Bush Poised to Loosen Power Plant Emissions Rule

WASHINGTON, DC, August 22, 2003 (ENS) - There are growing signs that the Bush administration will finalize a controversial rule reforming the Clean Air Act's New Source Review program sometime next week. An industry source says the rule could be finalized by the Environmental Protection Agency as early as next Wednesday.

Critics say the rule change, which covers a provision of the Clean Air Act designed to force power plant owners to upgrade pollution controls when they upgrade facilities, undermines the law and will allow more pollution to be emitted.

The national environmental group Natural Resources Defense Council (NRDC), which obtained a leaked copy of the final rule, says it "essentially repeals" the New Source Review provision of the Clean Air Act.

Established in 1977, the New Source Review program requires that an air pollution source, such as a power plant or industrial complex, install the best pollution control equipment available when it builds a new facility or when it makes a major modification that increases emissions from an existing facility.

It was designed to ensure that older facilities built before the Clean Air Act took effect in 1977 would not hamper the nation's progress toward cleaner air.

Emissions rise from a coad fired power plant. (Photo courtesy NASA)

Industry representatives say that the lack of a clear definition of what constitutes routine maintenance deters some facilities from performing important repairs for fear they will trigger New Source Review, thereby impeding efficiencies that could benefit consumers and the environment.

The Edison Electric Institute (EEI), an industry association, calls the Bush administration's rule regarding routine maintenance, repair and replacement of power plant equipment "a critical first step that - depending on the eventual outcome - could greatly improve the way power plants are regulated under the Clean Air Act."

But Quin Shea, EEI executive director for environment, said in November that the association is "frustrated" that the EPA has "stopped short of advancing a specific proposal that would remove the perpetual threat of litigation hanging over the heads of power plant operators facing difficult decisions about whether to proceed with critical maintenance activities."

"We have long urged EPA to draw a distinction between routine activities and those that clearly are major modifications that would require power plants to install additional emission controls," Shea said.

The Bush administration's new rule exempts facility modifications that cost less than a certain percentage of the entire facility or specific equipment, as much as 20 percent for some industries.

If the modification is more than 20 percent, a facility could still find an exemption from New Source Review if it is replacing pieces of equipment with other pieces that serve the same function under the new rule.

Maintenance at the wood fired McNeil Generating Station in Burlington, Vermont (Photo by Dave Parsons courtesy NREL)

Spitzer and other critics believe a recent federal decision involving an Ohio coal fired plant clearly demonstrated that the existing definition of New Source Review is appropriate and that the administration's changes are unwarranted.

Judge Edmund Sargas of the U.S. District Court for the Southern District of Ohio ruled August 7 that Ohio Edison violated the Clean Air Act at its Ohio River coal fired power plant by carrying out major modifications under the guise of "routine maintenance." The alterations, 11 projects costing some $136 million, resulted in a significant increase in emissions of air pollutants, the judge ruled, and should have been subject to additional pollution controls under the law.

Environmentalists say the Bush administration's routine maintenance rule does little to simplify the New Source Review and provides industry with new loopholes to avoid tighter pollution controls.

"The Bush administration, using an arbitrary, Enron like accounting gimmick, is authorizing massive pollution increases to benefit Bush campaign contributors at the expense of public health," said John Walke, director of NRDC's Clean Air Project. "Corporate polluters will now be able to spew even more harmful chemicals into our air, regardless of the fact that it will harm millions of Americans."

"This is the single most destructive anti-clean air rule in the history of the Clean Air Act," said Environmental Defense senior attorney Vickie Patton from the organization's office in Boulder, Colorado. "The Bush administration is preparing to eliminate vital, cost effective clean air measures that have protected Americans from the harmful effects of industrial air pollution for a quarter century."

It is widely believed that the Bush administration seeks to finalize the rule prior to confirmation hearings for its new nominee to head the U.S. Environmental Protection Agency (EPA), Utah Republican Governor Mike Leavitt.

Utah Governor Mike Leavitt (Photo courtesy Office of the Governor)

The environmentalists say the three months since the closure of the comment period on the rule is an extremely short deliberation period, in contrast with other less controversial rulemakings of comparative importance.

"There is widespread disagreement with respect to the facts underlying the reasons for and impact of EPA's expansive exemptions," the environmentalists wrote in their letter to Leavitt. "Indeed, the facts proven in the power plant enforcement cases that EPA is prosecuting successfully today are at odds with the assertions underlying the proposed exemptions."

"If EPA rushes to finalize the rules in advance of your confirmation, the agency you could inherit will be one whose credibility is even further damaged," the environmentalists wrote. "Your challenges of restoring credibility to the administration's environmental policymaking and standing for responsible law enforcement will be immeasurably more difficult."

The NRDC also pointed out that the timing of the final rule announcement is "likely motivated by the fact that Congress is on recess and much of the nation is on vacation."

At the same time that the Bush administration has been preparing this new rule, the Department of Justice, state attorneys general, the NRDC and other organizations have successfully prosecuted or settled new source review lawsuits that the Clinton administration brought against the 12 owners of the country's oldest and dirtiest coal fired power plants.

According to a study performed by Abt Associates, a technical consulting firm that frequently works for EPA, the failure to install modern pollution controls at the 51 power plants at issue in the enforcement cases is responsible for 5,000 to 9,000 premature deaths and 80,000 to 120,000 asthma attacks every year.

On behalf of the EEI, Shea expressed the hope is that the EPA will adopt clarifications to the New Source Review program to "facilitate - rather than undermine - our ability to maintain the reliability and safety of our power plants."