For years, EPA embraced its obligation to ensure that polluters estimated potential future emissions increases accurately, since those estimates are the cornerstone of a Clean Air Act program aimed at limiting local air pollution increases. Now, it has stepped away from that obligation.
The New Source Review (NSR) program is a long-established set of Clean Air Act rules that safeguard local airsheds against increases in pollution when a facility makes changes that might cause such increases. The rules are first applied to determine whether a facility needs a Clean Air Act permit, then to determine which pollution control measures that permit requires.
In the critical first step, a facility first estimates what its air pollution emissions levels will be, then the EPA reviews those estimates to ensure they are accurate – a task that is essential to ensuring that the air quality protection objectives of the program are achieved. Recently, the U.S. Court of Appeals for the Sixth Circuit vindicated that process. When the EPA brought an enforcement action for non-compliance with the NSR program against a power plant owned by DTE Energy in Michigan, the company defended itself by saying that EPA had no right to review the substance of its emissions estimates to determine if they were accurate. The Sixth Circuit rejected that argument.
At the end of last year, however, the EPA issued a memorandum essentially embracing DTE’s illegal position and stating that the agency would no longer scrutinize a polluter’s estimates of its own pollution. Going forward, polluters will enjoy the license DTE tried – unsuccessfully – to claim for itself: the ability to avoid both accountability for emissions estimates that prove to be inaccurate and responsibility for controlling pollution increases. All it takes, the memo implies, is filing the paperwork.
In one stroke the public has lost its assurance that EPA will use the Clean Air Act rules to deliver both their intended pollution control and the cleaner air those rules are meant to provide. One additional feature of this development: the lawyer who represented DTE in EPA’s enforcement action, William Wehrum, was sworn in to run the EPA’s Office of Air and Radiation less than a month before the EPA issued this new policy.
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