Bush Attempting End Run Past Clean Air Act

by J.R. Pegg

Both critics and supporters of the administration's changes to the New Source Review (NSR) program contend these revisions could dramatically alter the nation's regulation of clean air, with possible far reaching implications for public health, energy production and environmental protection.

The Bush administration's rule revisions will affect regulation of air pollution from the nation's 17,000 industrial facilities, which emit the majority of nitrogen oxide (NOx) and sulphur dioxide (SO2) emitted by the United States. These pollutants are leading contributors to smog, soot, haze and acid rain.

Established in 1977, the New Source Review 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.

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.

Clean air is a serious matter in the United States -- the U.S. Environmental Protection Agency (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.

The proposed changes to the New Source Review program will be the subject of five public hearings held Monday by the EPA. The comment period for the rule changes ends May 3, and the rule could be finalized shortly thereafter.

During a debate Thursday at the National Press Club, environmentalists and state pollution officials argued the merits of the Bush administration's proposal with industry representatives, who maintain that the NSR program is in dire need of the kind of reform currently on the table.

"This is a federal program that is extremely problematic," said Scott Segal, spokesman for the Electric Reliability Coordinating Council, a consortium of U.S. power generating companies.

The 17,000 industrial facilities across the country fall under the authority of the program include coal fired power plants, oil refineries, chemical factories, cement kilns, paper mills and copper smelters.

The EPA reports that New Source Review program requirements have kept more than 300 million tons of pollution out of the air since its inception.

At the center of the controversy is the interpretation of the phrase "routine maintenance, repair and replacement." Plants that undergo activities that fall under this definition are not subjected to additional pollution control measures.

Industry representatives say that the lack of a clear definition of what constitutes routine maintenance deters some facilities from performing important repairs for fear they will trigger NSR, thereby impeding efficiencies that could benefit consumers and the environment.

"It would be nice if we had a legal definition of routine maintenance," Segal said. "Currently you can take the smallest possible change and prove it increases emissions."

The Bush administration's changes do not provide that clear legal definition, but they allow the cost of maintenance projects to determine whether the NSR program would affect the activity.

The 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 NSR if it is replacing pieces of equipment with other pieces that serve the same function.

Segal says these changes will give the industry greater clarity on the costs and regulatory implications of routine maintenance and will not result in increase pollution.

But opponents say the Bush administration's proposal essentially guts the NSR program.

The Bush administration has already changed provisions to NSR through a final rule adopted last year, which has brought several legal challenges from state attorneys generals. Those changes were bad, critics charge, but these proposed revisions are even worse.

"This is the mother of all clean air roll backs," said John Walke, director of the clean air program at the Natural Resources Defense Council (NRDC), a national nonprofit environmental organization.

The Bush administration's revisions turn the Clean Air Act "upside down," Walke said, by allowing facilities to increase pollution without first developing offsetting pollution controls.

The NSR program is one of the "most important tools states have for reducing emissions," according to William Becker executive director of State Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials.

Becker objects to the administration's proposal because it does not simply or clarify the NSR program, rather it creates a "mass of complexity and added uncertainty."

The implications of the changes need to be viewed within the context of how states regulate and cut air pollution, Becker explained.

The Bush administration's revisions will push additional burdens onto states, who must comply with overall emission reductions in spite of any changes to NSR, Becker said.

By weakening control of emissions from industrial facilities, states "will have to pursue emissions reductions from elsewhere," Becker explained.

"It is like balancing a checkbook."

If the changes to NSR proceed, Becker said that states might have to impose other emission reductions on small businesses or impose transportation control measures to offset the increase in pollution from industrial facilities.

And this touches a larger issue - whether it is more cost effective to target stationary sources of pollution such as industrial facilities, or mobile sources of pollution, including cars and trucks.

According to attorney C. Boyden Gray, co-chairman of the conservative think tank Citizens for a Sound Economy, "the laggard is mobile sources, not utilities."

"The only reason for this brouhaha is that people do not want to see reductions come through the use of market incentives," Gray said.

There is cause for considering reductions through mobile sources, which in total produce 56 percent of NOx emissions. Passenger cars alone contribute some 20 percent of the smog forming emissions.

But Congress and government agencies have tended to believe that stationary sources of air pollution are much easier and more cost effective to regulate.

Mobile sources of pollution should not be part of the NSR argument, Becker said, except in the context of what states might need to do to offset any rising emissions afforded to industrial facilities if the Bush proposal is finalized.

"We have no axe to grind in this debate, and we are also seeking clarity," Becker explained. "But this eviscerates the NSR program. These are huge loopholes that will take away an important tool to meet public health standards."

"This is a stealth attack on public health," Becker said. "It is not as obvious as many other environmental dangers so it is important to shine a big bright light on it."

Becker said he would like to see the EPA come up with a list of definitions of routine maintenance for the industries that fall under the NSR program.

But Segal of the Electric Reliability Coordinating Council is reluctant to embrace this suggestion because, he says, every word of each definition "could be subject to legal challenge after legal challenge from groups like the NRDC."

Clarity provided through a monetary figure, as proposed by the Bush administration, has the virtue of offering "a clear red line," Segal said.

Segal contends he is not fully satisfied with the administration's proposal, but believes it is an important step in the right direction and will increase efficiency, a benefit that will positively impact consumers.

The NRDC's Walke said the administration has created "two gaping loopholes out of thin air."

These loopholes threaten ongoing litigation against facilities alleged to have violated the current set of New Source Review regulations, Walke said, including several prominent cases involving power plants within the Tennessee Valley Authority.

"NSR is a very valuable program and would work if industry and Bush administration were not so dedicated to multiplying loopholes and making the program completely ineffective," Walke said.

"The early loopholes were never legally challenged but these will be."