NRDC Says Agency Adopts Industry Position, Which Would Increase Air Pollution Nationwide, Undermine Clean Air Act Enforcement

WASHINGTON (August 31, 2005) -- The Environmental Protection Agency is preparing to issue 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 a draft agency document obtained by the Natural Resources Defense Council. Specifically, the proposal would exempt coal-fired power plants from installing modern-day pollution controls when upgrading their facilities and increasing their annual pollution. (For details about the EPA proposal, click here.)

The proposal, which embraces the very industry position that EPA lawyers have successfully argued against in court, would undermine any future clean air act enforcement, the group said.

"When has the government ever decided to take the side of lawbreakers? That's what this radical proposal does," said John Walke, NRDC's clean air director. "These power plants have been breaking the law for decades, threatening public health. But now that federal authorities have finally begun to crack down on them, the Bush administration decides to gut the law."

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. 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 the utility companies' legal position in all of the clean air enforcement cases brought by EPA, states and citizens -- even though the agency has consistently opposed that position. 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 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." Two months ago, 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. The draft proposal obtained by NRDC reveals that the agency is planning to reverse course, adopting the approach that this binding court decision rejected.

The draft proposal 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 trashing 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."