Bush Administration to Gut Clean Air Act

Rule Would Allow More Pollution at 17,000 Facilities

WASHINGTON (August 22, 2003) - Next week the Environmental Protection Agency plans to release its final rule on the Clean Air Act's definition of "routine maintenance" that would allow more air pollution from approximately 17,000 industrial facilities across the country, according to NRDC (Natural Resources Defense Council).

NRDC obtained a leaked copy of the final rule, which essentially repeals the "new source review" provision of the Clean Air Act. That provision requires industrial facilities to install modern pollution controls when they make upgrades to plants that increase air pollution. The new final rule would allow facilities to avoid installing pollution controls when they replace equipment -- even if the upgrade increases pollution -- as long as the cost of the replacement did not exceed 20 percent of the cost of what the EPA broadly defines as a "process unit." For example, if a coal-fired power plant replaced a boiler whose cost was less than 20 percent of the replacement cost of the entire process unit -- the boiler, turbine, generator and other equipment that turns coal into electricity -- the company would not have to control the resulting pollution increases.

Under this scheme, all of the Clean Air Act violations the Justice Department is prosecuting at nine Tennessee Valley Authority power plants and those at a recently convicted Ohio Edison plant would have been allowed, according to NRDC. The upgrades at those plants increased air pollution by hundreds of thousands of tons, but because they cost less than 20 percent of the replacement value of the process units, TVA and Ohio Edison would not have had to install modern pollution controls under the new rule.

"The Bush administration, using an arbitrary, Enron-like accounting gimmick, is authorizing massive pollution increases to benefit Bush campaign contributors at the expense of public health," said John Walke, director of NRDC's Clean Air Project. "Corporate polluters will now be able to spew even more harmful chemicals into our air, regardless of the fact that it will harm millions of Americans."

New Source Review and Enforcement

The Clean Air Act's new source review provision was instituted in 1977 to reduce pollution from coal-fired power plants, oil refineries and other large industrial facilities. The provision requires companies to install modern pollution control technologies in new plants, and in old plants when they make significant emissions-increasing modifications. While facilities operating at the time the rule was implemented were exempt from the new requirements under a "grandfather" clause, policymakers assumed that either they would be eventually replaced by new, cleaner facilities or upgraded with modern-day pollution controls. But the rule was inadequately enforced, so many older facilities are still operating without proper emissions reduction technology.

At the same time that the Bush administration has been preparing this new rule, the Department of Justice, state attorneys general, NRDC and other organizations have successfully prosecuted or settled new source review lawsuits that the Clinton administration brought against the 12 owners of the country's oldest, largest and dirtiest coal-fired power plants. According to a study performed by Abt Associates, a technical consulting firm that frequently works for EPA, the failure to install modern pollution controls at the 51 plants at issue in the enforcement cases is responsible for 5,000 to 9,000 premature deaths and 80,000 to 120,000 asthma attacks every year.

The Justice Department has obtained settlements from five of the companies, and, on August 7, won a landmark case against another -- Ohio Edison. The five settlements will force the companies to reduce their annual emissions of smog- and soot-forming pollution by more than 500,000 tons each year. Meanwhile, the victory over Ohio Edison is expected to force that company to reduce its annual emissions by tens of thousands of tons.

Altogether, EPA officials have estimated that if it won all of the enforcement cases involving the 51 plants, it would cut nearly 7 million tons of harmful air pollution annually. That would amount to a 50 percent reduction of air pollution generated by U.S. electric utilities.

The Timing of the Announcement: Protecting Gov. Leavitt?

NRDC also pointed out that the timing of the final rule announcement is likely motivated by the fact that Congress is on recess and much of the nation is on vacation and, perhaps most important, by the Bush administration's desire to insulate its nominee for EPA administrator from criticism. The nominee, Utah Gov. Michael Leavitt, is an exponent of what he has coined "enlibra" principles, which include empowering states to protect the environment without federal interference and developing environmental policy collaboratively with all stakeholders.

At March 31 EPA public hearings, state and local officials blasted the proposed rule for violating the very principles Gov. Leavitt espouses. EPA developed the rule without state or public input, they pointed out, and noted that it would interfere with states' abilities to protect their residents from harmful air pollution. Gov. Leavitt's own air quality director, Rick Sprott, testified in opposition to what is now the final rule, calling it a "train wreck."

Campaign Contributors

The same companies that are currently being prosecuted for new source review violations are major contributors to the Republican Party and had easy access to Vice President Cheney's secret energy task force. For example, the Edison Electric Institute, an industry trade group comprising the power plant defendants in the Justice Department new source review cases, had at least 14 contacts with the Cheney task force and contributed nearly $600,000 to the Republican Party from 1999 to 2002. (For more information, see this May 2002 NRDC press release.)

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 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.

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Bush Administration to Gut Clean Air Act