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Epa strips wetlands of pollution controls Original Source Link: (May no longer be active)
http://www.twincities.com/mld/pioneerpress/7193336.htmhttp://www.twincities.com/mld/pioneerpress/7193336.htm
Posted on Thu, Nov. 06, 2003
EPA eases utility rules
BY CHRISTOPHER DREW and RICHARD A. OPPEL JR.
New York Times
WASHINGTON — A change in enforcement policy will lead the Environmental Protection Agency to drop investigations into 50 power plants for past violations of the Clean Air Act, lawyers at the agency who were briefed on the decision this week said.
The lawyers said Wednesday that the decision meant the cases would be judged under new, less stringent rules set to take effect next month, rather than the stricter rules in effect at the time the investigations began.
The lawyers said the new rules include exemptions that would make it almost impossible to sustain the investigations into the plants, which are scattered around the country and owned by 10 utilities.
The lawyers said the change grew out of a recommendation by Vice President Dick Cheney's energy task force, which urged the government two years ago to study industry complaints about its enforcement actions. The Bush administration has said its goal is to ensure cost-effective improvements to air quality.
Congressional critics, environmental groups and officials in some Northeast states described the change as a major victory for the utility industry and a defeat for environmentalists, who had viewed the cases as the best way to require the companies to install billions of dollars of new pollution controls.
Representatives of the utility industry have been among President Bush's biggest campaign donors, and a change in the enforcement policies has been a top priority of the industry's lobbyists.
The EPA said it had not formally decided to drop all the investigations and that it would review each "on a case-by-case basis to determine whether it will be pursued or set aside."
EPA spokeswoman Lisa Harrison said the agency would continue to pursue a handful of earlier cases that are already being litigated. She said some cases could still be filed in court under the old rules.
"That possibility is more remote, but it's still possible," she said.
Under the old rules of the so-called New Source Review program, power plants, oil refineries and industrial boilers that were modernized in ways that increased harmful emissions generally had to install more pollution controls.
Under the new rules, any renovation project that costs less than 20 percent of the power-generating unit's value will be exempt, and no pollution controls will need to be added even if the project increases emissions.
Critics say thresholds set at that level would exempt most of the power plants that have been under investigation.
The Bush administration and the utility industry say the old rules were too costly and ineffective.
The old rules "were based on a serious misinterpretation" of federal law, said Dan Riedinger, a spokesman for the Edison Electric Institute, the industry's main trade group. The new rules, he said, "are consistent with the companies' obligations to maintain reliability and safety," and will "keep emissions trending downward."
But critics expressed outrage Wednesday, saying the decision would eliminate one of the most effective weapons government regulators had to curtail pollutants.
"This latest attack on the environment sends a clear message to the president's corporate polluting cronies — do whatever you want to improve the bottom line," said Sen. Frank Lautenberg, D-N.J.
Other Democratic leaders, including three presidential candidates, also criticized the decision, suggesting that Bush's record on air pollution could become an issue in next year's election.
One career EPA enforcement lawyer said the decision, coupled with the changes in the underlying rules, could mean that industry could avoid making as much as $10 billion to $20 billion in pollution-control upgrades.
In referring to the scope of the changes, the lawyer, who spoke on condition of anonymity, said: "I don't know of anything like this in 30 years."
The change was announced during an internal meeting of EPA enforcement officials Tuesday in Seattle. The decision came as Michael Leavitt, the former Republican governor of Utah, was preparing to begin his new job as EPA administrator Thursday. His predecessor, Christine Whitman, who had resisted some proposals considered by Cheney's energy task force, resigned last summer.
The revised New Source Review rules were issued in August.
Those rules will take effect in December in 12 states that do not administer these rules themselves. The 38 other states will have up to three years to decide whether to adopt the new rules.
Last week, about a dozen states and cities filed suit in federal court to overturn the changes to the New Source Review program that the agency seeks to enact.
One EPA official said that about half of the 50 power plants under investigation had already received notices of violations, meaning the agency believed that an environmental violation had occurred.
Under this week's change, the EPA lawyers said they also would review investigations involving 30 to 40 oil refineries.
Officials said the Justice Department would have to decide whether to file lawsuits in several other cases the EPA has referred to it. Under the Clinton administration, filing these types of lawsuits had been a priority within the EPA. Lawsuits filed against six companies during the Clinton years are still pending.
Critics of the new policy are concerned it will undercut all those actions.
In another environmental action, Bush administration officials have drafted a rule that would significantly narrow the scope of the Clean Water Act.
The proposed rule would strip many wetlands and streams of federal pollution controls and make them available to being filled for commercial development.
The change, spelled out in an internal document obtained from a senior government official, says Clean Water Act protection would no longer be provided to "ephemeral washes or streams" that do not have groundwater as a source.
Streams that flow for less than six months a year would also lose protection, as would many wetlands, according to the document.
State and federal officials have estimated that up to 20 million acres of wetlands, 20 percent of the wetlands outside of Alaska, could lose protections under such a rule.
Administration officials cautioned that no rule change could happen without a public process.
A 2001 Supreme Court ruling that limited federal jurisdiction over isolated, non-navigable, intrastate waters and wetlands triggered the new rule-making exercise. But the draft rule circulating within the administration would leave a much broader range of waters and wetlands outside the strictures of the Clean Water Act.
Government officials de-clined to comment on the draft rule.
The Los Angeles Times contributed to this report.
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