The Clean Power Plan (CPP), EPA’s earlier rule to limit CO2 emissions from existing electric utility sources, had largely been based on shifting generation from coal-fired units to renewable and natural gas-fired generation. When EPA repealed the Clean Power Plan (CPP) and finalized the ACE Rule, the Agency indicated that it was compelled to consider just emission reductions that could be applied at facility level because this was “only permissible reading of the statute” and “unambiguously expressed intent of CAA section 111.” The court disagreed, stating that the “traditional tools of statutory interpretation reveal nothing in the text, structure, history, or purpose of Section 7411 that compels the reading the EPA adopted in the ACE Rule.” Instead, the court’s opinion suggested that that the Agency has broad discretion over what can be considered BSER including generation shifting and emission trading.
Quoting various cases as precedent, the court states that “because the ACE Rule rests squarely on the erroneous legal premise that the statutory text expressly foreclosed consideration of measures other than those that apply at and to the individual source, we conclude that the EPA fundamentally ‘has misconceived the law,’ such that its conclusion ‘may not stand.’ Accordingly, we hold that the ACE Rule must be vacated and remanded to the EPA so that the Agency may ‘consider the question afresh in light of the ambiguity we see.’ ” The judges conclude that “because promulgation of the ACE Rule and its embedded repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act, we vacate the ACE Rule and remand to the Agency. We also vacate the amendments to the implementing regulations that extend the compliance timeline.”
Judge Walker issued a partial decent discussing whether the scope of generation shifting rose to the level of a “major question” (an issue with such impact that it would preclude regular implicit notions of delegation) and argued that because the industry is regulated under Section 112 of the CAA (under MATS) it cannot also be regulated under Section 111. With respect to the issue of generation shifting he notes that “hardly any party in this case makes a serious and sustained argument that §111 includes a clear statement unambiguously authorizing the EPA to consider off-site solutions like generation shifting.” However, he ultimately suggested that such decisions are essentially above his purview and that “over time, the Supreme Court will further illuminate the nature of major questions and the limits of delegation.”
What does this decision mean moving forward? The decision appears to be a fatal blow to the ACE Rule. EPA indicated that it considered the CPP repeal, ACE Rule and the revisions to the implementing regulations as “separate and distinct rulemakings” (84 Federal Register 32540), but the court clearly does not have that same view. However, while the judges considered the repeal to be “embedded” and based on the same flawed legal premise, the court did not explicitly strike that repeal. The status of the CPP (i.e., whether it is or should be back in effect) is, thus, unclear. The court only remands the issue of how to regulate CO2 from existing electric utility sources back to the Agency. The new Administration may want to start with a clean slate and consider the degree to which any replacement may rely on the original CPP or incorporate the more refined approach to heat rate improvement in the ACE Rule.
A copy of the DC Circuit Court decision can found in our FTP library.
CAMD PublisEPA Finalizes Revisions to Part 63 MACT General Provisions in Federal Register (11/19/20)
More specifically, "herein as 'final MM2A rule' or final rule), the EPA is finalizing amendments to the General Provisions of the NESHAP regulations in 40 CFR part 63, Subpart A to implement the plain language reading of the ‘‘major source’’ and ‘‘area source’’ statutory definitions of Section 112 of the CAA and provide that a major source can be reclassified to area source status at any time upon reducing its emissions and PTE, as defined in 40 CFR 63.2, to below the MST of 10 tpy of any single HAP and 25 tpy of any combination of HAP. Prior to proposing these amendments, the EPA reviewed the statutory provisions that govern when a major source can reclassify to area source status, including after being subject to major source requirements under Section 112 of the CAA. After further review of CAA Section 112 provisions and public comments received on the MM2A proposal, the EPA is finalizing its conclusion that the statutory definitions of major source and area source contain no language fixing a source’s status at any particular point in time and contain no language suggesting a cutoff date after which the source’s status cannot change. Accordingly, the Agency is finalizing its reading that a major source may be reclassified as an area source at any time upon reducing its HAP emissions and PTE below the applicable CAA section 112 MST. Thus, major sources that reclassify to area source status at any time, including after the first substantive compliance date of an applicable major NESHAP, will no longer be subject to CAA Section 112 major source NESHAP requirements and will be subject to any applicable area source NESHAP requirements [instead]."
A copy of the final rule can found in our FTP library.
Agora Offering MATS Downtime/Deviation Reporting Webinar (11/18/20)
Agora Confirms Spring 2021 Virtual Training Course Dates (11/03/20)
EPA Proposes Revisions to CSAPR Rule in Federal Register (10/30/20)
CAMD Publishes "Q&A" Updates vs Updating the Part 75 Policy Manual (10/08/20)
EPA Publishes Latest Round of Test Method Revisions in Federal Register (10/07/20)
EPA Publis EPA Publishes Final MATS Electronic Reporting Rule Revisions in Federal Register (9/09/20)
EPA Publishes Proposed IB MACT Rule Revisions in Federal Register (8/24/20)
Agora's Fall CEMS Training Course Changed to Online Only (8/21/20)
Due to continuing safety concerns and hotel restrictions resulting from COVID 19, we have decided it is in the best interest of the attendees and our staff to completely hold the 2020 Fall session of our CEMS Training Program virtually via Zoom and YouTube.
Course dates are still September 22-24, 2020. The same 3-day agenda and training will be provided. The online version of our course will cover the same topics and agenda, and our staff will also monitor the comment features on Zoom and YouTube to provide you an opportunity to pose any questions that you may have for our presenters. The registration cost remains the same.
If you prefer instead to attend the course in person, we are hoping we can provide this option in either March or April 2021. Click here for more information.
RMB is Now Agora Environmental Consulting (7/24/20)
As we announced during the e-Conference in May, RMB Consulting and Research is now Agora Environmental Consulting. We have transitioned our invoicing, website, email, etc. to reflect the new name. As part of this transition, we also are relocating our office. While our phone numbers will remain the same, our new address is:
Agora Environmental Consulting
4000 Blue Ridge Road, Suite 160
Raleigh, North Carolina 27612
Click here for an announcement with addition details about our transition.
Administrator Signs Final MATS Electronic Reporting Rule (7/20/20)
On July 17, 2020, the EPA Administrator signed the final MATS electronic reporting rule. Although, once again, EPA did not meet its self imposed deadline, the final rule does now extend the current PDF reporting requirements through December 31, 2023. However, instead of following our recommendation to extend just the deadline and allow itself more time to review the comments received on the rest of the reporting rule, the Agency has finalized the whole rule. A copy of the pre-publication version of the rule can can be found in our FTP library.
EPA Sets Date to End COVID 19 Enforcement Discretion Policy (6/27/20)
EPA suggests that its decision to end the enforcement policy incorporates an “appropriate balancing of the relevant factors.” Given that “many parts of the country have already taken steps to relax social distancing restrictions… so too may the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply.” The Agency states that the termination date of August 31, 2020 reflects that “the circumstances surrounding the temporary policy are changing, but also ensures that there is adequate time to adjust to the changing circumstances.”
Notwithstanding the termination date in the memo, the Assistant Administrator indicates that the EPA could still choose to terminate the policy “on a state or national basis, in whole or in part, at any earlier time, taking into account changing conditions in a state or region of the country,” but that it would provide notice “at least seven days prior” to any such action. The Assistant administrator also states that the termination of the enforcement policy does not affect the ability of the EPA to exercise enforcement discretion on a case-by-case, whether COVID-19 related, before or after the temporary policy is terminated. A copy of the EPA COVID-19 enforcement policy termination memo can be found in our FTP library.
During the e-Conference, some of the participants asked for contact information for the presenters and panelist to be able to contact them for follow-up questions.
CEMS e-Conference "Day 1" YouTube Live Stream: Click here (5/28/20)
April 17, 2020, the EPA
Administrator signed an
interim final revisions to
Part 75 to allow sources
that are unable perform CEMS
QA activities or fuel
analysis due to COVID-19
related travel or safety
restrictions to continue
report valid measurement
data rather than having to
report substitute data after
the normal QA test
deadline. As an
interim final rule, the
provisions will go into
effect immediately upon
publication in the Federal
Register and will
potentially cover data
reported since the
declaration of the national
emergency on March 13, 2020
extending until 180 days
after promulgation or the
end of the national
emergency declaration (by
the president or congress)
plus an additional 60 days,
whichever comes first.
The temporary rule revisions
will apply to
appendix D fuel analyses,
and appendix E and LME NOx
emission rate tests.
To use the provisions, sources will need to notify the Agency within five days of failing to meet the required QA test deadline. Among other information, the notification must document the reason for failure to complete each QA test (or fuel analysis, appendix E or LME NOx emission rate test) is related to “travel, plant access, or other safety restrictions implemented to address the COVID-19 national emergency.” Any test must then be “completed as soon as practicable” upon the end of such restrictions, and the source must provide a subsequent notification to the Agency of completion within five days after performing the applicable tests. A copy of the final rule can found in our FTP library.
- On April 16, 2020, environmental groups (led by the Natural Resources Defense Council) filed suit against EPA regarding this policy. A copy of the complaint filed can be downloaded by clicking here.
On January 31, 2020, EPA signed a final rule titled, “National Emission Standards for Hazardous Air Pollutants: Stationary Combustion Turbines Residual Risk and Technology Review.” This rule finalizes EPA’s residual risk and technology review (RTR) conducted for the Stationary Combustion Turbines source category regulated under national emission standards for hazardous air pollutants (NESHAP). Note: the final rule has yet to be published in the Federal Register. Once posted, Agora will post a notice.
In addition, the final rule includes requirements to address periods of startup, shutdown, and malfunction (SSM) and adds electronic reporting requirements. EPA is finalizing its proposed determination that the risks from this source category due to emissions of air toxics are acceptable and that the existing NESHAP provides an ample margin of safety to protect public health. EPA is also finalizing its proposed determination that the Agency identified no new cost-effective controls under the technology review that would achieve further emissions reductions from the source category.
In a significant departure from the proposed RTR rule, EPA decided to not finalize the proposed removal of the administrative stay of the effectiveness of the standards for new combustion turbines. In the preamble to the final rule, EPA explains that the Agency needs additional time to review and respond to comments regarding the lifting of the stay. EPA believes the Agency is also justified in not lifting the stay in order to make a determination regarding the petition that was submitted in August 2019, which requests that EPA delist the Stationary Combustion Turbine source category pursuant to § 112(c)(9) of the Clean Air Act. A copy of the signed final rule can found in our FTP library.
EPA provided an update on the various rulemaking efforts affecting the electric utility industry at the recent AWMA Information Exchange held in Research Triangle Park, NC on December 3 and 4, 2019. While the Agency provided little additional detail regarding the pending rules, it did provide a summary of the publicly available drafts and discussed the tentative schedule for some of these rulemaking activities.
Combustion Turbine MACT RTR
by March 13, 2020 (possibly January 2020)
MATS e-Reporting Rule
“First Quarter 2020” a
MATS RTR and Supplemental Cost Finding Rule
GHG NSPS for New EGUs
RICE MACT RTR
End of 2020
Boiler MACT RTR
End of 2020
MATS Technical Corrections
First Quarter 2021
possibly June 2020 based
on EPA’s regulatory agenda
and discussion with other
package is currently at
OMB and action is expected
within the next few months
Finalization of the CT MACT RTR is perhaps one of the more significant of the pending rulemakings. EPA concluded that risks are acceptable under the existing rule and that no new cost-effective controls are available, thus the standards will remain unchanged. However, EPA’s proposed action would remove the current stay of the emissions standards for lean premix gas-fired turbines and diffusion flame gas-fired turbines, which has been in place since 2004. While there was initially a three-year compliance window associated with the rule, that time period has expired. Thus, any applicable turbine (installed or reconstructed at a major source after 1/14/2003) would be immediately be required to demonstrate compliance with the formaldehyde standard of 91 ppbd@15% O2. EPA stated that they are aware of the impact of removing the remand on existing CTs and that they "see a need" for some additional time to demonstrate compliance. It’s possible that the final rule will include a provision for extending the amount of time for compliance demonstration and possibly allow sources to file an extension if oxidation catalyst is required to meet the new limits.
The MATS Risk and Technology Review (RTR) and Supplemental Cost Finding Rule is another significant rulemaking package that is expected to be finalized soon. Based on a SCOTUS decision, EPA revised the cost analysis for MATS to reflect HAPS only and found the costs were significantly reduced such that the rule no longer met "appropriate and necessary" requirement in Section 112. Despite this revised conclusion, EPA is not proposing to repeal the MATS Rule, stating that the revised appropriate and necessary finding does not automatically delist EGUs from the Section 112(c) and EPA has elected not to formally pursue the delisting option available under Section 112(c)(9) although it did request comments on several issues related to that decision. Included in the rulemaking package was the MATS RTR, which concluded that no changes to the emission standards were necessary.
Some state agencies appear to be getting an early start on their ACE compliance plans, which must be completed by July 8, 2022. Agora has recently received a few inquiries from electric utilities in various states (e.g. Missouri, Nebraska, and Arizona) regarding data requests from their respective state agencies for conducting unit-specific heat rate improvement analyses for each state's ACE plan development. These requests focus on background information on the existing ACE candidate technologies and various operating data, including fuel usage, generation, CO2 emissions, and heat rate data, as well as future plans for the facility.
We believe that states will generally lack the information or expertise to develop meaningful ACE Rule emissions limits for each unit based on the specific. Ultimately, sources will be required to provide their own assessment of heat rate improvement resulting from implementation of one or more of the candidate technologies specified in the rule and to evaluate of the baseline CO2 emissions rates and the uncertainty associated with that data as well as important details regarding averaging times and how those averages will be calculated--all critical given the lack of guidance from EPA regarding any of these issues.
If you received an ACE Rule data request from your state agency please contact Agora, so we can track these activities and discuss any questions you may have about the rule.
In today's Federal Register, dated December 13, 2019 (Volume 84, No. 240 - 29 total pages), EPA has proposed yet another round of changes to various reference test methods and CEMS performance specifications. A copy of the proposed rule can found in our FTP library.
Earlier this summer, EPA posted a notice regarding a lack of providers for audit samples as part the audit sample program under 40 CFR Parts 60 and 63. As a reminder, use of audit samples are required if the audit samples are "commercially available" from two or more independent accredited audit sample providers (AASP). Since there are no longer two providers, the requirement to obtain these audit samples is no longer in effect until another independent AASP has audit samples for purchase. What does this mean in practice for many is EGU MATS affected sources? Those sources performing quarterly stack testing for HCl no longer need to acquire blind audit samples for quarterly performance tests (e.g sources using Reference Method 26A for HCl stack testing). Finally, EPA has stated that they will post an update with the name(s) of the providers and audit sample(s) available for purchase when there are two or more AASP. Once that post occurs, the audit sample program will go back into effect 60 days after the post has been mad.
In today's Federal Register, dated July 8, 2019 (Volume 84, No. 130 - 65 total pages), EPA has finalized the Affordable Clean Energy rule ("ACE Rule") and formally repealed the Clean Power Plan (CPP). A copy of the final rule can found in our FTP library.
On April 12, 2019, EPA published in the Federal Register a proposed rule titled, “National Emission Standards for Hazardous Air Pollutants: Stationary Combustion Turbines Residual Risk and Technology Review.” EPA initially issued its NESHAP rule for Stationary Combustion Turbines on March 5, 2004. The rule applies to stationary combustion turbines located at major sources of hazardous air pollutants (HAP). The NESHAP requires new or reconstructed stationary combustion turbines to meet a formaldehyde limit of 91 parts per billion by volume, dry basis at 15 percent oxygen. However, EPA stayed the effectiveness of the rule on August 18, 2004. A copy of the proposed rule can found in our FTP library.
Following a residual risk and technology review conducted pursuant to the Clean Air Act (CAA), EPA is proposing to determine that risks from the source category are acceptable and that no new cost-effective controls are available. In the proposed rule, EPA is also:
- Revising the requirements for periods of startup, shutdown and malfunction (SSM) to be consistent with recent court decisions;
electronic reporting of
performance test results
and compliance reports;
- Lifting the stay of the standards for new gas-fired stationary combustion turbines, which has been in effect since August 2004.
OIn today's Federal Register, dated February 7, 2019 (Volume 84, No. 26 - 35 total pages), EPA has proposed their reconsideration of supplemental finding and residual risk and technology review of the MATS rule. At this time it's unclear what the ultimate outcome of this new finding would mean for the industry. Comments are due by April 8, 2019. There will also be a public hearing concerning this proposed rule. The time and location of the public hearing will be announced in a subsequent Federal Register notice. A copy of the proposed rule can found in our FTP library.
Archived News and Web Pages
For more archived news click here: www.agoraenvironmental.com/news_index.htm
Archives and Other Useful Links
EPA Acid Rain Web Page. This site contains a wealth of information for utility personnel who deal with the Acid Rain Program