The Clean Air Act authorizes the U.S. Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS) for ozone, among other pollutants. Pursuant to section 107 of the Act, EPA designates regions that do not attain such standards as “nonattainment areas.”
Ozone nonattainment areas are obligated to impose “Reasonably Available Control Technology” (RACT) requirements on stationary sources that are large emitters of oxides of nitrogen (NOx) and volatile organic compounds (VOCs), which are both ozone precursors.
The RACT requirement ensures that such sources are using available emission controls that are economically feasible. Accordingly, the measures that constitute RACT must be re-evaluated each time a NAAQS for ozone is promulgated or revised.
Under section 184(a) of the Clean Air Act, all of Pennsylvania is included in an “Ozone Transport Region.” Under sections 182 and 184 of the Act, sources within an Ozone Transport Region are subject to RACT requirements even if they are located in areas that actually attain NAAQS for ozone.
In 2016, the Pennsylvania Department of Environmental Protection (DEP) published a set of regulations that it determined would constitute RACT for the 8-hour ozone NAAQS for certain sources in Pennsylvania. Those regulations are codified in the definitions of 25 Pa. Code § 121.1 and in 25 Pa. Code §§ 129.96 – 129.100. One of the RACT regulations, 25 Pa. Code § 129.98, allows system-wide averaging of emissions of subject sources when a particular air pollution source cannot meet an applicable RACT requirement. Under section 129.98, sources are eligible for emissions averaging only if they are “among sources under control of the same owner or operator [and] within the same ozone nonattainment area.” DEP’s regulations expressly define “nonattainment area” to mean “[a]n area designated by EPA under section 107 of the Clean Air Act in 40 C.F.R. 81.339,” which does not include the Ozone Transport Region. Thus, according to DEP’s regulations, the air pollution sources to be averaged must both be located in an area that EPA has designated as nonattainment for an ozone NAAQS and listed in 40 C.F.R. § 81.339.
Nevertheless, the preamble to the RACT rules that appeared in the Pennsylvania Bulletin on April 23, 2016 contains this doublespeak: “The averaging must be conducted within the same ozone nonattainment area in this Commonwealth. The Department interprets this provision to allow emissions averaging in areas designated as unclassifiable/attainment for the ozone NAAQS.”
DEP thus acknowledges that its RACT rule requires air pollution sources to be averaged to be within the same ozone nonattainment area, but says that it is interpreting “nonattainment area” to include areas that are also designated “attainment” and “unclassifiable.” Of course, DEP’s interpretation effectively writes the requirement that the averaged air pollution sources be “within the same ozone nonattainment area” right out of the regulation.
How does all of this matter? It enables DEP to let one operator of a major source of NOx emissions cheat the rules. On April 21, 2018 DEP published notice that it has approved a system-wide NOx averaging plan involving two power plants that are operated by Talen Energy: the Brunner Island Steam Electric Station in York County, and the Montour Steam Electric Station in Montour County. The Montour Steam Electric Station is equipped with low-NOx burners and selective catalytic reducers that limit NOx emissions; the Brunner Island Steam Electric Station has no NOx controls installed, is a notorious polluter, and presumably is unable to meet Pennsylvania’s NOx RACT requirements as a result.
Most importantly, the Montour Steam Electric Station is located in an area that EPA designates as “Unclassifiable/Attainment” for the ozone NAAQS in 40 C.F.R. § 81.339, and the Brunner Island Station Electric Station is located in an area classified as “Attainment” in that same regulation.
Accordingly, neither facility should be eligible for system-wide NOx averaging under 25 Pa. Code § 129.98(a), which, you will recall, expressly requires averaged facilities to be located in “the same ozone nonattainment area.” DEP’s “interpretation” of its RACT regulations thus allows Brunner Island to avoid installing NOx controls (or shutting down), and to continue to emit ozone-forming NOx at a high rate.
The draft permit revisions needed to implement the system-wide NOx averaging plan for the Montour and Brunner Island Steam Electric Stations were originally published for public comment in January 2018. Citizens who may be impacted by DEP’s approval of the plan have until May 21, 2018 to appeal to the Environmental Hearing Board.
–John Baillie, Staff Attorney