Clean Air Act Rules for Industry Eased

The Bush administration revised Clean Air Act rules Wednesday, exempting companies from installing new pollution-control devices if they modify their facilities to make them more efficient but also more polluting.

The revision, which came in response to years of industry pressure, makes more specific how much “routine maintenance” a company can do to upgrade or repair its equipment without being required to install modern pollution-control equipment.

The revision allows a utility, refinery, manufacturing plant or other large industrial facility to spend for repairs as much as 20% of what it would cost to replace a major component of its plant before the requirement is triggered.

Bush administration officials said the change would provide more clarity to industries about when they must install pollution-control devices when upgrading or repairing their facilities.

“This rule will result in safer, more efficient operation of these facilities and, in the case of power plants, more reliable operations that are environmentally sound and provide more affordable energy,” said Marianne Horinko, acting administrator of the Environmental Protection Agency.

Environmentalists contended the change would make it much easier for plants to increase emissions and could have devastating effects on health and the environment, causing more asthma and premature deaths and choking cities and national parks with smog.

The rule applies to about 20,000 facilities nationwide that are considered major emitters. In California, where air pollution rules are stricter, it takes less pollution to count as a major emitter, and many smaller facilities -- such as auto body paint shops, bakeries and small-parts manufacturers -- fall into that category.

California is one of many states that have protested the changes. “The Bush administration is moving in the wrong direction,” Gov. Gray Davis said Wednesday. “Their policies will increase pollution and result in more illness. I will fight these policies.”

Power plants and factories in California that expand or relocate are typically required to install the best available controls, a standard which has not always been applied elsewhere.

State officials believe that California’s current program has been effective in requiring companies to update their pollution-control equipment.

The revision “is a victory for industry” said Jerry Martin, spokesman for the California Air Resources Board. “We think it allows a lot of pollution.” California will fight to continue using its own rules, which it believes are “far superior,” he said.

Wednesday’s action affects a section of the Clean Air Act known as “new source review,” which took effect in 1977. It was designed to force companies to install the best available air-cleaning devices if repairs or modifications made to older plants resulted in increased pollution.

Objective nonpartisan groups that have studied the new program said the change defies the Clean Air Act’s strategy for older plants: Although it did not immediately require them to install pollution control devices, it did want them to clean up later.

“A substantial exemption for maintenance moves in the opposition direction that Congress originally intended,” said Donald Kettl, who chaired a new source review panel for the National Academy of Public Administration, an independent, nonprofit organization chartered by Congress.

Kettl said that many facilities were already ignoring the law’s requirement that they clean up, and that the new policy gives them authority to continue.

“It’s hard to escape the fact that this is having a serious impact on public health,” said Kettl, a professor of public affairs and political science at the University of Wisconsin.

Wednesday’s announcement follows several other changes to the program announced Dec. 31 that were also designed to provide flexibility and certainty for industry.

They are among a series of actions that, critics say, the Bush administration has taken to weaken environmental regulations in response to demands from companies.

Others include reversing a ban on snowmobiles in Yellowstone and Grand Teton national parks, removing wilderness protections from millions of acres of Red Rock Canyon country in southern Utah and changing the Clean Water Act rules to allow coal companies to continue the mountaintop removal mining.

Certain parts of the country already have EPA-approved new source review programs for some pollutants, and those areas will not be required to implement the new rule for three years.

In areas that do not have programs for certain pollutants, the rule will become effective in 60 days.

Nevada, Hawaii, Illinois and New York are among the 11 states where the rule will take effect more quickly. In parts of California and two counties of Arizona, the rule will take effect for some pollutants in 60 days.

Starting with the Clinton administration and carrying into the Bush administration, the federal government has taken to court power plants, refineries, wood-product manufacturers and other companies that had undergone maintenance projects that were in violation.

Companies that have already settled suits with the government have agreed to reduce annual emissions by hundreds of thousands of tons and install hundreds of millions of dollars’ worth of pollution control equipment.

But under the new rule, many projects that were considered violations in those settlements would be permissible, according to EPA officials.

Environmentalists said the rule would undermine dozens of outstanding cases, forfeiting an opportunity for the government to dramatically reduce emissions from some of the nation’s biggest polluters.

For instance, just before the Bush administration took office, Cinergy Corp., a large electricity company based in Cincinnati, had agreed in principle to cut annual emissions of acid rain-producing sulfur dioxide by 400,000 tons and nitrogen oxides by 100,000 tons and install $1.4 billion in pollution-control equipment.

In part because the Bush administration launched a reform of the program, the government never finalized that settlement, and environmentalists now fear that the agreement will never happen.

The EPA’s Horinko said the government would keep pursuing the cases it has already filed. But, she added, “the government has the right to change its legal interpretation.”

A lawyer who has represented utilities in these cases said that under the new rules, it would be “very rare” for a utility to undertake a repair project that would trigger the requirement to install pollution-control devices.

All the same, administration officials said that they expect the effect of the changes on pollution would be neutral. Other Clean Air Act rules would continue to reduce pollution levels, they said.

“Pollution will continue to go down; air quality will continue to improve,” said Jeffrey Holmstead, the EPA assistant administrator for air programs.

But environmentalists said that nothing in the new rule would prevent companies from increasing pollution.

“It blows a big hole in the Clean Air Act,” said Eric Schaeffer, director of the Rockefeller Family Fund’s Environmental Integrity Project and former head of the Environmental Protection Agency’s enforcement division.

The new source review was the only program forcing emissions reductions at many facilities in many parts of the country, he said.

“It’s wrong to say the rest of the Clean Air Act will solve these problems,” he said.

But industry representatives said the change will give them the certainty they need to use the most modern equipment when repairing their facilities, without fearing that they will have to install expensive pollution control devices.

For example, over the last few years, coal-fired power plants have been reluctant to install an advanced steam turbine when replacing old turbines, industry officials said.

The newer turbine helps power plants produce more electricity from the same amount of coal. But they feared the EPA would consider the installation of the new turbine a modification that would trigger new source review, requiring them to install expensive pollution control devices. Now that fear will be removed.

The new rule will also free companies from having to go through a permitting process, which can take anywhere from several months to several years, before undertaking repairs and renovations.

“Today’s regulations will lift a major cloud of uncertainty, boosting our efforts to provide affordable, reliable electric service and cleaner air,” said Thomas R. Kuhn, president of Edison Electric Institute, a trade group that represents most electric utilities.

Industry officials said that the even if the new rule had been in place years ago, it would not have helped California avoid its energy crisis two years ago or prevented this month’s blackout in the Northeast. A likely cause of the blackout, which is still being investigated, appears to be a failure of transmission lines.

The biggest benefit of the new rule goes to coal-fired power plants, which are scattered around the West -- outside of California -- and provide electricity to the state.

Times staff writer Gary Polakovic in Los Angeles contributed to this report.