Bush Rolls Back Air Pollution Controls

by J.R. Pegg

Senator Joe Lieberman (D - Connecticut,) criticized the Administration's "shameful record of abandoning environmental protection" and called on EPA Administrator Christie Whitman to resign in protest.

"Governor Whitman has a good record and good intentions, but on her watch this administration has undertaken the biggest rollback in Clean Air Act history and scaled back countless other environmental protections," said Lieberman. "Time and again, her advice has been overruled by a White House determined to gut commonsense environmental standards. Out of principle and protest, she should step down."

"All this rule change will do is extend the life of the dirtiest industrial plants and worsen the lives of citizens that breathe the pollution from their smokestacks every day," Senator Lieberman warned.

The changes, announced today by the EPA, are to the New Source Review provision of the Clean Air Act.

New Source Review 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.

The Bush administration said in a prepared statement that its changes to New Source Review (NSR) will "increase energy efficiency and encourage emissions reductions" and will have a "net benefit to the environment."

Critics, however, strongly dispute the administration's findings.

"This is the most significant rollback of clean air standards ever," said Mark Wenzler, environmental counsel for the National Environmental Trust.

"The Bush administration's announcement retreats from the promise of the Clean Air Act -- fresh and healthy air for all Americans," said former EPA Administrator Carol Browner who served in the Clinton adminstration.

"This rollback in the law will permit thousands of the oldest, dirtiest smokestacks to continue spewing out pollution rather than installing state of the art pollution controls," Browner said. "It is nothing but a special deal for the special interests. It comes at the expense of all who breathe and most particularly our children."

"The EPA is stripping away vital, cost effective clean air measures that have protected Americans from the harmful effects of industrial air pollution for a quarter century," warned Environmental Defense senior attorney Vickie Patton.

"Today's action puts Americans in communities across the country at serious health risk by exempting thousands of power plants, refineries and other major industrial facilities from fundamental air pollution controls," she said.

The changes are the culmination of a 10 year process, but are largely based on a report issued to President George W. Bush in June 2002. The report found that "instead of being a tool to help improve air quality, [NSR] has stood in the way of making numerous environmental improvements at many facilities across the nation."

"NSR is a valuable program in many respects but the need for reform is clear and has broad based support," EPA Administrator Christie 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."

But Wenzler argues that the administration cannot "point to any statement from any government or state agency or representative that supports these changes."

"No one in the government has ever called for any of these new loopholes," he said, "and no one has embraced these beside industry insiders."

Leaders of the State Territorial Air Pollution Program Administrators (STAPPA) and the Association of Local Air Pollution Control Officials (ALAPCO) joined in the chorus of disapproval over the administration's changes to the New Source Review provision.

"Although our associations believe NSR can be improved," said William Becker, executive director of STAPPA and ALAPCO, "we firmly believe the controversial reforms the EPA is putting in place today will result in unchecked emission increases that will degrade our air quality and endanger public health."

The administration has made four highly technical changes to the provision. One change alters the standard for determining the baseline for a facility's pollution to allow it to select any 24 month period over the past 10 years upon which to establish its emissions baseline.

"This will result in higher baseline levels," said Nat Mund, Washington representative with the Sierra Club.

The second change allows Plantwide Applicability Limits (PALs) to be established with an emissions cap that looks back over 10 years and does not decline over time. This is a voluntary program that allows a facility to operate within a site specific emissions cap. The rule change also establishes no minimum control requirements for new sources or existing sources with outdated pollution controls.

The third change refers to "clean unit status," whereby facilities that install the best available control technology or lowest achievable emission rate control levels on a one time basis are allowed to make changes that do not trigger a New Source Review for a specific period of time.

The administration will now apply the rule retroactively to any plant that applied the technologies by 1990 and it will apply for 10 to 15 years.

"Making this retroactive simply takes away the incentive to adopt additional pollution control technologies," Mund said.

Fourth, the EPA will now allow the industry to determine which of its pollution prevention projects are eligible for potential exemption from the New Source Review. Previously, this eligibility was determined by local and state authorities.

According to the EPA, these four changes will, in sum, "remove perverse and unintended regulatory barriers to investments in energy efficiency and pollution control projects, while preserving the environmental benefits of the NSR program."

But these barriers were not created by the program, Mund argued, and facilities can avoid them if they simply agree not to pollute any more than they do today.

"These are four new loopholes that Congress never authorized that will essentially allow plants to make changes to their plants that increase pollution yet not have to put on new pollution controls," added Wenzler. "These dirty old grandfather plants will never, ever shut down or retire. This is a law that is supposed to prevent pollution increases."

State officials also fear the changes will make their jobs, tougher, not less difficult.

"Many of EPA's reforms will weaken the existing NSR program and we cannot afford to have our hands tied from pursuing more stringent requirements that will better protect air quality and public health in our jurisdictions," said ALAPCO president Ellen Garvey on behalf of local air pollution control officials.

The EPA decision is a "major setback to public health," said John Kirkwood, president and CEO of the American Lung Association.

"According to the EPA, 175 million Americans live in areas violating health standards for smog or soot," Kirkwood said. "Relaxing air pollution control rules applicable to 18,000 industrial pollution sources defies basic principles of common sense and good government."

Today's announcement also featured an additional proposal by the Bush administration to expand the definition of "routine maintenance, repair and replacement," a key concept within NSR. Plants that undergo activities falling under this definition are not subjected to additional pollution control measures.

The administration proposes a range of options, including a mechanism that would allow the cost of maintenance projects to determine whether NSR would affect the activity.

This proposed change, and the rules issued today, threaten to undermine a slew of lawsuits against major industry players, including the government owned and operated Tennessee Valley Authority, who have been brought to court for allegedly evading NSR obligations, said Wenzler.

This concern prompted New York Attorney General Eliot Spitzer to testify at a Senate hearing in July that he would file suit in federal court to stop the administration's changes to NSR.

There are signs that officials from Connecticut, Maryland and New Jersey, as well as several environmental groups, are also considering legal action to challenge the decision.

The motivations of the Bush administration have weighed heavily on the debate over NSR and some fear only more of the same will follow.

"Today's actions are a harbinger of what is to come from this administration," Wenzler said. "They'll stop at nothing to pay back the coal, oil and energy industries that financed their campaign."

"Today's package of final and proposed regulations on New Source Review violates the spirit and the letter of the Clean Air Act," said Senator Jim Jeffords, an Independent from Vermont and chairman of the Senate Environment and Public Works Committee. "The administration has failed to do an honest, credible assessment of the net impact on the environment, public health and air quality.

"This early Christmas gift to industry means more pollution and less protection," Jeffords added. "If the administration is so proud of these regulations, you have to ask yourself why they would wait until after the election, after Congress adjourns for the year and on the Friday afternoon before Thanksgiving to release them?"