© Environment News Service (ENS) 1999
By Cat Lazaroff
December 20, 1999
WASHINGTON, DC, December 20, 1999 (ENS) - In an unprecedented action to protect public health, the U.S. Environmental Protection Agency has ordered 392 power and industrial plants to cut emissions of smog causing pollutants by nearly half. The order, which covers plants from Michigan to North Carolina, is intended to reduce smog in four Eastern Seaboard states.
For the first time, EPA has acted under the Clean Air Act to grant state petitions for relief from smog causing nitrogen oxide emissions that blow across state lines. Many states, particularly in the Northeast, have argued that they cannot meet federal air quality requirements because of pollution blowing in from other states.
On Friday, EPA Administrator Carol Browner granted petitions from Connecticut, Massachusetts, New York and Pennsylvania. The agency agreed with the states' claims that they have difficulty meeting EPA's smog standard because of emissions from facilities in "upwind" states. Pennsylvania, for example, estimates that fully a third of all its NOx pollution comes from outside the state.
Browner estimates that the new NOx rule will improve air quality for 100 million citizens, in states downwind from pollution sources and in those where sources are located.
"Today's action means healthier air for communities located near these polluting plants," she said. "But it will also provide public health protection for communities hundreds of miles away where air pollution is carried by the wind across state borders."
The EPA is requiring large electric utilities and industrial boilers and turbines in 12 states and the District of Columbia to reduce nitrogen oxide (NOx) emissions by 49 percent - a total reduction of about 510,000 tons of NOx a year. NOx combines with sunlight and other chemicals to produce smog, which can cause respiratory illnesses including asthma.
"We know smog causes lung damage and other breathing disorders," said Browner during a telephone news conference. "By providing cleaner air and clear skies, we will all breathe easier."
Facilities in Delaware, Indiana, Kentucky, Maryland, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Virginia, West Virginia and the District of Columbia must meet the new requirement by May 1, 2003.
As part of this action, EPA is establishing an emissions trading program which the agency says will allow facilities to meet their required reductions in a cost effective, flexible way.
The EPA estimates that meeting the new NOx limits will cost the businesses about $950 million a year, which could increase the average utility bill by up to 1.2 percent. But the agency is optimistic that utility deregulation and increased industry competition will lower prices, offsetting any increases from the new rule.
"We are providing public health protection for Americans who live hundreds of miles away from significant pollution sources," said Browner.
Last year the EPA named 22 states as sources of cross border pollutants and ordered extensive cuts in emissions from those states. But a number of lawsuits have stymied that effort. By directly targeting individual sources of pollution, the EPA is attempting to bypass that litigation.
The Clean Air Act gives each state the authority to ask EPA to set emissions limits for specific sources of pollution in other states - such as power plants and industrial boilers - that significantly contribute to the petitioning states's air quality problems.
Once a state petitions EPA to set limits, the agency reviews the petition and determines: first, whether the state has an air quality problem and then, whether the sources of pollution named in the petition significantly contribute to the problem. Finally, the agency determines what those sources must do to reduce their pollution.
"One way or another, we're going to get there, we're going to get people clean air," Browner said.
Utility associations involved in lawsuits seeking to block last year’s EPA order against the 22 states are already planning to challenge last week’s ruling. David Flannery, legal counsel for the Midwest Ozone Group, said the utility association will "certainly" file suit to block the new rule, claiming it amounts to another attempt to impose comprehensive, "one size fits all" controls on the plants.
Because the regulation would require all of the plants to reduce emissions to the same level, regardless of their current impact on air quality, Flannery and others say the new NOx plan should be covered by a court ruling which overturned the EPA’s 22 state NOx rule in May. The court found that the EPA had overstepped its legal regulatory bounds by imposing the blanket NOx rule.
"And we'd hope Ms. Browner is no more successful in the litigation over this issue than she has been in the previous litigation," said Flannery.
Flannery and others also argue that there is no scientific proof the NOx emissions can drift across great distances - from West Virginia to Massachusetts, for example, as Massachusetts argued in its Clean Air Act petition.
"The EPA's own studies have indicated that under heavy ozone loading days the Midwest plants contribute to less than five percent of the problem in industrialized Northeast cities," said Ralph DiNicola, a spokesman for First Energy Corp.
"Putting these kinds of controls in place is going to leave the air quality in Massachusetts, for example, essentially unchanged," Flannery said.
The EPA is still appealing the May court ruling against its more comprehensive NOx regulation. That plan would have achieved up to a 1.1 million ton reduction in NOx emissions, twice what is called for under the new rule.
Browner said Friday that the EPA has taken care to build legal "fire walls" between the petitions and the overturned EPA NOx plan to ensure that they cannot be defeated by the same arguments.
"I know Ms. Browner thinks that the petitions are not subject to the same ruling," said Flannery, "but we think they suffer the same flaw. It will be up to a court to decide."