EPA Relaxes Rule on Air Monitoring Tests Due to Coronavirus

The EPA has given third-party contractors and power plant operators a temporary respite from verifying the accuracy of air emissions monitoring data due to pandemic-related safety and travel restrictions.

“This action is necessary during the COVID-19 national emergency to protect onsite power plant operators and other essential personnel from unnecessary risk of exposure to the coronavirus,” the Environmental Protection Agency said about the rule.

Under the final rule (RIN:2060-AU85), the EPA said power plant operators or their contractors can continue to report emissions data measured by air quality monitors, even though they can’t conduct the required quality tests of that data due to travel, plant access or other safety restrictions owing to the pandemic.

The EPA, however, said that sources that take advantage of this rule “must maintain documentation, notify EPA when a test is delayed and later completed, and certify to EPA that they meet the criteria.”

EPA Administrator Andrew Wheeler signed the rule April 17, and it awaits publication.

The agency said the temporary reprieve for power plants will last, depending on which option comes first: when power plants can “practicably” conduct the tests; the end of the national emergency plus a 60-day grace period; or 180 days after the rule is published.

The agency said the rule doesn’t suspend emissions monitoring or reporting requirements or alter emissions standards under any program, and expects to see no change in emissions levels.

Electric utilities needed this temporary regulatory reprieve to avoid higher compliance costs of meeting air pollution limits for nitrogen oxides and sulfur dioxides, according to the EPA.

The Clean Air Act requires companies to test air samples from smokestacks every quarter to verify that the air pollution measured by continuous emissions monitors and reported on an hourly basis matches what the quarterly tests show.

EPA’s air rules require power plants to use substitute emissions data, which is a calculated and conservative overestimate of actual emissions, if they don’t comply with the quality assurance testing requirements, according to Jonathan Martel, a partner at Arnold & Porter Kaye Scholer LLP who specializes in Clean Air Act enforcement.

In its rule, EPA is allowing electric utilities to temporarily suspend the use of those substitute emissions data to avoid the higher costs associated with purchasing nitrogen and sulfur dioxide allowances to cover their emissions.

“Enforcement discretion isn’t sufficient to address this issue, because it is not enough simply to excuse noncompliant failure to perform the quality assurance checks on time,” Martel told Bloomberg Law.

“Rather,” Martel said, “that noncompliance automatically under the rules triggers the data substitution requirements, and EPA cannot through enforcement discretion change the rules regarding what data sources must use to calculate their emissions.”

Stan Meiburg, former EPA associate administrator under the Obama administration, said the EPA proceeded the way it did because of the way the rules are written.

“I think that in this case, the agency felt that, given the way the rule is set up and the number of potentially affected facilities, rather than handling these types of waivers on a case by case basis, they would do it as an emergency rule,” Meiburg said.

Meiburg said he was glad to see that the rule wouldn’t affect the actual monitoring and that it isn’t open ended like the EPA’s enforcement waiver memo that was released March 26.

The EPA said it will accept comments on the rule for 30 days following publication.