Evaluating the Modification of Power Plants: A Streamlined Five Question Approach
| Author | Andrew D. Webster |
| Position | J.D., Capital University Law School, 2007 |
| Pages | 845-890 |
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The United States is powered by many old coal power plants.1 These ancient electric generators "are up to ten times dirtier than new power plants built today."2 Coal power plants need to be modernized so that they will continue to operate "in a safe, reliable, and efficient manner."3
Before enactment of the Clean Air Act (CAA),4 such modernization ignored environmental concerns and focused solely on efficiency and profitability for the power companies.5 After the passage of the CAA, the Environmental Protection Agency (EPA) had tools to force these polluters to account for environmental degradation by requiring permits.6 Such enforcement efforts have led to numerous lawsuits.7 The defendant powerPage 846 companies use various strategies to avoid the EPA's regulatory programs.8A recent Supreme Court ruling has resolved some of the uncertainty in the area, but the law is still unclear in some areas.9
This Comment will show that the litigation positions of the utility companies are unsupported by law. An analysis of five recent federal court decisions will prove this: United States v. Ohio Edison Co.,10Environmental Defense v. Duke Energy Corp.,11 United States v. Alabama Power Co. [hereinafter Alabama Power II],12 New York v. United States Environmental Protection Agency [hereinafter New York I],13 and New York v. Environmental Protection Agency [hereinafter New York II].14 The cases focus on different elements of the controversy, creating a minefield that hinders predictability in this area of environmental law.
To organize the complexities of these opinions, an appropriate analysis involves a series of five questions. These questions are: (1) How should "modification" be construed in the Prevention of Significant Deterioration (PSD) context?; (2) How should "physical change or change in the method of operation" be interpreted?; (3) How should increase be measured?; (4) How should courts interpret and apply the hours of operation exclusion?; and (5) How should courts interpret and apply the routine maintenance exemption?15 This Comment will show how the five decisions answer the questions and then propose answers. Organizing and consolidating the decisions should serve to aid all parties involved in the litigation, ensuring fair predictability in enforcement. The resulting clarity will help both the power companies and the EPA.
When a court approaches the problem of a utility company upgrading its facilities to allow for longer lives and increased production, that courtPage 847 should proceed with the five question inquiry. The court should not use the definition of "modification" the same way in Prevention of Significant Deterioration as in the New Source Performance Standards. It should treat "physical change" as an easy-to-meet standard. Emissions calculations should be made with the tons-per-year method. The physical change exemption should only be used when there is no physical change. Routine maintenance should be compared based on particular units, not as a blanket comparison across the electricity production industry.
Part I describes the extent of the great air pollution problem from power plants. Part II details the statutory scheme for these stationary sources and the relevant regulations promulgated by the EPA. Part III outlines the major decisions issued by courts to resolve interpretation problems in the statutes. Part IV discusses five recent decisions, organizes them according to a convenient framework, and then describes how each case answers the questions. Part V evaluates the effectiveness of the proposed solutions.
Fossil-fuel power plants are the single most contributory force behind our present air pollution problems.16 The hazardous pollutants emitted from generators and other sources have caused serious health problems, including bronchitis, lung cancer, increased asthma, and pulmonary emphysema.17 Scientific data indicates that coal power plants are responsible for a high percentage of hazardous pollutants found in the air today.18
In addition to the emission of hazardous pollutants, the continued use of coal burning in this country spews an astronomical amount of carbon dioxide into the atmosphere.19 "Coal is a particularly pernicious fuel because, even burned efficiently, it puts fully a third more carbon dioxidePage 848 in the air than natural gas for a given amount of energy released."20 The human impact on the carbon dioxide presence in the atmosphere threatens to cause an unprecedented shift in the earth's climate that may only be reversed at an exceedingly slow pace.21
The process of burning coal is the cheapest and the most common option for creating electricity in the United States, so it has continued to produce a bulk of our power supply.22 The biggest polluters today are plants built between 1950 and 1980.23 Indeed, for nearly one hundred years, power companies operated in an unregulated environment.24
The primary legal tool to protect the environment was the use of private or public nuisance law, but other theories have also been less successfully advanced.25 Unfortunately, tort law failed to abate the problem because it "is an expensive method of protecting a few at the expense of many."26 Money damages seldom help plaintiffs and even more rarely change industry behavior.27
Therefore, the failure of tort law to reduce air pollution requires regulation.28 A regulatory program is also needed because without one, electricity generators will continue to rely on older coal-fired plants andPage 849 exacerbate the problem.29 Recognizing the increasing threat to the public health, the federal government acted to control air pollution in the 1960s.30President Johnson signed the Clean Air Act (CAA) into law in 1963.31Congress passed important amendments in the 1970s that increased the regulatory scope of the CAA.32 These amendments include the Prevention of Significant Deterioration (PSD) and New Source Performance Standards (NSPS) programs,33 which are discussed below. The CAA has been successful in the reduction of air pollutants, but stemming the tide of pollution remains an elusive goal.34
A big threat to the EPA's regulatory program is the interpretation of key terms within the CAA. Incorrect interpretations of the statutes and the regulations by courts reduce the effectiveness of the plans. The basis of the 1970 amendments to the CAA is the setting of the National Ambient Air Quality Standards (NAAQS).35 The EPA sets these using health effects data.36 Once the levels are set, states submit State Implementation Plans (SIPs) that show how they will reach the standards.37
The SIPs and the NAAQS are set for existing stationary sources, including large power plants.38 All new sources are subject to the New Source Performance Standards (NSPS), which have been in place since 1970.39 The standards also apply to "modified" sources.40
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If NSPS is triggered, the stationary source is forced to use "the best system of emission reduction which . . . the Administrator determines has been adequately demonstrated."41 This standard can be applied in both areas that have reached the appropriate NAAQS level (attainment areas) and those that have not (non-attainment areas).42 The EPA may bring an NSPS enforcement action when a utility constructs a "new source," which is defined as "any stationary source, the construction or modification of which is commenced after the publication of regulations."43 The inclusion of the word "modification" in this definition means that old power plants are intended to fall under the purview of the regulatory program in certain situations. Therefore, the definition of modification is crucial, as it determines whether the plant will be subject to the NSPS rules. Such stationary sources reflect "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted."44
Because the NSPS program was not entirely successful, especially in areas attaining the NAAQS, the EPA created a new regulatory program, known as PSD.45 The scheme was codified by Congress in 1977.46 This can be applied to stationary sources in areas that have reached the appropriate NAAQS standard (attainment areas).47
As written in the statute, the purpose of the PSD program is "to protect public health and welfare from any actual or potential adverse effect which in the Administrator's judgment may reasonably be anticipate[d] to occur from air pollution."48 The purpose is fulfilled by requiring permits whenever a facility is "constructed."49 Such a permit requires using the "best available control technology for each pollutant subject to regulationPage 851 under this chapter emitted from, or which results from, such facility."50Most importantly, the definition of "construction" for PSD is incorporated from NSPS: "The term 'construction' when used in connection with any source or facility, includes the modification (as defined in section 7411(a) of this title) of any source or facility."51
Analysis of the Congressional intents of the NSPS and PSD programs in the 1977...
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