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Regulations Muddle EPA Programs

In my opinion, never before has an issue been so confusing, so misunderstood and so misconstrued as New Source Review.

Congress established the NSR program as part of the 1977 Clean Air Act to control emissions from major new sources of pollution, like power plants and large industrial plants, and existing plants that make modifications that significantly increase emissions. The NSR program is an exhaustive permitting process that can last more than two years and serves as a deterrent to make improvements. Over time, the NSR program has become continually more complex and has not kept pace with industry’s needs in a rapidly evolving

economy. One major point of confusion is the definition of “routine maintenance” in judging whether modifications trigger the NSR process.

Federal courts have been all over the map on this. Earlier this year, two federal courts ruled completely differently from each other on similar cases involving the “routine maintenance” definition. The problem is that utilities are not sure what the definition is. Congress has never clearly defined it. The Environmental Protection Agency has never clearly defined it. The courts are using different definitions for each case.

Certainty is needed so plants can plan for the future and make repairs and upgrades so their facilities are more efficient and safer. Instead, plants hesitate to make routine safety upgrades because they are not sure what the courts will say. An Illinois utility triggered NSR when they repaired a part that was improperly designed. The case has been in court for almost two years.

For the past decade, EPA has been trying to reform the NSR program to bring more certainty to the industry, without negatively impacting air quality. The Clinton administration said that one of their goals was to “simplify and streamline” the NSR program. Late last month, EPA issued a final rule to clarify the “routine and maintenance” definition. The press and environmentalists have met the rule with negative comments and the belief that it will roll back clean air standards. Nothing could be further from the truth.

EPA’s NSR improvements bring certainty to the program and in turn will provide a safer work environment and more reliable energy. Since EPA issued the proposed rule last December, they have received more than 150,000 written comments and heard from more than 450 individuals who participated in the public hearings.

EPA has issued more than 4,000 pages of guidance documents since the program started in order to explain the original 20 pages of regulations. The changes are the result of a fair and open process and are based on precedent and sound science.

To be specific, the rule allows for utilities to repair and upgrade a process unit (not a whole power plant, as some have contended) without triggering NSR, as long as the cost of the repair is not more than 20 percent of the replacement cost of the whole unit.

For example, under the new rules if a utility wanted to replace a turbine with a newer, more efficient model, they would be able to replace the turbine now. Currently, they would go through the lengthy NSR process, even if the plant lowered emissions as a result. A utility would more likely skip the upgrade and just wait until the existing turbine broke down.

Under the new rules, plants would still be subject to all other CAA requirements, including the Acid Rain Amendments of 1990, air toxics standards, and the Regional Haze Program. There is a misconception, especially with environmentalists, that all power plants built before 1977 are exempt from the CAA and that these NSR improvements will allow them to emit more pollution. That is simply not the case. Plants built before 1977 are exempt from NSR until they make “major modifications.”

Each plant still has to meet other CAA requirements, and each plant still needs a state permit to emit a certain level of pollution. This level of pollution is designed to fit into a state’s implementation plan. Nothing put forth in these NSR improvements would change that. Plants will not be allowed to emit any additional pollution than they are permitted for. A state can still go in and reduce the permitted pollution allowance every few years if necessary.

Environmental groups have started to use scare tactics, claiming that these changes will result in more deaths. To the contrary, these changes will greatly improve workplace safety, which is one reason the IBEW has been supportive of NSR changes, and will allow plants to be more efficient sooner resulting in lower pollution per megawatt produced. EIA estimates that we will need more than 900 additional power plants to meet our future energy needs. We should first try to make our current power plants more efficient.

The EPA and President Bush have put forth common-sense improvements that look to find a balance between a clean environment and economic growth. I believe they have succeeded.

Rep. John Shimkus (R-Ill.) is a member of the Energy and Commerce Committee.

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