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New EPA Challenges for Coal-Fired Plants

SNL EnergyJune 10, 2010

PRESENTED BY

Peter GlaserTroutman Sanders LLP401 9th Street, NWSuite 1000Washington, DC 20004202.274.2950

www.troutmansanders.com

What’s Coming

• Hazardous Air Pollutants

• NAAQS: NO2, SO2, PM-2.5, Ozone• CAIR Replacement Rule• Coal Ash• Carbon

Hazardous Air Pollutants

• EPA to issue proposed MACT for utility HAP emissions by 3/11, finalize by 11/11. Highly aggressive schedule.

• Not just for mercury! Other air toxics, including acid gases, trace metals, organics, likely more important.

• Ongoing multi-hundred million dollar information collection effort…but will there be time for EPA to analyze the data?

• Very stringent standards and only 3 years for existing units to comply.

• Could have major impacts on existing fleet.

NO2

• Feb. 9, 2010 Revision• Adds new 1-hour standard of 100 ppb, at

upper end of range of 80-100 ppb in proposed rule

• Supplements existing annual standard of 53 ppb

• Additional monitoring both around sources and to measure area-wide concentrations

• Mostly a highway issue but could affect utility diesel generators

SO2 NAAQS

• Replaces daily and annual standard with hourly standard.

• Proposed at 50-100 ppb, with comment taken on 150 ppb.

• Final at 75 ppb.• Increased monitoring and modeling

around emitting sources, meaning coal-fired EGUs.

• Concern that even some scrubbed plants could cause exceedance.

Ozone NAAQS

• 2008 standard: 0.075 ppm based on 8-hour average, reduced from prior standard of 0.084 ppm

• While standard on appeal, new administration pulls it back for reconsideration based on existing record

• New proposal 1/19/2010: 0.060-0.070 ppm• Comments 3/10/10• Concern across many industries at large

numbers of new nonattainment areas

• For coal EGUs, concern is NOX

PM-2.5 NAAQS

• 2006 standards:

- 24-hour - 35 µg/m3, reduced from previous standard of 65 µg/m3.

- Annual: 15 µg/m3.• Overturned in court. • EPA considering on remand.• Proposal expected this year.

• Affects coal EGU NOX and SO2 emissions.

CAIR Replacement Rule

• CAIR covered NOx and SO2 transport in East. Overturned in court.

• New proposal expected any day.• Will not have same interstate trading

as previous rule; likely intrastate trading and perhaps some sub-regional trading.

• Stricter caps and timetables.

Coal Ash

• EPA 5/4/10 proposes two alternative means of regulation

• Neither addresses filling at mines - to be addressed separately

• Comment period ends 90 days after publication of the proposals in the Federal Register

• Likely a year or more before chosen regulation is implemented

Option 1

• Regulate coal ash as a “special waste” under “Subtitle C” of RCRA, the regulatory section addressing “hazardous” wastes

• Complex, comprehensive, and costly

• Would effectively signal the end for surface disposal of wet coal ash

• Allows “encapsulated” reuse, but this may be more theoretical than factual

Option 2

• Coal ash would be subject to existing RCRA standards similar to those for municipal and non-hazardous solid waste.

• EPA’s role largely advisory; states have enforcement authority.

• Less costly and onerous requirements.

• Likely lead to phase out of wet handling and disposal in favor of landfills.

Carbon

• Endangerment Finding Litigation

• Auto Rule

• Johnson Memorandum Reconsideration

• Tailoring Rule

• GHG BACT Guidance

• NSPS

Endangerment Finding Litigation

• Finding issued December 7, 2009• Court challenges from Texas,

Alabama, Virginia and numerous industry groups

• 17 states on each side• Don’t expect decision in litigation

until 2012

Auto GHG Rule

• Published in Fed. Reg. May 7, 2010

• DOT MPG - EPA gCO2/mi. standard

• According to EPA, makes six GHGs “regulated air pollutants” under the PSD and Title V programs

• Will subject most of industrial capacity in U.S. to GHG regulation under these programs, yet EPA refuses to do an economic study

• Lawsuits 60 days after publication in Fed. Reg. Some already filed.

Johnson Memo Reconsideration

• Reconsideration issued 3/2/10.

• GHGs will be deemed to be regulated beginning 1/2/11 when auto rule “takes effect.”

• Will apply to any PSD permit then in process.

• Phase in per tailoring rule.

• Numerous lawsuits filed, including by enviro organization that will continue argument that GHGs already regulated.

Tailoring Rule

• Published in Fed. Reg. 6/3/10.• Phase in of PSD and Title V:

- 1/2/11: Sources subject to PSD “anyway” will be required to do GHG BACT if increase emissions by 75,000 tons per year.- 7/1/11: New sources above 100,000 tpy and existing sources that increase emissions by 75,000 subject to PSD.- EPA will do future rulemaking and future study to determine whether lower emitting sources will be regulated and how, but commits that no source below 50,000 tpy will be regulated for six years.

• Statutory thresholds are 100/250 tpy, so questionable legal validity…but will anyone challenge?

EPA GHG BACT Guidance

• Technical guidance will begin rolling out later this summer.

• Policy guidance by end of yea.r

• Stakeholder input, but no commitment to formal notice and comment.

NSPS

• EPA has agreed to promulgate NSPS for coal EGUs that will include GHG standards

• Commence rulemaking probably next year

• Will apply to new and modified sources and could also apply eventually to existing-unmodified sources

Will Congress Preempt EPA GHG Regulation?

• Murkowski Resolution to Disapprove Endangerment Finding.

• Rockefeller bill to delay regulation for 2 years.

• Casey-Carper to …?

• Debate on Murkowski today!

20

Environmental Regulatory Timeline for Coal Units

Ozone

PM2.5

'08 '09 '10 '11 '12 '13 '14 '15 '16 '17

Beginning CAIR Phase I Seasonal NOx Cap

HAPs MACT proposed

rule

Beginning CAIR Phase II Seasonal NOx Cap

Revised Ozone NAAQS

Begin CAIR

Phase I Annual

SO2 Cap

-- adapted from Wegman (EPA 2003)

Beginning CAIR Phase II Annual

SO2 & NOx Caps

Next PM-2.5

NAAQS Revision

Next Ozone NAAQS Revision

SO2 Primary NAAQS

SO2/NO2 Secondary

NAAQS

NO2

Primary NAAQS

SO2/NO2

New PM-2.5 NAAQS Designations

CAMR & Delisting Rule vacated

Hg/HAPS

Final EPA Nonattainment Designations

PM-2.5SIPs due (‘06)

Proposed CAIR Replacement

Rule Expected

HAPS MACT final rule expected

CAIR Vacated

HAPS MACT Compliance 3 yrs

after final rule

CAIR Remanded

CAIR

Begin CAIR

Phase I Annual

NOx Cap

PM-2.5 SIPs due (‘97)

316(b) proposedrule expected

316(b) final ruleexpected

316(b) Compliance3-4 yrs after final rule

Effluent Guidelines

proposed ruleexpected

Water

Effluent GuidelinesFinal rule expected Effluent Guidelines

Compliance 3-5 yrs after final rule

Begin Compliance Requirements

under Final CCB Rule (ground water monitoring, double monitors, closure,

dry ash conversion)

Ash

Proposed Rule for CCBs Management

Final Rule for CCBs Mgmt

Final CAIR Replacement

Rule Expected

Compliance with CAIR

Replacement Rule

CO2

CO2 Regulation

Reconsidered Ozone NAAQS