Looser clean air rule in works
White House reportedly is planning to ease anti-pollution standards for upgrading old plants
By Katharine Q. Seelye
THE NEW YORK TIMES
Friday, August 22, 2003
WASHINGTON -- After more than two years of internal deliberation and intense pressure from industry, the Bush administration has settled on a regulation that would allow thousands of older power plants, oil refineries and industrial units to make extensive upgrades without having to install new anti-pollution devices, according to those involved in the deliberations.
The new rule, a draft of which was made available to The New York Times by the Natural Resources Defense Council, an environmental group, would constitute a sweeping and cost-saving victory for industries, exempting thousands of industrial plants and refineries from a portion of the Clean Air Act. The acting administrator of the Environmental Protection Agency could sign the new rule as soon as next week, administration officials have told utility representatives.
The exemption would allow industrial plants to continue to emit hundreds of thousands of tons of pollutants into the atmosphere and could save the companies millions if not billions of dollars in pollution equipment costs, even if they increase the amounts of pollutants they emit.
And the action could spare Gov. Michael Leavitt of Utah, if he is confirmed as President Bush's new EPA administrator, from having to make a decision on a highly contentious issue.
Environmentalists and some lawmakers said the regulation would substantially increase pollution in many areas of the country.
Sen. James Jeffords, I-Vt., who is the ranking minority member of the Environment and Public Works Committee, said that the new rule "is just one more flagrant violation of the Clean Air Act and every court's opinion on this matter."
The current rule requires plant owners to install pollution-control devices if they undertake anything more than "routine maintenance" on their plants. Industries have long said that this standard was too vague and that it hindered substantial investment in cleaner, more efficient equipment.
The new rule says that as much as 20 percent of the cost of replacing a plant's essential production equipment -- a boiler, generator or turbine -- could be spent and the owner would still be exempt from installing any pollution controls, according to people involved in the deliberations.
Together, such equipment can cost hundreds of millions of dollars, sometimes more than $1 billion, to replace. A utility or factory, therefore, could make tens of millions of dollars worth of improvements without being required to install pollution controls.
At the end of last year, the administration proposed a relaxation of the current standards, saying the threshold for requiring pollution control devices could be anywhere from 0 percent to 50 percent of the cost of replacing major equipment. Members of Congress protested that the public could not meaningfully comment on such a range, and 225,000 people objected to the rule before the comment period ended May 31, according to John Walke, an air expert with the Natural Resources Defense Council.
Only in the past few weeks have officials settled on the 20 percent figure.
The draft of the new rule, in fact, says that the point at which pollution-control devices must be installed is "X percent," but officials and several others in contact with those who wrote the rule said that the level was 20 percent, although they cautioned that it could change before being made final.
Officials said that Marianne Horinko, the acting administrator of the EPA, would probably sign the new rule before Labor Day. It would go into effect shortly thereafter, without further review or comment from the public.
The only way to stop it would be through court action, which critics of the new rule are threatening.
Eliot Spitzer, the attorney general of New York, said he would file a challenge to the new rule as soon as it was signed.
"A rule that creates a 20 percent threshold eviscerates the statute," Spitzer said of the Clean Air Act. "This makes it patently clear that the Bush administration has meant all along to repeal the Clean Air Act by administrative fiat."
Administration officials, including Horinko, declined to comment. Jarrod Agen, a spokesman for the EPA, said officials could not comment because the matter was still under review. "But I can say that we are working on this final rule," he said, adding that it will "encourage facilities to improve their efficiency, reliability and safety."
Rule 'not unreasonable'
Scott Segal, executive director of the Electric Reliability Coordinating Council, representing utilities, said industries would appreciate having a "bright line." He said that the 20 percent, although he did not know precisely how it would be calculated, "is not an unreasonable number."
Clarifying the rule -- and making it more lenient -- has been a central goal of industry for more than a decade, and the administration has been reviewing it since Bush came into office more than two years ago.
While industry -- and many of Bush's political and financial backers -- have supported a broad exemption such as 20 percent, many state and local officials, including Leavitt's director of air quality in Utah, have opposed the concept.
Leavitt is still likely to encounter criticism on the matter during his confirmation hearings, which are expected to begin shortly after Congress returns from its summer recess on Sept. 2.
Alcoa settlement unaffected
Any change in the federal regulations would not affect prior enforcement cases -- such as the one against Alcoa's Rockdale smelter -- in which the EPA or environmental groups have already reached settlements with industries accused of violating existing regulations.
In April, Alcoa Inc. agreed to pay $4 million in penalties and environmental projects after being sued by the EPA and several environmental groups for making significant improvements to its power plants without upgrading pollution controls. In late July, a federal judge in Austin approved the settlement, which also could lead to Alcoa spending up to $330 million on cleaner power units.
Environmental activists and lawyers familiar with the issue said they know of no lawsuits pending against Texas industries based on the existing pollution rules. But any regulatory change could affect cases that federal officials say are still under investigation, such as those involving several refineries along the Texas Gulf Coast, said Kelly Haragan, a lawyer for Public Citizen, one of the groups that sued Alcoa.
This article contains material from staff reports. |
