16. AIR POLLUTION: Bush-era NSR rule comes under fire from enviro group (Greenwire, 02/23/2009)

Robin Bravender, E&E reporter

Environmentalists are pressing U.S. EPA to reconsider a last-minute Bush administration rule regarding how "fugitive" emissions are used to determine whether industries will be forced to upgrade air pollution controls.

The Natural Resources Defense Council challenged the Bush administration's fugitive emissions rule last week in the U.S. Circuit Court of Appeals for the District of Columbia and asked EPA Administrator Lisa Jackson to stall the rule while the agency reconsiders it.

Fugitive emissions -- such as dust from coal mining or chemicals leaking from pipes at petroleum refineries -- are more difficult to monitor and control than pollution from smokestacks and vents.

EPA released a final rule last December changing how major industries must account for fugitive emissions when determining whether upgrades trigger New Source Review (NSR) rules under the Clean Air Act. NSR requires stationary sources to install new pollution controls when they are modified or upgraded so their outputs of pollution are increased.

In 2002, EPA issued an NSR rule that required all sources to include fugitive emissions in computing a source's emissions to determine whether a proposed modification to a facility is subject to review under NSR rules.

But EPA agreed to reconsider the issue after a mining company lobbied the agency in 2003, arguing that the rule failed to comply with the Clean Air Act requirement that EPA conduct a rulemaking to list new source categories for which fugitive emissions must be included in determining emissions subject to NSR rules.

Environmental groups argue that the Bush EPA's rule will allow industry to avoid stricter regulations while increasing air pollution levels.

"The rule is illegal and it's harmful and it was hasty and last-minute," said NRDC senior attorney John Walke.

But Scott Segal, director of the Electric Reliability Coordinating Council and an industry lobbyist, said EPA's latest rule provides certainty to regulated industries.

"In recent years, EPA enforcement efforts sometimes combined various small construction projections at large facilities and incorrectly alleged violations of the Clean Air Act," Segal said. "The rule that environmental groups challenge stops that improper practice and allows utilities to maintain power plants to ensure the safe and reliable delivery of electricity."

Click here to read NRDC's petition to the appeals court.

Click here to read NRDC's petition to Administrator Jackson.

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