Handful of States Threaten to Ignore NSR Reforms

Published November 21, 2003

A handful of states opposing recent Bush administration reforms to the Clean Air Act have threatened to formalize the outdated rules in their own state laws.

“We don’t like your rule, EPA—we’re doing our own,” summarized Bill Becker, executive director of an air pollution activist group leading the opposition.

At issue are reforms to the New Source Review component of the Clean Air Act, announced August 27 by the U.S. Environmental Protection Agency. The reforms clarify when the federal government expects power plants to purchase and install new anti-pollution technology when performing routine maintenance on facilities.

The reforms include several new regulatory guidances. Most significantly, power plants will be required to purchase and install the most advanced anti-pollution technology only when they replace equipment that costs at least 20 percent of the plant’s essential production equipment.

The new rule was welcomed by power companies that previously had little guidance regarding the federal government’s expectations. But state officials in Georgia, New Jersey, North Carolina, South Carolina, and Wisconsin were not so accepting of the reforms.

On October 16, they announced they would formulate state rules to mirror the old federal rules. The announcement followed the lead of California’s legislature, which on September 11 approved a bill authorizing state officials to enforce the New Source Review language that existed prior to the recent reforms.

Illinois, Massachusetts, Nevada, New York, and Pennsylvania also have indicated they oppose the NSR reforms. New York Attorney General Eliot Spitzer is leading a series of court challenges to the new rules.

Clarifying the Issue

State and federal regulators had often used the ambiguity of the rules and the threat of litigation to force companies to undertake more technology upgrades than the law required.

“We’re going to be progressive,” said Bill O’Sullivan air quality permitting chief for New Jersey, to justify his state’s threat to codify the old NSR rules in state regulations.

President Bush, however, said there was nothing “progressive” about keeping obsolete and unnecessarily complex rules in force. “I changed those regulations,” Bush told workers at Michigan’s largest power plant. “Now we’ve issued new rules that will allow utility companies like this one right here to make routine repairs and upgrades without enormous costs and endless disputes.”

Bush noted the power plant had proposed a major upgrade in 1999—an upgrade that would substantially reduce the plant’s pollution emissions—but has failed to implement much of the upgrade out of fear of regulatory penalties.

“When the company took the plan to the EPA,” Bush told the workers, “the first thing that happened is they had to wait a year for an answer. And when the answer did come back, it was so complicated—because the rules are so complicated—that Detroit Edison decided to delay part of the project until its experts could decipher the details of the ruling. The government sometimes doesn’t help.

“Instead of playing politics with environmental legislation, we need to come together and do what’s right for American workers and American families,” Bush added. “I’m interested in job creation and clean air, and I believe we can do both.”

James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].