Nine States Challenge Clean Air Changes in Court

WASHINGTON, DC, January 2, 2003 (ENS) - A set of new federal rules for the modification of industrial plants that ease requirements for the addition of modern air pollution controls is being challenged in court by nine northeastern states.

The U.S. Environmental Protection Agency (EPA) is revising regulations governing the New Source Review (NSR) programs mandated by the Clean Air Act. Posted in the Federal Register on December 31, 2002, the new rules include changes in requirements for modifications to facilities that emit pollutants into the air.

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Industrial plant emitting pollutants into the air. (Photo courtesy Lawrence Berkeley National Lab)
Nine states immediately filed a legal challenge against the final rule in the U.S. Court of Appeals for the District of Columbia Circuit. The attorneys general of Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont said that this "major weakening" of the Clean Air Act will further degrade air quality in the Northeast and Mid-Atlantic states, "regions already struggling with dirty air caused in significant part by industrial pollution carried into the region on prevailing winds."

The states say the new rules would exempt thousands of industrial air pollution sources, including some coal fired power plants, from the New Source Review provision of the Clean Air Act. The states are particularly concerned about sulfur dioxide and nitrogen oxide emissions, which cause acid rain, smog and an increase in respiratory disease.

The EPA says the New Source Review changes have been made "to allow sources more flexibility to respond to rapidly changing markets and to plan for future investments in pollution control and prevention technologies."

The affected industries include: electrical services, petroleum refining, chemical processing, natural gas transport, pulp and paper mills, automobile manufacturing, and pharmaceuticals. Entities potentially affected by this final action also include state, local, and tribal governments that are delegated the authority to implement these regulations.

The New Source Review lawsuit alleges that the EPA is exceeding its authority by enacting rules that weaken the Clean Air Act. "When Congress adopted the Clean Air Act in 1970, its intention was to improve the environment and protect public health by lowering levels of air pollution. The Bush administration's new rules and regulations would have the opposite effect of allowing air pollution levels to rise," the attorneys general said in a November statement announcing their intention to sue.

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New York Attorney General Eliot Spitzer (Photo courtesy Office of the AG)
New York Attorney General Eliot Spitzer said, "The Bush administration is attacking the Clean Air Act, which has been a cornerstone of our national commitment to environmental cleanup for two generations. The Bush administration is again putting the financial interests of the oil, gas and coal companies above the public's right to breathe clean air. It is incumbent on the states to take action to ensure that people are protected."

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.

The Federal Register notice finalizes five actions that the EPA previously proposed in 1996, three of which were re-noticed in 1998. Two changes are being made to the NSR regulations that will affect how sources calculate emissions increases to determine whether physical changes or changes in the method of operation trigger the major NSR requirements.

First, there is a new procedure for determining "baseline actual emissions." Sources may use any consecutive 24 month period in the past 10 years to determine the baseline actual emissions. Second, the EPA is supplementing the existing actual-to-potential applicability test with an actual-to-projected-actual applicability test for determining if a physical or operational change at an existing emissions unit will result in an emissions increase.

The states are challenging this revised approach for calculating baseline emissions. They argue that the EPA would allow facilities to set their "baseline" emission levels at the highest polluting level of any two consecutive years out of the last 10 years. "Thus, polluters could significantly increase their emissions over current levels without installing pollution controls," the states said.

Also, if sources keep the emissions from their facilities below a plantwide actual emissions cap, the revised rules will allow them to avoid the major NSR permitting process when they make alterations to their facilities or individual emissions units. In return for this flexibility, sources must monitor emissions from all emissions units.

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Air pollution from an industrial smoke stack (Photo courtesy Senator Patrick Leahy)
In their lawsuit, the states are challenging these plantwide applicability limits. The EPA will exempt polluters from New Source Review requirements if they agree to a cap on their air pollution. The states' lawsuit argues that the cap could be set far higher than the facility's current emissions, allowing pollution to increase far above current levels and remain uncontrolled even though the Clean Air Act intended air pollution to decrease.

The plantwide applicability limits (PALs) will result in tens of thousands of tons per year of volatile organic compounds reductions, the EPA said in November 2002. "Overall reductions will be greater because it is likely that PALs will be adopted for more source categories and pollutants than those analyzed," the agency said.

The states are challenging the EPA's adoption of a "clean unit" exclusion. This rule creates an exemption from New Source Review requirements for facilities that install the equivalent of what was considered to be best available control technology at the time. These "clean units" would then be exempt for up to 10 years from NSR review. As a result, these facilities could undertake projects that increase emissions without having to install newer, more effective, pollution control devices.

The states are also challenging an EPA proposal that would enlarge the "routine maintenance" exception, which currently only allows activities such as daily maintenance to be exempted from the Clean Air Act's definition of a "modification" subject to NSR. The EPA proposes to enlarge this exemption by creating an annual allowance that would exempt projects based only on cost, regardless of increased air pollution. "Facilities could replace major plant components and extend the life of the facility by decades, and not have to install air pollution controls, as long as the changes did not enable the facility to enlarge its current capacity," the states contend.

The EPA says its rule changes reflect consideration of discussions and recommendations of the Clean Air Act Advisory Committee’s Subcommittee on NSR, Permits and Toxics, comments filed by the public, and meetings and discussions. During the review of the NSR program, EPA representatives met with more than 100 groups, held four public meetings around the country, and received more than 130,000 written comments.

"The changes are intended to provide greater regulatory certainty, administrative flexibility, and permit streamlining, while ensuring the current level of environmental protection and benefit derived from the program and, in certain respects, resulting in greater environmental protection," the agency said.

But Maine Attorney General G. Steven Rowe said, "If the Bush administration is successful in its efforts to significantly weaken the Clean Air Act, the people of Maine will be the biggest losers."

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Maine Attorney General G. Steven Rowe (Photo courtesy Office of the AG)
"It is unconscionable that the Bush administration would put the financial interests of corporate polluters above the health interests of the American people," Rowe said. "Through Senators [Edmund] Muskie and [George] Mitchell, the state of Maine led the enactment and re-enactment of the federal Clean Air Act. The Act benefits Maine people most because we are located at the end of our nation's air pollution tailpipe."

The nation's manufacturers support the EPA's rule changes, and the National Association of Manufacturers (NAM) is now collecting funds from its members to defend the EPA's changes in court. Jeffrey Marks, NAM's director of air quality, wrote in a memo today, "I would ask that individual companies/associations consider contributing anywhere from $500 – $5,000 initially for this effort. NAM participation in the litigation and public comment process is imperative to achieving regulatory improvements in the NSR program for existing facilities."

Marks said in August when the changes were first spelled out in detail, “These overdue reforms should help promote safer, cleaner and more efficient power plants, refineries and factories. America’s manufacturers will work constructively with the EPA to develop and administer these reforms, and we’re hopeful they’ll result in cleaner air and affordable, reliable energy for American households and businesses.”

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Connecticut Attorney General Richard Blumenthal (Photo courtesy Office of the AG)
But Connecticut Attorney General Richard Blumenthal sees the new rule differently. "It seems that the Bush administration's New Year's resolution is to appease the energy industry by sacrificing the lives of people in the Northeast. In effect, the Administration is saying, ‘Northeast Drop Dead.' The NSR standards are a matter of life and death to countless citizens of the Northeast who receive all of the pollution but none of the power from these contaminating coal burning plants in the Midwest."

"Our fight in court and elsewhere," said Blumenthal, "will be to uphold the letter and spirit of the Clean Air Act, endorsed by the first Bush administration and now eviscerated by the second."

The American Lung Association has expressed "disappointment and deep concern" about the new source review rule changes, calling them a "major setback" for public health.

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

“The EPA is implementing new regulatory loopholes on the heels of one of the worst smog seasons in recent years," said Kirkwood. "EPA’s plan further tightens the air pollution noose around dozens of communities.”

Senator Patrick Leahy of Vermont, a Democrat, said in November, “I had hoped that EPA Administrator Christine Whitman would have gone back to her roots as an advocate for states’ rights and tougher clean air rules, but instead she is letting corporate polluters off the legal hook that, in the past, has lowered air pollution and led to million dollar settlements with some of the biggest offenders. This judicial bailout for corporate polluters not only takes cleaner air as a hostage; it also could mean that billions of dollars that would go to the federal treasury from pending court cases will now be lost.”

New Source Review is the foundation of a series of lawsuits brought by the states, the federal Environmental Protection Agency and environmental groups in 1999, 2000 and 2001 against dozens of old coal fired power plants and other industrial sources.