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Environmental Integrity Project

A parting gift of pollution

Gee, thanks.

Texas may soon get authority over the disposal of ash from coal-fired power plants, a change that could insulate coal companies from tougher rules expected under a Biden administration.

A proposal introduced by the U.S. Environmental Protection Agency this month would allow Texas to regulate coal ash instead of the federal agency. The move comes just after the EPA this year weakened the Obama-era rule on coal ash pollution amid other rollbacks and rule-making maneuvers cementing the Trump administration’s environmental agenda.

Coal ash is a byproduct of burning coal for power generation. The ash is typically dumped into detention ponds or pits and can leach toxic chemicals, such as arsenic, lead and mercury, into groundwater. All of the coal power plants in Texas have coal ash disposal sites that are leaking contaminants, according to data analyzed by the Environmental Integrity project in 2019.

President-elect Joe Biden’s reported pick to head the EPA, Michael Regan, currently leads North Carolina’s environmental agency and has a record of cracking down on coal ash pollution: In North Carolina, he fought to obtain a huge settlement over an 80 million ton coal ash cleanup by Duke Energy — the largest coal ash contamination cleanup in U.S. history.

But if Texas gets authority to implement the coal ash rules before Biden’s new EPA chief has a chance to strengthen the standards, the program could act as a temporary shield for the industry because the state would need to work through a lengthy process to modify already-issued registrations to coal companies.

“It’s always better for industry if the state has control instead of EPA,” said Abel Russ, a senior attorney for the Environmental Integrity Project who helped draft the organization’s comments on Texas’ coal ash program. “States are typically more favorably inclined to what industry wants. That’s true not just in Texas, but across the country.”

Oklahoma and Georgia are the only two states that currently have approval to operate the EPA’s coal ash program. Texas’ program won’t be effective until at least February, when the public comment period ends.

The Texas Mining and Reclamation Association, an industry group that represents coal and other mining industries in the state, supports the proposal, arguing that state-level environmental regulation is more effective.

“This system is designed to give decision-making authority to a level of government that is closer to the people and recognizes that states are in a better position to address specific problems as they arise,” said Michael Nasi, an Austin lawyer, on behalf of the industry group.

[…]

The EPA must review state programs within three years after any change in federal regulations, and the agency has the authority to withdraw approval if the state program is not as protective as federal requirements. The EPA will retain its authority to inspect coal ash facilities. That’s why Nasi, the Texas Mining and Reclamation Association lawyer, said the industry group’s stance is that coal ash standards in Texas will be as protective as federal rules.

The EPA proposed the Texas program for partial approval this month. Because sections of the federal program were being challenged in court by both industry and environmental groups — including a rule allowing unlined coal ash pits to operate, a proposal overruled in court — Texas did not apply to assume all of the EPA’s oversight authority. That means facilities in Texas would have to comply with some federal and some state requirements if the state’s application is approved.

It’s not clear to me what the full implications of this are, if Texas manages to get approval before any further rule changes are made, and it’s not clear to me if any changes can be made before that approval is given. The Congressional Review Act may come into play here as well. My preference would be for Texas to be under much tougher standards, even though as we know from the Obama experience that’s basically a full employment program for lawyers. On the plus side, coal is on the decline in Texas, so whatever kind of fight this turns into will be over a smaller piece of the action. It would still be nice if Texas is subject to the same kind of standards that the rest of the country is.

Everybody sues the EPA

The state of Texas and our pollution-loving Attorney General do it because they think the EPA does too much to protect us from harm. Some other groups do it because they think the EPA isn’t doing enough.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

In the suit filed on Thursday, Air Alliance Houston and three other groups accuse the U.S. Environmental Protection Agency of using outdated and inaccurate formulas to estimate levels of air pollution.

The groups say studies show that actual smog-forming emissions can be 132 times greater than EPA estimates, which are based on data provided by the industry. The agency, as a result, does not possess reliable data to protect public health, according to the suit filed in U.S. District Court for the District of Columbia.

“The EPA has a history of dragging its feet on this issue,” said Jennifer Duggan, an attorney for the Environmental Integrity Project, a legal group representing Air Alliance Houston and the other organizations in the case. “It has been aware of these inaccuracies for some time.”

[…]

The lawsuit comes five years after the city of Houston raised similar issues with the federal agency, which uses the emissions data to develop pollution controls, establish limits and guide enforcement.

In response, the agency acknowledged flaws in its formulas and promised to make changes.

See here for the background; this was a part of then-Mayor Bill White’s plan to reduce benzene emissions in Houston. You can see a copy of the lawsuit and the notice of intent to file suit that was sent by the plaintiffs to the EPA in 2012 here. I think we can safely assume that Greg Abbott will not be filing an amicus brief for the plaintiffs on this one.

We’ve got mercury, yes we do

Once again, Texas overachieves at something bad.

Martin Lake coal plant

Even though mercury and other hazardous air pollution from U.S. power plants are declining, the progress at the coal-fired power plants are uneven, leaving in place a significant remaining risk to the health of the public and environment, according to a new report by the Environmental Integrity Project (EIP).

Coal-burning power plants release millions of pounds of toxic pollutants into the air every year, including mercury and carcinogens like arsenic and chromium. US EPA’s Toxics Release Inventory (TRI) can be used to identify the largest sources of these dangerous pollutants based on annual reports the electric power industry submits to the Agency under federal Right to Know laws. Mercury is a potent neurotoxin, especially harmful to developing fetuses and young children.

Available online at http://environmentalintegrity.org/news_reports/01_03_2013.php, the new EIP report uses TRI data for 2011 (the most recent full year available) to identify the 10 largest sources of power plant mercury emissions – five of these are in Texas, of which four are owned by Luminant Generation.

[…]

EIP Attorney Ilan Levin said: “Nationwide, equipment has been installed over the years to reduce emissions of sulfur dioxide and particulate matter. That has helped cut down on the release of mercury, toxic metals and acid gases from power plants over the last ten years. However, that progress is uneven, and the dirtiest plants continue to churn out thousands of pounds of toxins that can be hazardous to human health even in small concentrations. For example, emissions of mercury from coal-fired power plants have actually increased in the last decade in the state of Texas.

Levin added, “Emissions from local power plants deposit mercury and other toxic metals in nearby rivers and streams, where these pollutants concentrate in aquatic organisms at levels that can make fish unsafe to eat. The fact that so few plants are responsible for so much of the mercury pollution makes the solution less complicated; the dirtiest sources need to clean up their act.”

You would think, given his deep and abiding love for fetuses, that Rick Perry would be all over this. You would, of course, be wrong. The full report is here; note that not only does Texas have five of the top ten, we have four of the top five. And as the report notes, the news just keeps getting better.

Fortunately, mercury emissions from coal-fired electric power plants have declined over the past decade, from 88,650 pounds in 2001 to 53,140 pounds in 2011. States like Maryland have cut mercury emissions from coal plants at least 80 percent through tough new state standards, while reductions in other states are a byproduct of pollution controls installed to meet other federal standards. For example, scrubbers that reduce sulfur dioxide to comply with acid rain or fine particle standards will also remove mercury. These reductions have not been evenly distributed; for example, mercury emissions from Texas power plants have actually increased since 2001. That matters, because rivers and lakes closest to power plants are the most likely to be the hardest hit by power plant mercury pollution.

The EPA’s long-delayed Mercury and Air Toxics (“MATS”) rule, which gives power plants until February of 2015 to comply, would level the playing field by requiring the industry’s laggards to catch up with companies that have already cleaned up their plants. EPA estimates that the rule will cut annual power plant mercury emissions to just over 13,000 pounds by 2016, about 75 percent below current levels. But the rule is being fiercely challenged by Luminant and other companies seeking to avoid the cost of the pollution controls needed to meet the new standard.

Yes, they are fighting it fiercely. See here, here, and here for some background. After that story about the connection between lead contamination and crime rates, we should all be very, very afraid of anything that dumps large quantities of heavy metals into our air, water, and soil. There is one bit of genuine good news in all of this, and that is that the proposed White Stallion coal plant has been cancelled, and with the boom of natural gas there’s no new coal-burning plants on the horizon. That won’t do anything to help mitigate the effects of the plants we have now, but at least it won’t get any worse.