More threats to the Clean Air Act.  This was posted on the Sierra Club
Energy Listserve-- from the New York Times

NYTIMES.com

Draft of Air Rule Is Said to Exempt Many Old Plants

August 22, 2003
  By KATHARINE Q. SEELYE


WASHINGTON, Aug. 21 - 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
familiar with 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 more than
17,000 industrial plants and refineries from part 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 let industrial plants 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.

The action could also spare Gov. Michael O. Leavitt of
Utah, if he is confirmed as the new E.P.A. administrator,
from having to make a decision on a highly contentious
issue.

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 argued that the standard is too vague and hinders
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 familiar with the
deliberations.

Together, such equipment can cost hundreds of millions of
dollars, sometimes more than $1 billion, to replace. A
utility or factory could thus 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 that
the current standards be eased, saying that the threshhold
for requiring pollution control devices could be anywhere
from nothing 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
on May 31, according to John Walke of the Natural Resources
Defense Council.

Only in the last few weeks have officials settled on the 20
percent figure, which had been a closely held secret within
the administration. The draft of the new rule, in fact,
describes the point at which pollution-control devices must
be installed only as "X percent," but officials and several
others in contact with those who wrote the rule said that
the level was 20 percent, though they warned that the
percentage could change before being made final.

Officials said that Marianne Horinko, the acting
administrator of the Environmental Protection Agency, would
probably sign the rule before Labor Day. It would go into
effect shortly thereafter, without further review or public
comment.

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," he 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 Ms. Horinko, declined
to comment. Jarrod Agen, a spokesman for the E.P.A., said
that 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 would "encourage
facilities to improve their efficiency, reliability and
safety."

Spokesmen for industry groups reacted positively to the new
rule. Scott Segal, executive director of the Electric
Reliability Coordinating Council, representing utilities,
said that industries would appreciate having a "bright
line." He said that the 20 percent, though he did not know
precisely how it would be calculated, "is not an
unreasonable number."

Mr. Walke of the Natural Resources Defense Council called
the 20 percent standard "a grotesque accounting gimmick"
that would "let companies completely overhaul their plants
over time and spew even more pollution than now."

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 President Bush
came into office more than two years ago.

While industry - and many of Mr. Bush's political and
financial backers - have supported a broad exemption like
20 percent, many state and local officials, including
Governor Leavitt's director of air quality in Utah, have
strongly opposed the concept.

Governor Leavitt is still likely to encounter harsh
criticism on the matter during his confirmation hearings,
which are expected to begin shortly after Congress returns
from its summer recess on Sept. 2. Democrats have indicated
they plan to challenge him to defend the rule, which would
put him in opposition to his own state's air experts.

Determining when a plant must install pollution-control
devices has been one of the thorniest and most
controversial environmental decisions facing the Bush
administration.

The new rule also appears to run counter to the stance the
administration has taken in several lawsuits against
polluters across the country, trying to enforce more
rigorous standards under the Clean Air Act.

The Justice Department during the Clinton administration
initiated lawsuits against dozens of oil refineries and
about 50 coal-fired power plants for their failures to
install pollution controls under the requirement of routine
maintenance.

The Justice Department during the Bush administration has
continued to prosecute those cases, but only after an
internal dispute.

Oil, coal and electric companies had lobbied the
administration to drop the suits; Christie Whitman, the
former E.P.A. administrator, resisted. As a result, Vice
President Dick Cheney's energy task force directed the
Justice Department to analyze whether to continue the
suits. In January 2002, the department decided to do so.

And in a striking counterpoint to the administration's new
rule, the department won a landmark victory two weeks ago
in federal court against an Ohio Edison plant in Jefferson
County, Ohio.

That decision, which found that Ohio Edison violated the
Clean Air Act when it failed to install pollution controls,
could set a precedent for the other cases and puts the
administration on a collision course with itself because of
its new rule.

Senator James M. Jeffords, the Vermont independent who is
the ranking minority member of the Environment and Public
Works Committee, called the new rule "just one more
flagrant violation of the Clean Air Act and every court's
opinion on this matter." He added: "Its publication will
amount to malfeasance."

Mr. Cheney's energy task force also directed the E.P.A. to
review the regulations regarding routine maintenance and
report to Mr. Bush within 90 days. That deadline slipped
repeatedly as the administration mulled how to respond.

The current trigger point of "routine maintenance" was set
by Congress in a 1977 amendment to the Clean Air Act. The
idea was to avoid shutting at once all plants that might be
in violation of the Clean Air Act.

Instead, Congress said, when old plants were refurbished,
they had to add the best available air-pollution control
equipment. The amendment became known as "new source
review" because it required review when a plant added new
power sources that could raise emissions.

During the preparation of its report on energy policy, Mr.
Cheney's task force was visited often by officials from
several industry groups and companies seeking to alter the
new source provisions.

According to documents obtained through the Freedom of
Information Act by the Natural Resources Defense Council,
those visitors included officials from the Edison Electric
Institute, the North American Electric Reliability Council,
the National Mining Association, the American Petroleum
Institute and the Southern Company.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
To get off the IOWA-TOPICS list, send any message to:
[log in to unmask]