Non-Permitted Polluters Given Secret Free Ride

WASHINGTON, DC, March 11, 2002 (ENS) - New England is the worst and the Rocky Mountain region is the best, but across the country nearly one third of all factories, power plants and other major sources of air pollution do not have permits required under the Clean Air Act. The poor rate of compliance was detailed in agency documents released today by Public Employees for Environmental Responsibility (PEER).

As a consequence, many of the nation's worst air polluters are shielded from both regulatory control and public scrutiny, according to PEER, a nonprofit organization of government employees - scientists, land managers, law enforcement officers, and other environmental professionals.


Air pollution in Seattle, Washington (Photo credit unknown)
Despite a 1997 statutory deadline for issuance of all permits for facilities that are major sources of pollution, the failure of the Environmental Protection Agency (EPA) and its state counterparts to require permits for these air polluters "has remained an open secret in agency circles," PEER said today.

According to an October 2001 draft report from EPA's Office of Inspector General that was never made public, the absence of operating permits undermines monitoring, enforcement and pollution prevention.

"The Clean Air Act must be implemented before it can be expected to work," said Kyla Bennett, a former EPA attorney who is director of New England PEER. "The poor track records for the industrial New England states of Massachusetts, Connecticut and Rhode Island should be setting off alarm bells."

The air pollution is emitted from factories and power plants that burn fossil fuels - coal, oil and gas.

Several of the Eastern industrial states with the worst air pollution problems have the lowest rates of permit issuance, the agency documents revealed. New Jersey has permitted only 30 percent of its major sources; Massachusetts has permitted only 32 percent. Regionally, New England has the lowest rate, at only 41 percent, while the Rocky Mountain region has highest rate of 91 percent.

Agency sources indicate the reason so many major sources remain unpermitted is because they represent the toughest pollution problems. A December 4, 2001 statement of priorities distributed by Jeffrey Holmstead, head of EPA's Office of Air and Radiation, assessed the inability to meet statutory deadlines in the stationary source program - referred to as Title V of the Clean Air Act.

"We're more than 10 years into the Title V program," Holmstead wrote, "yet only about two-thirds of the major sources in the country have received their Title V permits. And most of the largest, most complex sources remain unpermitted and are operating under the so-called application shield."


Ohio power plant. None of Ohio's coal-burning power plants are currently required to follow the strict emissions standards of the Clean Air Act of 1970 because they were planned or constructed prior to 1973. (Photo courtesy Ohio Environmental Council)
Under the application shield, polluters are allowed to operate if they have applied for a permit; a process that the EPA Inspector General estimates takes an average of 3.2 years. The EPA predicts that it may close the gap in permit issuance by 2004, at the earliest.

President George W. Bush changed the rules on February 14 when he announced a new Clear Skies Initiative as part of his newly crafted policy to combat global warming. The legislative proposal is aimed at cutting power plant emissions of three air pollutants - nitrogen oxides, sulfur dioxide and mercury by 70 percent.

The Clear Skies legislation would establish a market based cap-and-trade approach that Bush said "rewards innovation, reduces cost and guarantees results."

"This legislation will constitute the most significant step America has ever taken," the President said, "to cut power plant emissions that contribute to urban smog, acid rain and numerous health problems for our citizens."

The administration's plan would cut sulfur dioxide emissions by 73 percent from current levels; cut nitrogen oxide emissions by 67 percent, and cap emissions of mercury from power plants for the first time, cutting them by 69 percent. The cuts are planned to occur in two phases, with one set of emission limits due by 2010 and the second by 2018.

But the first step taken by the administration towards a cap-and-trade approach - the approval of open market air pollution trading authority for states - has been challenged by PEER and the Sierra Club. In early February, the EPA formally proposed open market trading for Michigan and New Hampshire. Approval of similar programs is pending for New Jersey and Illinois.

New Jersey

Industrial scene along the New Jersey Turnpike (Photo courtesy Todd Wilson)
PEER and the New Jersey Chapter of the Sierra Club filed complaints February 14 charging that the air pollution trading authority for states violates the Clean Air Act to the detriment of public health.

The joint PEER/Sierra Club complaints ask first that enforcement action be taken against New Jersey companies who have used credits to circumvent Clean Air Act requirements without legal authorization; and also that the EPA Office of Inspector General review the effectiveness and legality of burgeoning pollution trading schemes.

Testifying before the Senate Committee on Environment and Public Works November 1, 2001, Holmstead acknowledged that an "effective" market based approach would make some existing provisions of the Clean Air Act unnecessary.

For example, he said, depending on the ultimate cap levels chosen by Congress, cap-and-trade legislation that creates a market for emissions credits would eliminate the need for "best available retrofit technology" requirements, "maximum achievable control technology" to reduce mercury emissions, and "new source review case-by-case technology requirements for power generators," all requirements that have been fought by industry.

Holmstead praised the clean air record of the United States. "Over the last 30 years," he told the senators, we have made "substantial progress towards improved environmental quality" under the Clean Air Act. "During this time, gross domestic product has increased almost 160 percent. At the same time, we have reduced emissions of six key air pollutants by 29 percent, while coal consumption has increased 77 percent and energy consumption has increased 45 percent."