The Bush administration’s rules changes in the Clean Air Act — which were signed by the EPA’s administrator in August and were made final a few weeks ago — affect a law that originated over three decades ago. The federal government first passed the Clean Air Act in 1970, which set new, more stringent emissions standards. In 1977, when Congress amended the original act, it adopted what is known as “New Source Review,” (NSR) a program to ensure that if a major source of pollution made any changes or upgrades, it would have to install “the best available control technologies.”
However, under the NSR provision, Congress grandfathered in the older — and subsequently dirtier and less efficient — coal-fired power plants, and indicated they could perform “routine maintenance” without having to install cleaner technologies. However, any modifications or changes that resulted in increased emissions would require the older plants to meet the new standards. At the time, the thinking was that these older, coal-fired power plants were nearing the end of their cycle, and it wasn’t worth retrofitting them with the newest equipment as they were to be put out of commission soon anyway. That same thinking was again used in 1990 during another Clean Air Act amendment.
Now, here it is 2003, and the plants are still chugging away, with no indication that they’re going to be shut down anytime soon. Moreover, for nearly three decades these older coal-fired power plants have by-passed the NSR rules by continually expanding and calling it “routine maintenance.”
But lo and behold, after 23 years of inactivity, the EPA finally decided to start enforcing the law. The agency filed suit against eight power companies, including Duke Energy, in November 2000, citing over 50 violations of the Clean Air Act. These violations, according to court papers, “have resulted in massive amounts of sulfur dioxide, nitrogen oxides and particulate matter having been and still being released into the environment” — these are the pollutants that contribute to ozone, acid rain and haze.
In response to the EPA’s allegations, Duke Power said the EPA had in effect re-interpreted the language in the Clean Air Act and then retroactively applied that re-interpretation. Duke Power officials insisted that any work they did on their coal-fired plants fell under the general heading of “routine maintenance” and was done in full view of state and federal regulators. And while Duke officials admitted that their emissions have increased over the years, they stress that’s because the plants are generating more energy, but also at a more efficient rate because of the routine maintenance.
Meanwhile, the North Carolina General Assembly passed the NC Clean Smokestacks Act (CSA) in April 2001, which mandated a year-round 70 percent emission reduction (see Better But Not Best).
This article appears in Nov 19-25, 2003.
