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New Source Review: Cleaning Up Dirty Old Power Plants
Each year coal-fired power plants pump tens of millions of tons of toxic pollutants into the air, endangering our health and the health of our environment. Today, there are more than 500 such facilities in the U.S., and the majority of them were built decades ago. These older plants are significantly dirtier than their modern counterparts, emitting up to ten times more pollution than facilities built today.1
Older Plants Pollute More
In passing the Clean Air Act in the late 1970s, Congress included a "grandfathering" loophole that allowed older power plants to avoid meeting the modern pollution control standards that new facilities had to adopt. Congress permitted such a loophole with the expectation that these "grandfathered" facilities would soon retire and be replaced by cleaner, newer plants. However, the majority of these older plants are still in operation today.
Closing the Loophole: New Source Review
In an effort to limit the abuse of the "grandfathering" loophole and protect Americans from vast increases in pollution, Congress created a key provision in the Clean Air Act known as "New Source Review" (NSR). This provision treats "grandfathered" power plants as "new sources" when they expand or significantly modify their facilities. It requires them to either: 1) prevent additional pollution by offsetting any increases with reductions in other sources at the same plant site; or 2) obtain a clean air permit demonstrating that the best available pollution control technology has been installed.
Without NSR, old power plants could continue to release high levels of air pollution indefinitely. New Source Review protects public health by requiring these old plants to upgrade their pollution controls or to be replaced by newer and cleaner plants that meet strict air pollution standards.
Avoidance and Enforcement
NSR is triggered only when plants expand capacity or significantly modify their facilities. Engaging in routine maintenance does not trigger this provision. In an attempt to illegally bypass NSR requirements, many plants have claimed that they are engaging in routine maintenance when in fact they are making significant modifications or expanding capacity. These changes result in pollution that would have otherwise been avoided.
In the 1990s, EPA realized that although coal consumption at power plants had significantly increased since the late 70s, virtually no power plants had applied for permits under new source review.2 Seeking an explanation, the enforcement division launched an investigation and discovered that 70% of coal fired power plants across the nation were in violation of the NSR standards.3
After the investigation, in 1999, the EPA and Department of Justice announced the first ever enforcement campaign against power plants that illegally circumvented NSR requirements. At that time, EPA brought thirty-two actions against seven power companies in Midwestern and Southeastern states.4 Several of these initial enforcement actions and others taken later have been settled. In 2005, EPA estimated that as a result of the various settlements national SO2 emissions will be reduced by about 650,000 tons per year and NOx emissions will be reduced by about 250,000 tons per year.5
These power plants have, without exception, made modifications that were anything but "routine."6 The modifications were often the largest capital projects ever undertaken at the plants. These projects involved years of planning and usually enabled the plants to operate more hours and produce more electricity. Without this so-called "routine maintenance" many of the power plants would have been retired.
Health Effects from Dirty Power Plants
According to the Justice Department and EPA, the failure of owners to install new emissions controls when they upgrade their power plants has resulted in tens of millions of tons of sulfur dioxide, nitrogen oxides and particulate matter pollution.7 These pollutants are associated with a variety of serious health effects, including asthma, respiratory problems, increased heart attacks and birth defects.8
In 2001, the Clean Air Task Force estimated that 51 plants targeted for NSR violations at that time would shorten the lives of as many as 9,000 people and cause as many as 170,000 asthma attacks each year.9 In the report, the group argued that installing the modern pollution control technology required by NSR would avoid between 4,300 and 7,000 of these deaths and up to 120,000 asthma attacks. The report also warned that states and regions downwind of the NSR violators would have to deal with the effects of this pollution.
Environmental Damage from Dirty Power Plants
In addition to serious health effects, power plants that violate the new source review provision also harm our environment. Power plants release 63% of sulfur dioxide pollution and 21% of nitrous oxides of our nationwide emissions every year.10 Ozone pollution, which occurs when nitrous oxides react with other pollutants and sunlight, can harm plants and vegetation by damaging leaves and disrupting growth.11 Sulfur dioxides and nitrous oxides can also chemically alter soil and water, leading to acidification and other serious problems that harm plants and animals.12 Additionally, sulfur dioxide pollution from power plants is responsible for up to 85% of the poor visibility in the eastern parks.13
Located in Tennessee and North Carolina, where several power plants have been investigated for NSR violations, Great Smoky Mountains National Park provides an alarming example of environmental threats from air pollution. In 1999, this park recorded 52 days where air pollution levels were unhealthy and violated the federal health standard.14 As a result, the air in the park was unhealthy to breathe one out of every three summer days. The National Park Service considers the park the most at risk from air pollution, and has already observed many detrimental effects like reduced plant growth and leaf damage.15
New Source Review Changes and Challenges
The New Source Review program has been met with controversy since the enforcement initiative was announced in 1999. In 2001, the National Energy Policy Report-a result of the secret energy task force-called for a formal review of NSR and all ongoing enforcement cases.16 The review eventually led to a proposal known as the "2002 NSR Rules." Under the guise of establishing a minimum standard for triggering NSR, these rules would have allowed old power plants to increase their pollution without review.17 Fortunately, a federal appeals court in 2005 overturned this bad provision, ruling that actual increases in pollution were the lawful standard.18 However, the court sanctioned a provision allowing dirty power plants to avoid the NSR trigger as long as they don't exceed emission levels from the previous decade.
While the lawsuit over the early rule changes was wending through the court system, EPA proposed more changes in October 2003, later known as the equipment replacement provision. This set of rewrites sought to widen the loophole for "routine maintenance" by allowing power plants to replace up to 20% of their equipment without triggering NSR review even if the changes would significantly increase air pollution by tens of thousands of tons.19 In March 2006, the DC Circuit Court of Appeals overturned the loophole, ruling that EPA must follow and enforce rather than gut the Clean Air Act through broad exemptions.20 The court refused to reconsider the case in July 2006, and upheld its decision to throw out the 2003 equipment replacement provision (EPR).
In October 2005, the EPA proposed yet another set of changes to NSR that would completely eviscerate the provision and all enforcement cases.21 This proposed rule would change the language so that any plant making modifications or upgrades would have to install modern pollution control technologies only if the changes would increase maximum potential hourly pollution. This change is a significant departure from current language that looks at annual pollution. The change would allow plants to pollute at a higher rate for many more hours per year without any new controls. Moreover, the EPA has announced that it will apply these new rules retroactively, even to cases currently in enforcement. This is expected to cripple current and future enforcement actions.
The Future of Clean Air
If the latest round of new source review changes is adopted, the New Source Review program will face a huge setback. Already, the reviews and changes in policy that have occurred since 2001 have stalled NSR settlement negotiations and jeopardized any future enforcement cases.23
Despite claims to the contrary, the EPA has found no evidence that companies obeying the rules established by the Clean Air Act and New Source Review have been prevented from expanding to meet the country's energy demands. There is evidence, however, that without such rules in place, future damage to our health and environment will be guaranteed.
References
1. Clean Air Task Force, "No Escape: Can You Really Ever Get Away From the Smog." 1999.
2. Mintz, Joel A., "'Treading Water': A Preliminary Assessment of EPA Enforcement During the Bush II Administration." October 2004. 34 Environmental Law Reporter: 10933-10953.
3. Ibid.
4. U.S. Environmental Protection Agency, "Coal Fired Power Plant Enforcement Initiative Website," accessed August 2006. Available at http://www.epa.gov/compliance/resources/cases/civil/caa/coal/index.html
5. National Research Council, "New Source Review for Stationary Sources of Air Pollution." July 2006.
6. Clean Air Task Force, "Power to Kill: Death and Disease from Power Plants Charged with Violating the Clean Air Act." July 2001. Available at http://cta.policy.net/relatives/18300.pdf
7. U.S. Environmental Protection Agency, "Press Release: U.S. Sues Electric Utilities in Unprecedented Action to Enforce the Clean Air Act." November 3, 1999. Available at http://www.usdoj.gov/opa/pr/1999/November/524enr.htm
8. For more information on health effects and references, please see our fact sheet on coal fired power plants at http://www.sierraclub.org/cleanair/factsheets/power.asp
9. Clean Air Task Force, "Power to Kill: Death and Disease from Power Plants Charged with Violating the Clean Air Act." July 2001. Available at http://cta.policy.net/relatives/18300.pdf
10. U.S. Environmental Protection Agency, "National Air Quality and Emissions Trends Report." 2003. Appendix A.
11. U.S. National Park Service, "Effects of Air Pollution on Ecological Resources." Accessed August 7, 2006 at http://www2.nature.nps.gov/air/AQBasics/ecologic.cfm
12. Ibid.
13. U.S. National Park Service, "Visibility Monitoring." Accessed August 7, 2006 at http://www2.nature.nps.gov/air/Monitoring/vismonresults.cfm
14. U.S. National Park Service, "Air Quality in the National Parks, Second Edition." September 2002. Available at http://www2.nature.nps.gov/air/pubs/aqnps.cfm
15. Ibid.
16. Mintz, Joel A., "'Treading Water': A Preliminary Assessment of EPA Enforcement During the Bush II Administration." October 2004. 34 Environmental Law Reporter: 10933-10953.
17. U.S. Environmental Protection Agency, "Final Rule: Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Baseline Emissions Determination, Actual-to-Future-Actual Methodology, Plantwide Applicability Limitations, Clean Units, Pollution Control Projects." Published December 31, 2002. 67 Federal Register No. 251
18. State of New York et al., v. U.S. EPA, No. 02-1387. United States Court of Appeals for the District of Columbia. Decided June 24, 2005
19. U.S. Environmental Protection Agency, "Final Rule: Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion." Published October 27, 2003. 68 Federal Register No. 207.
20. State of New York, et al., vs. EPA, No. 03-1380. United States Court of Appeals for the District of Columbia. Decided March 17, 2006.
21 U.S. Environmental Protection Agency, "Proposed Rule: Prevention of Significant Deterioration, Nonattainment New Source Review, and New Source Performance Standards: Emissions Test for Electric Generating Units." Proposed October 13, 2005.
22 Environmental Defense, et al. v. Duke Energy Corporation. No. 05-848. Supreme Court of the United States.
23 Mintz, Joel A., "'Treading Water': A Preliminary Assessment of EPA Enforcement During the Bush II Administration." October 2004. 34 Environmental Law Reporter: 10933-10953.
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