Court largely backs EPA on power plant, refinery pollution

Md., 13 other states sued for equipment upgrades

June 25, 2005|By Miguel Bustillo | Miguel Bustillo,LOS ANGELES TIMES

A federal appeals court has largely upheld a Bush administration rule that allows thousands of power plants and refineries to avoid installing newer pollution control equipment when they modernize, rejecting arguments by Maryland and 13 other states that it violated the Clean Air Act.

But the ruling yesterday was mixed and not final; another lawsuit by the states over air pollution rules was pending. Environmentalists said they had won some elements of the complex dispute over "new source review" regulations, which require older coal-fired plants to add modern filters when they upgrade.

Jeff Holmstead, the EPA's assistant administrator for air programs, said: "EPA is pleased that the court upheld the key provisions of the New Source Review program. We believe that these provisions will offer facilities greater flexibility to improve and modernize their operations in ways that will reduce energy use and air pollution."

The Maryland attorney general's office, like those in the other states that sued the EPA, saw some victories in the technical, 73-page ruling yesterday.

"We are studying the decision in detail, and we are pleased with many aspects of it, especially the court's rejection of certain industry arguments," said Kevin Enright, spokesman for the office. "We believe that overall, the decision will support our ongoing enforcement cases."

The three-judge panel also ruled that the Environmental Protection Agency had "acted arbitrarily and capriciously" by deciding that power plants and other large polluters did not have to keep records of their emissions, concluding that without the documentation, there was no way for regulators to know whether the facilities were breaking the law.

EPA officials said yesterday that they planned to review the court's decision to determine whether to challenge it.

The mixed ruling - parts won praise from environmentalists; others were cheered by industry groups - was the latest in a long legal and political battle over the federal government's approach to cleaning up the nation's oldest and dirtiest factories and power plants.

An existing rule, known as "new source review," has long required steel mills, power plants, refineries and other large sources of smog and acid rain pollution to upgrade their emissions control equipment when they modernize or expand.

The rule was intended to bring the aging facilities, which are responsible for a disproportionate share of the nation's air pollution, gradually up to current standards.

But as EPA officials have sought to enforce the law, many companies have fought the requirements, calling them unpredictable and unfair, while environmental groups demand stricter pollution controls.

Bush administration officials have opposed enforcing the rules on a case-by-case basis. They have proposed that the entire system be abolished and replaced with a simpler but weaker set of standards as part of the president's "Clear Skies" initiative, arguing that it would actually reduce air pollution faster by ending legal squabbles. But environmentalists and many state air pollution officials countered that faithful enforcement of the current law would yield more reductions.

In the meantime, the Bush administration has made revisions to the rule that have weakened its reach, angering environmentalists and state officials - who have filed a series of lawsuits challenging the changes - but pleasing industry groups.

"These NSR reform rules allow refineries to proceed with pollution-preventing activities, and installation of new technology that helps reduce emissions," the National Petrochemical and Refiners Association said in a statement yesterday supporting the court ruling. "These reforms also consider industry plant operations as a whole, an important step to more efficient environmental regulation."

Angela Ledford, director of Clear the Air, a nonprofit environmental advocacy group, said that "it's still up in the air" whether administration attempts to weaken pollution regulations will survive continuing court challenges.

"We won on the question of, if they increase pollution, they have to install modern pollution controls," she said. "But the next question is, what constitutes a major modification that would trigger that requirement."

The Los Angeles Times is a Tribune Publishing newspaper. Sun staff writer Tom Pelton contributed to this article.

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