Power plant cases are tough part of enforcing clean air laws
December 14, 2010 6:30 AM
The U.S. Environmental Protection Agency is reviewing operations at 16 coal-fired power plants in Western Pennsylvania and has sent "notices of violation" to several, including EME Homer City Generation LP, for its power plant in Homer City, Indiana County.
By Don Hopey and David Templeton Pittsburgh Post-Gazette
Many of Western Pennsylvania's 16 coal-fired power plants have been charged repeatedly for violations of their air or water pollution permits and paid relatively small penalties, according to a Pittsburgh Post-Gazette review of federal and state environmental agency data.
And delays in pursuing and fixing power plant emissions violations, especially during the George W. Bush administration, may have slowed the pace of air quality improvements in 14 southwestern Pennsylvania counties where a Post-Gazette investigation found higher mortality for respiratory and heart disease and lung cancer. All of those diseases have been associated with exposure to air pollution.
The U.S. Environmental Protection Agency's Enforcement and Compliance History database shows there were alleged violations of the federal Clean Air Act or the Clean Water Act filed against 14 of the region's 16 coal-fired power plants at some point over the last three years, and some alleged violations persisted throughout that period, from the middle of 2007 through the middle of this year.
Many of those allegations involved charges the power companies' facilities violated the Clean Air Act's New Source Review provisions by making major modifications of power plant operations that "significantly increased emissions" of pollutants such as nitrogen oxides, sulfur dioxide and airborne particles, commonly called soot.
Dave Arnold, deputy director of the EPA's Region III Air Protection Division, said the agency is reviewing operations at all of the region's coal-fired power plants and recently sent formal requests for emissions and operational information to 11 of the 16. He said in many cases emissions can be lower and the EPA will be taking actions to reduce them, but he declined to provide details.
The EPA has sent "notices of violation" to Allegheny Energy for operations at its Hatfield's Ferry, Armstrong and Mitchell power plants in September 2007; to RRI for its Keystone and Shawville power plants in January 2009, and EME Homer City Generation LP for its power plant in Homer City, Indiana County, in June 2008 and May 2010.
The alleged violations at the Homer City power plant have dragged on for years. Just last month the EPA filed a notice of violation against the power plant claiming it made modifications to the plant's operations dating back to the late 1990s that "caused a significant emissions increase and a significant net emissions increase" in at least one of the primary pollutants covered by the Clean Air Act. The power plant is the second largest air polluter in the state and according to the ECHO database has paid federal penalties totaling $40,700 over the last five years.
While air-quality improvements have been made in southwestern Pennsylvania and throughout the mid-Atlantic region, Mr. Arnold said, new enforcement challenges loom as the EPA considers tighter emissions standards for ozone, airborne particulates, sulfur dioxide (SOx) and nitrogen oxides (NOx).
The proposed reductions in emissions standards are based on the latest scientific studies that show existing limits for those pollutants are not protective of human health. SOx and NOx help form fine airborne particles and soot, which trigger asthma attacks and cause lung and heart disease linked to more than 20,000 premature deaths a year nationwide, according to the EPA.
Mr. Arnold said there's "no question that air pollution continues to have health effects," and the EPA is developing new strategies to control power plant emissions.
"But it's not going to be easy," he said. "The low-hanging fruit is long gone."
And, perhaps as a signal some of that fruit may be out of reach, The EPA announced last week it would delay for the third time in less than a year its decision on tightening ozone standards until July 2011.
At state level
State enforcement of air pollution rules is marked by lots of activity but low penalties for violations.
Thirteen of the 16 power plants were charged with smokestack emissions violations of varying seriousness during the past three years and the violations were recorded in multiple calendar quarters at eight of those power plants, according to state Department of Environmental Protection data.
For example, DEP records show that the agency charged Allegheny Energy's Hatfield's Ferry coal-fired power plant in Greene County with violating its visible smokestack emissions limits for 18 months beginning in mid-2007. The company, which had operating revenues of $3.4 billion in 2009, settled those violations for $60,128.
And information provided by the DEP shows it collected a total of $1.24 million to settle alleged violations at seven of the power plants in the region. Most of that amount -- $925,000 -- was collected from FirstEnergy and Pennsylvania Power Co., the present and former owner of the Bruce Mansfield power plant in Shippingport, Beaver County, in five consent orders and agreements dating to May 1998.
"My sense, over 2 1/2 decades is that the DEP isn't aggressive enough," said state Rep. David Levdansky, D-Forward. "Back before it had budget cuts, enforcement could have been better. I shouldn't have to be leaning on the DEP to take a look at some of these places in the Mon Valley."
DEP Secretary John Hanger said federal and state oversight of power plant emissions is appropriate and enforcement decisions can vary, depending on agency resources and priorities.
"I think we've been pretty actively litigating when we have a good case," Mr. Hanger said. "But it's a fair point that fines by themselves aren't going to be the mechanisms that drive clean air."
State enforcement still isn't up to par, according to Philip Johnson, a senior officer with the Heinz Endowments' Environment Program, which is conducting independent air pollution research and will soon launch a campaign to improve local air quality.
He said that may be one reason that other areas of the country are getting better air quality faster than Western Pennsylvania.
Sometimes environmental groups or other states initiate lawsuits to prompt agencies to enforce environmental regulations:
• This summer, PennFuture, the Sierra Club, Defenders of Wildlife and PennEnvironment announced they would file a federal lawsuit against RRI Energy alleging thousands of water pollution violations at the Seward coal-fired power plant along the Conemaugh River in Indiana County. But in July, days before the filing, the DEP issued a discharge permit designed to eventually end the pollution discharges.
• In April 2007 after environmental groups filed a federal lawsuit for hundreds of alleged water pollution violations against Reliant, which became RRI, at its 1,711-megawatt Conemaugh Generation Station in Indiana County, the DEP filed its own lawsuit and issued a corrective permit.
• A 2005 federal lawsuit initiated by Citizens for Pennsylvania's Future was joined by the Pennsylvania DEP and four Eastern states, sought to require Allegheny Energy, the nation's fifth-largest emitter of sulfur dioxide and 10th-largest emitter of nitrogen oxides, to reduce emissions of those pollutants at its Hatfield's Ferry, Mitchell and Armstrong power plants.
That suit was settled when Allegheny Energy announced it would install pollution controls on Hatfield's Ferry, but the company said the suit was not a factor in the installation of the scrubbers.
History of enforcement
The regulatory delays and lapses at the federal level date to compliance policies during the George W. Bush administration, according to Eric Schaeffer, who spent 12 years at the EPA and headed its enforcement office from 1997 until 2002.
"When [Bill] Clinton was president we built cases showing very old plants were being modified and almost rebuilt without complying with the Clean Air Act requirement that they also install modern, up-to-date pollution controls," Mr. Schaeffer said. Eight federal cases were dropped or put on hold at the start of the Bush administration, causing Mr. Schaeffer to resign in protest.
"We were starting to make cases and get settlements when the Bush White House and [Vice President] Cheney got involved and the power companies went into hiding instead of settling up," said Mr. Schaeffer, who now heads the Environmental Integrity Project, a Washington, D.C., environmental advocacy group.
"The Bush administration cost us time and, if you look at the health damage caused by pollution, that damage piles up every year. We're not going to get that time back."
Just 15 cases alleging Clean Air Act violations were settled during the eight years Bush was in office. According to the EPA's records, seven cases have been settled during the first two years of the Obama administration.
"The ship has been steered back to where we were 10 years ago," Mr. Arnold said.
Although that's an improvement, Mr. Schaeffer said it still takes too long for the EPA to address problem polluters, build a case and get it heard in court, in part because there are few attorneys in the EPA and the Department of Justice working on environmental cases.
Mr. Schaeffer said the EPA's Region III office in Philadelphia, which covers Pennsylvania, "wasn't as strong" as some of the agency's other regional offices and "didn't make the cases" despite dealing with some "high priority violators."
He said delays in enforcement and air-quality improvements also occurred because fighting regulations has become a reflex action for many electric power companies.
"There's really no reason for it. Companies can absorb the costs and pass them along to investors," he said. "But a lot of companies fought the regulations for 30 years and don't know how to do anything else."