A spokesman for Ameren Services, parent of Ameren Missouri, wrote in an email to the Center that the Labadie plant’s SO2 emissions are 77 percent below the limit set by the state. The company has set up a monitoring network to track these emissions, he wrote.
Another Ameren plant is entangled in litigation with the government. A federal judge ruled in 2017 that the company should have obtained permits under New Source Review for changes it made to its Rush Island generating station in Festus, Missouri, about 40 miles south of St. Louis. In his ruling, U.S. District Judge Rodney W. Sippel called the facility's two units – which, he said, emit about 18,000 tons of sulfur dioxide per year – "big sources of pollution." That's slightly more than half of what Labadie released in 2017. If Ameren used scrubbers at Rush Island, Sippel wrote, "SO2 emissions would be reduced to several hundred tons per year."
Ameren plans to appeal the decision, the company's spokesman wrote.
Jeffrey Holmstead, former EPA assistant administrator for Air and Radiation under George W. Bush, acknowledged that some companies strive to avoid the onus of New Source Review. But the program wasn’t meant for existing plants, he said. Other Clean Air Act programs are in place to control emissions of pollutants like sulfur dioxide from these facilities, Holmstead said. And scrubbers aren’t the only way to reduce SO2; a power plant, for example, could switch to coal with lower sulfur content.
“What we care about is protecting public health,” said Holmstead, a partner at Bracewell LLP. “And there are other ways to protect public health.”
The gap in pollution-control technology among coal plants extends beyond scrubbers and SO2. Many plants also don’t have advanced controls limiting emissions of nitrogen oxides (NOx), which can exacerbate asthma and increase vulnerability to other respiratory diseases. Thirty-five percent of the nation’s 657 active coal plants last year lacked these controls, according to EPA data.
‘We’ve created a monster’
Pruitt is making it easier for coal plants and other industrial facilities to avoid New Source Review altogether. Since he became EPA administrator, he has issued several “guidance documents” addressing the topic. One, in December 2017, instructs state and federal regulators not to second-guess companies’ pollution estimates, which determine whether they must apply for permits. Another, in March of this year, offers a new interpretation of a formula that could result in lower pollution estimates – and fewer permits.
The guidance isn’t binding. But Pruitt signaled last month that the EPA plans to start a rulemaking that would revamp parts of New Source Review. In an October 2017 document the agency regurgitated industry arguments for such an overhaul – namely, that the program is burdensome and delays changes to facilities that would benefit the environment.
Complaints about New Source Review aren’t new. Under George W. Bush, the EPA tried to do some of the same things Pruitt is attempting – with some of the same staff. William Wehrum, a lawyer who heads the Office of Air and Radiation under Pruitt, helped lead these efforts under Bush.
Businesses have been largely supportive. Companies from BP America to Koch Industries requested some of these changes in written comments filed with the EPA last year. The National Environmental Development Association’s Clean Air Project, a coalition that includes Koch, cited New Source Review among “regulations that impose mammoth costs on U.S. manufacturers with little or no environmental benefit.” Ameren Services said the program’s “mechanisms are highly inefficient and the case-by-case application of obtuse and ill-written terms through guidance documents causes uncertainty, delay, and frustration for construction of new facilities or technology improvements at existing facilities.”
Richard Revesz, dean emeritus at New York University’s School of Law, said Pruitt has given industry an extraordinary gift. The 1977 loophole was meant to give businesses time to add expensive pollution controls or shut down, Revesz said, not to exempt them indefinitely. The Government Accountability Office said essentially the same thing in a 2012 report.
Congress “never intended for these [coal] plants to operate forever. This was supposed to be a temporary transition ending at the end of their useful life,” said Revesz, co-author of Struggling for Air: Power Plants and the “War on Coal.” Instead, “We’ve created a monster.”
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