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NSR Letter to President |
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Adirondack Mountain Club American Hiking Society Appalachian Mountain Club Appalachian Trail Conference Green Mountain Club Potomac Appalachian Trail Club New York – New Jersey Trail Conference January 24, 2002 Via Mail and Facsimile President George W. Bush Dear President Bush: We are national and regional outdoor recreation and conservation organizations representing over 250,000 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 the coal and energy generation industry have been lobbying you and the President 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 the Justice Department’s highly successful legal efforts to enforce our nation's air quality laws. 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 chemically alter 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: Forty-one percent (41%) of lakes in the Adirondacks and 15 % of lakes in New England exhibit chronic and/or episodic acidification. Eighty-three present (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 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 oxide 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:
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, the EPA 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 legally defined to permit 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 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 successful efforts to improve the quality of our nation's air and atmosphere. Weakening of the NSR regulations will inevitably lead to litigation because the changes sought by the coal and energy industry can not be done legally without amending and weakening the Clean Air Act itself. Thank you for your kind consideration of our views. Respectfully yours,
cc: Vice President Richard Cheney For more information or response, please contact: Neil Woodworth |
Last Update: 2002-11-24 Webmaster: