For those people in the audience who are not familiar with the way EPA works, let me try and explain. The Air Program Office writes the regulations , and the Enforcement Office polices compliance with those regulations.
What I would like to do now is briefly lay out where we are today, and invite the witnesses to comment. The New Source Review Program dates back to the 1977 Clean Air Act.
The Act required sources built after 1977 to have state-of-the-art emissions control devices. Congress did not believe that it was financially feasible to require all existing facilities to install the new equipment. Instead Congress required existing large facilities to undergo a new source review before they make major expansions or modifications, in order to prevent significant new air emissions. These facilities have been referred to as "grandfathered facilities," meaning they were originally exempted from the new pollution controls, although of course they have had to install other control devices over the years.
This program started confusion and debate which has lasted for almost twenty-five years. I am told that over the years the EPA has issued more than 4000 pages of guidance documents, which sometimes contradict each other, in order to explain the original 20 pages of its 1980 regulations.
In the late 1980's the Wisconsin Electric Power Company, called WEPCO challenged a determination by the EPA that they had violated the NSR regulations. The lawsuit resulted in a new regulation governing NSR for utilities in 1992, called the WEPCO rule.
Then in 1994 the EPA issued a new proposed rule for all industries. After six years of debate the EPA has indicated that they may go final with the new rule later this year.
In my opinion, the major question is, "When do modifications or changes to a facility or plant trigger the New Source Review Program?"
This involves a number of issues such as whether you measure actual releases or just the potential to release. Whether you look at the dollar amount of the modifications and compare it to the value of the facility, or whether the modifications are just routine maintenance, which is also hard to define.
Considering the amount of debate over the last twenty-five years, the number of guidance documents and regulations issued by the EPA, and the number of lawsuits, I don't expect that we will be able to answer all of these questions today.
I would like to publicly thank Bob Persciasepe, the EPA's Air Director for working these issues out with the different stakeholder groups to try and reach a consensus opinion. Bob could not be here today but I understand he has sent his experts on the issue and I look forward to hearing the EPA's testimony as well as the other witnesses.