposed to accept a portion of Oklahoma’s proposed SIP but reject the portion dealing with the SO2 emissions, and has proposed one of its own (federal implementation plan, or “FIP”) to address the rejected portions.
This EPA proposal would mandate compliance with EPA’s determination of BART, i.e., an SO2 emission limit met either by installation of scrubber technology to remove the SO2, or fuel switching to natural gas, within three, but up to possibly five, years of FIP adoption. Among other issues, such as fundamental disagreements regarding cost and removal efficiencies, EPA reads ODEQ’s SIP as allowing this coal to natural gas fuel transition to last through 2026, which EPA says runs afoul of language in the Clean Air Act itself (and EPA’s regulations) requiring that controls need to be installed “as expeditiously as practicable but in no event later than five years” after adoption of the SIP or FIP.
It is not clear whether Oklahoma will succeed in negotiating a SIP revision acceptable to EPA. However, while EPA’s rejection of Oklahoma’s regional haze SIP for SO2 has been quite controversial, EPA’s bases for rejecting this portion of the proposed SIP gets a bit lost in the upcoming rules that will significantly impact the utility industry. Soon, in addition to EPA’s upcoming July 2, 2011, “Phase II” greenhouse gas permitting rules for major stationary sources, EPA will be implementing its “Clean Air Transport Rule” (replacing the remanded Clean Air Interstate Rule or CAIR), “Utility Boiler MACT” (replacing the previously vacated Clean Air Mercury Rule or CAMR), new National Ambient Air Quality Standards for SO2, as well as nitrogen oxides (NOx), particulate matter (PM2.5), and ozone, and also new water and waste rules impacting cooling water intake structures (CWA 216(b)) and coal ash disposal, respectively.