Back in 1999, EPA charged that many electricity-generating utilities had failed to comply with the NSR requirements because they increased emissions of hazardous pollutants at their coal-fired plants without taking the required steps to clean them up. EPA took dozens of these plants to court and began enforcement action against others. As a result of enforcing the law, several utilities have begun cleaning up some of the dirtiest plants in the nation.

Then in 2002 and 2003, the rules changed. In two sweeping new regulations, EPA rewrote the NSR provisions, providing huge loopholes to industry that would allow polluters to significantly increase pollution from existing plants without having to clean up the pollution. These are the changes EPA made:

• Plants will be allowed to “cherry-pick” two years of the last 10 to serve as their baseline for deciding if they need to clean up. Plants that will increase more than one pollutant now can avoid having to reduce the rest their pollutants if they clean up just one of them.
  
• If the plant had been required to install new equipment to reduce emissions within the last decade, EPA’s loopholes exempt the plant from having to install any new equipment to reduce pollution for up to 10 years, even if the processing equipment is completely replaced. As technology advances, new methods that could result in even fewer emissions wouldn’t even be considered during that decade.
  
• EPA severely limited the actions states and local governments can take to stop transported pollution. This change would prohibit states from attacking the problem of ozone blown into their area from upwind sources, as the New England and Mid-Atlantic states did in the mid-1990s, which set the stage for the first strong rules to clean up power plants in the late 1990s.
  
• Under possibly the most damaging set of changes, EPA greatly expanded the list of activities defined as “routine maintenance,” which were already exempted from requiring clean up. EPA redefined “routine maintenance” to mean any project that costs less than 20 percent of the replacement cost of the entire plant, no matter how much additional pollution it creates. So now, no matter what changes are made, they will just be “routine maintenance” even though the entire plant may cost billions of dollars to replace. By basing this definition on the cost of the plant rather than on how much pollution is created, this new definition effectively exempts plants from having to install or upgrade their emissions reduction equipment at all.

The Lung Association sued EPA to block new rules giving huge loopholes to polluters.

Este informe le puede ayudar a comprender cómo es el aire en el condado donde vive.

If you live in an area with injurious air quality, and are downwind from an old coal-fired power plant, the changes to NSR mean that plant can continue for decades to pollute the air you and your family breathe. With EPA’s changes, polluters are allowed to keep polluting your air at the same rate for 10 years past the time they made their last upgrade, and they could increase their pollution—all under the watchful eye of EPA.

In response to EPA’s crippling changes to NSR, the American Lung Association and six environmental groups sued the Agency in 2003. In addition, the attorneys general of 14 states and the District of Columbia also sued to return the teeth to the NSR protections.

On December 24, 2003, the DC Circuit Court issued a stay to prevent EPA from taking the final steps to change the NSR, agreeing with the Lung Association and its allies that allowing EPA to move forward before a court review would likely cause irreparable harm to public health and are likely to prevail on the merits. The legal review continues.

Enabling the States to Clean Up Power Plants
The Clean Air Act gives EPA further authority to force the plants to clean up by targeting the pollution they send across state lines. On March 10, 2005, EPA used that authority and issued the Clean Air Interstate Rule, or CAIR, that will require 28 states and the District of Columbia to reduce power plant emissions by 2015. CAIR is similar to an approach EPA used successfully in 1998 that resulted in major power plants installing new pollution control measures by 2004.

Enforcing the Law = Less Pollution

The Clean Air Act gives EPA authority to force power plants to clean up. La Ley de Aire Limpio otorga a EPA la autoridad para obligar a las usinas a limpiar su contaminación.

The Clean Air Interstate Rule targets the problem of pollution blowing across state lines, especially from sources that may be hundreds of miles upwind. Under this rule, these 28 states and the District of Columbia direct power plants and other sources to clean up emissions that contribute to ozone and particle pollution. Those emissions of sulfur dioxide and nitrogen oxide also contribute to pollution problems nearer to the plants, so cleaner smokestacks mean less harm to people living in a widespread geographic area.

According to EPA, CAIR will help 450 counties in the eastern U.S. reduce pollution enough to meet the current national standards for ozone and particle pollution. Critically, CAIR protects the authority of the states to reduce pollution even further. EPA estimates that cleaning up these power plants and other sources will have these important health benefits by 2015:

• prevent 17,000 deaths annually;
  
• prevent millions of lost work and school days from asthma attacks and other respiratory and cardiovascular problems;
  
• prevent tens of thousands of non-fatal heart attacks and
  
• prevent tens of thousand of hospital admissions.

EPA’s new rules severely limit the ability of states and local governments to clean up the air.

Las nuevas reglas de EPA limitan severamente la capacidad de los gobiernos estatales y locales para limpiar el aire.

EPA estimates that cleaning up these polluters will provide $85 to $100 billion in annual health benefits, which total 25 times the cost of implementation. When the clean up is finished in 2015, EPA estimates that emissions of sulfur dioxide, which are major source of particle pollution in the eastern states, will be 57 percent lower than in 2003. Emissions of nitrogen oxide, a key ingredient in ozone, are expected to 61 percent lower than in 2003.8

Despite these benefits, EPA could have and should have required power plants to reduce even more pollution and to make those cuts sooner than ten years from now. The American Lung Association repeatedly urged EPA to use this opportunity to clean up even more pollution, faster. To ensure that EPA acted, the Lung Association, Environmental Defense and Earthjustice took legal action in March 2004, alerting EPA that the Clean Air Act required the Agency to clean up the widespread pollution from power plants and other facilities.

What caused EPA to delay and limit its clean up when the public health benefits were so clear? Until late December 2004, EPA had publicly promised that it would publish the final rule before year’s end, putting the requirements into effect. At the last minute, the Administration decided to delay this workable measure to try to push forward an administration bill that corporate polluters favored, S. 131, labeled “Clear Skies” by its sponsors. On March 9th, 2005, a bi-partisan group of Senators defeated that bill in committee. However, the Administration still supports S. 131 and, according to EPA, still “remains committed to working with Congress to pass legislation.”9

When “Clear Skies” Aren’t Clear
The bill that bumped the Clean Air Interstate Rule as the focus of the Administration’s plan for power plants is the Clear Skies Initiative (S. 131). Congressional debate on this Administration proposal places the Clean Air Act in its most vulnerable position than at any time since 1990. Although a bipartisan group of Senators stopped the bill in committee in its first attempt at passage, the Administration and the sponsors remain committed to getting the provisions enacted into law.

This Administration proposal purports to cut pollution from power plants but, in reality, would be less protective than enforcing the existing Clean Air Act, delaying and reducing cuts in sulfur dioxide, nitrogen oxides and mercury pollution. Introduced by Sen. Jim Inhofe (R-OK), the Administration plan would roll back existing requirements, while permitting more pollution to continue for decades longer. Specific evidence that the Administration proposal allows more pollution than current requirements of the Clean Air Act are found in comparing the two approaches, using EPA’s own internal assessments10:

Current law under the Clean Air Act requires deep reductions in power plants’ sulfur and nitrogen emissions within this decade in order to meet public health standards by 2010.

Administration’s Weaker Air Plan (S. 131) allows utilities and refineries to postpone installing pollution control measures for a decade or longer, allowing unhealthful levels of ozone and particle pollution to continue until 2022, denying tens of millions of people healthy air. In addition, this proposal repeals requirements to clean up pollution for utilities, industrial sources and transportation sources that Congress adopted in 1990.

The bill allows much more pollution to continue for much longer than the Clean Air Act by allowing:

• Utilities to produce twice as much sulfur dioxide (SO2) for nearly a decade longer (2010-2017); one and a half times more SO2 in 2018 and after. Much of the particle pollution in the Eastern United States comes from these emissions.
  
• Utilities to produce more than one and a half times as much nitrogen oxides (NOX) for nearly a decade longer (2010-2017); one third more NOX in 2018 and after. NOX helps make ozone in the atmosphere.
  
• Delaying full pollution reductions until after 2025—according to EPA—due to emissions “banking.”

The bill also repeals key provisions of the Clean Air Act:

• No longer would local governments be able to require state-of-the-art pollution controls in new plants of any type or in any older plants that were increasing their pollution when they rebuild or expand their facilities.
  
• No longer could states located downwind of other states and suffering from the pollution created by power plants in those states take legal action to protect their citizens. Under the Clean Air Act, states can take legal action to effectively require those plants to reduce pollution. Revoking that provision would remove the chief tool the Northeast states used effectively to tackle pollution from Midwest and southern power plants.
  
• Even our national parks and wilderness areas would be threatened by more pollution under the Administration proposal. It would repeal clean up requirements for existing sources, while weakening Clean Air Act safeguards built in for these protected lands.

Weaker requirements, more pollution, more loopholes for polluters, tying the hands of states to clean up pollution—all these are reasons that the American Lung Association has opposed S. 131. Strict enforcement of the Clean Air Act itself has repeatedly proven to be the way to reduce power plant emissions successfully.

Real Steps to Clean Up Power Plants
If it is fully, properly enforced, the existing Clean Air Act will require major reductions from power plants. If Congress considers legislation to require further reductions, the American Lung Association supports an approach that curbs emissions of all the major power plant pollutants. The Clean Power Act (S. 150 introduced by Sens. James Jeffords, I-VT, Susan Collins, R-ME, and Joseph Lieberman, D-CT) takes just such an approach. The bill preserves key provisions in the Clean Air Act, but targets levels of power plant pollutants that must be reduced. It provides a coordinated approach for all four major power plant pollutants —sulfur dioxide, nitrogen oxides, mercury and carbon dioxide—within the next six years. These components would ensure that power plants become cleaner and local air quality is protected.