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13 States Try Again To Block NSR Rule
BY CHRIS HOLLY
- The Energy Daily
August 22, 2003
New York and a
dozen other states have taken a second stab at blocking the Bush
administration's Clean Air Act new source review rule, asking a federal court
this week to stay the rule in light of "significantly altered circumstances"
surrounding the controversial regulation.
The states' action comes as eight members of Congress, including two contenders
for the 2004 Democratic presidential nomination, sent a letter Wednesday to
acting EPA Administrator Marianne Horinko urging her to "issue and allow public
comment on a supplemental proposal providing details and the substance and legal
rationale" for a proposed rule recently issued by EPA that offers a new
definition for "routine maintenance and repair" activities that are exempt from
the program's stringent air pollution control requirements.
In addition, two environmental organizations, Natural Resources Defense Council
(NRDC) and U.S. Public Interest Research Group (USPIRG), Thursday released a
letter the groups sent to Utah Gov. Mike Leavitt (R)- who was recently nominated
by Bush to take over the reins at EPA-urging Leavitt to take "immediate steps"
to review the new source review (NSR) proposal on the routine maintenance and
repair definition.
The flurry of activity underscores the impact of a recent decision handed down
August 7 by Judge Edmund Sargus of the U.S. District Court for the Southern
District of Ohio, Eastern Division, which found FirstEnergy Corp. affiliate Ohio
Edison violated the NSR program.
Sargus found that Ohio Edison undertook 11 construction projects at one of its
coal-fired power plants from 1984 to 1998 without obtaining necessary air
pollution permits and installing modern pollution controls on the facility.
Sargus' ruling has energized opponents of Bush's efforts to rewrite the NSR
program, who say the final and proposed rules would harm public health and the
environment by allowing far more pollution from utilities and manufacturers than
the law now permits.
The states late last year filed suit against the rule, and asked the court to
block the regulation's taking effect until their suit is decided. The court
refused, but agreed to expedite action on the challenge given the health and
other concerns the states raised.
In their new brief requesting a stay of the final rule, the 13 states-joined by
six California air pollution control agencies-noted that EPA, in response to
stakeholder petitions, recently announced it would "reconsider" several
provisions in the rule as well as an accompanying analysis of its environmental
impacts. But the states also said EPA's moves have made expedited briefing on
the suit "impossible."
The states also pointed to a recent draft analysis by the Council of State
Governments that concludes the new rule would allow "large emission increases"
in 12 eastern states.
In their letter to Horinko, three U.S. senators and five U.S. representatives
said Sargus' ruling in the Ohio Edison case underscored concerns that EPA's
routine maintenance proposal would undermine the Clean Air Act.
The proposal, among other things, would allow construction activities at a power
plant that cost less than 20 percent of the plant's book value to be exempt from
NSR's pollution control requirements. If the rule were in place in 1984, when
Ohio Edison undertook the first of its 11 construction projects, all of the
projects would have been exempt from NSR.
"The court strongly endorsed the view that the [Clean Air Act] allows only a
narrow exemption from the NSR requirements," the congressional letter said. "The
rule currently contemplated by EPA, however, would provide an extremely broad
exemption from NSR for 'routine maintenance' activities. It is likely that such
a rule would violate the Clean Air Act."
Signing the letter were Sens. Joseph Lieberman (D-Conn.), James Jeffords (I-Vt.)
and John Edwards (D-N.C.) and Democratic Reps. Henry Waxman (Calif.), Edward
Markey (Mass.), Thomas Allen (Maine), Lois Capps (Calif.) and Janice
Schakowsky (Ill.). Lieberman and
Edwards are contending for their party's 2004 presidential nomination.
In their letter, NRDC and USPIRG referred to recent press reports that EPA was
rushing to finalize its routine maintenance rule by as early as next week,
ostensibly to allow Leavitt to avoid pointed questions on the proposal during
his confirmation hearing before the Senate Environment and Public Works
Committee.
"We urge you to call upon administration officials not to finalize the rule
changes, so you may have an opportunity to review both the substance and the
process of the rulemaking...."
The Bush administration, backed by utilities and manufacturers, repeatedly has
said that the NSR program has hurt the environment because it acts as a
disincentive for companies to modernize their older facilities.
But sources told The Energy Daily
Thursday that the General Accounting Office may release a report as soon as
today that concludes EPA had no factual basis for claiming that the NSR rules
will be environmentally beneficial or neutral and no evidence that NSR has
impeded investments in energy production or efficiency.
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