Leaked Memo From Top EPA Official Says Proposed Rule is 'Largely Unenforceable' and 'Contrary To Congressional Intent'

WASHINGTON (October 13, 2005) -- The Environmental Protection Agency today issued a proposal that would allow coal-fired power plants across the country to increase their toxic emissions by crippling a key provision of the Clean Air Act, according to the Natural Resources Defense Council (NRDC). Specifically, the proposal would exempt coal-fired power plants from installing modern-day pollution controls when upgrading their facilities and increasing their annual pollution.

(According to EPA sources, the approaches contained in the proposal issued today are virtually identical to those in a draft version obtained by NRDC in late August. For more details about the EPA draft proposal, click here.)

The proposal, which embraces the same industry position that EPA lawyers have successfully argued against in court, would undercut any future clean air act enforcement under the law's New Source Review (NSR) provision, NRDC said.

EPA Administrator Stephen Johnson also announced today what NRDC called an "unprecedented retreat from clean air enforcement." The agency will use the proposal -- even though it has not been officially adopted or presented for public comment -- to avoid prosecuting past and future Clean Air Act violations. According to Johnson, EPA will not enforce the law that is still on the books if power plant defendants have been in compliance with the far weaker proposal announced today.

"These power plants have been breaking the law for decades, threatening public health," said John Walke, NRDC's clean air director. "But the Bush administration proposes to trash the law, adopt the power industry's position, and allow massive air pollution increases."


EPA Air Enforcement Division Attacks Proposal

NRDC's criticism of the proposal was echoed in a leaked internal EPA memorandum issued by Adam M. Kushner, director of the agency's Air Enforcement Division, on August 25. Kushner concluded that it would be "better ... to not tinker with the NSR test at all," because the proposed rule would be "fatal" to the agency's ongoing enforcement cases, contrary to congressional intent in enacting the Clean Air Act's NSR provisions, "inconsistent with ... D.C. Circuit" court decisions interpreting those provisions, and "effectively unenforceable" due to the lack of "record keeping and reporting requirements."

Moreover, Kushner continued, under the proposed rule, "very few, if any, changes" at a source would "trigger NSR" and require pollution controls. Indeed, according to case studies discussed in the leaked memo, the proposed rule would permit individual power plants to increase their emissions of pollutants such as sulfur dioxide by more than 10,000 tons per year without installing new pollution controls.

Finally, the air enforcement office director rejected the suggestion that other recent rulemakings make NSR unnecessary: Even under those other rulemakings, Kushner observed, "many 'higher, less efficient emitters' have not been controlled," so "NSR remains an important tool in ensuring that the Clean Air Act's air quality objectives are achieved ... and ... maintained."

(For the Kushner memo, click here, for an accompanying PowerPoint presentation, click here.)


Bush EPA Promoting Industry Defendants' Position

Currently, the Clean Air Act's New Source Review program requires power plants undertaking construction activities that boost their total annual pollution to install state-of-the-art pollution controls. Under the new rulemaking proposal, however, a power plant would only have to install controls if it increased its hourly pollution above the theoretical maximum level it could pollute. That would allow plants to upgrade equipment to enable them to operate -- and to emit more pollutants -- for many more hours per year without installing new pollution controls.

If the EPA adopts this proposal, Walke pointed out, it would be endorsing utility company defendants' legal positions in all of the clean air enforcement cases brought by EPA, states and citizens -- even though the agency has consistently opposed those positions. In fact, the new proposal is so extreme, he said, that none of the agency's current power plant enforcement cases would have been possible had this weaker approach been the law when the violations occurred.

The Bush administration itself formally rejected this industry-promoted change in the law as recently as 2002 on the grounds that it "could lead to unreviewed increases in emissions that would be detrimental to air quality and could make it difficult to implement the statutory requirements for state-of-the-art [pollution] controls." This summer, the federal district court in Washington, D.C., supported that contention in a decision that found the industry position would violate the Clean Air Act. Today's announcement makes clear that EPA has now reversed course, adopting the approach that this binding court decision rejected.

EPA attempts to downplay the fact that it would allow more pollution by citing recent EPA rulemakings that the agency contends will protect Americans from power plant pollution (the Clean Air Interstate Rule and the Best Available Retrofit Technology Rule). However, according to NRDC:

  • those rulemakings do not cover every power plant in the country;
  • EPA has estimated that under those other rules, more than 200 power plant units would not have to install any pollution controls;
  • those rulemakings require no pollution controls for the next five years;
  • under those rules, states could decide to not regulate power plants at all; and
  • EPA has conceded that even after these rules are in place -- by 2015 -- more than 30 million Americans will still be breathing unhealthy air, largely due to power plant pollution.

"By killing this key provision of the Clean Air Act designed to protect our health, the EPA wants to grant power plants a 10- to 20-year delay to clean up smog, soot and mercury," said Walke. "That delay would mean more disease -- more asthma, more strokes, more heart attacks. The utility industry would profit, but the rest of us would lose."