EPA relaxes rule on clean air

WASHINGTON — WASHINGTON - In a victory for industry, the Bush administration eased a regulation in the Clean Air Act yesterday so older, coal-fired power plants will no longer have to install pollution curbs when they renovate.

Officials said the move, perhaps the Bush administration's most significant environmental action to date, will enable many power plants, refineries and factories to increase efficiency and invest in technology to reduce pollution.


Industrial facilities stand to save billions of dollars that they might have been forced to spend on anti-pollution technology required by the government. Industry officials had complained that the rule discouraged modernization.

"This rule will result in safer, more-efficient operation of these facilities," said Marianne L. Horinko, acting administrator of the Environmental Protection Agency, which announced the decision yesterday.


Environmental groups condemned the decision as an assault on the landmark Clean Air Act. The administration's move, they said, is certain to allow industries to increase emissions.

New York's attorney general, Eliot Spitzer, called the decision a "flagrantly illegal" violation of the intent of the Clean Air Act and said he plans to file suit, along with other states, to try to block it. Spitzer, joined by 13 other states, including Maryland, sued the Bush administration earlier over a change to the Clean Air Act it made last year.

But Gov. Robert L. Ehrlich Jr. declined yesterday to immediately reaffirm the state's commitment to back Spitzer's efforts. A spokesman, Henry Fawell, said Ehrlich is "initially troubled" by the EPA announcement and believes it could threaten Maryland's environment. But Fawell said the governor believes he "has a responsibility to fully understand the issue before immediately taking action."

The response from Ehrlich, a Republican and Bush ally, signaled a potential shift from the firm stance taken by his Democratic predecessor, Parris N. Glendening. When the EPA announced last fall that it was relaxing other parts of the Clean Air Act, Glendening criticized the move and immediately announced that Maryland would join a lawsuit.

Officials from Maryland to Maine have closely monitored how the federal government enforces the Clean Air Act. The officials have complained that residents are harmed by pollutants emitted by older, coal-fired power plants in the Midwest that are carried east by the jet stream, contributing to smog and dirtying waters such as the Chesapeake Bay.

'New source review'

Federal and state regulators have tried to force many of these plants to clean up, using a provision in the Clean Air Act called "new source review." The provision exempts older industrial facilities from having to install new pollution controls until they make upgrades that go beyond "routine maintenance."

For years, industries subject to new source review - including many power plants, oil refineries, paper mills and auto plants - have lobbied the government to precisely define routine maintenance. The industries said uncertainty about the law made them reluctant to spend money on upgrades to make facilities cleaner and more efficient.


After taking office, Bush ordered a review of the law. He expressed concern that utilities were not pumping out power as efficiently as possible, saying the threat of a prolonged fight with the government over pollution controls dissuaded them from investing in new technology.

Last fall, the EPA announced a revision to give some flexibility to industry. Some facilities, for example, could be exempt from new source review if they had installed pollution controls in the past decade.

Yesterday, the Bush administration essentially sided with industry and handed power plants and other facilities the flexibility they have sought. The EPA said it was clarifying "routine maintenance" so facilities could spend up to 20 percent of the value of their primary equipment in any single renovation, without triggering new source review.

To qualify for the exemption, facilities would also have to show that their new equipment is "functionally equivalent" to the parts it is replacing, that they were not altering the overall design of the facility and that they were still complying with local and state environmental laws.

Jeffrey Holmstead, the EPA's assistant administrator for air and radiation, said in an interview that the revision would in most cases encourage facilities to upgrade in ways that cut emissions. But he acknowledged that "it is possible at an individual plant you could have a minor emissions increase. But we're talking about around the margins." With scores of other environmental laws in place, he insisted, "air quality will continue to improve."

Industry representatives reacted favorably to the Bush administration's action. Scott Segal, director of the Electric Reliability Coordinating Council, a trade group for the utility industry, said the move will increase efficiency for power plants in ways that could help prevent a future blackout, such as the one this month in the Northeast and Midwest.


"The EPA is helping to remove powerful disincentives that stand in the way of better efficiency and reliability for the electrical system," Segal said. "Despite what critics have said, this rule will reduce emissions."

Harsh criticism

Environmental groups had harsh words for the administration. In the past, many of the groups have agreed that the new source review provision is imperfect and creates uncertainty. But they have promoted ways to revise it that, they say, would not increase emissions.

John Walke, director of the Clean Air Program for the Natural Resources Defense Council, an environmental advocacy group, said any assertion that the EPA's revision would not boost dirty emissions was "deceit in the highest order."

Walke said the administration was creating a "broad loophole" for industries to pollute "uncontrolled" and that it would be easy for facilities to escape new source review lawsuits. "Any facility in this country that is captured by new source review when they upgrade now should be taken out back and shot, because they're idiots," he said.

On Capitol Hill, Sen. James M. Jeffords, a Vermont independent and senior member on the Senate Environmental and Public Works Committee, said he was "deeply saddened" by the EPA announcement. He said it would roll back progress made by Bush's father, who signed a major Clean Air Act amendment while in office.


Some Democrats running for president said Bush is offering a gift to industries that supported his last campaign.

"Environmental protection is not just the name of a government agency," said Sen. John Kerry of Massachusetts. "We need a president who understands that a true commitment to our environment cannot be achieved by rewarding irresponsible corporate polluters."

This week, the General Accounting Office, the investigative arm of Congress, issued a report saying that the White House, in drafting its earlier revision to the Clean Air Act, relied mostly on the arguments of industry to conclude that the new source review provision was impeding efficiency. Critics have contended that the White House has refused to accept enough input from environmental groups as it has drafted policies - an assertion administration officials dispute.

Over the summer, the president sought to play up other parts of his environmental agenda, traveling in the West to talk about proposals to prevent forest fires and improve national parks. Democrats, meanwhile, have vowed to highlight the Clean Air Act issue during confirmation hearings for Gov. Michael O. Leavitt of Utah, Bush's nominee as the new EPA administrator.

The administration's decision to announce its revision of the Clean Air Act now could protect the nominee from bearing responsibility for a decision that is likely to be unpopular with environmentally minded voters.

Officials in the Maryland Department of the Environment and in the office of the state attorney general, J. Joseph Curran Jr., are awaiting a decision from Ehrlich about whether he will back the new lawsuit.