http://www.commondreams.org/headlines03/0822-07.htm
Published on Friday,
August 22, 2003 by the New York Times
Going Backwards
Draft of Air Rule Is Said to Exempt Many Old Plants
by Katharine Q. Seelye
QUOTE:
"A rule that creates a 20 percent threshold eviscerates
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."
Eliot Spitzer, the attorney general of New York
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 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 indus trial 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 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 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.
Copyright 2003 The
New York Times Company
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