NSR Fact Sheet
NDRC

The Bush Administration’s Proposal to Weaken the Clean Air Act
Threatening Public Health, Undermining State Authority, Caving in to Polluters

On December 31, 2002, the Bush administration announced its intention to weaken a key Clean Air Act safeguard to the point that it will be meaningless. The Environmental Protection Agency has proposed two new gaping loopholes to the Clean Air Act’s “new source review” rules that will allow owners of the country’s oldest and dirtiest power plants, oil refineries, and factories to increase harmful air pollution by enormous amounts without having to clean-up. State governments will lose vital tools that they use to control smog and soot and toxic pollution across America. The managers of the national parks will lose their ability to protect our most prized natural treasures from haze and acid rain. The public will lose its right to make sure that industrial polluters in their communities are well controlled and protect local air quality. Together, the proposed rule changes represent the most dramatic rollback of our clean air laws since Congress enacted those protections more than thirty years ago. The administration is pursuing these changes at the behest of corporate polluters that made lavish campaign contributions while lobbying for a rollback of health protections that EPA found in the late 1990s to have been widely violated.

The Clean Air Protections Under Attack

The new source review program protects the public against air pollution from approximately 17,000 large industrial pollution sources in this country. Including coal-fired power plants, oil refineries, chemical factories, cement kilns, paper mills, copper smelters, and other large industrial facilities, these sources generate the majority of the air pollution that causes smog, soot, haze, and acid rain in this country. The new source review protections of the Clean Air Act declare that the owner of these facilities must adopt effective pollution cleanup measures when air pollution increases significantly as a result of facility changes such as construction activities. A facility owner must also show that any increased pollution will not harm air quality at any national park or any area where pollution levels already render the air unhealthy to breathe. Finally, in areas of the country with unhealthy air (most large urban areas), even greater health protections are required to improve air quality.

According to EPA, the version of these protections that applies in areas meeting national air quality standards “has kept more than 300 million tons of pollution out of the air over the life of the program.” The agency notes that “this calculation does NOT include many direct and indirect environmental benefits that the program provides that are difficult to quantify,”[1] nor does it include the many millions of tons of pollution prevented in the dirtiest areas of the country that do not meet national health standards.

The Bush Administration’s Plan to Weaken Clean Air Protections

If allowed to take effect, the administration’s proposed rule changes will allow industrial facilities to increase air pollution by enormous amounts without meeting any of the pollution control requirements described above, as long as the polluting activities qualify for either of two new gaping exemptions. First, a facility’s pollution-increasing change need not be accompanied by clean-up measures as long as the cost of making the change is less than a certain percentage (as high as 20%, depending on the industry) of the cost of the entire facility (plants are worth hundreds of millions to billions of dollars) or the cost of specific units (still worth tens to hundreds of millions of dollars). Even if a pollution-increasing change costs more than 20% of the cost of the entire facility or unit, it still will not have to adopt clean-up measures if it fits into the second proposed loophole. This one exempts unlimited pollution increases from the replacement of pieces of equipment (no matter the size or cost) with other pieces of equipment that serve the same function. If a facility fits into either of these extremely broad exemptions, it does not matter how much dirtier the air becomes as a result. Major plant activities that cost tens to hundreds of millions of dollars and increase pollution by hundreds or thousands or tens of thousands of tons will be given the false label, “routine maintenance,” and thereby exempted from the standards and protections that the Clean Air Act requires for changes that increase pollution.

These proposed loopholes violate plain Clean Air Act language that subjects any pollution-increasing change to the statute’s clean-up standards. Even though these proposed rule changes represent the most sweeping and controversial change to any clean air program in the past 30 years, the Bush administration has not identified a single provision or word in the Clean Air Act that authorizes these exemptions. EPA Assistant Administrator for Air, Jeffrey Holmstead, for his part, has even conceded that the first, cost-based exemption is “legally and practically somewhat problematic.” [2] These exemptions are a radical departure from the Clean Air Act as well as EPA rules, policies and enforcement practices over the past 30 years.

Making Pollution Legal Tomorrow That is Illegal and Harmful Today

In the 1990s, EPA discovered that electric utility and oil companies had been carrying out massive, pollution-increasing construction projects in order to extend the operational lifetimes of the oldest, dirtiest power plants and oil refineries in the country.[3] The power and oil companies had carried out these projects without adopting modern pollution controls or examining the impacts of the increased pollution on downwind communities and parks, causing hundreds of thousands of tons of illegal pollution. EPA, the Justice Department, states and public health groups took them to court for widespread new source review violations. If the Bush administration’s proposed rule changes take effect, the same types and magnitude of violations that these groups are prosecuting today would be rendered legal and acceptable in the future – without any regard for public health or air quality. For example, analysis reveals that all of the Clean Air Act violations at the Tennessee Valley Authority power plants would have been acceptable and exempt from cleanup standards under the Bush administration’s 2 proposed exemptions, allowing tens of thousands of tons of pollution. [4]

The Motive for the Rollbacks

It is no coincidence that the new exemptions would cover the types of activities that underlie EPA’s enforcement cases. The published notice of the administration’s rulemaking states that “[t]hese proposed changes reflect the EPA’s consideration of the President’s National Energy Policy.”[5] After making lavish contributions to the Bush campaign in the 2000 election cycle, the companies subject to EPA’s violation notices enjoyed extraordinary access to Vice President Cheney and the other White House officials charged with writing the energy plan.[6] In their communications with these officials, the new source review violators and other companies urged the administration to weaken the rules to exempt the activities that polluters had been undertaking without regard for the Clean Air Act’s pollution control requirements.[7] Not surprisingly, the resulting White House policy directed the EPA to begin the “reform” process that resulted in the proposed exemptions described above.[8]

In a draft study funded by EPA, the National Academy of Public Administration has suggested that if EPA really wants to streamline new source review requirements without sacrificing air quality, it should simply require that all large pollution sources adopt modern pollution controls within five years.[9] EPA’s rejection of that approach exposes the fact that the proposed rules have nothing to do with cutting red tape and everything to do with letting polluters off the hook. Far from providing greater clarity and reducing complexity, the new exemptions actually multiply complexity significantly. They also provide no clarification of the existing “routine maintenance” exemption, which remains unchanged and available as a third exemption for polluters to escape cleanup.

The Impacts of the Rollbacks

The failure to control pollution increases at the few dozen power plants subject to the enforcement cases is responsible for between 4,300 and 7,000 premature deaths – and between 107,000 and 170,000 asthma attacks – each year.[10] Virtually every pollution-increasing change at issue in those lawsuits would be exempt from control under the administration’s proposed rules, and those exemptions would apply to the approximately 17,000 major sources of air pollution in this country. The proposed rules would have a profoundly negative impact on public health and air quality. What is more, state and local governments would lose essential tools that they need to prevent unchecked increases in industrial air pollution and to help polluted communities attain national health standards. Because uncontrolled pollution increases would escape review, the managers of our national parks would also lose their ability to alert permitting authorities when such pollution threatens to worsen haze and air quality at parks and wilderness areas.

For more information, please contact John Walke, director of the Clean Air Program at NRDC, (202) 289-6868.