EPA Proposal Could Undermine Clean Air Act

By Cat Lazaroff

WASHINGTON, DC, June 13, 2002 (ENS) - The Bush administration today unveiled its long awaited, and much criticized, plan to weaken the new source review provisions of the federal Clean Air Act. The proposal, which includes lower emissions standards and higher trigger points for emissions control requirements, drew instant condemnation from conservation and public health groups.

At a press conference this morning, the U.S. Environmental Protection Agency (EPA) announced proposed reforms to the New Source Review (NSR) program that the agency argued would increase energy efficiency and encourage emissions reductions.

Aging power plants spew tons of air pollutants into the atmosphere each year. (Two photos by Carole Swinehart, courtesy Michigan Sea Extension)

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

The program has triggered major federal lawsuits against several energy giants, resulting in multimillion dollar settlements requiring the installation of pollution controls and the payment of hefty fines.

Almost a year ago, the EPA announced it was reviewing the NSR program, and sought public comments on potential revisions to the rule. The EPA report on that review, originally expected in August 2001, was delayed repeatedly.

Today, the EPA submitted its report on the NSR program and recommendations for reforms to President George W. Bush.

Many of the worst polluters have been accused by the EPA of illegally upgrading without installing pollution controls.

Many of the reforms the EPA is now moving to finalize were originally proposed during the Clinton administration in 1996, and have already undergone a public comment period - meaning they could be enacted without further public review.

Among the major changes the agency announced today are site wide emissions caps called Plantwide Applicability Limits (PALs). These caps would effectively raise the emissions threshold that would trigger NSR requirements for new emissions control equipment on specific smokestacks by allowing reductions in one area to compensate for increased emissions from older power plants.

The baselines for facility wide and individual plant emissions limits could also be raised, based on the EPA's proposal to allow companies to use any consecutive 24 month period in the previous decade as their baseline. Companies will therefore be able to choose their most heavily polluting two year period as the standard by which to measure future emissions increases or decreases, reducing the likelihood that plant modifications will trigger NSR requirements.

The EPA is also proposing three new reforms, never previously reviewed by the public, that must go through new rulemaking and public comment processes before they are finalized. One of these changes would redefine "routine" repairs, which are not covered by the NSR program, to include a number of equipment replacement projects that would previously have required the installation of new pollution controls.

This reform was among those proposed last month by a bipartisan group of 26 U.S. senators.

The New Source Review program affects not just power plants, but many other polluting industries, such as these along the Fox River in Wisconsin. (Photo courtesy Great Lakes United)

The EPA also proposes to clarify how the NSR rules apply when a company modifies one part of a facility in such a way that other parts of the facility increase their output, a reform the agency calls "debottlenecking." Finally, the EPA plans to institute new guidelines for analyzing the cumulative effects of multiple projects performed at a single facility over a short period of time.

The EPA says its proposed reforms incorporate thousands of comments received from state and local governments, environmental groups, private sector representatives and concerned citizens over the past decade. Over the past year, EPA representatives met with more than 100 environmental and consumer groups and public officials from across the political spectrum, held public meetings around the country, and evaluated more than 130,000 written comments to assess the effect of NSR on the energy sector.

"Reforming NSR will promote energy efficiency, plant safety and modernization at refineries, power plants and other industrial facilities across the country," said EPA Administrator Whitman. "Unfortunately, some elements of NSR have discouraged modernization and the development of new technologies. These reforms will bring clarity and greater opportunities for pollution prevention and energy efficiency."

But critics charge that the Bush administration's move could allow the emission of thousands or even millions of tons of additional air pollution.

"Once again, the Administration is giving a massive gift to the energy companies that contributed heavily to the Bush campaign," said Rebecca Stanfield, clean air advocate for the U.S. Public Interest Research Group (PIRG). "The loss of this program will mean thousands of premature deaths per year that could have been prevented."

PIRG cited EPA statistics and independent studies suggesting that pollution from old, coal burning power plants triggers an estimated 30,000 premature deaths and hundreds of thousands of asthma attacks each year across the nation.

Air pollution crosses state lines and can end up in waterways and wilderness areas. (Photo courtesy Center for Great Lakes and Aquatic Sciences)

Electric utilities pushed for weakening the NSR rules during the 2000 presidential campaign and in the early months of the Bush Administration. Documents released to the Natural Resources Defense Council under court order show that the White House energy task force met and exchanged memos with utility representatives, including Southern Company executives, regarding the NSR program.

Southern Company is one of several utilities that has been sued by the Justice Department and the EPA over violations of NSR provisions.

"This plan appears to pose a direct threat to the enforcement actions that EPA has brought against electric power companies, refineries and other smokestack industries," said Frank O'Donnell, executive director of the Clean Air Trust, noting that the industries "illegally modified their plants without installing new cleanup controls."

"Lawsuits were brought against these companies for violating the so called new source review provisions of the law," O'Donnell noted. "Their defense was that they were only doing routine maintenance. But now the Bush Administration seeks to change the definition of routine maintenance. This looks like nothing more than an engraved invitation to powerful campaign contributors."

The Electric Reliability Coordinating Council (ERCC), a group of power generating companies that has lobbied hard for reforms to the NSR program, said today's announcement was "a step in the right direction."

"The New Source Review program has been in need of clarification since the Clinton Administration's ill-considered 1999 initiative," said ERCC spokesperson Scott Segal. "By discouraging routine maintenance and repair, the 1999 NSR interpretation discouraged efficiency, undermined environmental protection, hampered workplace safety, diminished international competition, and disproportionately impacted economically troubled urban and rural communities."

Supporters of the NSR program, however, argue that the rule has been instrumental in regulating refineries and power plants, which pump millions of tons of pollution into communities. Power plants built between 1940 and 1970, for example, emit four to 10 times more pollution than modern plants.

Loading iron ore at a smelter in Taconite Harbor, on Lake Superior in Minnesota. (Photo courtesy Michigan Sea Grant)

In January 2002, the Justice Department announced that its review of lawsuits filed under the NSR program found that the actions were legal and consistent with the Clean Air Act and the Administrative Procedure Act, and vowed to pursue the suits.

Today, conservation groups said they would take legal action of their own to oppose the undermining of the NSR program.

"It is difficult to imagine a more aggressive assault on our clean air protections," said PIRG's Rebecca Stanfield. "We hope and expect that many of these changes will be ruled illegal, but in the meantime a lot of people will suffer unnecessarily from heart and lung disease, and a lot of environmental damage will be done."

More information on the proposed NSR revisions is available at: http://www.epa.gov/epahome/headline_061302.htm