EPA Relaxes Power Plant Emissions Rule

By J.R. Pegg

WASHINGTON, DC, August 28, 2003 (ENS) - The Bush administration finalized controversial changes to federal clean air rules Wednesday that will allow the nation's 17,000 industrial facilities to upgrade and extend their operations without installing additional pollution controls. Critics believe the decision is a serious threat to public health and have already announced they will sue to block the new rule, but administration officials say the revision to the Clean Air Act's New Source Review program provides much needed clarity and will help industrial facilities improve efficiency.

The changes provide industrial facilities with "the regulatory certainty they need," said U.S. Environmental Protection Agency (EPA) Acting Administrator Marianne Horinko.

Uncertainty was a prime driver behind industry arguments for revision of the New Source Review program, which was established in 1977 to ensure that older facilities built before the Clean Air Act took effect in 1970 would not hamper the nation's progress toward cleaner air.

The program required owners of industrial facilities to install the best pollution control equipment available when they made a major modification to an existing facility that increased emissions.

Critics worry the rule change will allow the nation's oldest and dirtiest power plants to avoid pollution control upgrades. (Photo courtesy NASA)

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

The 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 exemption from New Source Review if it is replacing pieces of equipment with other pieces that serve the same function.

"This rule will result in safer, more efficient operation of these facilities and, in the case of power plants, more reliable operations that are environmentally sound and provide more affordable energy," Horinko said.

But there is no shortage of critics who strongly disagree with this assessment.

Environmentalists, public health groups along with a slew of state officials and some federal lawmakers, contend the administration's revision to the program will undermine the nation's future progress on reducing harmful air pollution from some of its oldest and dirtiest sources.

"This rule eviscerates the New Source Review program and represents a huge step backward in our efforts to achieve and sustain clean air," said William Becker, executive director of State Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials.

New York Attorney General Eliot Spitzer called the rule "flagrantly illegal" and said he will sue the administration to block its implementation. Officials with six New England states, New Jersey and Maryland have indicated they would join a legal challenge to the rule.

The Bush administration's proposed Clean Air Act regulatory changes will affect regulation of air pollution from the nation's 17,000 industrial facilities, which emit the majority of nitrogen oxide and sulfur dioxide. (Photo courtesy Environmental Protection Agency)

Becker says state and local air pollution officials believe the rule adds a mass of uncertainty to the New Source Review program - the exact opposite of what the administration and industry say is needed.

"Not only will it degrade existing protections of public health and the environment, it will be very difficult to implement and enforce," Becker said.

The administration's decision strikes many as misguided given recent settlements and a major court decision that supported the existing provisions of the New Source Review program.

In the past year, the Department of Justice, state attorneys general, and public interest groups have successfully prosecuted or settled New Source Review lawsuits that the Clinton administration brought against the 12 owners of the country's oldest, largest and dirtiest coal fired power plants.

The Justice Department has obtained settlements from five of the companies, and, on August 7, won a landmark case against another - Ohio Edison. The five settlements will force the companies to reduce their annual emissions of smog and soot forming pollution by more than 500,000 tons each year.

The victory over Ohio Edison is expected to force that company to reduce its annual emissions by tens of thousands of tons, but critics of the administration say that victory would be impossible if its revised rule is upheld.

In his August 7 ruling, Judge Edmund Sargas of the U.S. District Court for the Southern District of Ohio determined 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.

The rule change announced Wednesday would make "that pollution increase legal, and leave the public with no recourse to protect itself," said Vicki Patton, an attorney with Environmental Defense.

Industry groups counter that the rule change will enhance the affordability, reliability and safety of the nation's electric supply while ensuring efforts to continue improving air quality.

The Bush administration's revision "will lift a major cloud of uncertainty, boosting our efforts to provide affordable, reliable electric service and cleaner air," aid Thomas Kuhn, president of the Edison Electric Institute, which represents companies that generate some 70 percent of the nation's electricity.

Critics who claim pollution will increase under the rule change are dead wrong, says Scott Segal, spokesman for the Electric Reliability Coordinating Council, a consortium of U.S. power generating companies.

"This rule will reduce emissions," said Scot Segal. "Over the last two decades, emissions from the power sector have significantly declined. That trend will continue."

Clean air advocates believe poor and minority communities suffer disproportionately from air pollution. (Photo courtesy Louisiana Bucket Brigade )

"Make no mistake," Spitzer said, "the Bush administration is gutting the Clean Air Act because it works, not because it does not work."

Air pollution is a serious matter in the United States - the EPA estimates some 120 million Americans live in areas where air is unhealthy.

Particulate pollution just from the nation's power plants is believed to kill an estimated 30,000 Americans each year, and along with smog is a leading contributor to asthma, which affects 15 million Americans.

"Emerging research is linking pollution to lung cancer, birth defects, strokes, and heart attacks," said Dr. John Kirkwood, president and CEO of the American Lung Association. "We have more than enough evidence to require industry to clean up the existing plants today."

The nation's wild and treasured places will also lose out if the administration's rule is allowed to stand, added Jill Stephens of the National Parks Conservation Association.

Dozens of national parks are subject to severe air pollution - often from sources far away due to the dynamics of geography and wind patterns. Relaxing New Source Review undermines efforts to improve air quality, Stephens says.

"We have already seen how parks and people suffer from the effects of pollution," she said. "Now is the time to strengthen, not weaken our park's clean air protections."

The administration is pursuing additional changes to the New Source Review program through separate administrative rulemaking processes as well as through its air pollution plan known as "Clear Skies."

Critics note that Wednesday's announcement comes in the wake of a new report by the General Accounting Office - the investigative arm of Congress - that found the EPA relied on industry anecdotes as justification of its changes to the New Source Review program.

"EPA policy should be based on protecting public health, not bolstering industry profits," Kirkwood said.