The Trump administration's shift away from enforcing air quality standards for major stationary sources will allow coal plants and other facilities to emit more harmful pollution, a former Environmental Protection Agency enforcement official told Congress Tuesday.
This month, the EPA decided it will no longer prioritize enforcing its New Source Review rules on coal plants, factories and refineries, saying those sources had significantly reduced pollution. That could allow plants to make upgrades without emissions oversight, said Bruce Buckheit, former director of the Air Enforcement Division at EPA.
Current EPA enforcement chief Susan Bodine said the agency is "looking at other areas" to prioritize enforcement, like mobile sources. The agency on Tuesday also announced it would keep standards for sulfur dioxide, a major coal plant pollutant, at levels set by the Obama administration, rather than strengthening them as public health advocates wanted.
Testimony at the House Energy and Commerce Committee on Tuesday highlighted fears among clean air advocates and some former EPA employees that the agency is giving polluters — including coal plants — a pass on emissions.
During the hearing, Democrats pressed Bodine, the assistant administrator for Enforcement and Compliance Assistance, about recently released numbers showing that enforcement actions have fallen to their lowest level in decades.
"A strong enforcement program does not mean that we have to collect a particular dollar amount of penalties or take a particular number of formal actions," Bodine responded, saying that some enforcement actions taken by states after EPA pressure are not included in the numbers.
On New Source Review, Bodine reiterated EPA's justification for de-prioritizing enforcement, saying other sectors could yield more meaningful emissions reductions.
"Sulfur dioxide is down 90% in the power sector. Nitrogen oxide is down 85% in the power sector since 1997," she said. "When we look at where we should be focusing and where we have the opportunity to help communities … we're looking at other areas. We're doing a lot of work on mobile sources now."
Critics like Buckheit, however, say that coal plants and other generators continue to upgrade their facilities, potentially increasing their pollution. Under NSR, facilities must go through a permitting process if they make meaningful expansions to their plants that could boost emissions.
"We know they're doing lots of projects," he told reporters after the hearing. "We also know there are no permits for those projects."
While Bodine touted emissions reductions from coal plants, EPA's own Air Enforcement webpage notes that "investigations of this sector have identified a high rate of noncompliance with [New Source Review] when old plants are renovated or upgraded."
Buckheit said that reflected his experience working for EPA during the Clinton administration, when his team identified a 70% noncompliance rate among U.S. coal plants, according to his prepared testimony.
"U.S. coal-fired power plants are very old," he said, "and to extend their useful life out requires big capital projects that when we were doing this in the old days we found triggered the NSR rules, so we found they had to put on controls."
Buckheit said he is concerned the decision to de-prioritize NSR will mean that EPA staffers are directed to abandon NSR enforcement altogether, as he said happened during the second Bush administration. He resigned soon after, in 2004.
"That's what happened then," he said. "I was directed to go out and tell the regions to stop investigations — put your stuff in boxes and do other things."
EPA responded on Twitter during the hearing, saying it will still correct "noncompliance at power plants as it occurs."
ACE rule pushes NSR changes
The pullback of NSR enforcement is part of a broad effort at EPA to lift regulatory restrictions on coal plants, Buckheit said, including its proposed Affordable Clean Energy rule, a modest carbon regulatory package that includes major changes to NSR.
"What the administration is doing with their ACE proposal, most of that is to dial back the applicability of these rules to coal-fired power plants in particular," he said.
Under the ACE proposal, coal plants could escape NSR review if they show their hourly — rather than yearly — emissions are not increasing, potentially allowing them to pollute more by running longer.
Current EPA air chief Bill Wehrum tried to make similar changes to the NSR rules during the George W. Bush administration, but was stymied by the courts.
"He got a couple of his things through last time and most of the big ones got shot down," Buckheit said. "If they actually try to do what they're proposing, I'm quite confident they will lose."
The ACE rule is currently only a proposed rule, but Buckheit said EPA will likely have to finalize it this summer if it wants a chance to defend the rule in court before the 2020 elections. President Obama's Clean Power Plan, by contrast, was held up in legal battles until the beginning of the Trump administration, which subsequently abandoned them.
"Wehrum and company know this and they don't want it to happen to them," Buckheit said. "That means they have to get this stuff done this summer."