Federal judges throw out ‘gaping loophole’ in PA’s coal pollution plan

This article originally appeared on StateImpact Pennsylvania.

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A federal appeals court called Pennsylvania’s regulations for coal plant emissions too weak and ordered the state to revise them.

The decision was a victory for environmental groups, which sued the Department of Environmental Protection for writing the rules, and the federal EPA for accepting them.

The 2016 rules were put into place by the DEP to comply with federal mandates to curb ozone, or ground-level smog. The agency required coal-fired power plants to use pollution controls to lower their emissions of Nitrogen Oxides (NOx), which help form ozone when exposed to sunlight. But it gave plants the option of not using those controls when the plant’s emissions stream fell below 600 degrees fahrenheit, typically at times of reduced capacity.

The court held this temperature threshold was a “gaping loophole” in the ozone rule and threw the plan out. The loophole remains on the books until a new rule is written, in the next two years.

The judges said one coal plant, the Cheswick Generating Station near Pittsburgh, was using the emissions control loophole to turn off its pollution controls at certain times of day.

“(That) allows it to not have to comply with the the emission limits, which is really unhealthy for the surrounding community and in the region,” said Tom Schuster, Clean Energy Program Director for the Sierra Club, one of the plaintiffs.

“When you have a plant like Cheswick, which has historically been the largest NOx emitter in (Allegheny) County, having it not doing everything that it can to control its NOx pollution, puts the entire county at risk of breathing unhealthy air.”

Houston-based GenOn, the owner of the Cheswick plant, did not respond to requests for comment.

The three-judge panel included two who were nominated by Republican presidents, one by Ronald Reagan and one by Donald Trump, and one nominated by Democrat Bill Clinton.

“(T)he EPA is able neither to offer a reasonable justification for failing to require a stricter standard, nor to justify the standard it endorsed. That standard represents a mere acceptance of the status quo,” the judges wrote, in an opinion signed by Judge Theodore Alexander McKee.

Schuster called the decision a rebuke of the EPA under President Donald Trump, whose administration has sought the rollback of more than 100 environmental regulations.

“I think this is another indicator that the Environmental Protection Agency under Trump is essentially out to lunch, that they are failing to exercise their oversight authority,” he said.

The state completed the rule, called a “State Implementation Plan,” in 2016 under Gov. Tom Wolf. In 2018, the EPA accepted it.

But several states and environmental groups objected to Pennsylvania’s plan. For starters, they found the pollution limits for power plants — even when using their pollution control — too lax.

Maryland regulators noted that the proposed limits were “on average, nearly 60% higher than what they have achieved in the past,” the opinion said.

And then there were parts of the rule that allowed plants to simply not run their pollution controls by operating the plant at lower temperatures. Under the plan, the Cheswick power plant and others were allowed to “evade” the stringent limit by operating at lower temperatures, according to the opinion.

In its briefs, the EPA and the DEP argued the temperature threshold was necessary because pollution controls don’t work as well at lower temperatures. They also argued that running pollution controls at lower temperatures could cause damage to their equipment. But the judges found their arguments lacked evidence to back up their claims.

“The agency cannot reach whatever conclusion it likes and then defend it with vague allusions to its own expertise,” the judges wrote.

The agencies both said they were reviewing the decision. They will have two years to come up with a new plan to curb ozone emissions. In the meantime, the plants will be allowed to bypass pollution controls when running at lower temperature.

The ruling comes as DEP is updating its air pollution requirements. Schuster says whatever form they take, the agency will have to take the judges’ ruling into consideration.

“I think this ruling from the court is a strong signal to DEP that they can’t carry that loophole forward…and that they’re going to have to go back and revise it,” he said.