Naked City

The Bush administration finally gutted a major provision of the Clean Air Act last week by exempting thousands of power plants, refineries, and factories from requirements to install modern pollution controls when upgrading facilities. The provision, known as New Source Review, requires that any new equipment that improves efficiency but also increases pollution be accompanied by up-to-date pollution controls. Now, the Environmental Protection Agency has decided that up to 20% of the costs of such an upgrade may be considered "routine maintenance," which is excluded from this law. And, making this change even more blatantly pro-polluter, there is apparently no time limit between upgrade projects, meaning that entire facilities could be replaced, one-fifth at a time, with no requirement to reduce pollution.

Not surprisingly, industry and EPA officials praise the change for "providing certainty" in the NSR process -- "certainty" apparently meaning "not having to comply," although the EPA insists that air-pollution levels will not go up because of the change. Environmentalists disagree, especially here in Texas, which has more than its fair share of noxious refineries. Karen Hadden, Clean Air Coordinator of the Sustainable Energy and Economic Development Coalition, says the change will grandfather about 1,700 facilities in Texas. "Basically, this is a Get Out of Jail Free card," she says. "It's pretty inexcusable, because these plants should be modernizing, not using the same dirty standards as in the past. What we can say is that there will be more asthma attacks and more premature deaths. Currently there are about 1,310 deaths per year in Texas from particle pollution."

Recently, a lawsuit by Central Texas environmental activists resulted in the Alcoa Corporation being fined for making major upgrades in its Rockdale facility and incorrectly reporting them as routine maintenance. Although the NSR rule change won't affect that case, "other suits that might have been filed are not likely to be filed now," Hadden says. "That suit was won on the environmental end of the spectrum, and it shows how important this rule change is." It's especially troubling, she says, because it represents a major change in law originating from the executive branch, rather than lawmakers. "Usually, the rulemaking process in the EPA is used to fine-tune policies coming from Congress, not to do a major overhaul and violate the intent of the law. They've used it to gut the law. It's very unethical."

Lawsuits from major environmental organizations and state attorneys general (especially in northeastern states) are expected. "But in the meantime," Hadden says, "pollution goes on, expansions can occur. This gap is dangerous. The courts could ultimately rule in our favor, but what happens in the interim?"