October 27, 2003

OCTOBER 27, 2003



            A coalition of 12 states, the District of Columbia and local governments today sued the Environmental Protection Agency to block changes it is making to the regulations that implement key aspects of the federal Clean Air Act. The suit argues that the new regulations will sharply weaken national air pollution protections and result in damage to the environment and public health.  Only Congress has the authority to make sweeping changes in the Clean Air Act.

            Maine Attorney General Steven Rowe said: “The statutory mission of the EPA is to protect human health and to safeguard the natural environment upon which life depends.  It is indeed ironic that this agency would try so hard to undermine one of our nation’s most important health and environmental protection laws.  The EPA cannot adopt regulations that effectively repeal laws enacted by Congress. With the help of the court, we will put a stop to this outrageous effort.”

            A number of local governments joined in the lawsuit, including the City of New York and others.

            The new rules by the Environmental Protection Agency undermine Congressional intent in passing this pioneering environmental legislation.  Specifically, the new rules will allow coal-fired power plants, oil refineries and other large industrial sources to release more pollution into the nation’s skies.

            The Clean Air Act requires existing industrial sources of air pollution to install modern air pollution controls when they are modified.  While Congress intended pollution controls to be added for any modification that increases pollution, EPA long ago allowed exemptions for “routine maintenance” to exclude routine work that would not be expected to increase pollution.

            For many years, including under the Reagan Administration and the first Bush Administration, EPA interpreted the routine maintenance exemption in a common sense fashion.  EPA looked at the nature, purpose, cost and frequency of the modification to determine if it was routine.  Courts upheld this approach.   In a dramatic change, however, the new regulation states that any modification costing up to 20 percent of the replacement cost of the unit will be considered routine maintenance, therefore exempt from pollution controls, even if the plant modification results in much higher levels of air pollution.  Labeling such a project as routine maintenance, the new regulation would turn a blind eye to any air pollution increases caused by the project.

            For instance, if a power plant was built for $25 million 35 years ago -- before pollution controls were required under the Clean Air Act -- but replacement cost (of a new unit) would cost $100 million, the power plant operator could spend up to $20 million on any project to upgrade and extend the life of the plant without installing any air pollution controls.  Even if the plant actually polluted more than it had, it would not be required to install modern pollution controls under the new rule.

            The revisions to the New Source Review program were signed by the EPA Acting Administrator on August 27, 2003, but did not become final until they appeared in the Federal Register today.

            The new regulation guts the very provision of the Clean Air Act that states and the EPA have successfully used in lawsuits targeting dirty power plants, oil refineries and other polluting facilities. This year alone, those lawsuits have resulted in major settlements with Virginia Electric Power Company and Mirant Corporation that will substantially reduce air pollution. In addition, the EPA and the states of New York, Connecticut and New Jersey scored a major victory for clean air against Ohio Edison on August 7, 2003, when a federal judge in Ohio ruled in their favor under this provision.

            Today’s action was filed in United States Court of Appeals for the District of Columbia Circuit, where a currently pending challenge to the first round of Clean Air Act rollback regulations was filed Dec. 31, 2002.  Last week a similar coalition of states, local governments, and public interest groups filed suit in the same court to compel EPA to address global warming by regulating greenhouse gases.

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