Clean Air Act
New Source Review Revisions Could Affect Utility Enforcement Cases and Public Access to Emissions Data Gao ID: GAO-04-58 October 21, 2003Recent Environmental Protection Agency (EPA) revisions to the New Source Review (NSR) program--a key component of the federal government's plan to limit harmful industrial emissions--have been under scrutiny by the Congress, environmental groups, state and local air quality agencies, the courts, and several industry groups. The revisions more explicitly define when companies can modify their facilities without needing to obtain an NSR permit or install costly pollution controls, as NSR requires. GAO was asked to determine (1) whether EPA and the Department of Justice (DOJ) assessed the potential impact of the revisions on the ongoing enforcement cases against coal-fired utilities and, if so, what the assessments indicated; and (2) what effect, if any, the revisions might have on public access to information about facility changes and their resulting emissions.
EPA staff assessed the potential impact of the NSR revisions on the utility enforcement cases and, according to current and former EPA enforcement officials, determined that some of the revisions could affect the cases. EPA staff discussed the potential effects of the revisions with DOJ. In part as a result of the assessments, EPA changed some of the revisions before issuing them as final and proposed rules in December 2002. Specifically, EPA changed the content and wording of some of the provisions included in the final rule and determined that the rule would not affect the cases. However, EPA enforcement officials were very concerned that the proposed rule--addressing when a company could consider a facility change "routine maintenance, repair, or replacement" and exempt from NSR--could have a negative impact on the cases. The concern was that proposing one specific definition for this exclusion that differed from the way the agency had applied it in the past could affect the cases' outcome. Consequently, EPA instead proposed several alternative definitions--different cost thresholds below which a company could make a change that is exempt--for public comment. Nevertheless, some of the enforcement officials and stakeholders believe that industry's knowledge that EPA could be defining the exclusion in terms more favorable to industry delayed some settlements while the rule was being developed, jeopardizing expected emissions reductions. Subsequently, in August 2003, despite seven ongoing cases, EPA announced a final rule specifying a 20 percent cost threshold below which a company could make certain changes and consider them routine replacement and exempt from NSR. EPA and DOJ maintain that the rule will not affect the cases because it applies only to future changes. But some EPA enforcement officials and stakeholders are concerned that even if judges find companies to be in violation of the old rule, judges could be persuaded, when setting remedies, to not require the installation of pollution controls--limiting emissions benefits--because under the 20 percent threshold, most of the facility changes in dispute would now be exempt. Certain provisions in the December 2002 final rule could limit assurance of the public's access to data about--and input on--decisions to modify facilities in ways that affect emissions. This would make it more difficult for the public to monitor local emissions, health risks, and NSR compliance. Under the rule, fewer facility changes may trigger NSR and thus the need for permits and related requirements to notify the public about changes and to solicit comments--unless state and local air quality agencies have their own permit and public outreach rules. However, the scope of these state and local rules varies widely. Also under the rule, companies will now determine whether there is a "reasonable possibility" a facility change will increase emissions enough to trigger NSR--in effect policing themselves. But EPA has not defined "reasonable possibility," required that companies keep data on all of their reasonable possibility determinations, or specified how the public can access the data companies do keep on site.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-04-58, Clean Air Act: New Source Review Revisions Could Affect Utility Enforcement Cases and Public Access to Emissions Data
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Report to Congressional Requesters:
United States General Accounting Office:
GAO:
October 2003:
Clean Air Act:
New Source Review Revisions Could Affect Utility Enforcement Cases and
Public Access to Emissions Data:
GAO-04-58:
GAO Highlights:
Highlights of GAO-04-58, a report to the Ranking Minority Member,
Committee on Environment and Public Works, U.S. Senate, and another
requester
Why GAO Did This Study:
Recent Environmental Protection Agency (EPA) revisions to the New
Source Review (NSR) program”a key component of the federal
government‘s plan to limit harmful industrial emissions”have been
under scrutiny by the Congress, environmental groups, state and local
air quality agencies, the courts, and several industry groups. The
revisions more explicitly define when companies can modify their
facilities without needing to obtain an NSR permit or install costly
pollution controls, as NSR requires. GAO was asked to determine (1)
whether EPA and the Department of Justice (DOJ) assessed the potential
impact of the revisions on the ongoing enforcement cases against
coal-fired utilities and, if so, what the assessments indicated; and
(2) what effect, if any, the revisions might have on public access to
information about facility changes and their resulting emissions.
What GAO Found:
EPA staff assessed the potential impact of the NSR revisions on the
utility enforcement cases and, according to current and former EPA
enforcement officials, determined that some of the revisions could
affect the cases. EPA staff discussed the potential effects of the
revisions with DOJ. In part as a result of the assessments, EPA
changed some of the revisions before issuing them as final and
proposed rules in December 2002. Specifically, EPA changed the content
and wording of some of the provisions included in the final rule and
determined that the rule would not affect the cases. However, EPA
enforcement officials were very concerned that the proposed rule”
addressing when a company could consider a facility change ’routine
maintenance, repair, or replacement“ and exempt from NSR”could have a
negative impact on the cases. The concern was that proposing one
specific definition for this exclusion that differed from the way the
agency had applied it in the past could affect the cases‘ outcome.
Consequently, EPA instead proposed several alternative definitions”
different cost thresholds below which a company could make a change
that is exempt”for public comment. Nevertheless, some of the
enforcement officials and stakeholders believe that industry‘s
knowledge that EPA could be defining the exclusion in terms more
favorable to industry delayed some settlements while the rule was
being developed, jeopardizing expected emissions reductions.
Subsequently, in August 2003, despite seven ongoing cases, EPA
announced a final rule specifying a 20 percent cost threshold below
which a company could make certain changes and consider them routine
replacement and exempt from NSR. EPA and DOJ maintain that the rule
will not affect the cases because it applies only to future changes.
But some EPA enforcement officials and stakeholders are concerned that
even if judges find companies to be in violation of the old rule,
judges could be persuaded, when setting remedies, to not require the
installation of pollution controls”limiting emissions benefits”because
under the 20 percent threshold, most of the facility changes in
dispute would now be exempt.
Certain provisions in the December 2002 final rule could limit
assurance of the public‘s access to data about”and input on”decisions
to modify facilities in ways that affect emissions. This would make it
more difficult for the public to monitor local emissions, health
risks, and NSR compliance. Under the rule, fewer facility changes may
trigger NSR and thus the need for permits and related requirements to
notify the public about changes and to solicit comments”unless state
and local air quality agencies have their own permit and public
outreach rules. However, the scope of these state and local rules
varies widely. Also under the rule, companies will now determine
whether there is a ’reasonable possibility“ a facility change will
increase emissions enough to trigger NSR”in effect policing
themselves. But EPA has not defined ’reasonable possibility,“ required
that companies keep data on all of their reasonable possibility
determinations, or specified how the public can access the data
companies do keep on site.
What GAO Recommends:
To ensure monitoring of NSR compliance, GAO recommends that EPA
specify (1) what constitutes a ’reasonable possibility“ that a
facility change is subject to NSR, (2) that companies maintain data on
reasonable possibility decisions, and (3) how the public can access
companies‘ on-site information on these decisions. EPA took no
position on the first two actions; it is reconsidering the reasonable
possibility test through October 2003. EPA agreed with the third
recommendation.
www.gao.gov/cgi-bin/getrpt?GAO-04-58.
To view the full report, including the scope and methodology, click on
the link above. For more information, contact John Stephenson at
stephensonj@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Because EPA's Assessments Showed That Some NSR Revisions Could Affect
the Enforcement Cases, the Agency Made Changes before Issuing the Final
and Proposed Rules:
Portions of the December 2002 Final Rule Could Limit Assurance That the
Public Has Input into Company Decisions to Modify a Facility When
Modifications Affect Emissions:
Conclusions:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Objectives, Scope, and Methodology:
Tables:
Table 1: Ongoing New Source Review Court Cases Involving Coal-Fired
Power Plants, October 2003:
Table 2: NSR Revisions Included in the December 2002 Final Rule:
Table 3: Judicial Settlements Entered Into with Coal-Fired Power Plants
since Issuance of the December 2002 Final and Proposed NSR Rules:
Figure:
Figure 1: New Source Review Permitting Process:
Abbreviations:
CAA: Clean Air Act
DOJ: Department of Justice
EPA: Environmental Protection Agency
NAPA: National Academy of Public Administration
NEPDG: National Energy Policy Development Group:
NSR: New Source Review
PAL: Plantwide Applicability Limitations:
PSD: Prevention of Significant Deterioration:
TVA: Tennessee Valley Authority:
WEPCO: Wisconsin Electric Power Company:
United States General Accounting Office:
Washington, DC 20548:
October 21, 2003:
The Honorable James M. Jeffords
Ranking Minority Member
Committee on Environment and Public Works
United States Senate:
The Honorable Joseph I. Lieberman
United States Senate:
Since its inception in 1977, the New Source Review (NSR) Program--one
of the Clean Air Act's (CAA) key mechanisms for maintaining air quality
to protect public health--has prevented the emission of millions of
tons of harmful pollutants. It has done so by requiring newly built
industrial facilities, and existing industrial facilities undergoing
major modifications to equipment or operating procedures, to install
modern air pollution controls.[Footnote 1] The Congress allowed
existing facilities to defer installation of such controls until a
major modification was made with the expectation that, over time, all
facilities would install such equipment, and this would lead to lower
overall emissions. In recent years, the program has become increasingly
controversial because of what the utility industry believes to have
been inconsistent interpretation and enforcement of the program by the
Environmental Protection Agency (EPA) against power plants. Some of the
affected companies have agreed to settlements that will cost hundreds
of millions of dollars and require emissions reductions, while other
companies are in various stages of litigation. In addition, two recent
rounds of changes to this program have been the subject of
congressional debate and litigation and have drawn the scrutiny of
environmental groups, some state attorneys general, and some state and
local air quality authorities. These groups are concerned about, among
other things, the potential effect of the changes on emissions, the
ongoing NSR enforcement cases, or the public's ability to access
information about facility changes and the emissions that result.
When created, the NSR program was intended to represent a balance
between the environmental interest in improving air quality and the
economic interest in allowing capital improvement projects at
industrial facilities. Accordingly, one of the program's objectives is
to protect public health in areas that both meet and do not meet
federal air quality standards. Companies that want to make changes to
existing facilities that would result in emissions increases exceeding
a certain threshold have to apply for a federal NSR permit and then
typically install some type of pollution control.[Footnote 2] According
to EPA, the cost of installing controls can reach hundreds of millions
of dollars for some facilities. However, companies can be exempt from
the federal NSR requirements if (1) a facility change is considered
"routine maintenance, repair, and replacement," (2) the company agrees
not to significantly increase its emissions after making a physical or
operational change, or (3) the company balances any emissions increases
resulting from a change in a facility with emissions reductions
elsewhere in the same facility. To implement the NSR program, the CAA
requires that EPA provide permitting and enforcement authority to state
and local air pollution agencies, and most of these agencies currently
have this authority. Some states and localities also have their own NSR
programs for governing new construction or facility changes whose
emissions thresholds are lower than the federal NSR threshold.
Because of the NSR program's complexity and administrative burden,
among other things, EPA began a reform process in 1992 that resulted in
proposed changes to the program in 1996 and 1998, but the agency did
not take final action until 2002. In the meantime, EPA referred to the
Department of Justice (DOJ) a number of alleged violations of existing
NSR provisions by the owners and operators of some of the largest coal-
fired power plants in the country.[Footnote 3] In general, EPA targeted
companies that undertook projects without obtaining a permit or
installing pollution controls but that EPA believed were significant
facility changes that resulted in emissions increases and were
therefore subject to NSR. For their part, the companies believed that
their projects were not subject to NSR for various reasons, including
that the projects qualified for the "routine maintenance, repair, and
replacement" exclusion (hereafter referred to as the "routine
maintenance exclusion"). In November 1999, DOJ filed seven NSR
enforcement actions in U.S. district courts, and EPA issued an
administrative compliance order to the Tennessee Valley Authority
(TVA). Subsequently, DOJ filed an additional six NSR enforcement
actions against several other companies.[Footnote 4] In many of these
federal cases, states have also taken action to intervene against the
power plants. As of October 2003, 7 of the 14 cases have been settled
or decided.
As a result of concerns about regulatory barriers to investments in
energy efficiency and pollution control projects, among other things,
EPA decided to finalize some of the 1996 and 1998 NSR reform proposals.
Subsequently, the agency issued final and proposed rules to revise the
program in December 2002. First, the agency decided to modify certain
of the proposed 1996 NSR revisions and issue them as a final rule that
provided companies with options to avoid triggering NSR requirements.
For example, companies could set a limit on a facility's overall
emissions and then make changes within the facility without being
subject to NSR, or obtain credit for controls already in place. Because
EPA received a number of petitions from parties asking the agency to
reconsider certain aspects of this rule, EPA took public comments on
certain features of the final rule during July and August 2003. The
agency is analyzing the comments to determine if it should make any
changes in response. Also in December 2002, EPA issued for public
comment a proposed rule to revise the criteria by which it would
determine if a facility change is "routine maintenance, repair, or
replacement" and therefore exempt from NSR. After reviewing the
comments received on the proposed rule, in August 2003, EPA announced
plans to issue a final rule defining when a facility change could be
considered a replacement under the routine maintenance exclusion.
When EPA formally announced in June 2002 that it intended to revise,
among other things, the routine maintenance exclusion, several
environmental groups and some state attorneys general involved in the
ongoing enforcement cases raised concerns that the revisions could
negatively affect the cases. Among other things, these groups were
concerned that industry attorneys might use the planned revisions to
the routine maintenance exclusion to delay the cases by arguing that
the lawsuits should be dismissed because under the rule proposal, the
companies' actions would not violate the NSR requirements.
In light of the concerns about the impact of the revisions, as well as
recent congressional debate on them, you asked us to determine (1)
whether EPA and DOJ assessed the potential impact of the NSR revisions
on enforcement cases against coal-fired utilities before issuing them
as final and proposed rules in December 2002 and, if so, what the
assessments indicated and (2) what effect, if any, the December 2002
final rule might have on public access to information on facility
changes and the resulting emissions.[Footnote 5] You also asked us to
review EPA's assessment of the economic and environmental impact
resulting from the December 2002 final rule, and we presented our
findings to you in a report issued on August 22, 2003.[Footnote 6]
To respond to these objectives, among other things, we met with EPA
officials who were involved in discussions related to the potential
impact of the NSR revisions on the coal-fired power plant enforcement
cases, including officials from three EPA offices--Air Quality Planning
and Standards, Enforcement and Compliance Assurance, and General
Counsel--and DOJ's Environment and Natural Resources Division. We also
spoke to former EPA officials who had been involved in these
discussions. To determine how the December 2002 NSR final rule could
affect public access to information about facility changes and their
associated emissions, we reviewed the relevant federal NSR requirements
before the revisions and compared them with those in the final rule. We
also met with officials from EPA's offices of Air Quality Planning and
Standards and Enforcement and Compliance Assurance, industry groups,
environmental groups, and state associations to discuss their views on
the effects of the final rule on public access to this information.
Results in Brief:
EPA enforcement officials assessed the potential impact of the draft
NSR revisions (before they were issued as final and proposed rules in
December 2002) on the ongoing enforcement cases against coal-fired
utilities and discussed their views about the impact with DOJ
officials. According to current and former EPA enforcement officials,
because they determined that certain provisions could affect the cases,
they changed the provisions to limit their effects. Nevertheless, the
EPA officials and representatives of some environmental groups believe
settlement of some cases was delayed during development of the two
rules because of the possibility that the routine maintenance exclusion
could be defined in terms favorable to industry, thereby jeopardizing
the expected emissions reductions. According to available documentation
and the EPA enforcement officials, the EPA staff during this time
prepared various analyses to illustrate the draft revisions' potential
impact on the cases and presented the results in briefings to senior
EPA managers, including the EPA Administrator. In formulating the final
rule, the agency staff determined that, after carefully making content
and wording changes, the rule would not affect the integrity of the
enforcement cases. However, in formulating the proposed rule, the staff
determined that the revisions EPA was considering could adversely
affect the cases. Specifically, EPA was considering establishing a
specific cost threshold below which facility changes would be
considered "routine maintenance, repair, and replacement" and thereby
exempt from NSR permit and pollution control requirements; in the
enforcement cases, EPA was challenging the way in which companies used
this exclusion in the past. In general, the EPA enforcement officials
were concerned that if the agency proposed a specific definition of the
exclusion that differed from the way EPA had applied the exclusion in
the past, defendants could argue that some of the facility changes
under dispute should now be considered exempt. In part because of these
concerns, EPA proposed several options for calculating cost thresholds
to define this exclusion and solicited public comment on them.
After reviewing the comments submitted, EPA announced a final rule in
August 2003 specifying that a facility change may be considered a
replacement--and exempt from NSR--if the cost of the change is less
than 20 percent of the cost of replacing an entire process unit, such
as an electric steam-generating unit in a power plant. EPA assessments
indicate that under this threshold, almost all of the facility changes
at issue in the enforcement cases could now be exempt. Therefore, some
of the EPA enforcement officials and key stakeholders are concerned the
August rule could serve as a disincentive for utilities to settle the
remaining seven cases and could affect judges' decisions on remedies in
these cases, especially regarding the installation of pollution
controls, affecting the expected emission reductions. Conversely, EPA
and DOJ argue in the litigation that the rule governs only prospective
conduct and should not impact the liability of companies who violated
the law in the past.
Overall, the final rule could result in less assurance that the public
will have access to data on facility changes and the emissions they
create, as well as input on decisions about undertaking these changes
in the first place and controlling their emissions. Less information
would make it more difficult for the public to monitor local emissions
and health risks, as well as compliance with NSR. The full impact of
the rule will partly depend on the extent to which state and local air
quality agencies have their own regulations requiring public notice,
comment, and reporting on facility changes. In particular, one
provision of the final rule could increase publicly available
information but decrease the public's participation in facility changes
that affect emissions. Under the provision, a company may set an annual
limit on emissions--good for 10 years--across an entire facility and
then modify equipment or operations within the facility during this
time without being subject to NSR, as long as it does not exceed its
emissions limit. To initially set this limit, the company must notify
the public and provide an opportunity to comment on the company's
intended action. The company must also periodically report on the
facility's overall emissions, individual changes made, and the
emissions generated from each piece of equipment within the facility.
On the other hand, because the company no longer has to obtain a permit
for a major modification, it does not have to notify the public of its
intended action and solicit comment. EPA maintains that most companies,
for various reasons, were not obtaining federal NSR permits for these
modifications anyway, even before the rules, so overall, they will not
have an impact. Several industry representatives also believe that the
public will still be involved in decisions and have access to
information about facility changes and emissions because other federal
CAA programs, or states' and localities' own programs, will require it,
but according to states and other stakeholders we contacted, the scope
and stringency of these other programs vary widely.
Two other provisions in the final rule--outlining how a company is to
measure its historic emissions and estimate increases from a facility
change--when implemented together could also limit assurance that the
public will have access to information about changes and their
emissions. To determine if emissions resulting from a change will be
significant enough to trigger NSR requirements, a company determines
its historic baseline of emissions, estimates the expected emissions
after a facility change, and calculates the difference. Before the
final rule, a company generally had to use the most recent 24 months of
emissions as the baseline and assume its facility would operate at full
production when estimating expected emissions, even if the facility had
not been operating, or did not plan to operate, at this level. Industry
complained that these requirements ignored market fluctuations and a
facility's actual production levels. In the final rule, EPA generally
allowed companies to use any 24-month period over the prior 10 years to
establish a baseline and to assume actual production levels. Some
stakeholders maintain, although EPA disagrees, that these revisions
will result in fewer calculations showing emissions potentially
increasing enough to trigger NSR. Therefore, fewer facility changes
will require a federal permit and its related public participation
requirements, although some may still be subject to these requirements
under state and local programs.
Moreover, if the calculation shows that emissions do not trigger NSR,
the company does not have to maintain documentation of its
calculations. Under the new rules, the company may determine that there
is still a reasonable possibility the change will trigger NSR, and if
it does, the company maintains documentation of this decision on site.
However, the rule does not define what constitutes a "reasonable
possibility." Therefore, companies may be inconsistent in how they make
this decision and maintain records of it, and they are in effect
policing their own NSR compliance. As the National Academy of Public
Administration (NAPA) recently concluded, such self-policing makes it
difficult for EPA, state and local agencies, and the public to verify
company compliance with NSR. Furthermore, the rule does not specify how
the public can access the company's on-site documentation of its
reasonable possibility determinations. At the request of a number of
stakeholders, EPA agreed to reconsider the "reasonable possibility"
provision, among others, is assessing the comments it received, and
expects to announce whether it will make any changes to the provision
by the end of October. In this context, we are recommending that EPA
(1) issue guidance better defining what constitutes a "reasonable
possibility" that facility changes will trigger NSR, (2) require
companies to maintain documentation of all "reasonable possibility"
determinations, and (3) determine, with state and local air quality
agencies, how to ensure public access to company's on-site information
on facility changes and emissions.
Background:
Under the CAA, EPA establishes health-based air quality standards that
the states must meet and regulates air pollutant emissions from various
sources, including industrial facilities and mobile sources such as
automobiles. EPA has issued standards for six primary pollutants--
carbon monoxide, lead, nitrogen oxides, ozone,[Footnote 7] particulate
matter, and sulfur dioxide--that have been linked to a variety of
health problems. For example, ozone can inflame lung tissue and
increase susceptibility to bronchitis and pneumonia. In addition,
nitrogen oxides and sulfur dioxide contribute to the formation of fine
particles that have been linked to aggravated asthma, chronic
bronchitis, and premature death. About 133 million Americans already
live in areas with air pollution levels above health-based air quality
standards, according to EPA.
The NSR program, established in 1977, is intended to ensure as new
industrial facilities are built and existing ones expand that public
health is protected, that the air quality in national parks and
wilderness areas is maintained, and that economic growth will occur in
a manner consistent with the preservation of existing clean air
resources. The NSR program comprises (1) the Prevention of Significant
Deterioration (PSD) program, which generally applies to pollutants in
areas that meet federal air quality standards for those pollutants or
for which the attainment status is unclassified, and (2) the
Nonattainment NSR program, which generally applies to pollutants in
areas that are not meeting the standards for those pollutants, although
the term NSR usually refers to both.
The federal NSR program is primarily administered by state and local
air quality agencies, with oversight by EPA. If a company plans a
change to its facility and determines that it will trigger federal NSR
regulations, the company must then prepare and file a permit
application with the relevant state or local agency. Figure 1
illustrates this permitting process.
Figure 1: New Source Review Permitting Process:
[See PDF for image]
[A] While there is no federal NSR requirement specifically requiring
public access to compliance information, there is such a requirement
under Title V of the CAA that applies to NSR data.
[End of figure]
The state or local permitting agency determines if the application is
complete; develops a draft permit, if justified; notifies EPA and the
public of the application; and solicits comments on the draft permit.
The permitting agency then responds to comments and issues a final
permit, if merited, which can be administratively or judicially
appealed. The permitting agency must provide EPA with a copy of every
permit application and draft permit; address EPA's comments, if any;
and notify EPA of the final action taken. In addition, the records and
reports the state or local agency collects as it monitors compliance
with the permit and NSR program generally must be available for public
review.[Footnote 8]
Even when federal NSR requirements do not apply to a facility change,
the project may still be subject to other federal, state, and local air
pollution control requirements. For example, under Title V of the CAA,
a company must obtain a facility operating permit that consolidates all
of the company's federal obligations for controlling air pollution and
complying with the act. These obligations can include meeting the
requirements and standards of states' and localities' federally
approved plans for improving air quality; other federal requirements to
control pollution, such as those controlling hazardous air pollutants
not also covered under NSR; and requirements included in any federal,
state, or local NSR permits issued to the facility. EPA has now given
most state and local agencies approval to implement the Title V
operating permit programs that, among other things, provide for public
participation in the Title V permitting process. These operating
permits are issued and then renewed every 5 years and can be updated at
any time.
During the mid-1990s, EPA began evaluating NSR compliance for entire
industry sectors that produced significant amounts of air pollution.
The agency focused its inspections on industry sectors it suspected of
potential NSR violations. In particular, EPA looked at industries with
a decreasing number of facilities but static or increased production,
industries with many years of operation and high emissions but with no
record of NSR permits, and industries with new plants being constructed
with no NSR permits. EPA's data suggested that facilities in some
sectors might have been making major modifications to increase
production or extend the life of the facilities' equipment--and
therefore increasing emissions--without obtaining NSR permits or
installing pollution controls. As a result, EPA targeted its NSR
investigations on coal-fired power plants, petroleum refineries, steel
minimills, chemical manufacturers, wood products companies, and the
pulp and paper industry. In 1996, EPA began its investigation of the
coal-fired utility industry. Subsequently, EPA referred to DOJ a number
of alleged violations of the NSR provisions. Generally, the referrals
indicated EPA's conclusion that the owners and operators of some of the
largest coal-fired power plants in the country had violated the NSR
provisions by making physical changes to their facilities, without
obtaining a permit, that increased emissions and that the agency did
not consider to be routine in nature. The companies, however, believed
the changes did not violate the NSR program for a number of reasons,
including that the projects were exempt under the routine maintenance
exclusion. After reviewing these referrals, DOJ in November 1999 filed
seven enforcement actions in U.S. district courts. That same month, EPA
issued an administrative compliance order to the Tennessee Valley
Authority alleging multiple NSR violations at its coal-fired power
plants. Since these actions were taken, DOJ has filed an additional six
enforcement actions against coal-fired utilities. As of October 2003, 7
of the 14 cases have been settled or decided.[Footnote 9] Table 1
provides a summary of the seven ongoing enforcement cases and the
status of each.
Table 1: Ongoing New Source Review Court Cases Involving Coal-Fired
Power Plants, October 2003:
Case: U.S. v. Illinois Power Co. and Dynegy Midwest Generation Inc.;
Court: U.S. District Court, Southern District of Illinois; Status:
Liability trial held June 2003; closing argument September 29, 2003;
remedy trial not set; Power Plants Sued: 1.
Case: U.S. and States of Conn., N.J., and N.Y. v. Cinergy Corp.; Court:
U.S. District Court, Southern District of Indiana; Status: Liability
trial begins June 1, 2005; Power Plants Sued: 6.
Case: U.S. and States of Conn., Mass., Md., N.J., N.H., N.Y., R.I., and
Vt. v. American Electric Power Service Corp.; Court: U.S. District
Court, Southern District of Ohio; Status: Liability trial begins
January 2005; Power Plants Sued: 11.
Case: U.S. and States of Conn., N.J., and N.Y. v. Ohio Edison Co.;
Court: U.S. District Court, Southern District of Ohio; Status:
Liability ruling in favor of U.S. issued August 7, 2003; remedy trial
April 19, 2004; Power Plants Sued: 1.
Case: U.S. v. Georgia Power Co. and Savannah Electric & Power Co.;
Court: U.S. District Court, Northern District of Georgia; Status:
Administratively closed to await TVA decision; court notified of
decision; parties have not moved to reopen; Power Plants Sued: 3.
Case: U.S. v. Alabama Power Co.; Court: U.S. District Court,; Northern
District of Alabama; Status: Stayed; Power Plants Sued: 5.
Case: U.S. v. Duke Energy Corp.; Court: U.S. District Court, Middle
District of North Carolina; Status: Summary judgment granted in part
and denied in part on August 26, 2003; liability trial date continued;
remedy trial not set; Power Plants Sued: 8.
Source: Department of Justice.
[End of table]
Over the years since its inception, various aspects of the NSR program
have been subject to litigation that resulted in court decisions
affecting the program. For example, in 1990, the Seventh U.S. Circuit
Court of Appeals issued a decision in Wisconsin Electric Power Co. v.
Reilly.[Footnote 10] EPA argued in the case that when Wisconsin
Electric Power Company (WEPCO) was estimating whether a physical change
would increase emissions enough to trigger NSR, the company should have
assumed it would operate the modified equipment at the maximum level
possible, even though WEPCO had never operated at that level. The court
ruled that this requirement was inappropriate. EPA then issued a rule
for electric steam-generating utilities only that allowed them to
estimate their projected annual emissions after the change based on
their actual emissions history for purposes of preconstruction
permitting, but they would have to report their actual emissions for 5
years after making the change.[Footnote 11]
More recently, in January 2001, the President established a task force-
-the National Energy Policy Development Group (NEPDG)--chaired by the
Vice President to develop a national energy policy. In its May 2001
National Energy Policy Report,[Footnote 12] the group recommended to
the President that EPA and the Department of Energy investigate the
impact of the NSR program on investments in new utility and refinery
generation capacity, on energy efficiency, and on environmental
protection. The group also recommended that the Attorney General review
the existing NSR enforcement actions to ensure they were consistent
with the CAA and its implementing regulations. In response to the
group's recommendations, DOJ issued a report in January 2002 that
concluded EPA had a reasonable basis for bringing those actions against
coal-fired utilities.[Footnote 13]
In June 2002, also in response to the group's recommendations, EPA
issued a report to the President and concurrently issued a set of
recommendations for revising the NSR program.[Footnote 14] EPA issued a
final rule in December 2002 that contained five provisions based on its
June 2002 recommendations, outlined in table 2 below.[Footnote 15]
Table 2: NSR Revisions Included in the December 2002 Final Rule:
Provision: Clean unit; Final Rule Requirements: Excludes production
equipment with state-of-the-art pollution controls from NSR
requirements for up to 10 years after installation provided the unit
will still meet the physical or operational characteristics that formed
the basis for the clean unit designation.
Provision: Revised method for calculating "baseline" emissions; Final
Rule Requirements: Changes the timeframe for computing a piece of
equipment's baseline emissions from the most recent 24-month period--or
any other period more representative of normal operations--to any 24-
month period in the past 10 years adjusted for any new emission limits
added since the baseline period. No changes were made to rule for
electric utilities.
Provision: Pollution control project; Final Rule Requirements: Exempts
pollution prevention and control projects from NSR if they are on EPA's
list of "environmentally beneficial" projects or on a case-specific
basis if a non-listed project is determined to be environmentally
beneficial. It also must be shown that the project will not cause or
contribute to a violation of federal air quality standards or adversely
impact air quality standards for a national park.
Provision: Plantwide emissions limit; Final Rule Requirements: Allows
facilities to set a single emissions limit for an entire plant and then
make changes within the facility without triggering NSR, provided they
do not exceed the limit.
Provision: Revised test for calculating emissions changes; Final Rule
Requirements: Allows a facility to calculate expected emissions after a
facility change based on its projection of its future operation, rather
than at full capacity. This provision extended to all other industries
the same methodology for calculating expected emissions that EPA had
granted to the utility sector in the early 1990s.
Source: EPA.
[End of table]
Subsequently, in response to a number of requests, EPA agreed to
reconsider certain aspects of the final rule, took public comment on
those features during July and August 2003, and is assessing the
comments to determine if the agency needs to make any changes.
Also in December 2002, EPA issued for public comment a proposed rule
that would change the method for determining whether a facility change
can be exempt from federal NSR requirements because it is routine
maintenance, repair, or replacement.[Footnote 16] EPA intended for the
final version of the proposed rule to supplement its case-by-case
determination of what facility changes qualify for the routine
maintenance exclusion, using factors such as the nature, extent, cost,
frequency, and purpose of the change. EPA proposed to determine a
facility's total replacement costs and calculate a certain percentage
of those costs that the agency would allow the company to spend on
routine maintenance and repair without triggering NSR. EPA proposed
several alternative cost thresholds for routine maintenance and repair
below which modifications could be considered exempt and solicited
comments on the thresholds. EPA also included for comment a provision
that would generally allow a facility to consider the replacement of
existing equipment with identical or functionally equivalent new
equipment as routine replacement, depending on the amount of costs
involved. The agency announced a final rule in August 2003, specifying
the cost threshold industry could use to replace equipment and exempt
it from NSR. This rule will finalize one aspect of the December 2002
proposed rule and, at this time, the agency is not taking action to
finalize any other aspects of this proposed rule.
The NSR revisions have recently been the subject of recent
congressional debates. In 2002, Congress held hearings during which
members of Congress, EPA and DOJ officials, and a number of
stakeholders--including representatives of industry, states, and
environmental groups--presented their positions on the NSR program
revisions. For example, during a July 16, 2002, hearing before the
Senate Committee on Environment and Public Works, some state attorneys
general and environmental group officials testified that the revisions
could seriously undercut the ongoing enforcement cases, jeopardizing
the millions of tons in pollution reductions that those cases could
yield. At the same hearing, EPA and industry officials generally
testified that the revisions would allow companies to modify their
facilities so that they are more energy efficient and, as a result,
would emit less pollution. In addition, during a September 3, 2002,
hearing before the Subcommittee on Public Health, Senate Committee on
Health Education, Labor, and Pensions, former EPA Administrator Carol
Browner testified that, among other things, she was concerned that the
revisions would "eliminate the very features of the current law that
provide transparency to the public--monitoring, record keeping, and
reporting.":
Because EPA's Assessments Showed That Some NSR Revisions Could Affect
the Enforcement Cases, the Agency Made Changes before Issuing the Final
and Proposed Rules:
EPA enforcement officials assessed the potential impact of the NSR
revisions (before issuing them as final and proposed rules in December
2002) on the enforcement cases against coal-fired utilities and
determined that some of the revisions could have an impact. These EPA
officials discussed their views on the potential impact with DOJ. In
part as a result of the assessments, for the revisions that were
included in the final rule, EPA adjusted the content and wording of the
language before issuing the rule so that they were not expected to
affect the cases. For the proposed rule, the EPA enforcement staff had
concerns that if EPA specifically defined what facility changes would
qualify for the routine maintenance exclusion, the cases could be
affected since they involved disagreements about how EPA had been
applying the routine maintenance exclusion in the past. Consequently,
EPA decided not to specifically define what activities qualify as
routine maintenance but to propose several options for calculating cost
thresholds below which modifications could be considered exempt and
solicited public comment on the options. Nevertheless, during the 1½
years that the final language of the revisions was being debated, some
EPA enforcement officials and key stakeholders believe that some
companies were discouraged from settling their cases because of the
possibility that EPA could revise the definition of the exclusion in a
way that would be favorable to industry--although some companies did
settle after the proposed rule was issued. Furthermore, some EPA
enforcement officials and key stakeholders believe that the
announcement of the August 2003 final rule, in which EPA set a specific
cost threshold for routine replacement activities, could also delay
settlement of some of the cases and could affect judges' decisions in
the cases about what remedies to apply to companies that are found to
be in violation of the old NSR rule.
After Careful Content and Wording Changes, EPA Determined That the
Final Rule Would Not Significantly Affect the Cases:
EPA enforcement officials assessed the potential impact of the draft
NSR revisions that were issued as a final rule in December 2002 on the
enforcement cases and discussed their views about the impact with DOJ.
According to current and former EPA enforcement officials, after EPA
internally debated and agreed upon the language of the revisions, they
were not expected to adversely affect the ongoing enforcement cases
against coal-fired utilities. According to these EPA officials, in 2001
and 2002, several briefings and less formal discussions occurred during
which the enforcement staff raised concerns about the revisions'
potential adverse impact on the cases. Officials involved in at least
one, and in some cases several, of these meetings included the EPA
Administrator, the Deputy Administrator, the Assistant Administrator
for Air and Radiation, the former Principal Deputy Assistant
Administrator for Enforcement and Compliance Assurance, and the
Director of the Air Enforcement Division. DOJ's Deputy Assistant
Attorney General for Environment and Natural Resources and other DOJ
enforcement staff also discussed the potential impact of the proposed
revisions on the cases with EPA's Assistant Administrator for Air and
Radiation and staff in EPA's offices of the General Counsel and
Enforcement and Compliance Assurance. According to EPA enforcement
officials, they prepared analyses--some of which were documented in
briefing papers, charts, and graphs--that were discussed internally.
EPA enforcement officials said that because their main objective in
raising concerns about the revisions was to maintain the cases, they
urged senior agency officials to tailor the language of the revisions
to address their concerns before issuing the final rule. The
enforcement staff felt this would help ensure that the language finally
adopted would minimize any impact on the cases.
More specifically, according to the Director of EPA's Air Enforcement
Division, the staff prepared analyses indicating that three of the
revisions in the rule would have no impact on the enforcement cases.
These three revisions involve the exemptions for clean units, pollution
control projects, and the option of setting a plantwide limit on
emissions. In addition, because of the 1990 WEPCO decision, utilities
already had the authority, before EPA issued the final rule, to use the
revised method for estimating emission changes resulting from a
facility change. Therefore, since this provision in the rule was not a
significant change for the utility industry, the EPA staff did not
expect this provision to affect the cases. However, the EPA enforcement
officials were concerned about the provision establishing a revised
method for calculating past, or baseline, emissions. Specifically, EPA
considered changing the time period used to calculate baseline
emissions for utilities. According to the Director of EPA's Air
Enforcement Division, the enforcement staff prepared an analysis
comparing the effects of using different time periods on the viability
of each case. In part as a result of this analysis, the baseline
calculation for utilities was not changed in the final rule.
Because EPA's Assessments of the Draft Proposed Rule Raised Concerns
That It Could Affect the Cases, EPA Changed Its Strategy and Revised
the Rule before It Was Issued:
During the same briefings held in 2001 and 2002, the EPA enforcement
staff expressed concern that more explicitly defining what facility
changes qualify for the routine maintenance exclusion, as anticipated
in the December 2002 proposed rule, had the most potential to
negatively affect the cases. They were concerned because the
enforcement cases generally involve disagreements between EPA and the
utilities on whether past facility changes made without an NSR permit
qualified for the routine maintenance exclusion. In general, EPA
enforcement officials were concerned that if the agency specifically
proposed a definition of routine maintenance that was different from
the way the agency had applied the exclusion in the past, defendants
could delay the cases by arguing that some of the facility changes
under dispute in the lawsuits might be able to qualify for an exemption
from NSR. For example, the EPA officials were considering setting a
cost threshold for an allowance for annual maintenance, repair, and
replacement below which a company would not have to obtain an NSR
permit. EPA enforcement officials believed that if a threshold were
proposed that was higher than the costs incurred for the facility
changes at issue in the cases, the cases could be adversely impacted.
Specifically, the officials were concerned that judges might not order
companies to install pollution controls even if they were found to be
in violation of the prior NSR rule, since the facility changes in
question would now be legal under the proposed rule (if adopted as
proposed). The EPA enforcement staff compared the potential impact of
various cost thresholds on the viability of each case. Based in part on
these comparisons, EPA decided not to specifically set cost thresholds
for individual industries in its December 2002 proposed rule, but
rather to solicit comments on what thresholds to use.
The EPA enforcement staff had similar concerns about the other revision
under consideration for the December 2002 proposed rule. It would allow
companies to consider the replacement of existing equipment with
identically or functionally equivalent new equipment as "routine
maintenance, repair, and replacement" and be exempt from federal NSR
regulations. The cost of the equipment had to be below a certain
percentage of the cost to replace a process unit. A process unit for
power plants is defined as an electric utility steam-generating unit
(power plants can have more than one of these). The replacement
equipment also had to meet certain criteria, such as maintaining the
basic design parameters of the original unit. EPA enforcement officials
were concerned that, depending on where the threshold was set, this
revision could also affect the cases. As with the first provision, the
EPA enforcement staff compared the potential impact of various
replacement cost thresholds (up to 50 percent) on the viability of each
case in dispute at the time and concluded that 95 percent to 98 percent
of the facility changes at issue in the utility enforcement cases would
be considered routine maintenance--and thus exempt from NSR--if the new
rule were applied and the threshold were set at more than about 1
percent or 2 percent of the process unit's costs. Again, EPA decided
not to specify a threshold in the December 2002 proposal but instead to
solicit comments on the overall approach. EPA reviewed the comments
submitted on both proposed revisions and, even though seven of the
enforcement cases had not yet been settled or decided by the courts,
announced a final rule in August 2003 specifying a 20 percent threshold
for the replacement of existing equipment, provided the replacement
does not change the basic design parameters of the process unit and the
process continues to meet enforceable emission and operational
limitations. To illustrate the impact of this cost threshold, it costs
approximately $800 million on average to replace a 1,000-megawatt
electric utility steam-generating unit, excluding the costs of
pollution controls, according to EPA enforcement officials. Under the
new rule, an unlimited number of projects costing on average between $8
million and $160 million each (assuming cost thresholds of between 1
percent and 20 percent) could be excluded from NSR requirements.
According to the Director of EPA's Air Enforcement Division, this could
allow companies to make facility changes without an NSR permit that are
much more substantial than any of those in dispute in the cases.
EPA Enforcement Staff and Key Stakeholders Believe the Possibility of
Revising the Routine Maintenance Exclusion Delayed Settlement of Some
Cases, and the August 2003 Rule May Have Additional Negative Effects:
According to former and current EPA senior enforcement officials,
despite the agency's efforts to minimize the impact of the final and
proposed rules on the enforcement cases, they believe the possibility
that EPA could revise the routine maintenance exclusion in ways that
could improve the companies' legal positions in the cases had a
detrimental effect on the willingness of some companies to settle. The
officials stated that EPA normally settles 90 percent to 95 percent of
its enforcement cases before they go to trial, but that companies were
slower to settle after EPA publicly acknowledged it was considering the
revisions. For example, according to a former EPA enforcement official
who had been involved in the cases, the attorneys representing some of
the companies in the cases asked EPA why they should comply with an
interpretation of the law that the administration was trying to change.
These concerns were reinforced further when an industry attorney in a
state NSR enforcement case suggested that the court delay the case
because EPA was still reconsidering its interpretation of the CAA
through the NSR revisions. Similarly, the current Director of EPA's Air
Enforcement Division believes the most significant impact on the
enforcement cases was that companies delayed settling during the year
and a half the agency spent discussing NSR program reforms before
issuing the final and proposed rules. According to current and former
enforcement officials, companies spent this time lobbying EPA to
include language in the revisions that would help them win their cases.
Similarly, the National Academy of Public Administration (NAPA)
concluded in an April 2003 report on the NSR program, "The possibility
that EPA would soon reform the NSR modification provisions favorably to
industry may have led to [some] companies' reluctance to settle their
cases."[Footnote 17]
According to the Director of EPA's Office of Air Enforcement, in the
months immediately following the issuance of the December 2002 final
and proposed rules, settlement activity did increase. During this time,
EPA and DOJ entered into settlement agreements with four companies that
resulted in the annual reduction of approximately 421,000 tons of
sulfur dioxide and nitrogen oxide combined.[Footnote 18] See table 3
for a list of these companies.
Table 3: Judicial Settlements Entered Into with Coal-Fired Power Plants
since Issuance of the December 2002 Final and Proposed NSR Rules:
Case: U.S. v. Virginia Electric Power; Status of Negotiations: Consent
decree submitted for public comment on April 21, 2003; Estimated
Environmental Benefit of the Settlements: Annual reduction of 237,000
tons of sulfur dioxide and nitrogen oxide combined.
Case: U.S. v. Wisconsin Electric Power; Status of Negotiations: Consent
decree submitted for public comment on April 29, 2003; Estimated
Environmental Benefit of the Settlements: Annual reduction of 72,300
tons of sulfur dioxide and 32,600 tons of nitrogen oxide.
Case: U.S. v. Alcoa; Status of Negotiations: Consent decree approved by
the court on July 28, 2003; Estimated Environmental Benefit of the
Settlements: Annual reduction of 52,900 tons of sulfur dioxide and
15,480 tons of nitrogen oxide.
Case: U.S. v. Southern Indiana Gas and Electric Co.; Status of
Negotiations: Settlement approved by the court on August 13, 2003;
Estimated Environmental Benefit of the Settlements: Annual reduction of
10,600 tons of sulfur dioxide and nitrogen oxide combined.
Source: DOJ and EPA.
[End of table]
EPA's Director of Air Enforcement believes these settlements suggest
that the December 2002 final and proposed rules, as issued, did not
significantly affect companies' willingness to settle the cases. In
this official's opinion, the cases were not substantially affected
prior to the announcement of the August 2003 final rule because the
enforcement staff was successful in negotiating and revising the
language and content of the rules. However, this official stressed that
to the extent EPA decided to go forward with more explicit exclusions
for routine maintenance, repair, and replacement, as it has now done,
companies could be less willing to settle their cases. According to the
former Director of EPA's Office of Regulatory Enforcement, if EPA got
agreements with companies in the remaining seven pending enforcement
cases against coal-fired utilities that are equivalent to the
settlements it has achieved in the past, sulfur dioxide emissions could
be cut by as much as 2.9 million tons annually and substantial
reductions in nitrogen oxide emissions could also be achieved.
Some EPA enforcement officials and officials from environmental groups
and states have raised concerns that the announced August 2003 rule,
and any subsequent rules more explicitly defining what facility changes
qualify for the routine maintenance exclusion, could negatively impact
the enforcement cases even further. In a September 2003 legal filing in
one of the enforcement cases, DOJ stated EPA's position that the
announced August 2003 rule is prospective in nature and does not affect
the ongoing enforcement cases, which are based on past conduct.
Officials from the New York and New Jersey Attorney General offices
have said that the charges against the companies in these cases were
brought under the previous NSR program, before any of the recent
revisions, and the officials are confident that the judges will make
decisions based on whether the companies violated the rules that were
in effect at that time. While these officials did not expect the cases
to be delayed on the basis of any motions that industry may file in
light of the August 2003 rule, they noted that if such motions were
filed, the officials would have to spend additional time and resources
to defeat them. In addition to these effects, some stakeholders are
also concerned that the rule could affect the remedies imposed on
companies (including fines companies must pay or actions they must
take) if the courts find the companies to be in violation of the old
NSR rule. Officials from environmental groups and state attorney
general offices expressed concerns that industry attorneys would
attempt to argue that since the modifications for which they were found
liable under the old rule were now permissible under the new rule, they
should not be penalized. If judges were to agree, this could mean that
fines may be reduced or companies may not be required to install
pollution controls and reduce emissions to the extent that they might
have been before the new rule.
Indeed, on September 29, 2003, industry attorneys in the Illinois Power
case asserted in their closing arguments that the new exclusion for
routine maintenance in the August 2003 rule decisively undercut the
critical premise of the government's case because in the new rule, EPA
changed the interpretation of the Clean Air Act upon which it had based
the enforcement cases. The judge had not issued a ruling in the
Illinois Power case at the time GAO completed this report.
Portions of the December 2002 Final Rule Could Limit Assurance That the
Public Has Input into Company Decisions to Modify a Facility When
Modifications Affect Emissions:
Several provisions in the December 2002 NSR final rule could limit
assurance that the public has input on changes companies make to their
facilities, especially those that increase emissions, hampering the
public's ability to monitor health risks and company compliance with
NSR. The provisions could also limit assurance that the public has
access to documents showing how companies estimated whether the changes
would increase emissions enough to trigger NSR. For example, a company
can now determine on its own if there is a "reasonable possibility"
that a change could trigger NSR, but the rule is unclear about how
companies will make this determination and how the public can access
information about it. The extent of the rule's impact depends on the
extent to which other federal, state, and local regulations still
require that companies obtain a permit and notify the public of
modifications, but the scope of these other requirements varies widely.
Under a PAL, the Public Can Help Set a Facility's Emissions Limit but
May Not Have Input into Company Decisions to Modify the Facility When
Modifications Affect Emissions:
The Plantwide Applicability Limit (PAL) provisions in the December 2002
final rule could impact the amount of data available on, and public
input into, facility changes and emissions. On the one hand, a PAL
provides new opportunities for the public to have access to facility
emissions information because a company must undergo a public notice
and comment process before setting a PAL. The company must also monitor
and report more detailed and frequent emissions information during the
life of the PAL. For example, if a company decides to pursue a PAL, it
must apply to the state or local air quality agency, which in turn must
notify the public of the draft PAL and give the public at least 30 days
to provide comments. The application must list each piece of equipment
in the plant that emits the pollutant to be regulated under the PAL,
such as a boiler or paint sprayer, and the "baseline" emissions it
generates. Also, during the life of the PAL, a company must report
semiannually to the state or local agency the monthly emissions of some
or all of the NSR "criteria pollutants" from each piece of equipment.
In contrast, for a facility without a PAL, in many instances the
company would have limited emissions data for the facility. Thus, both
the public notice and comment process for obtaining a PAL and the
semiannual reporting requirements while subject to the PAL provide the
public more specific and more frequent emissions information than would
be provided for a facility that does not have a PAL.
On the other hand, according to some state and local air quality
agencies and environmental groups, because a company can pursue a
facility change without an NSR permit under a PAL, as long as total
facility emissions do not increase, the public may have fewer
opportunities to provide input on a company's decision to modify a
facility, assess the emissions created (including hazardous air
pollutants that may not be identified for monitoring under the PAL),
and consider ways to control them. For example, if a company without a
PAL decided to install a piece of equipment, such as a boiler, that
would increase the facility's emissions to a level that would trigger
federal NSR, the company would have to submit an application to the
state or local agency describing the change and the anticipated
emissions.[Footnote 19] The agency would have to notify the public and
give it 30 days to comment on the draft federal NSR permit, and the
company would have to install the best available pollution controls on
the equipment when making the facility change. However, under a PAL,
the company could make the change without obtaining a federal NSR
permit, soliciting public participation, or installing pollution
controls, even though the change significantly increases emissions, as
long as the company offsets the increase somewhere else within the
facility and does not exceed the PAL.
Some industry groups have responded that other federal, state, or local
regulations will still require reporting and record keeping on facility
changes and installation of emission control technology, so public
access and input will not change. For example, if state and local air
quality agencies require that companies obtain permits for facility
changes not subject to federal NSR requirements, the public may still
be notified about company plans to make a change and could comment on
them. However, several states, as well as the State and Territorial Air
Pollution Program Administrators and the Association of Local Air
Pollution Control Officials, note that state and local emission control
regulations governing such facility changes vary widely. For example,
some local air quality agencies in California require a public comment
process for many facility changes not subject to the federal NSR
program, while Ohio requires that the public be notified of only large
or potentially controversial changes.
EPA program managers maintain that many past changes were not subject
to federal NSR permits for a number of reasons, so public access will
not change. For example, prior to the final rule, the managers stated
that a company could make an unlimited number of changes to a facility,
as long as any one change did not trigger NSR. In addition, if the
emissions effects of some changes were too small to trigger NSR, a
company could offset emissions increases with other emissions
reductions, "netting out" of federal NSR requirements. The program
managers also believe that a predominant number of states and
localities would still require public notice and comment on these
changes.
Two Provisions Revising How Companies Measure Their Emissions Baseline
and Estimate Future Emissions Could Limit Assurance That the Public Has
Access to Data on Facility Changes:
The two provisions of the December 2002 final rule revising the method
for calculating past emissions and estimating emissions resulting from
a facility change could affect the amount and availability of
information available to the public. Companies use these provisions to
determine if their changes will trigger federal NSR requirements. To
make this determination, a company must estimate the emissions expected
after the change and compare this with the actual historic emissions
prior to the change, known as the baseline emissions level. Before the
rule, a company determined the baseline for a piece of equipment or
operating procedure using the average annual emissions generated during
the 24-month period prior to the change--or the company could seek to
use a different period, more representative of normal operations. Under
the new rule, a company will be able to choose any 24-month period in
the past 10 years as the baseline. However, the company must adjust the
baseline to account for any other pollution control requirements
implemented during this time, such as limits on acid rain pollutants,
and eliminate any time periods from consideration where facilities
exceeded required emissions limits.
Also under the new rule, once a company calculates its baseline, it
compares the baseline to the expected emissions after the equipment or
operations are modified to determine if emissions will increase enough
to trigger NSR. Prior to the final rule, when estimating expected
emissions, companies other than utilities had to assume that they would
operate a piece of equipment at the maximum level possible representing
the maximum possible emissions, even if they had not operated at that
level in the past and did not plan to do so in the future. [Footnote
20] Companies have said that this approach was unfair because, among
other things, it ignored market fluctuations. EPA revised the method of
calculating the expected emissions in the final rule. Now, a company
can project the expected activity level after the facility change and
estimate the resulting emissions accordingly. Thus, under the rule,
some estimates of expected emissions most likely will be smaller than
in the past.
Various stakeholders involved in the NSR revisions disagree on the
impact of these two changes. For example, some expect that companies
will choose the time period that gives them the highest baseline, or
allowable emissions, thereby giving the companies the greatest
flexibility to make changes in response to economic variations without
triggering NSR. On the other hand, EPA program managers and a
representative of a major industry explain that this is not necessarily
true because companies now have to adjust their baselines downward to
account for other pollution control requirements.
In those cases where companies set higher emissions baselines and
estimate smaller emissions increases, the difference between these two
numbers will be smaller than in the past and will not trigger the
federal NSR program and its requisite permitting, public notice, and
public comment requirements. These changes may still trigger state or
local requirements to obtain a permit and its associated public
participation rules, depending on the state or locality, but, as we
have stated, the scope of these requirements varies widely. In
addition, several industry representatives claim that the Title V
provisions governing record keeping and reporting requirements will
ensure the public continues to have emissions data to monitor
compliance. But other stakeholders point out that the data are
scattered across various programs, making it difficult for the public
to determine if facilities made any changes and what impact, if any,
this had on emissions. The public eventually may learn of a facility
change because under the rule, a company must annually report if the
actual emissions generated after certain changes exceeded the company's
estimate. In any event, this reporting is done after the change is in
place, and the public can have any input.
Also under the NSR program, when a company calculates the expected
emissions after a change, if the company determines emissions will
clearly exceed the federal NSR threshold, the company must obtain a
permit to proceed. If the calculation does not clearly indicate that a
proposed facility change triggers NSR, the company does not have to
keep any records of this determination. Under the rule, a company can
now determine if there is a "reasonable possibility" the change will
trigger NSR requirements. If it does, the company must maintain on-site
documentation of this decision, as well as emissions records for the
modified equipment or process. EPA program managers maintain that as a
result, more data may be available now than in the past.
However, EPA did not define what constitutes a "reasonable possibility"
that emissions will trigger federal NSR requirements in the final rule,
so companies might not apply this provision consistently and are, in
effect, policing themselves. As several state and local representatives
pointed out, this makes it difficult for EPA, state and local air
quality agencies, and the public to monitor compliance with NSR,
potentially leading to increased emissions and enforcement actions.
Similarly, NAPA reported that such self-policing could lead to
implementation problems and inadequate reporting of information and
recommended that EPA carefully oversee the calculation of emissions
increases resulting from facility changes and that sources not be
allowed to "self-police." EPA program managers take issue with the
conclusion that self-policing is inherently wrong and point out that
many environmental programs provide such self-policing mechanisms.
Furthermore, the rule states that if a company determines there is a
reasonable possibility a facility change could trigger NSR, it must
make the record of the determination as well as the emissions records
related to the change available to state or local agency officials or
the public upon request. But the rule is unclear how the public will
know about the changes or access the company's on-site records.
According to industry representatives, some companies will keep records
of all reasonable possibility determinations to limit their legal
risks, and some will proactively reach out to local communities before
undertaking facility changes because they want to maintain good
relations in these communities. Nevertheless, this lack of clarity
could potentially hinder enforcement and monitoring activities. It
could also pose administrative problems for companies, should the
public begin requesting information directly from them--especially if
the information contains sensitive business data that the company is
entitled to protect. EPA is currently considering comments it received
on the reasonable possibility provision as part of its decision to
reconsider portions of the final rule. The agency plans to determine
whether it will make any changes by the end of October.
Conclusions:
While EPA enforcement officials assessed the potential impact of the
December 2002 final and proposed rules on the enforcement cases against
coal-fired utilities and made changes before announcing the rules,
these officials and key stakeholders believe that settlement of some
cases was delayed because of the prospect that the definition of
routine maintenance could be revised in a way that would improve
industry's legal position. Furthermore, the announced August 2003 rule
exempting the replacement of certain equipment from NSR requirements--
the fundamental basis for most of the coal-fired utility cases--also
likely will discourage utilities from settling at least some of the
remaining cases. The rule may also affect judges' decisions regarding
whether the companies have to install pollution controls, jeopardizing
the expected emissions reductions.
Overall, as a result of the final rule, the public may have less
assurance that they will have notice of, and information about, company
plans to modify facilities in ways that affect emissions, as well as
less opportunity to provide input on these changes and verify they will
not increase emissions. In some but not all cases, state or local
regulations may require companies to continue to provide the public
with this information and opportunities for input, or companies may do
so voluntarily. However, the public will not have consistent access and
input unless EPA better (1) defines the criteria companies use to
determine if there is a reasonable possibility a facility change will
trigger NSR requirements and (2) explains how the agency will ensure
the public can access company documentation on such decisions and the
resulting emissions. Otherwise, it will be more difficult not only for
the public but also for EPA and state and local air quality agencies to
ensure companies are complying with the federal NSR program and not
increasing emissions in ways that affect localities' air quality and
public health.
Recommendations for Executive Action:
To better ensure the ability of federal, state, local, and public
entities to monitor facility emissions and NSR compliance, we recommend
that the EPA Administrator:
* better define what constitutes a "reasonable possibility" that
emissions after a facility change will trigger NSR requirements,
* require that companies maintain documentation on all "reasonable
possibility" determinations, and:
* determine, with state and local air quality agencies, how to ensure
public access to company's on-site information on facility changes and
emissions.
Agency Comments:
We provided DOJ and EPA with an opportunity to review and comment on a
draft of this report. We subsequently received comments from both
agencies. DOJ advised that it could not address the accuracy of, or
otherwise comment on, the statements of EPA officials contained in the
report. The agency did not address or comment on those portions of the
report concerning public access to emissions data that GAO discussed
exclusively with EPA. DOJ also advised that its position on the final
and proposed regulations discussed in the report are contained in its
legal filings in the power plant cases, and GAO was provided with a
copy of those filings. Since EPA's December 2002 announcement of the
final and proposed NSR rule changes, DOJ stated that it has continued
to prosecute these cases vigorously and has also achieved settlements
with four companies. DOJ also reiterated that its position as to the
potential impact of the NSR rule announced in August 2003 has always
been consistent and is reflected in its court filings--"that the rule
only governs prospective conduct and should not impact the liability of
companies who violated the law in the past.":
EPA generally agreed with the report's characterization of the NSR
revisions' potential impact on the ongoing enforcement cases. In terms
of the revisions' impact on public access to information about facility
modifications and emissions, however, the agency maintains the
revisions, at a minimum, will not change, and most likely will
increase, the amount of information available. According to EPA, before
the revisions, companies were not obtaining federal NSR permits with
their requisite public participation requirements for the types of
changes that would be affected by the revisions, for several reasons.
For example, companies could avoid federal NSR requirements for such
changes by offsetting emissions increases with emissions reductions
elsewhere in the facility (a process known as netting). EPA also
maintains that even if these changes were not subject to federal NSR
permitting requirements, they were subject to state and local
permitting and public participation requirements in many cases, and
that the NSR revisions would not change these underlying state and
local programs. In addition, EPA said that facilities choosing to use a
plantwide emissions limit have new and additional reporting
requirements that could increase the information available, as we also
point out in the report. Furthermore, the agency maintains that in the
past, companies calculated the expected emissions from a modification
and determined whether the emissions would increase enough to trigger
federal NSR requirements. If the NSR requirements were not triggered,
the companies did not have to keep records of the calculations. Now,
companies can take the extra step of determining that even if the
calculations do not show a significant enough increase, there is a
"reasonable possibility" of an increase and companies must keep records
on site supporting this determination.
For our work, however, we compared the federal NSR requirements before
and after the revisions and determined that the changes to these
requirements could limit assurance that the public has access to
information on facility changes and emissions. We did not have
information on, and did not try to account for, the extent to which
companies were actually triggering NSR requirements before and after
the rule, or the effect this had on available information. Based on
discussions with a number of state agencies and the national
association representing them, among other stakeholders, as to whether
state and local programs will continue to require permits and public
notice for changes not subject to the federal program, we determined
that the extent varied considerably across states and localities. For
example, two states said they did not allow netting. Furthermore, a
number of states indicated that even if such changes had been subject
to their programs in the past, they might not be in the future because
states and localities are facing pressures to modify their programs to
match the federal NSR revisions and to not have more stringent
requirements.
As to GAO's recommendations, EPA did not take a formal position on
either the recommendation calling for additional guidance on reasonable
possibility determinations or for the maintenance of all records on
these determinations. The agency is still evaluating public comments it
received on these issues as part of its agreement to reconsider
portions of the NSR revisions and does not expect to make a final
decision on the reconsideration process until the end of October 2003.
EPA did agree with our recommendation on ways to better ensure public
access to information on facility changes and emissions that companies
maintain on site. DOJ and EPA also recommended a number of technical
changes to the report, which we incorporated, as appropriate.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 10 days
from the report date. At that time, we will send copies to the EPA
Administrator, the Attorney General, interested congressional
committees, and other interested parties. We will also make copies
available to others upon request. In addition, the report will be
available at no charge on GAO's Web site at http://www.gao.gov.
If you or your staffs have any questions, please call me at (202) 512-
3841. Karen Keegan, Eileen Larence, Jeff Larson, and Lisa Turner made
key contributions to this report. Nancy Crothers, Mike Hix, and Laura
Yannayon also made important contributions.
John B. Stephenson Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Our objectives were to determine (1) whether EPA and DOJ assessed the
potential impact that issuing the final and proposed rules in December
2002 would have on enforcement cases pending against coal-fired
utilities and what the assessments indicated, and (2) what effect, if
any, the final rule might have on public access to information on
facility changes and the resulting emissions.
To respond to the first objective, we interviewed both current and
former EPA officials and current DOJ officials that were involved in
discussions about the impact of the revisions on the relevant
enforcement cases. These officials included the former Principal Deputy
Assistant Administrator for EPA's Office of Enforcement and Compliance
Assurance, the former Director of EPA's Office of Regulatory
Enforcement, the current Director of EPA's Air Enforcement Division,
and the DOJ Deputy Assistant Attorney General for Environment and
Natural Resources. We also submitted written document requests to both
agencies, asking that they provide GAO with all documents referring to,
relating to, or describing the assessments of the potential impact of
the NSR revisions on the pending enforcement cases and discussions
between officials from EPA and attorneys from DOJ concerning these
assessments.
In the case of DOJ, the agency's enforcement staff acknowledged that in
July 2002, they had prepared an internal evaluation, as backup material
for testimony, that summarized EPA's public announcement the previous
month concerning proposed NSR rule changes the agency was considering,
the content of some of the potential revisions, and the relevance of
those changes to filed enforcement cases. The DOJ enforcement officials
were concerned about providing us a copy of this document primarily
because it could impact the ongoing litigation of the cases. In the
case of EPA, the officials acknowledged that they, too, had prepared
assessments, and they discussed the general content of some of them
with us. They also provided us access to (but not copies of) the
assessments supporting the December 2002 final rule. The officials had
concerns similar to those of DOJ about (1) describing all of the
details about the changes made to the rule as a result of the
assessments, and (2) providing us access to the assessments concerning
the December 2002 proposed rule and the August 2003 rule. We did not
further pursue access to this information because we had sufficient
data to respond to our objectives, and it is GAO's policy, except in
limited circumstances, not to conduct work that would involve
analyzing, evaluating, or commenting on specific issues that are
pending before the courts.
To respond to the second objective, we analyzed the December 2002 final
rule to determine what provisions could impact public access to
information about facility changes and their associated emissions. We
interviewed the Director of EPA's Information Transfer and Program
Integration Division in the Office of Air Quality Planning and
Standards, the Director of EPA's Air Enforcement Division, and
attorneys in EPA's Office of General Counsel regarding the
interpretation of relevant provisions of the rule and the potential
effects of these provisions on public access. We also obtained the
views of key stakeholders that could be affected by changes in public
access to such information. To ensure we captured a wide cross section
of interests, we focused on:
* groups identified by EPA officials as key stakeholders,
* members of EPA's CAA Advisory Council,[Footnote 21]
* national level groups that have testified before Congress on NSR and
CAA issues over the last several years,
* national level groups that submitted comments to EPA in response to
the agency's request for public comment on its June 2001 NSR 90-Day
Review Background Paper (many of these were identified in EPA's June
2002 NSR Report to the President), and:
* trade associations representing those industries EPA identified as
being most affected by NSR.
Stakeholders included officials from the American Forest and Paper
Association, Clean Air Trust, Georgia Pacific Company, National
Petrochemical and Refiners Association, Natural Resources Defense
Council, New York State Attorney General's Office, Rockefeller Family
Fund's Environmental Integrity Project, and the professional
association representing State and Territorial Air Pollution Program
Administrators and the Association of Local Air Pollution Control
Officials.
We conducted our work between August 2002 and October 2003 in
accordance with generally accepted government auditing standards.
FOOTNOTES
[1] EPA defines a major modification as a physical or operational
change that causes a significant increase in emissions.
[2] The thresholds for these "major" modifications vary by pollutant
and the air quality status of the area in which the facility is
located. For example, in areas that meet air quality standards, a 100-
ton per-year increase is significant for carbon monoxide, while a 40-
ton per-year increase is significant for nitrogen dioxide or sulfur
dioxide.
[3] EPA also referred a number of alleged violations of the NSR
provisions involving industries other than coal-fired power plants,
such as the petroleum refinery industry. Generally, the defendants in
those cases did not challenge EPA's interpretation of the term "routine
maintenance," and many of these cases were settled.
[4] Due to an adverse jurisdictional decision, Alabama Power Company
was dismissed as one of the defendants from one of the seven cases that
had been filed in November 1999. DOJ refiled against this company in
January 2001.
[5] We focused on the December 2002 final rule revisions because EPA
did not select the final criteria it would use to determine whether a
facility change is considered a "replacement" and exempt from NSR until
August 27, 2003, after we had completed most of our work.
[6] See U.S. General Accounting Office, Clean Air Act: EPA Should Use
Available Data to Monitor the Effects of Its Revisions to the New
Source Review Program, GAO-03-947 (Washington, D.C.: Aug. 22, 2003).
[7] Ozone forms when nitrogen oxides react with volatile organic
compounds in the presence of heat and sunlight.
[8] While there is no federal NSR requirement specifically requiring
public access to compliance information, Title V of the CAA provides
that emissions and compliance monitoring reports for major sources of
emissions shall be available to the public.
[9] The case involving the administrative compliance order, issued to
the Tennessee Valley Authority (TVA), was upheld by EPA's Environmental
Appeals Board. TVA's appeal of the Board's decision was denied by the
11th Circuit Court of Appeals. Six other cases--filed against Alcoa,
PSEG Fossil, Southern Indiana Gas and Electric, Tampa Electric,
Virginia Electric Power, and Wisconsin Electric Power--were settled.
[10] Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901 (7th Cir.
1990) ("WEPCO").
[11] 57 Fed. Reg. 32314 (July 21, 1992) (codified at 4 C.F.R. Parts 51,
52, and 60).
[12] For more information on the NEPDG's report, see U.S. General
Accounting Office, Energy Task Force: Process Used to Develop the
National Energy Policy, GAO-03-894 (Washington, D.C.: Aug. 22, 2003).
[13] This report focused principally on enforcement actions against
coal-fired power plants because defendants in other industries
generally had not alleged that EPA's actions were inconsistent with the
CAA.
[14] New Source Review: Report to the President, U.S. Environmental
Protection Agency, June 2002.
[15] 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, 67 Fed. Reg. 80186 (2002) (to be
codified at 40 C.F.R. Pts. 51 and 52.)
[16] "Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review: Routine Maintenance, Repair and Replacement," 67
Fed. Reg. 80290 (2002).
[17] A Breath of Fresh Air: Reviving the New Source Review Program, a
report by a panel of the National Academy of Public Administration for
the U.S. Congress and the Environmental Protection Agency, April 2003.
[18] DOJ and EPA have also entered into settlement agreements with two
other companies. Specifically, in October 2000, the courts approved a
settlement with Tampa Electric Company that resulted in an annual
reduction of approximately 190,000 tons of sulfur dioxide and nitrogen
oxide combined. In July 2002, a consent decree was entered into in a
case involving PSEG Fossil LLC that resulted in an annual reduction of
approximately 35,940 tons of sulfur dioxide and 18,270 tons of nitrogen
dioxide.
[19] Prior to the final rule, a company also had the option to "net
out" of, or avoid, NSR by agreeing to reduce emissions elsewhere in a
facility or accepting an enforceable emissions limit that was below the
threshold for triggering NSR.
[20] Again, prior to the final rule, a company could avoid NSR review
by reducing emissions elsewhere in a facility and accepting an
enforceable emissions limit that was below the threshold for triggering
NSR.
[21] The council is a senior-level policy committee established in 1990
to advise EPA on issues related to implementing the CAA Amendments of
1990. Membership is approximately 60 senior managers and experts
representing state and local government, environmental and public
interest groups, academic institutions, unions, trade associations,
utilities, and industry.
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