Bush Weakening of Clean Air Act Threatens Public Health, Says NRDC

Group Warns Decision the Beginning of an All-Out Assault on Environment

WASHINGTON (November 22, 2002) -- Today's Bush administration decision to weaken a key Clean Air Act provision will dramatically increase air pollution and threaten the health of millions of Americans, according to NRDC (Natural Resources Defense Council). The group also warned that today's decision is a sign of things to come. It predicted that the administration, emboldened by the recent election results, will intensify its campaign to dismantle longstanding environmental safeguards across the board.

"The Bush administration decided to allow corporate polluters to spew even more toxic chemicals into our air, regardless of the fact that it will harm millions of Americans," said John Walke, director of NRDC's Clean Air Program. "More than 30,000 Americans die every year from power plant air pollution alone, and crippling the standards will only make things worse." NRDC plans to take legal action against the rule change.

The provision in question, called "New Source Review" (NSR), requires facilities to install modern pollution controls when they upgrade or modify their equipment and significantly increase their emissions. NSR requires more than 17,000 of the country's largest polluting facilities to clean up increased emissions from facility changes. These facilities include oil refineries, chemical plants, power plants, incinerators, iron and steel foundries, paper mills, cement plants, and a broad array of manufacturing facilities.

Besides gutting the NSR provision with final rule changes (see below), the administration today also proposed loopholes that essentially would eliminate cleanup requirements for existing facilities. Specifically, the Environmental Protection Agency has recommended two unlawful exemptions that would allow companies to modify their plants in any way, call it "routine maintenance," and avoid installing pollution controls when they significantly increase emissions. Former EPA enforcement officials have sharply criticized these proposals because they believe they will undermine pending enforcement cases against coal-fired power plants.

"Under this administration, the cop is not only off the beat, the EPA is proposing to legalize harmful pollution that today is illegal," said Walke. Rumors of these proposed exemptions already have prompted defendants in pending power plant enforcement cases to argue that the government is reversing course on its legal positions, he said. NRDC believes that today's proposal will further undercut enforcement cases and discourage settlements.

NRDC sees today's decision as just the beginning of a two-year administration campaign. "Sadly, there is every reason to believe that this is just the leading edge of an assault on fundamental protections for our air, water and public health by the Bush administration," said Gregory Wetstone, NRDC's director of advocacy. "Emboldened by the election, and unrestrained by serious congressional oversight, the Bush administration is escalating its effort to undermine our landmark environmental laws."

Although NRDC did not have the final rule at this writing, a draft version obtained by NRDC shows that the administration will weaken NSR in a number of fundamental ways, including:

• Smoke and Mirrors: Under the NSR provision, changes at industrial facilities resulting in significant pollution increases (e.g., 40 tons per year) triggered cleanup obligations. To determine whether pollution increases, a company must compare its pollution before the change, known as its pollution "baseline," with pollution levels after the change. The administration's rule change will allow a facility to pick a fictional pollution baseline that is worse than its actual pollution levels, essentially allowing the facility to pollute more and pretend it is not.

• The Dirty Unit Loophole: The Environmental Protection Agency is creating a loophole in NSR requirements called the "clean unit" exemption. Far from being clean, the sole purpose of the exemption is to allow significant increases in air pollution to avoid cleanup and installing state-of-the-art pollution controls that were required under NSR rules.
• No PAL of Mine: EPA is adopting a plant-wide applicability limit (PAL) concept that purports to be a 10-year "cap" on pollution covering an entire facility. It will allow facilities to lock in excessive pollution levels -- without having to reduce those levels -- and avoid cleanup under NSR for 10 years and beyond. EPA will not mandate pollution control requirements for new or existing polluting equipment under a PAL. A PAL will last 10 years, allowing pollution decreases that occurred nine years ago to purportedly "offset" actual and significant pollution increases today, thereby avoiding cleanup today.

Today, EPA also proposed a "routine maintenance" loophole in NSR cleanup standards. Specifically, the agency proposed two versions of a loophole that would allow facilities to increase pollution from hundreds to tens of thousands of tons. The first version would allow companies to replace as much as 15 percent of the total capital cost of their facilities each year, increase pollution as much as they wanted, and avoid cleanup. The second would allow companies to replace any piece of equipment of any size with the same or similar new equipment, increase pollution as much as they wanted, and avoid cleanup.

"These two exemptions have no basis under the Clean Air Act and essentially would eliminate NSR cleanup standards," said Walke. "And it should be stressed that these new loopholes would supplement -- not replace -- existing NSR exemptions. In other words, EPA is not clarifying the existing 'routine maintenance' exemption; it's merely adding new ones that kill the standards."

The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 500,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

Related NRDC Pages
The Bush Record: Power Plant Pollution