Analysis: Trump Exempts Coal-Fired Electric Generating Units from 2024 Air Toxics Standard

We blogged earlier this month about an invitation the U.S. Environmental Protection Agency (EPA) issued to sources of hazardous air pollutants to apply for Presidential exemptions from certain National Emissions Standards for Hazardous Air Pollutants (or NESHAPs for short).  

By way of background, section 112(i)(4) of the Clean Air Act empowers the President to exempt a source from the requirements of a NESHAPs for up to two years if he determines that two conditions are met:

1. “the technology to implement [the NESHAPs] is not available;” and

2. “it is in the national security interest of the United States” to grant the requested exemption.

One more important point about section 112(i)(4): It allows exemptions to be made for sources, not entire categories or industries.

We promised follow up on these exemption requests, and events transpired to make us bring you that follow up sooner than we thought.  

On Earth Day (!!!) Tuesday, the Federal Register published an Executive Order that relies on section 112(i)(4) to exempt numerous coal-fired electric generating units from the NESHAPs for Coal- and Oil-Fired EGUs under section 112(i)(4), which was published on May 7, 2024, and went into effect on July 8, 2024. Those NESHAPs are referred to as the 2024 Mercury and Air Toxics Standard - or MATS Rule.  

For coal-fired EGUs in western Pennsylvania, the most significant change made by the 2024 MATS Rule was a reduction in allowable emissions of filterable particulate matter, which serves as a surrogate for all emissions of metallic hazardous air pollutants (HAPs), excluding mercury.  

The lower limit on filterable particulate matter emissions goes into effect in July 2027.  The 2024 MATS Rule left existing limits for coal-fired EGUs’ emissions of the other HAPs regulated by the Rule – hydrochloric acid and mercury – unchanged.

So why the exemption? 

In the order, the President determined the 2024 MATS Rule “requires compliance with standards that do not yet exist in a commercially viable form,” and thus that the rule’s compliance deadline “raises the unacceptable risk of the shutdown of many coal-fired power plants,” which purportedly would eliminate jobs, place the electrical grid at risk, and threaten “broader, harmful economic and energy security effects,” and in turn “undermine our national security.”

Notwithstanding that, it may not come as a surprise that when EPA promulgated the 2024 MATS Rule, it did in fact determine that not only was the technology needed to implement the rule “available,” the “vast majority” of coal-fired EGUs already meet the Rule’s lower emission limit for filterable particulate matter. Further, at least in the comment/response section published in connection with the final 2024 MATS Rule, no one claimed that the rule would impact national security.  

The President’s order exempted six coal-fired EGUs in western Pennsylvania from the 2024 MATS Rule for a period of two years, presumably beginning when the Rule goes into effect in July 2027:  

• Colver Power Plant in Cambria County; 

• Ebensburg Power Plant in Cambria County; 

• Scrubgrass Power Plant in Venango County; 

• Seward Power Plant in Indiana County (those four electric generating units burn waste coal); 

• Keystone Generating Station in Armstrong County; and 

• Conemaugh Generating Station in Indiana County (the operators of Keystone and Conemaugh have announced that they plan to shut the plants down by the end of 2028, at the latest, in order to avoid having to comply with rules governing coal-fired EGUs’ wastewater discharges).

It seems clear that the exemptions do not satisfy section 112(i)(4)’s requirements. Let us count the ways:

First, the exemption was made on an industry-wide basis, not a source-by-source basis as section 112(i)(4) plainly requires.  

Second, because of the lack of source-by-source determinations, it is impossible to know how the control technology needed to comply with the 2024 MATS Rule might not be “available” to a particular source – if the “vast majority” of coal-fired EGUs are already meeting the new filterable particulate matter emission limit, why (if at all) can’t the six western Pennsylvania electric generating units?  

Third (and similarly), it is also impossible to determine how the continued operation of a particular electric generating unit might be claimed to be in the interest of national security – larger coal-fired electric generating units in our region than the six exempted (including the Bruce Mansfield plant and Homer City Station) without anyone claiming that those shutdowns adversely impacted national security.  

“The justifications made in the President’s Executive Order are completely conclusory. It would not come as a surprise if the exemptions were challenged in court on any one or more of these bases,” said GASP Senior Attorney John Baillie.

Because the exemptions given to coal-fired EGUs seem to be the first exemptions ever made by a President under section 112(i)(4), this is unprecedented stuff. We will continue to follow developments with the administration’s use of section 112(i)(4) and report on them.