Air Pollution: EPA Needs Better Information on New Source Review Permits
Released: 2012-07-23T00:00:00

Letter

Background

Subject to EPA’s oversight, state and local permitting agencies generally administer NSR and operate under one of two arrangements. Under the first arrangement, state and local agencies receive “delegated authority” from EPA under which they implement EPA’s NSR regulations. Under the second arrangement, states and localities are also responsible for administering NSR, but instead of implementing EPA’s NSR regulations, state and local agencies develop plans, known as state implementation plans, that regulate the construction and modification of stationary sources. These plans provide assurances that the states and localities will have adequate personnel, funding, and authority under state law to carry out the plan, among other provisions. State implementation plans also must include NSR regulations that are at least as stringent as EPA’s NSR regulations, although states and local agencies are authorized to include more stringent or additional requirements. States and localities must submit these plans, as well as any revisions to them, to EPA for approval. Once EPA approves the plans, they become federally enforceable requirements.

Although this report focuses on NSR, the Clean Air Act and its implementing regulations subject electricity generating units to additional emissions control requirements. For example, the Acid Rain Program, created by the Clean Air Act Amendments of 1990, established a cap on the amount of sulfur dioxide that may be emitted by electricity generating units nationwide and authorizes those generating units to trade emissions allowances for sulfur dioxide. These facilities must also continuously monitor their emissions and report them to EPA. Furthermore, EPA has recently finalized or proposed several other regulations that will affect many fossil fuel generating units. These regulations include the (1) Mandatory Reporting of Greenhouse Gas rule finalized in 2009, which established reporting requirements for greenhouse gas emissions above certain thresholds; (2) Cross-State Air Pollution Rule, finalized in 2011, which limits sulfur dioxide and nitrogen oxides emissions from a number of states that contribute significantly to nonattainment or interference with maintenance of certain national ambient air quality standards in downwind states; (3) National Emissions Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units, also known as the Mercury and Air Toxics Standards, which establish emissions limitations on mercury and other pollutants and was finalized on February 15, 2012; and (4) Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources for Electric Utility Generating Units, proposed in April 2012, which establishes new source performance standards for emissions of carbon dioxide for certain new fossil fuel electricity generating units.

EPA Does Not Maintain Complete Information on Issued NSR Permits or Track the Impact of Its Comments

EPA does not maintain complete information on NSR permits issued to fossil fuel electricity generating units. State and local permitting agencies track the NSR permits they issue, but EPA does not maintain data on these permits in a complete and centralized source of information, which limits the agency’s ability to assess the impact of NSR. In addition, EPA has the opportunity to review and comment on every draft NSR permit issued by state and local permitting agencies, but the agency does not compile data on which permitting authorities address EPA’s comments. The absence of this information makes it difficult for EPA to measure the impact of its comments and may impede its ability to assess how state and local permitting agencies may differ from EPA in their interpretation of NSR requirements.

EPA Does Not Maintain Complete Data on NSR Permits

EPA does not maintain complete information on NSR permits issued for construction of new fossil fuel electricity generating units or for major modifications to existing units. State and local permitting agencies, which issue NSR permits in most parts of the country, track the NSR permits they issue. (Figure 1 describes the roles of state and local permitting agencies and EPA in issuing NSR permits.) State and local agencies vary widely in the types of data they collect on NSR permits and the systems they use to compile the data. Some states maintain detailed information on NSR permits in electronic form available on publicly accessible websites. For instance, in seven of the nine states where we conducted interviews, state officials maintain information online that can be used to identify the electricity generating units that have received NSR permits, as well as the requirements of the permits.maintained in different formats across these states and cannot be readily compiled into a complete source of information on NSR permitting for the electricity generating sector.

Regulators Face Challenges in Ensuring Compliance with NSR Permitting Requirements

In addition to a lack of comprehensive permitting data, EPA and state and local agencies face other challenges in ensuring that owners of fossil fuel electricity generating units comply with requirements to obtain NSR permits. Many of the challenges stem from two overarching issues: (1) determining whether an NSR permit is required and (2) identifying instances where unit owners should have obtained NSR permits but did not. As a result, EPA’s enforcement efforts involve long, resource- intensive investigations.

Determining When NSR Applies Can Be Difficult

A major challenge to EPA, states, and local agencies in ensuring NSR compliance is that it can be difficult for unit owners and regulators to know whether an NSR permit is needed, because NSR’s rules governing applicability are complex and because NSR applicability is determined on a case-by-case basis. EPA and state officials we spoke with said that NSR as it applies to new units is fairly straightforward, because newly constructed units generally must obtain NSR permits before starting operation. In contrast, determining what constitutes a major modification of an existing unit, and, thus, what requires an NSR permit, is more complex. Under NSR regulations, owners are to apply for an NSR permit before making any physical or operational change that would result in a significant net increase of emissions. These changes, such as adding new equipment, must be evaluated in the specific context of the unit and its intended use. State officials and industry representatives we interviewed said it can be difficult to determine whether these activities trigger NSR because the two steps for determining applicability—first, whether the unit is making a physical or operational change and, second, whether this change would result in a significant net increase of emissions—are not categorically defined and have changed over time.

The first step for determining NSR applicability can be complicated because the definition of “physical or operational change” excludes activities that are considered routine maintenance, repair, and replacement. NSR regulations, first finalized in 1978, contained no description or definition of the “routine maintenance” exclusion, instead relying on a case-by-case approach that involves weighing several factors, including the nature, extent, purpose, frequency, and cost of proposed activities. Federal courts, however, have issued inconsistent decisions on whether the factors should be analyzed with respect to industry practice or a particular unit’s history. In 2003, in part because of concerns about the case-by-case approach, EPA finalized a rule that categorically excluded certain activities from NSR by defining them as “routine maintenance, repair, and replacement” to provide more certainty to generating units and permitting agencies. Specifically, the rule categorically deemed certain replacement activities to be routine maintenance, repair, and replacement if certain conditions were met, such as replacement activities’ costs not exceeding a specified threshold. In 2006, however, a federal appeals court struck down this rule because it was contrary to the plain language of the Clean Air Act.

As a result, a case-by-case approach is still used to determine which activities qualify for the exclusion. Several state officials and industry representatives we interviewed said that the case-by-case approach makes it difficult to know when NSR applies. A number of industry representatives also said that uncertainty around NSR applicability can deter owners from making improvements to units that would improve efficiency. One senior EPA enforcement official we interviewed, however, noted that NSR regulations are written broadly to cover many disparate industries and said it would not be possible for EPA to develop detailed regulations tailored to each industry. One state official we spoke with also said that attempts to more precisely specify what activities are considered routine maintenance might not be worthwhile, since EPA’s previous efforts to do so were struck down in court.

The second step in determining NSR applicability—assessing whether a change results in a significant net increase in emissions—presents additional complications. Like the routine maintenance exclusion, regulations governing what constitutes an increase in emissions have been subject to litigation, leading to changes in the process used to measure emissions increases over time. For example, in 1992, in response to a court decision, EPA finalized a regulation changing how future emissions from generating units are to be calculated. Rather than calculating future emissions based on a unit’s potential to emit, under the revised regulation, future emissions are calculated based, in part, on the maximum emissions that can be generated while operating the unit as it is intended to be operated and as it is normally operated. Some state officials and industry representatives we interviewed said that calculating emissions increases can be challenging because the regulations are complex, and EPA’s interpretation has changed over time. NSR’s complexity can be particularly difficult for owners of smaller generating units who may lack the legal and technical expertise to properly comply with NSR, according to an EPA official and industry representative we interviewed. EPA officials acknowledged that the process is not always simple, but they also noted that it is much easier for companies to make these calculations than for permitting agencies to verify them, since permitting agencies are less familiar with—and have less access to— information about a generating unit, its activities, and its data systems, than the companies.

According to several state officials and industry representatives we interviewed, assessing whether a change results in a significant net increase in emissions can also be complicated because EPA regulations authorize certain emissions increases to be excluded from this assessment—specifically, those emissions increases that are attributable to growth in demand. Several state officials we interviewed said that some owners have had difficulty distinguishing between emissions increases due to projected growth in demand and emissions increases resulting from the change to the unit, a process made more difficult because EPA has not offered clarification or guidance regarding this exclusion. One senior EPA enforcement official disagreed with this assessment, noting that utilities commonly employ models that help project demand as a way to guide their operations and investment decisions. According to this official, EPA’s approach is based on methods already widely employed throughout the electricity sector.

EPA and state agency officials, who are responsible for verifying owners’ calculations when they apply for a permit or seek guidance on NSR applicability, said that verifications are further complicated by other NSR provisions that exclude certain activities from NSR. For example, a change that significantly increases a generating unit’s emissions will not trigger NSR if it does not cause a net increase in emissions. Specifically, an NSR permit is not required if the increase in emissions resulting from a change is offset by certain contemporaneous emissions reductions, a process called “netting.” EPA has defined “contemporaneous” as within 5 years before construction on the change commences, although states can define the term differently. Thus, an owner could compensate for an emissions increase in a given year by subtracting emissions decreases that were made in the previous 5 years, although any other emissions increases during that 5-year period must also have been included in the calculation. Several state agency officials we spoke with said that unit owners often pursue this option so they do not have to obtain an NSR permit and install costly emissions controls. Several EPA and state officials we interviewed also said, however, that it can be difficult to verify that calculations are valid, in part because they must rely on information provided by the unit owners. Some of these officials said it can be difficult to determine what types of emissions reductions and increases may be aggregated together under the netting option. One EPA regional office official said that, overall, options such as netting complicate and lengthen the permitting process because they require unit owners to submit additional documentation that the regulator must in turn review.

To aid owners and regulators in determining when NSR should apply, EPA and state officials identified several sources of available guidance, including the following:

Consultations with state and local agencies. Before seeking a permit, owners of units can request assistance from state and local permitting agencies in determining whether NSR applies. Some state agency officials said that unit owners in their state regularly seek guidance, particularly on how to qualify for one of NSR’s exclusions. However, other EPA and state officials we spoke with said that such requests are uncommon; many unit owners may hesitate to contact a regulatory agency because regulators may have a different interpretation of NSR that could require them to install costly emissions controls.

EPA’s 1990 draft NSR workshop manual. Several state agency officials we spoke with said they rely on a draft EPA manual from 1990 issued as guidance for implementing the federal NSR permitting process, although the manual was never finalized and has not been updated.

Regionally maintained databases. Through one of its regional offices, EPA maintains an online database containing more than 600 EPA- issued policy and guidance documents. Several EPA and state officials we interviewed said that the database was helpful in providing current information on how to apply NSR, although one state official said that these determinations are not always consistent.

Court decisions. Several EPA and state permitting officials we interviewed said they rely primarily on court rulings for guidance on interpreting NSR regulations to ensure that their determinations are up-to-date.

EPA officials said that the agency’s ability to generate comprehensive, nationwide guidance is limited because of the case-by-case nature of NSR, ongoing litigation, and the variation in NSR requirements across states. For example, some states and localities have adopted NSR requirements that are more stringent than the federal regulations. Furthermore, some states’ regulations differ because they have not revised their state implementation plans to incorporate the 2002 NSR reforms or had those revisions approved by EPA.

Identifying NSR Noncompliance Requires Long Investigations

The second major challenge EPA and state and local agencies face in ensuring compliance with NSR is that it is often difficult for regulators to identify noncompliance—that is, instances where owners did not obtain NSR permits before making major modifications to their generating units. According to several EPA officials we interviewed, identifying noncompliance can be challenging because unit owners—not regulatory agencies—have responsibility for determining whether they need an NSR permit. Most owners do not ultimately obtain NSR permits before making changes to their units, according to EPA officials we interviewed, because the owners determine that the changes fall under one of NSR’s exclusions, such as routine maintenance, or because they offset emissions increases through netting. These unit owners are generally not required to notify EPA or state or local permitting agencies when they use these exclusions. Therefore, EPA would not review the owners’ determinations unless (1) the owner proactively sought a permit and the state or local permitting agency determined that an NSR permit was required or (2) EPA initiated an investigation. In instances where a unit did not apply for and receive a permit as required, it can take EPA several years to identify the noncompliance and take corrective action. Moreover, under an EPA rule finalized in 2007, known as the “reasonable possibility recordkeeping” rule, a unit owner who determines that a change will not trigger NSR is not required to keep records of the change and its resulting emissions unless the owner believes there is a reasonable possibility that the change could result in a significant emissions increase, and other conditions are met. According to one state official we interviewed, this rule may complicate efforts to identify noncompliance because EPA and state regulators generally have to retroactively determine whether an NSR permit should have been obtained for past activities, and without the benefit of company records, such a determination is difficult.

According to EPA and state officials we interviewed, state and local permitting agencies are generally not well positioned to identify noncompliance. State and local permitting agencies routinely inspect units, but officials told us these inspections focus on compliance with the terms of existing operating permits, not on whether an owner failed to obtain a permit. Several EPA and state officials told us that, given the complexity of most units, routine compliance inspections are not well suited to detect NSR violations, in part because it is difficult to distinguish work that might be considered a major modification from other work that is routine. According to one EPA official, to identify noncompliance with NSR, agency investigators need to identify what changes have already occurred; gather information on the nature of these changes; and determine whether NSR should have applied at the time the changes occurred, considering all possible exclusions and other factors. EPA officials we spoke with said that this process requires investigators to analyze information on historic emissions and a large volume of records on work conducted over the course of a unit’s life. According to these and other EPA officials, such extensive review would not be possible during routine compliance inspections. Several state and EPA officials we spoke with also said that, given the complexity and case-by-case nature of NSR, state and local agencies generally do not have the resources—and in some cases expertise—to detect noncompliance. As result, several state officials we spoke with said they rely on EPA to identify instances of noncompliance with NSR.

EPA has therefore taken a lead role in enforcing NSR, beginning in the mid-1990s and continuing to the present. In 1996, EPA began targeting older, coal-fired generating units for compliance assessments and, on the basis of its investigations, alleged that several of the largest coal-fired electricity generating units in the country had violated NSR provisions by making major modifications without obtaining an NSR permit. In 1999 and early 2000, after receiving a number of cases from EPA, DOJ filed seven enforcement actions in U.S. federal courts in what is known as EPA’s Coal-Fired Power Plant Enforcement Initiative. For their part, owners of units targeted by the NSR enforcement initiative contended that, among other things, their projects should have qualified for the routine maintenance exclusion. Nonetheless, almost all of these cases ultimately resulted in settlements mandating the installation of emissions controls and civil penalties. Since then, EPA and DOJ have continued this enforcement initiative and secured additional settlements for alleged noncompliance with NSR. According to EPA, steps to develop an NSR enforcement case include: 1. Section 114 requests. Under Section 114 of the Clean Air Act, EPA may obtain information from owners of generating units to determine whether violations have occurred. Such information includes detailed cost information on capital construction projects suspected to be NSR violations. According to EPA officials, collecting and reviewing such information can take several months to over a year. 2. Settlement negotiations. After reviewing generating units’ records, EPA determines whether NSR violations have occurred. If EPA determines that the unit is not in compliance, it will notify owners of generating units and encourage the owner to install emissions controls. EPA initially tries to resolve noncompliance through a settlement. 3. Referral. If settlement negotiations are unsuccessful, EPA will determine whether enough evidence exists to refer the case to DOJ for potential litigation. DOJ then reviews the accumulated evidence and determines whether there is merit to file suit against the company. Before filing the case in court, DOJ generally discusses the matter with the owner in a further attempt to settle.

According to EPA and DOJ officials, EPA’s investigations for NSR compliance, and subsequent enforcement actions, take a long time to conclude and involve substantial EPA resources. In instances where EPA’s investigations have uncovered suspected violations, it can take years to litigate a case or bring it to conclusion through a settlement. Specifically, the 22 settlements resulting from EPA’s enforcement initiative took, on average, 7 years to conclude. According to several industry representatives we interviewed, these efforts have also placed a large burden on owners and operators of generating units, given the amount of information required on past activities at the unit.

Available Data on NSR Compliance Are Not Complete but Suggest Substantial Noncompliance

Available data, while not complete, suggest that a substantial number of generating units have not complied with requirements to obtain NSR permits. Complete data on NSR compliance do not exist for two primary reasons. First, EPA has not yet investigated all electricity generating units for compliance with requirements to obtain NSR permits. Second, NSR compliance is determined at a point in time, and EPA’s interpretation of compliance has, in some cases, differed from that of federal courts. Nonetheless, EPA has investigated a majority of coal-fired generating units, and data from these investigations suggest that a substantial number of generating units have not complied.

Complete Data on Unit Compliance with NSR Are Not Available

From our review of relevant documentation and EPA-provided data, we identified two primary reasons why complete data on NSR compliance are not available. First, EPA has not yet investigated all generating units for NSR compliance, and second, available data do not provide a complete picture of compliance.

EPA has investigated most—but not all—coal-fired generating units for compliance with NSR at least once. According to our review of EPA- provided documents and data, EPA has investigated 831 generating units at least once since it began its Coal-Fired Power Plant Enforcement Initiative. These 831 units represent about 81 percent of all coal-fired units that generated electricity in 2010 and about 24 percent of all fossil fuel-fired units (those using coal, natural gas, or oil) that produced electricity in 2010.coal-fired units—have not been investigated by EPA. According to EPA officials we interviewed, the agency has focused most of its NSR compliance efforts on large, coal-fired units because they produce dramatically higher levels of harmful air emissions.

Most natural gas units—as well as some smaller Data on units investigated by EPA are not conclusive because compliance is determined at a point in time; therefore, subsequent changes to the unit could affect its future compliance with NSR. NSR is required each time an existing generating unit undertakes a major modification. Thus, an owner of electricity generating unit that has obtained an NSR permit in the past—or was subject to an EPA investigation—is not exempt from the requirement to obtain an NSR Moreover, allegations of permit for any future major modifications. noncompliance stemming from EPA’s investigations do not necessarily mean that a violation has occurred, because in some cases federal courts have ultimately disagreed with EPA about the need for an NSR permit. Given these issues, it is difficult to provide a comprehensive assessment of NSR compliance at any given time.

EPA Has Found Noncompliance at a Majority of Units It Has Investigated

Although units must undergo NSR review for major modifications, some of the settlement agreements EPA has reached with electricity generating units include a provision precluding EPA, in certain circumstances, from suing the owner for making a major modification and not undergoing NSR. of coal-fired units that produced electricity in 2010, and about 14 percent of all fossil fuel-fired units that produced electricity in 2010.

According to EPA, the Coal-Fired Power Plant Enforcement Initiative is perhaps the most comprehensive and coordinated enforcement effort under the Clean Air Act to date. The initiative has led to 22 settlements covering a total of 263 units, or approximately 32 percent of the units EPA has investigated. According to our analysis of EPA data, the settlements will require affected unit owners to install and operate emissions controls costing an estimated $12.8 billion in total and levy civil penalties totaling around $80 million. Some companies are also required to fund environmentally beneficial projects, such as restoring watersheds and forests in national parks. These settlements are projected to reduce sulfur dioxide emissions by more than 1.8 million tons annually and nitrogen oxides emissions by about 596,000 tons annually. reached companywide settlements in which companies agreed to put emissions controls on units constituting most of their production capacity. Two of the largest settlements—with American Electric Power and the Tennessee Valley Authority—represent 105 units, around 40 percent of the total, and about $8.6 billion in control costs, or around two-thirds of the total. A senior Department of Justice official we interviewed said that, in addition to the 22 concluded settlements, 7 additional NSR cases are in various stages of litigation. See appendix III for more details on EPA’s concluded NSR settlements.

Conclusions

These reductions are to be phased in over an agreed-upon time frame, often 10 years. substantial number of generating units EPA investigations have allegedly found to be noncompliant suggests that many generating units have not obtained NSR permits as required. Addressing NSR’s complexity and improving compliance could reduce the need for long and resource- intensive enforcement actions and more effectively protect air quality by averting emissions before they occur. Yet EPA’s ability to simplify NSR or develop comprehensive, nationwide guidance is limited for several reasons, including the case-by-case nature of NSR applicability, ongoing litigation, and the variation in NSR requirements across states.

Nonetheless, EPA has an opportunity to improve its efforts by collecting more comprehensive NSR permitting data. Several EPA regional offices maintain some information on the NSR permits issued by the state and local permitting agencies in their regions, but this information is in different formats and not compiled by EPA into a complete and centralized source of information on NSR permits issued nationwide, as recommended by the National Research Council in 2006. More complete information on NSR permitting would help EPA and external parties gauge the extent to which fossil fuel generating units have obtained NSR permits and help inform enforcement efforts that have already found widespread alleged noncompliance.

In cases where unit owners apply for permits before making physical or operational changes that would result in a significant net increase of emissions, EPA plays an important role because it has an opportunity to comment on every draft NSR permit under consideration by state and local permitting agencies and to influence decisions about the appropriate level of pollution control, among others. A key benefit of EPA’s involvement in the permitting process is that the agency can review and comment on permits issued in different geographic areas and assess various aspects of draft permits, including the level of emissions control required. Because emissions controls can cost owners and operators of generating units hundreds of millions of dollars, EPA’s review of the required level of emissions control is critically important. Although EPA and headquarters staff devote resources to commenting on draft permits, EPA does not track whether state and local permitting agencies incorporate the agency’s comments. Without such information, EPA cannot fully assess the extent to which state and local agencies incorporate its comments in NSR permits or the extent to which emissions control requirements imposed by state and local permitting agencies reflect suggestions made by EPA in its comments.

Recommendations for Executive Action

To help improve EPA’s implementation of NSR, we recommend that the EPA Administrator direct the entities responsible for implementing and enforcing NSR—specifically, the Office of Enforcement and Compliance Assurance, Office of Air Quality Planning and Standards, and EPA regions—to take the following two actions:

Working with EPA regions and state and local permitting agencies, consider ways to develop a centralized source of information on NSR permits issued to fossil fuel electricity generating units, and

Using appropriate methods, such as sampling or periodic assessments, develop a process for evaluating the effects of its comments on draft NSR permits.

Agency Comments and Our Evaluation

We provided a draft of this report to the Department of Energy, the Department of Justice, and Environmental Protection Agency (EPA). The Department of Energy said they had no comments on the report’s findings and recommendations. The Department of Justice provided technical comments, which we incorporated as appropriate. EPA provided written comments, a copy of which can be found in appendix IV. In its written comments, EPA agreed with the importance of having good systems for tracking and compiling information to efficiently and effectively administer its programs, while enhancing accountability and transparency, but disagreed with the need for the actions called for in our recommendations.

Regarding our first recommendation that EPA work with state and local permitting authorities to consider ways to develop a centralized source of information on permits issued to electric generating units, EPA said that it believes it has a number of permit tracking mechanisms in place, and raised four concerns about our recommendation. First, EPA said that it has maintained a centralized permit information database for many years—the RACT/BACT/LAER Clearinghouse, which is capable of capturing and sharing information on NSR permits that have been issued. However, EPA acknowledged that this database is incomplete—including about half of issued NSR permits—primarily because, in some areas, state and local agencies are not required to enter information about the permits they issue. Nonetheless, EPA said it is taking steps to improve participation. We continue to believe that comprehensive permitting data would enable EPA, Congress, and other interested parties to better understand the scope and impact of NSR.

Second, EPA said that its regional offices track NSR permitting by the states in their jurisdiction and that the agency believes it is most appropriate for the regional offices, rather than headquarters, to be responsible for this information. However, our work found that the tracking of NSR permits by EPA’s regional office varied in completeness. For example, of the four regions we included in our sample, one region had a robust system for tracking issued NSR permits, and one had no system at all. EPA also said that its regional offices provide oversight of state and local agencies and that an EPA-wide compilation of permit data would be redundant, add costs, and provide little benefit to its oversight function. We continue to believe that a centralized source of complete information on NSR permits would enhance EPA’s oversight of state and local permitting agencies and help ensure consistency across regions. EPA headquarters could build on the ongoing efforts of some regional offices and develop more complete data using a simple, low-cost system. For example, we found that two regional offices use a spreadsheet to compile and maintain basic data on permits issued by state and local agencies. Additionally, we believe that any costs incurred in developing more comprehensive data should be considered relative to the benefits that could accrue from having better information on the universe of permitted facilities including, as noted by the National Research Council, the ability to assess the impact of policy changes.

Third, EPA said that a centralized database of all NSR permits would not help most members of the public because most members of the public are interested in permits issued to specific facilities rather than the entire universe of all permits issued. Our report focused on the importance of more complete data to enhance programwide oversight of NSR permitting and targeting of enforcement efforts. More complete data could potentially assist the public and other interested parties in understanding the extent of NSR permitting for individual facilities, but this was not the basis of our findings and recommendations. We continue to believe that a centralized source of permitting data is important for EPA’s oversight of state and local permitting agencies and to enhance its enforcement efforts.

Fourth, EPA questioned the value of more comprehensive information in targeting noncompliance with requirements to obtain permits. Specifically, EPA said that identifying noncompliance involves targeting facilities that should have obtained permits but did not and that information on facilities that have obtained permits would not assist in these efforts. Moreover, EPA said that getting data on noncompliant sources is time- and resource-intensive. We continue to believe that compiling complete information on facilities that have obtained permits could help identify facilities that have not obtained permits and enhance targeting of these facilities for potential noncompliance. We also believe that understanding which facilities have obtained permits as required could decrease these time and resource demands because the agency would have a better starting point for identifying noncompliance.

Regarding our second recommendation that EPA develop a process for evaluating the effect of its comments on issued permits, the agency said that its regional offices already do so and described the interactions between these offices and state and local agencies during the permitting process. EPA also said that its regional offices already conduct oversight of state and local permitting agencies, including whether these agencies adequately address EPA’s comments on draft permits. We acknowledge these efforts in the report and believe that, as part of its overall oversight of nationwide permitting efforts, EPA headquarters could benefit from a broader and more comprehensive assessment of the extent to which its comments on draft permits were adequately considered and incorporated. Because the terms of issued permits can result in the installation of pollution controls that cost hundreds of millions of dollars, it is important to conduct higher level review of issued permits to identify variability in the terms of issued permits across geographic areas. We therefore continue to believe that implementing this recommendation would enhance oversight of NSR permitting nationwide and that EPA has an opportunity to build on the information already collected through the oversight activities of its regional offices.

EPA also provided technical comments that we incorporated as appropriate.

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If you or your staff have any questions about this report, please contact David Trimble at (202) 512-3841 or trimbled@gao.gov or Frank Rusco at (202) 512-3841 or ruscof@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributors to this report are listed in appendix V.

Appendix I: Scope and Methodology

To assess what information the Environmental Protection Agency (EPA) maintains on New Source Review (NSR) permits issued for fossil fuel electricity generating units, we gathered information from EPA and selected states on the status of their NSR permitting programs and efforts to collect and maintain permitting data. We selected a nonprobability sample of nine states on the basis of (1) the number of older electricity generating units in the state; (2) the quantity of electricity generated by such units in those states; (3) the volume of sulfur dioxide, nitrogen oxides, and carbon dioxide emitted by units in those states; and (4) the region in which the generating unit was located. We obtained these data from the Ventyx Velocity Suite EV Market-Ops database, a proprietary database containing consolidated energy and emissions data from EPA, the Energy Information Administration (EIA), and other sources. To assess the reliability of the Ventyx data, we reviewed documentation provided by Ventyx and tested key variables to verify their accuracy and determined the Ventyx data to be sufficiently reliable for our purposes. The nine states we selected were Alabama, Georgia, Indiana, Kentucky, Missouri, New York, North Carolina, Ohio, and Pennsylvania. To assess how permitting information is collected and used, we reviewed relevant documentation from these nine states and from EPA. We also interviewed permitting officials from these nine states, the four EPA regional offices that oversee these states, EPA’s Office of Air and Radiation, its Office of Inspector General, and its Office of Enforcement and Compliance Assurance. In three of the states, some localities are responsible for NSR permitting; we also spoke with officials at two of those localities, which we selected on the basis of the number of older units in their jurisdictions.

To examine what challenges, if any, EPA, state, and local agencies face in ensuring compliance by electricity generating units with requirements to obtain NSR permits, we reviewed relevant provisions of the Clean Air Act and NSR regulations; guidance and other information on implementing NSR maintained by EPA; and literature on NSR from government agencies, academic and research institutions, environmental organizations, and industry groups. We also interviewed knowledgeable officials and stakeholders from these agencies and institutions, as well as officials from the selected states and localities.

To review what available data show about compliance with requirements to obtain NSR permits, we reviewed information published by EPA on the estimated rate of noncompliance by industrial sectors. We also reviewed information on EPA’s enforcement activities maintained by enforcement officials in EPA’s Office of Enforcement and Compliance Assurance, including (1) data on notices of violation sent to owners of generating units alleging noncompliance with NSR; (2) lawsuits filed in court for alleged NSR violations; and (3) information on the settlements concluded by EPA and the Department of Justice with owners of generating units, which ended or prevented lawsuits alleging noncompliance. To assess the reliability of the EPA-provided data, we interviewed knowledgeable agency officials and tested key variables to verify their accuracy. We determined these data to be sufficiently reliable for the purposes of our analysis. We also interviewed knowledgeable enforcement and compliance officials from EPA’s headquarters Office of Enforcement and Compliance Assurance and four regional offices.

We conducted this performance audit from April 2011 to June 2012, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: Comparison of Available Databases of NSR Permits for Electricity Generating Units

Appendix III: Concluded NSR Settlements

Appendix IV: Comments from the Environmental Protection Agency

Appendix V: GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

In addition to the individuals named above, Michael Hix (Assistant Director), Ellen W. Chu, Philip Farah, Cindy Gilbert, Jessica Lemke, Jon Ludwigson, Nancy Meyer, Mick Ray, and Jeanette Soares made key contributions to this report.