You asked whether the 1998 Environmental Protection Agency's (EPA) power plant emissions regulations, discussed in a January 16, 2002 Greenwich Time editorial, have gone into effect. You also asked how these regulations affect Connecticut's older fossil fuel power plants, sometimes referred to as the "sooty six. "

SUMMARY

The EPA regulations require large stationary sources of pollution in Connecticut and other Eastern states to reduce their emissions of nitrogen oxides (NOx). Several Midwestern states and industry groups challenged the regulations, but the federal courts have upheld them.

The regulations are in effect and apply to Connecticut's older fossil fuel plants. However, Connecticut had already committed to meeting the NOx standards contained in the regulations under an agreement with other northeastern states. They were also incorporated in Department of Environmental Protection (DEP) regulations. As a result, the EPA regulations, in themselves, have little effect on the plants.

While several parties have suggested that EPA relax the NOx standards and related regulations, these changes would not affect Connecticut's plants, which are subject to the DEP regulations that incorporate the current federal standards.

EPA REGULATIONS FOR OLDER POWER PLANTS

On September 24, 1998, EPA issued regulations requiring Connecticut, 21 other eastern states, and the District of Columbia to reduce NOx emissions from large stationary sources. NOx is one of the main components of smog and particulate matter. The regulations require these sources (primarily older fossil fuel power plants and large factories) to implement all reduction strategies that cost less than $ 2,000 per ton of NOx emissions eliminated. The sources can meet this standard by trading, which allows them to buy emission reductions credits from another source. New sources, such as the power plants that are being built in Connecticut and elsewhere, are subject to tighter emission standards under federal law.

Several Midwestern states and industry groups challenged the NOx regulations on a wide variety of grounds. In addition, Wisconsin and a firm in South Carolina argued that these states were improperly subject to the regulation. Georgia and Missouri argued that the EPA had erred in how it calculated emissions from their states.

COURT DECISIONS

On May 26, 1999, the U. S. Court of Appeals for the District of Columbia stayed implementation of the regulations pending further arguments on the merits of EPA's actions. Connecticut and other northeastern states intervened in this case, siding with EPA. On March 3, 2000, the court rejected most of the challenges to the regulations. However, it found that the record did not support subjecting Wisconsin to the regulations and that EPA erred in calculating emissions from Georgia and Missouri. It also found minor procedural errors and remanded these issues to EPA (Michigan v. Environmental Protection Agency, 213 F. 3d 663 (2000)). OLR memo 2000-R-0719 discusses the case in greater detail. The U. S. Supreme Court denied certiorari in March 2001.

STATUS OF THE REGULATIONS AND RELEVANCE TO CONNECTICUT

The EPA regulations are in effect and will require power plants and other affected sources to reduce their NOx emissions by 2004. While the regulations apply to Connecticut's older fossil fuel plants, the impact here is substantially less than in the Midwest. This is because the state had already committed to meeting its standards under an agreement with other northeastern states. Connecticut had entered into a memorandum of understanding with these states to reduce NOx emissions from large stationary sources to 0. 15 pounds per million British Thermal Units by 2003. The EPA regulation has effectively the same standard as the memorandum of understanding. Like the regulation, the memorandum of understanding allows emissions sources to meet this standard by trading.

The regulation is likely to have a much larger impact in the Midwest, where power plants currently emit up to 10 times as much NOx as the standard allows. Even before Connecticut entered into the memorandum of understanding, its emission standards for power plants were substantially tighter than those in the midwestern states.

As the editorial notes, several Midwestern officials and electric power producers have proposed that EPA relax the regulations, arguing that they impose an undue cost and jeopardize the nation's energy security. The industry has also argued that EPA should relax the regulations that apply when a power plant makes a major modification. Under the current regulations, a major modification of an older plant subjects it to substantially stricter emission limits.

Even if EPA relaxed these regulations, its action would not affect Connecticut's older power plants. This is because the current EPA standards have been incorporated in DEP regulations. The DEP regulations include the specific standards, rather than incorporating the EPA regulations by reference, and thus a change in the EPA regulations will not affect the DEP regulations. (Federal law does not preempt states from imposing more stringent emission standards than EPA. ) Under the DEP regulations, the plants will have to meet the NOx standards discussed above by May 2003.

KEM: eh