DNREC Keeps Quiet about the Deal with NRG

I'm trying to get out of town, but I couldn't leave before commenting on some recent developments in the fight to improve Delaware's air.
Environmental activists would like to know more about the agreement DNREC made with NRG to allow the company to miss some of the deadlines imposed by new air emission standards, known as Regulation 1146, established last year. But as the News Journal reports, DNREC secretary John Hughes isn't saying:

"A settlement of a lawsuit is conducted by private negotiations. That's standard across the world, as far as I'm concerned. It's not a public process," said John Hughes, secretary of the Department of Natural Resources and Environmental Control.

A deal with NRG cannot be considered in isolation:

But Mark Martell, president of Delaware Audubon, a conservation group, said the agreement sets a precedent that industry doesn't have to comply with state regulations. He said the state's citizens deserve a chance to look at the deal before it is executed. "This deal starts other deals," Martell said, noting that Conectiv, which has a plant in Edgemoor, is also challenging the new regulations. Of NRG's older units, he said, "That plant should have been shut down years ago. If that's what they need to do to comply, sorry about that, but they knew this was coming."

NRG and Conectiv Delmarva Generation have both appealed the new regulations, offering similar arguments. NRG has actually argued that the new standards would worsen the air because it would shift more electrical generation to power plants in the Midwest, upwind of Delaware. Conectiv argues that federal regulations allowing the trading of emission allowances should trump the state's attempt to regulate its Edge Moor plant. In its response to Conectiv's filing, DNREC countered that using the federal emissions trading program alone could worsen air pollution in Delaware:

Conectiv argues that the Department should have simply participated in EPA’s Clean Air Interstate Rule instead of promulgating Regulation 1146. The Clean Air Interstate Rule (also called “CAIR”) is another emissions trading rule, where a source can purchase emissions credits from other sources, including out-of-state sources, to allow it to continue to emit at its current levels without installing pollution controls.21 DNREC does not believe, mainly because of this trading aspect, that CAIR alone is sufficiently protective of Delaware citizens, who should not suffer the health effects of continued emissions levels of SO2 and NOx and continued nonattainment with the NAAQS. In fact, EPA’s CAIR modeling showed that should Delaware not promulgate Regulation 1146 and only participate in the CAIR program, pollution emissions inside the State may actually increase.

In effect, it's an argument that Delaware shouldn't impose standards any stricter than the lowest standards found anywhere in the Midwestern United States. And just as Conectiv and NRG don't want to be forced to be cleaner than the dirtiest plants within a thousand miles of Delaware, if one of the companies can cut a deal, the other will want to do the same.
As clean air activist John Austin pointed out to me last night, DNREC's response to Conectiv's filing is clear about the company's intentions:

In reality, Conectiv has demonstrated that it will do little without a regulatory driver and will litigate against any regulatory driver that does come out. However, once forced to make reductions, Conectiv then touts itself as a good environmental steward.

Conectiv and NRG are fighting every attempt to clean Delaware's air, whether it be Regulation 1146 or the decision to bring wind power to Delaware. Regulation 1146 and the legal filings it has prompted can be found here. We may not be allowed to know the full story of the agreement with NRG or any possible agreement with Conectiv, but we can understand how DNREC's actions will affect our air quality.