New EPA rule draws flak, smog

A ruling this week lets plants remodel with no new emissions limits. Whither the Clean Air Act?

The Environmental Protection Agency (EPA) issues a ruling this week allowing thousands of power plants, refineries, and industrial facilities to upgrade without reducing the pollution they emit.

Environmentalists and many Democrats in Congress don't like this, but the controversy spreads more widely. From New York to California, state officials complain that Washington may be imposing standards less stringent than those already enacted by some states. One concern is that federal standards would take precedent. How those standards are applied is likely to prompt numerous lawsuits. Already, a federal judge in Ohio ruled against a utility company that raised the output of seven coal-fired plants without installing proper pollution-control equipment.

Meanwhile, the General Accounting Office (GAO) reported this week that the EPA had relied on industrial "anecdotes" to determine that weakening pollution rules would have minimal health and economic impacts. "Because the information is anecdotal, EPA's findings do not necessarily represent the program's effects across the industries subject to the program," the GAO reports.

The debate figures in larger questions about the Bush administration's environmental and energy policies - specifically, the extent to which industries influence such policies. The GAO also reports this week that the White House energy task force (headed by Vice President Dick Cheney) "met with, solicited information from, or received information and advice from nonfederal energy stakeholders, principally petroleum, coal, nuclear, natural gas, and electricity industry representatives and lobbyists."

But the GAO was unable to determine the extent of such influence because Mr. Cheney refuses to provide key documents detailing his meetings with energy companies and industry groups - including those that may be directly involved with the polluting aspects of energy production.

"The Office of the Vice President's unwillingness to provide the [Task Force] records or other related information precluded GAO from fully achieving its objectives and substantially limited GAO's ability to comprehensively analyze the [Task Force] process," the report states.

All this is likely to feature in confirmation hearings for Utah Gov. Mike Leavitt, tapped by President Bush to head the EPA following Christie Whitman's resignation. Like Ms. Whitman, Governor Leavitt is considered a moderate Republican. But to some, Mr. Leavitt seems an odd choice since most of the EPA's work - especially on air-quality issues involving old plants and refineries of the type affected by the new EPA rules - are in the Midwest and East, not the West.

It's not just Democrats and environmentalists who fear the EPA under Leavitt may be less than an aggressive supporter of the Clean Air Act, the Clean Water Act, and other laws fighting pollution.

"We strongly urge Governor Leavitt to be a tough cop and strongly enforce the nation's environmental laws," says Jim DiPeso, policy director of REP America, the national grass-roots organization of Republicans for environmental protection.

The EPA action this week involves what's called the "new source review" (NSR) rule. This requires older power plants and other industrial facilities to meet modern pollution standards whenever they are upgraded in a way that would increase pollution. Industry officials argue that this can mean increased costs to customers for routine maintenance as well as major overhauls.

The new rule reportedly allows some 17,000 older industrial plants to spend up to 20 percent of the cost of replacing essential equipment - and remain exempt from Clean Air Act provisions.

"Clarification of NSR is long overdue," says Scott Segal, director of the Electric Reliability Coordinating Council, a group of power-generating companies. "Each day that passes without a bright-line definition of 'routine maintenance' is one that fails to maximize plant efficiency, reliability, safety and environmental protection."

Not so, say critics of what they see as a weakening of one of the nation's premier antipollution laws. "The proposed rule cuts the heart out of the Clean Air Act by authorizing big emission increases when plants are upgraded - even though EPA has argued ... that loopholes this big violate the law," says Eric Schaeffer, director of the Environmental Integrity Project and former head of the EPA's Office of Regulatory Enforcement. "Governor Leavitt ... really needs to sort this out."

Meanwhile, the US Public Interest Research Group reports this week that 2002 was the worst smog season in recent years. (Smog is ground-level ozone caused by pollution from power plants, vehicles, and other sources, and is linked to asthma and other ailments.) Monitors in 41 states and Washington recorded 8,818 instances of unhealthy smog levels last year - nearly twice the violations of the national health standard in 2001.