EPA relaxes air rules for industries
States eye suits over emissions
The Boston Globe Staff, Nov. 23, 2002
WASHINGTON - The Bush administration yesterday relaxed clean air rules that limit emissions from utilities, refineries, and manufacturers, and mandate when they must upgrade pollution control equipment. The administration also proposed additional rule changes that, if adopted, would further ease federal restrictions on the largest polluters.
The announcement spurred Massachusetts and several other states downwind from major polluters to threaten lawsuits to block the new rules, which also prompted howls of outrage from environmentalists and calls from Democratic lawmakers for Christie Whitman, administrator of the Environmental Protection Agency, to resign.
But Whitman, in a statement, defended the new rules and the proposed changes to a program called '' New Source Review,'' or NSR.
''EPA is taking actions now to improve NSR and thereby encourage emissions reductions,'' Whitman said. ''The steps we are taking today recognize that some aspects of the NSR program have deterred companies from implementing projects that would increase energy efficiency and decrease air pollution.''
Critics condemned the new and proposed rules, saying they favored industry over public health.
''This administration has been pretty consistent here when it comes to environmental matters, in terms of whose interests they put first,'' said Thomas F. Reilly, the Massachusetts attorney general.
''They clearly put [first] the interests of the power plants, those plants in particular in the Midwest that are causing pollution problems here in the Northeast of the country. We're breathing that air, and that's jeopardizing people's health, and that's just plain wrong, so take it to court.''
Reilly said that Massachusetts would join a lawsuit planned by New York state to overturn the new rules.
Representative Edward J. Markey, Democrat of Malden, called the rules ''a postelection payback for preelection contributions from polluting industries.''
Senator Joseph I. Lieberman, Democrat of Connecticut, called for Whitman - whose home state of New Jersey had sued to enforce the current rules when she was governor - to resign. So did Markey and Representative Henry Waxman, Democrat of California.
New Source Review refers to a section of the Clean Air Act that governs when polluters must upgrade emissions reduction technology. The original law did not require coal-fired power plants in operation at that time to upgrade, unless they underwent major expansions or modifications.
In that case, they were required to invest in the best available controls.
The requirement had gone largely unenforced until the mid-1990s, when the Clinton administration started vigorously imposing it, bringing lawsuits against dozens of plants across the country. The energy industry argued that it marked a new, overreaching policy, but administration officials and environmental advocates - including state attorneys general who had brought suits on the matter - said the law was merely being enforced.
Under the new rules, which were first proposed in June, industry will be able to:
Avoid triggering a New Source Review if their plant has undergone such a review by the EPA in the past 10 years.
Use any two-year period in the past decade as a baseline for measuring increases in their pollution level.
Exempt any new kind of pollution that results from controls on different emissions.
Calculate levels of emissions from an entire plant rather than for each source of pollution at a particular location.
A computerized analysis done by the EPA concluded that the changes would be ''a net benefit to the environment,'' contrary to the projections of most environmentalists. According to agency officials, industry representatives, and some environmentalists, the new rules will have a limited effect on industrial power plants, which are by far the biggest polluters.
Previous court decisions already govern several issues covered in the new rules, while the regulation allowing pollution to be calculated plantwide would have negligible effect on power plants that typically have only two or three sources of pollution, rather than a chemical plant or refinery that might have hundreds or thousands at one site.
''They're not a sweeping change,'' said David Wooley, a lawyer with the Clean Air Task Force, who nevertheless said the new rules would still allow some sources of pollution to increase their emissions. But Wooley and other environmental advocates called the other rules proposed yesterday more disturbing.
For years, industry has argued that routine maintenance and upkeep of the plants - exempted from New Source Review in the law - have been illegally regarded as upgrades in the plants. The proposed rule would define routine maintenance, putting two definitions forward for discussion.
The first would allow a certain amount of money to be spent annually on upkeep, while the second would allow plants to replace specific parts with the equivalent new ones.
Environmental advocates argued that the rules would amount to a permanent grandfather clause for the plants, allowing them to function indefinitely without having to reduce their pollution.
''It redefines routine maintenance to say you can do almost anything to extend the life of your power plant and almost rebuild it,'' said Phil Clapp, president of the National Environmental Trust.
The proposal drew faint support from industry as well. Scott Segal of the Electric Reliability Coordinating Council, which consists of power companies, said that greater precision is needed.
''When you seek clarity, a menu of options is not really helpful,'' Segal said.
Clapp and other environmentalists also expressed concern that the proposed rule changes would undercut lawsuits that the EPA brought against polluters during the Clinton administration and are still pending.
''In all likelihood, the lawsuits against the 13 companies just came to an end,'' Clapp said. ''It's very unlikely that any federal judge is going to rule that these companies spend hundreds of millions of dollars to clean up their plants when the Bush administration just gutted the rules under which they were sued.''
But J.P. Suarez, who heads the EPA's enforcement office, rejected that notion.
''We don't believe that any of the proposed NSR reforms will have any impact on our NSR cases,'' he said.
The Associated Press, Nov. 23, 2002
The new EPA regulation will allow industry to:
--Set higher limits for the amount of pollution that can be released by calculating emissions on a plant-wide basis rather than for individual pieces of equipment.
--Rely on the highest historical pollution levels during the past decade when figuring whether a facility's overall pollution increase requires new controls.
--Avoid having to update pollution controls if there has already been a government review of existing ones within the past 10 years.
--Exempt increased output of secondary contaminants that result from new pollution controls for other emissions.
In addition, the agency is proposing a new way of defining what constitutes "routine maintenance, repair and replacement" -- key language that helps determine when the regulations should kick in and is particularly important for aging coal-fired power plants.
The EPA plans to grant power plants, factories and refineries an annual "allowance" for maintenance. Only when expenditures rise above that allowance would an owner or operator have to install new pollution control equipment. Replacement of existing equipment would be considered maintenance.