The Emerging Threat to the Clean Air Act

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Hotline, Winter 2003

by Suzanne Seppi, GASP Executive Director

With the Bush Administration backed by a Republican-controlled Congress, the threat to an effective Clean Air Act (CAA) grows ever more alarming. This was recently demonstrated by the Environmental Protection Agency’s (EPA) adoption in late November 2002 of final revisions to rules known as New Source Review (NSR). The NSR program covers the construction of new major industrial facilities and existing facilities that make major modifications that significantly increase air pollution emissions. The Bush EPA has proposed additional changes that will further weaken those rules. Succinctly stated, the final and proposed rules will allow more pollution than would otherwise be tolerated from these facilities, which include large power plants, oil refineries, and steel-making complexes. This is done by creating exceptions to the NSR rules that otherwise require modified pollution sources with significant air pollution increases to install up-to-date pollution control technology — the lowest achievable emission rate in highly polluted areas and the best available control technology in areas where air quality is better than the health-protective National Ambient Air Quality Standards. The rule changes could affect approximately 17,000 older industrial facilities, not including the many thousands more new facilities.

Not only does this rulemaking package allow more pollution by facilities subject to these NSR rules in the future, but it significantly weakens, if not destroys, the enforcement initiative taken by the Clinton Administration against coal-fired power plants and refineries for violations of the then-existing NSR rules.

EPA filed lawsuits against nine power companies between November 1999 and December 2000 for expanding their plants and emissions without obtaining NSR permits and the up-to-date pollution controls required by law. The companies named in these lawsuits emit a startling five million tons of sulfur dioxide (a quarter of the emissions in the entire country) and two million tons of nitrogen oxide annually. These emissions create ozone and fine particulates, both of which have serious, and sometimes even fatal effects on people’s health. The suits have the potential to reduce those emissions by a combined 4.8 million tons according to Eric Schaeffer, former EPA Director of the Office of Regulatory Enforcement. Schaeffer left the EPA in February 2002 as it became clear to him that these enforcement cases were being undermined by, among other things, a lengthy administration-requested NSR review. At the time of Schaeffer’s departure, several of the companies that had agreed to settlements were hedging their bets and refused to sign consent decrees. Other companies walked away from the table.

Since many of the facilities subject to these lawsuits are located in the upwind Ohio River Valley, all Pennsylvanians stand to benefit from the success of EPA’s enforcement initiative. It is very questionable, however, whether any court will now impose significant penalties, or require stringent clean-up measures, for facilities based on regulations that the Administration has abandoned.

Why should Pennsylvanians care about all this? Because in Pennsylvania, 546-705 premature deaths and 9,789-11,560 asthma attacks were attributable to fine particulate pollution from just the 51 power plants that are the subject of NSR enforcement, according to data prepared by Abt Associates, one of the EPA’s primary technical consultants on clean air in a report, “Power to Kill,” by Clean Air Task Force, released in July 2001. John Bachmann, science advisor on particulates for the EPA, stated about the Pittsburgh region’s fine particulate status, “You’re in a hot spot for sure. You’ve got a significant regional problem superimposed with local sources.” (Pittsburgh Post-Gazette, 2/24/2002, Region’s Air Quality Undermined by Vast Microscopic Particulates). Moreover, during the 2002 ozone season, the Pittsburgh ozone monitor, situated at a downtown location, showed 25 exceedances of EPA’s new 8-hour health-protective ozone standard. These exceedances are in part attributable to pollution from power plants and other large fuel-burning facilities that, until these rule revisions, were subject to more stringent NSR controls.

The NSR rule changes have been viewed as so serious and misguided in their impact that Senator Joseph Lieberman of Connecticut has called for the resignation of EPA Administrator Whitman. Meanwhile, various states in the Northeast are not standing still while EPA changes the rules of the game for polluters. Immediately after formal publication of the rule changes in the Federal Register on December 31, 2002, Attorneys General from nine northeastern states filed suit against the EPA in the U.S. Court of Appeals for the District of Columbia, to challenge the legality of EPA’s rollback of current NSR protections in the CAA. The litigating states include New York, Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, Rhode Island, and Vermont. Prominent by its absence in that effort is the state of Pennsylvania, despite the serious impact of the new rules on the public health of its residents.

With a new governor now in office, Pennsylvania should join the other states in the litigation to retain the current NSR safeguards against health-threatening air pollution. The state should also aggressively oppose the proposed NSR rules. These rules are especially worrisome as they include two new categories that will expand the exemption from NSR under “routine maintenance, repair and replacement.” This will allow many existing facilities to escape NSR modern pollution controls in the future.

The fact remains that there is a pressing public health need to clean up these old, polluting plants, but instead the EPA is in the process of handicapping what had been an important tool to control the country’s air quality problems. Governor Ed Rendell, Attorney General Mike Fisher, the new head of the Department of Environmental Protection, and citizens should support stringent NSR rules and must resist any and all other future efforts to weaken the essential protections of the Clean Air Act. Breathing is not a choice for any of us.