News: CJ Exclusives

DAQ Scrapped Report After Meeting With AG Lawyers

Attorneys Worried Findings Might Create ‘Issues’ In TVA Lawsuit

The N.C. Division of Air Quality scrapped a pollution report days after lawyers working for Attorney General Roy Cooper expressed concerns that its findings might lead to unwanted questions about the state’s lawsuit against the Tennessee Valley Authority.

The DAQ report arrived at conclusions that could have undermined the state’s case, now on appeal in federal court. If the state wins its lawsuit, TVA and other nearby states with coal-fired power plants may have to add emissions controls potentially costing billions of dollars.

The DAQ report, part of a larger document discussing compliance with air-quality regulations in Hickory and the Triad region, never got beyond the draft stage. It had concluded that nitrogen oxide, NOx, was an “insignificant” precursor to the formation of fine particulate matter, PM2.5, a type of pollution that poses respiratory health risks.

But in the TVA lawsuit, Cooper claimed the opposite. He argued that NOx emissions from TVA’s coal-fired power plants are a primary component of PM2.5, contributing to smog in western North Carolina and threatening residents’ health.

“We know that air pollution from the Tennessee Valley Authority is making people sick,” Cooper told National Public Radio soon after filing the lawsuit in 2006. “It’s causing haze across our mountains, it’s killing our trees, it’s polluting our waters. We want it to stop.”

The state won its suit in U.S. District Court in January. The TVA appealed the decision in May.

A press release issued by the attorney general’s office in 2006 estimated that “out-of-state power plant emissions (including PM2.5) are responsible each year for more than 15,000 illnesses and hundreds of emergency room visits in North Carolina alone.”

And yet the scuttled DAQ report found that even “unrealistically severe reductions in NOx emissions” — in other words, completely eliminating NOx — “resulted in comparatively minor reductions in total PM2.5 mass.”

DAQ staff decided to abandon the report shortly after meeting with Cooper’s attorneys in September 2008.

The air quality official responsible for the document, however, says the attorneys never pressured her to drop it.
“They never once told me you all can’t do this,” Laura Boothe, attainment planning branch supervisor for DAQ, told Carolina Journal.

But e-mail correspondence suggests that Cooper’s team was concerned about the report’s potential impact on the TVA case. After being informed of DAQ’s findings, special Deputy Attorney General Marc Bernstein wrote in an e-mail dated March 17, 2008, that it “hopefully … won’t create any issues in TVA. … ”

Six months later, DAQ staff met with Bernstein to discuss a final draft of the report. Shortly afterward, DAQ declared the project “officially dead.”

No technical analysis

DAQ did not perform a technical analysis before deciding to drop the report, according to Boothe. She blamed pushback from the U.S. Environmental Protection Agency as the primary reason for abandoning the project. They did not feel comfortable with what we had there,” she said.

Declaring NOx an insignificant precursor would have let the state avoid new emission “controls that we didn’t think would benefit attainment for PM2.5,” Boothe said. Tighter ozone standards subsequently issued by EPA require the state to impose regulations similar to those needed to reach PM2.5 attainment levels, she said, so “there was no point to continue trying to win EPA over from our point of view.”

Despite months of back and forth with the EPA, though, Boothe did not drop the report until after she met with the attorney general’s office. E-mails show that Boothe and other top DAQ staff met with Bernstein Sept. 9, 2008, to discuss the report. Two days later, George Bridgers, a meteorologist for DAQ, e-mailed Boothe and Sheila Holman, who at the time was DAQ planning section chief, to ask if the project was dead. Boothe and Holman replied yes.

Asked what occurred in the meeting, Boothe said the lawyers never pressured her to drop the report. “They were fine if we wanted to (conclude NOx) insignificance as long as we could answer some of their questions,” she said.

She said the lawyers asked how to respond to questions that might crop up in the legal case. Cooper filed petitions under Section 126 of the federal Clean Air Act asking the federal government to force TVA and neighboring states to comply with North Carolina’s strict 2002 Clean Smokestacks Act targeting emissions from coal-fired power plants. DAQ’s report concluded that regulations curbing NOx would have little effect on the formation of potentially harmful small-particle emissions. That conclusion could undermine the state’s lawsuit.

In the meeting, Boothe said she had an “epiphany” that it would be best to drop the report entirely. Doing so would “satisfy EPA (and) it would satisfy the concern that the attorney general’s office may have had,” she said.

If DAQ had proceeded with the report, the agency would have had to implement controls for “a range of things,” said DAQ public information officer Tom Mather. “The most overriding would have been the transportation conformity issues to show that NOx emissions from cars aren’t creating a problem,” he said, in addition to “controls on factories to reduce NOx.”

Keith Overcash, director of DAQ, and Holman declined to be interviewed for this article.

Schwartz report

DAQ’s finding that NOx is an insignificant precursor was correct, said Joel Schwartz, an environmental consultant and visiting fellow for the American Enterprise Institute. The attorney general’s conclusion was not.

“NOx does help form PM2.5 by getting turned into ammonium nitrate,” Schwartz said. “However, it’s (a) minor PM2.5 contributor in the eastern half of the U.S.”

A research report written by Schwartz last year disputed Cooper’s argument that emissions reductions from TVA would diminish health risks to residents of western North Carolina. It argued that neither NOx nor sulfur dioxide emissions from TVA’s power plants are harmful, “even at levels 10 times greater than are ever found in the air Americans breathe.”

David N. Bass is an associate editor of Carolina Journal.