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Clean Air Act Threatened |
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New rules proposed by the Environmental Protection Agency (EPA) will severely weaken the Clean Air Act, a law critical to the elimination of acid rain. What is Happening:The EPA has chosen Albany, New York as on of 5 national public hearing locations on these proposed rule changes to the New Source Review (NSR) program. What you can do to help:Attend the EPA hearing on March 31 in Albany and/or write to the EPA by May 2, 2003. You may never get a more important opportunity to speak up for one of the nation’s most important environmental laws and directly contribute to the campaign to end the scourge of acid rain and smog in the Adirondacks, Catskills and Hudson Highlands.
Please tell the EPA that you strongly oppose the proposed changes to
the NSR program. The IssuesThe proposed rule changes greatly weaken the New Source Review (NSR) program of the federal Clean Air Act (CAA). The NSR rules, administered by the U.S. Environmental Protection Agency (EPA) require that state of the art air pollution controls be installed when older electrical power generating plants are rebuilt or upgraded. Congress created the NSR program in 1977. The utility industry at that time asked Congress to “grandfather” older coal burning generating plants from having to install scrubbers, arguing that most of these plants would be retired by 2000. The NSR rules were intended by Congress to ensure that if the plants were ever rebuilt to extend their service lives well beyond 2000, the latest air pollution reduction equipment would be installed at the time of reconstruction. The EPA, in administering the NSR rules since 1977, created an exception for “routine maintenance” activities. Regular equipment maintenance, cleaning and service activities including parts that are normally replaced at frequent intervals were considered to be routine maintenance. How do the Proposed NSR Rules Weaken the Clean Air Act?The EPA’s proposed rules essentially repeal NSR, allowing a utility owner to rebuild a grandfathered plant and actually increase air pollution levels without adding any pollution controls by satisfying one of two changes to the routine maintenance provision of the CAA. The proposed rule changes alter the very narrow routine maintenance activity exemption by creating two new loopholes that essentially swallow the original NSR rule. If these NSR rules changes are approved by the EPA and the White House, the “grandfathered” plants could be continually rebuilt without triggering the requirement that modern pollution controls be installed after such modifications are undertaken. 60 “grandfathered” plants upwind of New York, produce approximately 84 percent of the nitrogen oxides and almost 90 percent of the sulfur dioxide produced in generating electric power. We cannot make the necessary progress towards eliminating acid deposition without retiring or remediating these plants. Neil Woodworth’s testimony at an EPA hearing in Boston gives a good overview of the potential environmental damage from weakening the New Source Review program. Federal courts have ruled that “routine maintenance” cannot be defined as permitting the replacement of key elements of a generating plant so as to extend the service life of the facility. Routine maintenance was intended to cover simple repairs such as fixing leaky pipes or replacing burner parts. It was never intended to encompass major component replacements like boilers, furnaces or coal pulverizers. Loophole # 1: Accounting Gimmicks Instead of Sound Scientific and Engineering Analysis The EPA now proposes to replace the careful scrutiny of the nature and extent of proposed generating plant modifications with a cost threshold below which modifications would escape any EPA scrutiny. EPA’s cost-based exemption exempts any modification, no matter how much pollution increases as a result, so long as that modification costs less than a given amount of money. According to the draft regulations, the percentage of the cost of the plant permitted for this annual allowance could be as much as 20%. Worse, the EPA is considering allowing the annual allowances to be aggregated over a multi-year period, an open invitation to the utility industry to stage major reconstruction projects over multiple years to escape scrutiny and thereby avoid the need to install scrubbers. Loophole #2: “Like Kind Replacements” Could Allow Polluting Utilities to Operate Indefinitely Even if a proposed reconstruction project exceeds 20% of the plant’s value, the second proposed loophole would allow the utility to avoid installing air pollution controls if the reconstruction was characterized as a “like kind” replacement. As a supplement to the allowance loophole, the EPA proposes to allow grandfathered utilities to replace “like kind” power plant components. This proposed loophole greatly expands the meaning of “routine maintenance” to permit the replacement of major plant components like boilers, furnaces, coal pulverizers and turbo-generating units. EPA’s “like-kind” replacement exemption allows a facility to replace anything, no matter how much additional pollution resulted, as long as the new equipment is “like” the old equipment. Hikers For Clean Air will testify that courts have ruled that this interpretation of “routine maintenance violates the express intent of Congress. The landmark case, WEPCO v. EPA, is the most important legal decision interpreting the NSR provisions of the Clean Air Act. WEPCO, a utility contended that replacement of key generating plant elements qualified as "routine maintenance." The WEPCO court ruled that "routine maintenance" cannot be defined as permitting the replacement and rehabilitation of key elements of a generating plant so as to extend the life expectancy of the facility. The proposed “like kind” exemption duplicates WEPCO’s attempted end run on Congress’ intent in creating the NSR program. Like the allowance proposal, the EPA suggests that cost thresholds or magnitude of replacement standards might be employed to limit the degree of replacement. However, the proposed rule change contains no cost or other yardsticks to limit the magnitude of the like kind replacement activity. There is no assurance that these thresholds will not be set at levels that will allow a utility to game the system to rebuild a power plant for another 40 years of service without installing pollution controls. ___________________________________________________________________________
Hikers For Clean Air urges you to attend the hearing. Oral or written testimony can be developed from the background information and talking points above. Hikers For Clean Air will gladly help those who wish to testify. Hikers For Clean Air is working on a coalition with several other organizations to bring hundreds of speakers to this critical hearing. To Testify:
Email: A-and-R-Docket@epamail.epa.gov, Attention Docket ID No. A-2002-04 Mail: U.S. Environmental Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Avenue, NW, Room B108, Mail Code: 6102T, Washington, D.C. 20460, Attention Docket ID No. A-2002-04 (please send two copies) Phone: Call (919) 541-0211. Include your name, address and state your message is for “Attention Docket ID No. A-2002-04.” |
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