New Source Review Testimony

 Testimony Before the U.S. Environmental Protection Agency

Regarding New Source Review

July 17, 2001

Boston, Massachusetts

I am Neil Woodworth, Deputy Executive Director and Counsel to the Adirondack Mountain Club, representing nearly 40,000 hikers in New York and New Jersey.

Today, I represent national and regional outdoor recreation and conservation organizations that have formed an advocacy partnership called Hikers for Clean Air. Our organizations collectively number more than 200,000 hikers who recreate in and cherish the mountains of the Eastern United States.

Accordingly, we have a critical stake in the continued vitality of the federal Clean Air Act's New Source Review (NSR) requirements applicable to fossil fueled electric power generating plants. Federal enforcement of the NSR is the catalyst for important reductions in air pollution emissions that are harmful to human communities, aquatic life and forest ecosystems in the Appalachians, Hudson Highlands, Catskills, Adirondacks and White Mountains.

We understand that some in the coal and energy generation industry have been lobbying the Environmental Protection Agency to weaken the NSR regulations and even to abandon currently pending NSR enforcement actions by the Justice Department.

We urge you to reject entreaties to weaken the NSR regulations and stay the course of your agency's highly successful legal efforts to enforce our nation's air quality laws.

The NSR provisions simply require power plant owners to upgrade their air pollution control measures whenever they undertake a major overhaul of a generating unit. Power plant operators have routinely evaded this requirement for many years. It is well established that unlawfully high levels of nitrogen oxides and sulfur dioxide emissions from these plants have degraded air quality throughout eastern North America.

These new source review violations increase asthma and emphysema incidence rates, shroud our state and national parks in haze, acidify our lakes and streams, weaken and kill trees in our mountain forests and are chemically altering our soils. Numerous studies over the past decade have objectively quantified beyond cavil the serious and very substantial health, ecological and natural resource impacts of acid deposition.

Recent studies by noted scientist Charles Driscoll and the Hubbard Brook Research Foundation reveal the following: 

41% of lakes in the Adirondacks and 15 % of lakes in New England exhibit chronic and/or episodic acidification. 83% of these impacted lakes are acidic due to atmospheric deposition. Acidic deposition has increased the concentration of toxic forms of aluminum in soil waters, lakes and streams.

In the Catskill Mountain reservoirs that provide drinking water to New York City, as well as waters throughout the Northeast, elevated concentrations of aluminum and mercury in water and fish are attributable to surface water acidification.

Recent research shows that acid deposition is contributing greatly to the decline of red spruce trees throughout the eastern U.S. and sugar maple trees in central and western Pennsylvania. Symptoms of these trees include poor crown condition, reduced tree growth and unusually high levels of tree mortality.

Since the 1960s, more than one half of the large canopy red spruce in the Adirondack and Green Mountains and one quarter of large canopy red spruce in the White Mountains have died. Significant growth declines and winter injury to red spruce have been observed throughout its range. Acidic deposition leaches cellular calcium from red spruce needles, which makes trees susceptible to freezing injury. Acid deposition is the major cause of red spruce decline at high elevations throughout the northeast.

Acidic deposition has accelerated the leaching of calcium from soils. At the Hubbard Brook Experimental Forest in New Hampshire, the available calcium in forest soils has declined 50% over the past 50 years.

The acid neutralizing capacity (ANC) of our soils and waters has decreased over many decades of air pollution, making it progressively difficult for our natural resources to bounce back from acid deposition. Since the 1980s, no increases in ANC are evident in the Adirondacks and Catskills due to the historically higher loading of acid deposition in New York.

The coal industry and some energy producers suggest that EPA’s enforcement actions are based on new or improper interpretations of the Clean Air Act which power plant owners could not anticipate. We strongly disagree. It is clear that many utilities have made major modifications to "grandfathered" generating facilities that resulted in increased generating capacity and higher levels of nitrogen oxides and sulfur dioxide emissions.

For example, Justice Department legal briefs in the NSR enforcement action against the Tennessee Valley Authority demonstrate that the TVA's "routine maintenance" activity at certain coal fired plants were in fact multi-million dollar service life extension improvements. These substantial upgrades, which materially defer the retirement of these facilities, bring them squarely within the ambit of the new source rule. It is inaccurate and disingenuous for power plant operators to characterize these service life extensions as "routine maintenance" measures.

The purpose and rationale for the NSR is quite clear. Older generating plants, mostly coal-fired, were grandfathered, exempt from requirements to install modern pollution control technology. These plants produce some 84% of the nitrogen oxides and almost 90% of the sulfur dioxide produced in generating electrical power. Thus, we can not make the necessary progress towards eliminating acid deposition without retiring or remediating these plants.

Congress assumed these "dirty" plants would eventually be retired, to be replaced by clean technology plants. Accordingly, the Clean Air Act requires that no substantial repair or replacement of these plants may occur without the installation of remediation technology. The pertinent statute, 42 U. S. C. 7411, is quite clear:

"Any new or modified plant would have to incorporate the best available in emission control technology, the modifications provisions of the Clean Air Act come into play when any physical change to a power plant is coupled with an increase in pollution emissions."

Some in the utility industry now assert that the routine maintenance exclusion should permit them to do major equipment replacements. We believe that such a regulatory change would be an impermissible alteration of the NSR. It would have the practical effect of substantially extending the service life of the grandfathered plants while evading the requirement to install best available air pollution control technology.

The landmark case, WEPCO v. EPA, is the most important legal decision interpreting the NSR provisions of the Clean Air Act. In WEPCO, the utility contended that a program to replace key generating plant elements qualified as "routine maintenance." The 7th Circuit Court of Appeals disagreed, stating that the purpose of section 7411 was to "speed up, expand, and intensify the war against air pollution with a view to assuring that the air we breathe throughout the nation is wholesome once again." The court further opined that the NSR provisions balanced economic interests with the need to improve air quality. 893 F2d 909.

The plain import of section 7411 and the NSR regulations is to require emission control technology to be installed when any change occurs to a power plant that results in any extension of its service life and/or any increase in emissions. In the WEPCO decision, the court opined that "routine maintenance" can not 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. 893 F2d at 911.

Currently, some utilities and coal producers are urging a re-definition of the NSR regulations so that major capital replacement projects could be undertaken without obtaining a NSR permit or installing best available technology. It may be desirable to clearly spell out the kinds of activities that constitute routine maintenance.

However, this agency cannot legally change the NSR definition to frustrate the intent of Congress in enacting 42 U. S. C. 7411 or overturn the WEPCO decision. Routine maintenance can not 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 or increase the level of proscribed emissions.

In Alabama Power Co., v. Costle, 636 F.2d 323 at 400, the court noted that the EPA's legal authority to exempt modification activities from permitting requirements is limited to "de minimis" maintenance activity. This means day to day simple repairs like fixing leaking pipes, not major capital programs like replacing boilers, furnaces, coal pulverizers or reheaters.

According to a December 2000 study by the Energy Information Administration (EIA) which analyzed the emission reductions and price implications of NSR enforcement, the NSR enforcement effort, particularly if broadened to address all non-compliant coal fired plants, would decrease Nox and SO2 emissions by 60 to 80%. Moreover, the EIA analysis concluded that such pollution reductions would have little or no impact on consumer electricity prices.

The NSR enforcement cases, by forcing the retirement or remediation of dirty coal burning plants with new or reconstructed plants with scrubbers and SCR technology, levels the playing field in the utility industry. If the EPA weakens the NSR program to permit service life extensions of grandfathered, unremediated plants from their intended life expectancy of 35 to 40 years to double that, it puts those utilities that have complied with the NSR law at a competitive disadvantage. Such a move would reward those utilities who have evaded the plain import and meaning of the NSR and in doing so, seriously damaged the environment and public health values of downwind states.

Any weakening of the NSR rule would send a message that environmental laws may be ignored and that vitally necessary measures to improve public health, air and water quality will be sacrificed to political expediency. We ask you to reject these shortsighted pleas to weaken the NSR rules and to stay the course of your agency's successful efforts to improve the quality of our nation's air and atmosphere.

Thank you for this opportunity to testify on the NSR rule and its importance to the Congressional mandate to reduce the ravages of acid deposition and improve the quality of the nation's air.

To contact Hikers For Clean Air please visit our web site or call (518) 449-3870.