CHAPTER 2 ACID RAIN CONTROLS
| Jurisdiction | United States |
(May 1990)
ACID RAIN CONTROLS
The Pittsburg & Midway Coal Mining Company
Englewood, Colorado
The United States is currently involved in a national public policy debate regarding "acid rain." Although the popular press frequently refers to "acid rain," the phenomena has not been clearly defined, and is misunderstood by many people. Acid deposition is the preferred term because it applies to environmental receptors of airborne acidic materials whether in the wet or dry form. Wet deposition of acidic compounds such as sulfur dioxide create acid rain by combining with water to create sulfuric acid. Dry deposition is composed of suspended sulfate and nitrate particulates. Congress has defined "acid precipitation" as "the wet or dry deposition from the atmosphere of acid chemical compounds."1 Acid rain is believed to pollute water systems, corrode the exteriors of buildings and public monuments, impair public health, and adversely affect crops, forests, fish, wildlife and natural ecosystems.2
The debate regarding acid rain controls has not been limited to the traditional environmentalist versus industry views. The acid rain issue has created regional conflicts and divisions within the natural resource and electric utility industries. The western states and other relatively low sulfur producing areas are reluctant to share the cost of reducing high sulfur emissions in regions such as the midwestern states. The interests of coal companies with relatively high sulfur reserves are divergent from low sulfur producers. The natural gas industry could benefit greatly from stringent statutory controls on emissions of sulfur dioxides and nitrogen oxides. Utilities that have been burning compliance coal or have installed pollution control devices will be affected differently than utilities that have not previously made efforts to mitigate sulfur emissions. Liberal loyalties are divided between the environmental community and labor unions concerned about the loss of jobs resulting from acid rain legislation.
Proponents of more stringent acid rain controls are currently engaged in a coordinated effort to obtain massive reductions in sulfur and nitrogen emissions through the legislative process. During the last decade, acid rain legislation was delayed pending the completion of a ten year study of the problem authorized by Congress in 1980.3 During the interim, environmental groups and states most affected by acid rain frequently attempted to obtain
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judicial relief under the existing Clean Air Act.4 Having failed in the courts, and being frustrated by perceived Environmental Protection Agency recalcitrance, the environmentalist have taken the position that legislation is absolutely necessary to address the problem.
President Reagan successfully avoided clean air legislation during his administration. However, President Bush ran for office as an "environmentalist," and after his election, it has become apparent that some form of clean air legislation is likely to be enacted this year, including additional acid rain controls.5 Congress nevertheless has continued the legislative debate because of the profound effect clean air legislation is anticipated to have on the economy, and in an effort to resolve regional differences that transcend party lines. The legislative process has been moving so rapidly, that many of the conclusions set forth herein may soon become irrelevant or inaccurate.
EXISTING LAW
National Ambient Air Quality Standards (NAAQS). Under the current Clean Air Act (CAA), the Environmental Protection Agency (EPA) promulgated NAAQS in 1971 and 1973 to regulate sulfur and nitrogen dioxides.6 Each state achieves the NAAQS by regulating sources within its border pursuant to a State Implementation Plan.7 Under a 1977 amendment to the CAA, the EPA is required to review and make appropriate revisions to NAAQS in five year intervals. In Environmental Defense Fund v. Thomas, several environmental groups unsuccessfully challenged the EPA's refusal to alter the NAAQS for sulfur dioxides.8
State Implementation Plans (SIPs). The EPA is required under existing law to evaluate each SIP to determine whether it contains provisions prohibiting stationary source emissions which will prevent or interfere with any other state's compliance with the NAAQS.9 In 1986, Vermont submitted a SIP to the EPA for approval
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which included, inter alia, a national sulfur dioxide emission control program to control regional haze. If approved, the Vermont SIP would have required the EPA to compel eight other states to revise their SIP's to avoid interfering with the implementation of Vermont's program to control regional haze. EPA took "no action" on Vermont's proposal to impose interstate limitations on sulfur dioxide emissions because it had only undertaken to regulate plume blight,10 and thus did not have the authority to address regional haze. The EPA's decision was upheld in Vermont v. Thomas.11
New Source Performance Standards (NSPS). The EPA is required under the CAA to promulgate regulations establishing emission control standards for all new stationary sources.12 In 1979, the EPA revised the NSPS for coal burning power plants. The EPA adopted a new source sulfur dioxide emission limitation of 1.2 lbs./mmBtu,13 and imposed a variable percentage reduction requirement based on a designated emissions rate.14 Industry and environmental groups unsuccessfully litigated the revised NSPS, asserting respectively that the limitations were too harsh and too lax.15 The court upheld the EPA rule as "reasonable" under the circumstances.16
National Parks & Wilderness Areas. The EPA is required to promulgate regulations to insure progress in preventing and eliminating airborne pollutants which impair visibility in or near national parks and wilderness areas.17 The EPA has promulgated
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regulations to control plume blight, but has not yet implemented a program to address the more pervasive problem of regional haze because it lacks sufficient information to identify the source of the pollution. In Maine v. Thomas,18 several states and environmental groups asserted that the EPA has a non-discretionary duty to adopt regional haze regulations which would impose restrictions on sulfur dioxide emissions. The court dismissed the case for lack of jurisdiction.19
Interstate Pollution Abatement. The CAA allows states to petition the EPA for a finding that a major source of emissions in another state or states is interfering with or preventing the implementation of the petitioner's SIP in violation of 42 U.S.C. Section 7410(a)(2)(E)(i) (1981).20 In the early 1980's, three eastern states petitioned the EPA to make a finding that several high sulfur producing states were impeding the petitioners' efforts to comply with the CAA. The petitioners requested enforcement action under 42 U.S.C. Section 7426(c), including prohibitions on the construction of new sources, and the imposition of abatement measures on existing sources to continue operations. The EPA denied the petitions on the basis that available data was inadequate to support the requested findings and enforcement actions. The EPA also asserted that the petition process was not designed by Congress to function as a national acid deposition regulatory program. The EPA decision was judicially affirmed against all of the petitioners except New York.21 New York's case was remanded to the EPA for evaluation of additional data.
The Canadian Problem. The CAA authorizes the EPA to make a finding that air pollution generated in the United States is endangering public health in a foreign nation.22 If the EPA also concludes that the affected foreign nation has a reciprocal law which could be invoked to protect the United States, then the CAA requires that notice be given to the governor(s) of the state(s) generating the air pollutants which are endangering public health in a foreign nation. Such notice invokes a statutory provision requiring the polluting states to revise their approved SIPs to
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prevent or eliminate the endangerment.23 At the close of the Carter Administration, the incumbent EPA Administrator issued correspondence making "endangerment" and "reciprocity" findings regarding the effect on Canada of sulfur emissions generated in the United States. Several eastern states and environmental groups subsequently sued the EPA to compel the agency to issue notices to the governors of sulfur dioxide producing states requiring revisions to their SIP's to protect the Canadians. Although the federal district court ruled in favor of the environmentalists, the District of Columbia Circuit reversed because the Administrator's correspondence was inconsistent with the formal rule-making procedures required under the CAA.24
Stack Height and Dispersion. In 1977, Congress amended the CAA to prohibit states from complying with the NAAQS by incorporating a requirement in their SIP's for higher stacks, and thereby dispersing, but not reducing, sulfur emissions.25 The 1977 amendment incorporated Good Engineering Practices (GEP) for stack construction and prohibited SIP's from relying on stack height to comply with the requirements of the CAA unless industry conformed to the regulatory GEP requirements to claim a dispersion credit.26 Several states and environmental groups initiated litigation against the EPA's 1985 stack height regulations because they failed to impose a requirement that industry install the best available technology to reduce emissions as a pre-condition to eligibility for the dispersion credit.27 The court ruled against the environmentalists on the basis that the asserted best technology requirement exceeded the EPA's authority under the CAA.28
Clean Coal Technology Projects. Congress has directed the Department of Energy to provide financial...
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