New Source Review Revisions Draw Fire

By Cat Lazaroff

WASHINGTON, DC, January 16, 2003 (ENS) - A utility charged with violating the new source review provisions of the Clean Air Act is arguing in court that revisions to the regulations invalidate the case against the company. The legal argument adds new ammunition to lawmakers and state officials who charge that the planned revisions will increase air pollution and make it harder to police polluting industries.

In court papers filed January 8, Southern Indiana Gas & Electric Company (SIGECO) urged the U.S. District Court for the Southern District of Indiana to dismiss the government's lawsuit against the utility, citing the U.S. Environmental Protection Agency's (EPA) revisions of the Clean Air Act.

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Industrial plant emitting pollutants into the air. (Photo courtesy Lawrence Berkeley National Lab)
Posted in the Federal Register on December 31, 2002, the revisions include changes in new source review (NSR) rules that require updating or expanding facilities to install state of the art emissions controls. Critics of the revisions say the new rules may exempt thousands of industrial air pollution sources, including some coal fired power plants, from the NSR provision, allowing increased emissions of sulfur dioxide and nitrogen oxide, which cause acid rain, smog and an increase in respiratory disease.

EPA Administrator Christie Whitman said the old rules "deterred companies from implementing projects that would increase energy efficiency and decrease air pollution." The new rules are slated to take effect on March 3.

Lawyers for SIGECO have argued that the upgrades made to its power plants, which the government has cited under the NSR provisions, were legal and routine maintenance activities that did not trigger a requirement for new emissions control equipment. Last month, the EPA proposed to revise the definition of "routine maintenance."

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Air pollution from an industrial smoke stack. (Photo courtesy Senator Patrick Leahy)
"EPA now admits what is obvious: industry, including SIGECO, has not been provided ascertainable certainty regarding what is 'routine'," the court papers state.

If SIGECO wins a dismissal of the government's case, it could have a chilling effect on all EPA efforts to enforce Clean Air Act cases under the new source review regulations. Already, several utilities that were nearing settlements with the EPA have slowed or cut off talks, waiting to learn if the cases against them will become moot.

In the meantime, more and more government agencies are joining a lawsuit challenging the EPA's NSR revisions. Nine states filed suit against the new rules, and they have now been joined by dozens of cities and towns in those states.

The lawsuit argues 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."

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Connecticut Attorney General Richard Blumenthal (Photo courtesy Office of the AG)
At a press conference today, Connecticut Attorney General Richard Blumenthal was joined by the mayors of New Haven, the city of Groton, Hartford, East Hartford and Middletown, which among the more than a dozen Connecticut cities and towns planning to join the lawsuit.

The NSR changes would "essentially grant a presidential pardon to some of the worst polluters in the United States," Blumenthal said.

Three Democratic presidential hopefuls - freshman Senator John Edwards of North Carolina, John Kerry of Massachusetts and Joe Lieberman of Connecticut - are planning to introduce legislation that would block the NSR revisions. The legislation would take the form of a rider attached to an omnibus federal spending package, covering 11 uncompleted spending bills for fiscal year 2003, that is now before the Senate.

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Senator John Edwards, of North Carolina (Photo courtesy Office of Senator Edwards)
"The president's new rules have put the interests of insider industries before the health of children and seniors," Senator Edwards said today. "These rules must be stopped."

The amendment to the appropriations bill would prevent the final rules from taking effect until the National Academy of Sciences completes a study of the rules' effect on pollution levels.

Also today, the presidents of two state and local air pollution program consortiums wrote to Administrator Whitman, expressing "serious concerns" about the "highly complex and controversial" rules and the "adverse impact these changes would likely have on the ability of states and localities to achieve and sustain clean, healthful air."

The State and Territorial Air Pollution Program Administrators (STAPPA) and the Association of Local Air Pollution Control Officials (ALAPCO) asked Whitman to consider delaying the effective date of the new regulations for one year, to allow time for a review of the revisions and for state and local authorities to adapt to the changes.