Section 111(d) of the Clean Air Act — Cooperative Federalism and Performance-Based Standards

dv067014One year ago this June, President Obama directed the Environmental Protection Agency (EPA) to develop Carbon Pollution Standards for existing power plants — a key component of his Climate Action Plan.

The President charged EPA with launching the effort "through direct engagement with States, as they will play a central role in establishing and implementing standards for existing power plants."

Congress laid the groundwork for this dynamic federal-state collaboration in 1970 when it provided for national environmental performance standards for sectors that are major sources of dangerous air pollution.

Under this program  (Section 111(d) of the Clean Air Act) EPA identifies the "best system of emission reduction" available to address dangerous air pollution from existing pollution sources through performance standards, adopted after public notice and comment, called "emission guidelines." 1

EPA quantifies the emission reductions that can be achieved using this "best system" — and that becomes the performance benchmark for state plans which implement and enforce standards of performance for the existing sources of pollution in each state. 2

Congress provided for state plans to be submitted to EPA to evaluate whether the plan provides for emission reductions that are equivalent to or greater than those under the "best system." 3 Congress made clear that states are not required to use the particular system identified by EPA — they have the flexibility to use other systems, tailored to their state, so long as they achieve an equivalent or greater level of pollution reduction.

Under the timeline set out by President Obama, EPA will propose guidelines for emissions from existing power plants at the beginning of June, and finalize them by June 2015.

Consistent with the long-standing implementation timetable under this Clean Air Act program, states will submit their plans to implement and enforce standards by the end of June 2016.

Section 111(d) standards have long been effective in addressing dangerous air pollution from a variety of source categories and can be designed to provide a flexible and cost-effective framework for reducing carbon pollution from power plants.

For decades, section 111(d) has provided the foundation for pollution cuts from major sources of air pollution. Toward the end of the 1970s, EPA and the states put section 111(d) to work, publishing and implementing emission guidelines for fluorides from phosphate fertilizer plants (1977),4 sulfuric acid mist from sulfuric acid plants (1977),5 sulfur from kraft pulp mills (1979),6 and fluoride from primary aluminum plants (1980).7

These emissions guidelines and the state-devised standards implementing them would achieve dramatic reductions of harmful air pollutants, eliminating 75 percent of overall nationwide fluoride emissions from phosphate fertilizer plants,8 almost 80 percent of sulfuric acid emissions from an uncontrolled sulfuric acid plant,9 82 percent of overall nationwide total reduced sulfur from kraft pulp mills,10 and up to 78 percent of fluoride emissions from the primary aluminum industry.11

The pollution from fossil fueled power plants, one of the single largest sources of dangerous air pollution in our nation, has been subject of clean air standards under section 111 since the advent of the modern Clean Air Act in 1970.12 National standards of performance under section 111 have applied to newly constructed power plants and existing plants that are revamped and reconstructed.

The flexibility that the Clean Air Act provides in establishing and implementing standards of performance for existing sources under section 111(d) is well suited for the regulation of carbon pollution from fossil fuel power plants.

Congress created a framework under section 111(d) to address pollution from existing power plants that can be flexible and expansive in scope where such a framework could be more effective in addressing emissions.

The statutory language — "best system of emission reduction" — is broad, and not defined in the statute. The ordinary meaning of the word is expansive — "a complex unity formed of many often diverse parts subject to a common plan or serving a common purpose."13 Throughout the Clean Air Act, Congress has used the word "system" to describe innovative, flexible regulatory approaches such as the acid rain emissions cap and allowance trading program, and marketable permits.14

Indeed, the legislative history of the section over the years is consonant with this broad reading of the term "system," especially for section 111(d).

When Congress amended the Clean Air Act in 1977, it altered the definition of "standard of performance" as applied to new sources in order to require new sources to deploy the "best technological system" of emission reduction. But, pointedly, it left the corresponding definition for existing sources intact15 and even explicitly confirmed that "systems" of emission reduction for existing sources were "not necessarily technological."16

In 1990, Congress abandoned this special limitation for new sources and reverted to the broad, unified definition of section 111 "standards of performance" for both new and existing sources.17

Thus, EPA can deploy a systemic approach to reducing carbon pollution from power plants, looking beyond each individual source in isolation to find the "best," most cost-effective system for reducing pollution.

It has done so several times before. In the 1995 emission guidelines for municipal waste combustors, EPA authorized states to create averaging and trading programs in reducing emissions of nitrogen oxides.18

In the context of greenhouse gas emissions, which do not have local effects, an averaging approach allows cost-effective emission reduction opportunities to be captured while rigorous overall emission reduction targets are achieved.

Not only may EPA allow averaging of emissions among existing sources as part of the "best system of emission reduction," but it can also consider pollution-reduction measures that are implemented beyond the source and secure reductions in emissions at the source.

For example, in the 1997 emission guidelines for hospital/medical/infectious waste incinerators, EPA required state plans to include waste management plans, where feasible, to eliminate part of the waste stream going to the incinerator that would produce harmful emissions.19 In that context, part of the "best system of emission reduction" involved measures taken well outside of the source’s boundaries that could reduce harmful emissions from the sources.

EPA could take a similar approach to address carbon pollution from existing power plants — as deploying demand side energy efficiency and renewable energy can be some of the most effective means of reducing harmful emissions from existing plants while capturing the greatest co-benefits in cutting utility bills, creating jobs, making state economies less dependent on price fluctuations in fossil fuels, and stimulating local economies.

States have extensive experience in implementing emission guidelines and other system-wide approaches under the Clean Air Act, and are well positioned for developing and implementing plans to address carbon pollution from existing power plants under Section 111(d).

The next two parts of this series will look at the impressive achievements of states and power companies across the country in in cutting carbon pollution through flexible, cost-effective, demonstrated policies that are reducing utilization of high-emitting plants, expanding renewable energy capacity, and improving the efficiency with which we use energy.

Through the dynamic state-federal collaboration provided by section 111(d), the Carbon Pollution Standards for existing power plants will build on this foundation and help us make further progress along the path toward a cleaner, safer energy future.

  1. 40 C.F.R. § 60.22(b)
  2. Id. § 60.24.
  3. Id.; 42 U.S.C. § 7411(a); id. § 7411(d)(2).
  4. Phosphate Fertilizer Plants, Final Guideline Document Availability, 42 Fed. Reg. 12,022 (Mar. 1, 1977).
  5. Emission Guideline for Sulfuric Acid Mist, 42 Fed. Reg. 55,796 (Oct. 18, 1977).
  6. Kraft Pulp Mills; Final Guideline Document; Availability, 44 Fed. Reg. 29,828 (May 22, 1979).
  7. Primary Aluminum Plants; Availability of Final Guideline Document, 45 Fed. Reg. 26,294 (Apr. 17, 1980).
  8. Final Guideline Document: Control of Fluoride Emissions from Existing Phosphate Fertilizer Plants, Doc. No. EPA-450/2-77-005, at 1-7 (Mar. 1977).
  9. Final Guideline Document: Control of Sulfuric Acid Mist Emissions from Existing Sulfuric Acid Production Units, Doc. No. EPA-450/2-77-019, at 8-2 (Sept. 1977).
  10. Kraft Pulping, "Control of TRS Emissions from Existing Mills," Doc. No. EPA-450/2-78-003b, at 1-6 (Mar. 1979).
  11. Primary Aluminum: Guidelines for Control of Fluoride Emissions from Existing Primary Aluminum Plants, Doc. No. EPA-450/2-78-049b, at 125 tbl. 1-7 (Dec. 1979).
  12. Standards of Performance for New Stationary Sources, 36 Fed. Reg. 24,876 (Dec. 23, 1971).
  13. Webster’s Third New International Dictionary 2322 (1967).
  14. 42 U.S.C. § 7511a(g)(4)(A); id. § 7651b; id. § 7651c.
  15. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 109(c)(1)(A), 91 Stat. 685, 699-700.
  16. H.R. Rep. No. 95-564, at 129 (1977) (Conf. Rep.).
  17. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 403(a), 104 Stat. 2399, 2631.
  18. 40 C.F.R § 60.33b(d)(2).
  19. Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Hospital/Medical/Infectious Waste Incinerators, 62 Fed. Reg. 48,348, 48,359 (Sept. 15, 1997) (codified at 40 C.F.R. §§ 60.35e, 60.55c).

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