Bright Lines or Loopholes

The Bush Administration’s changes to the New Source Review (NSR) provisions of the Clean Air Act, announced on November 22, have opened regulatory loopholes that will allow industrial facilities and other non-utilities to avoid installing pollution controls required under previous law. In this Report, the Environmental Integrity Project (EIP) tracks how these changes allow companies to use pollution from accidents to avoid NSR permit requirements.

Under NSR, regulatory authorities must determine whether planned plant modifications will significantly increase emissions above historical baselines such that pollution controls will have to be installed. Previously, a plant’s emissions baseline was determined by averaging its annual emissions from the past two years, which was then compared to projected future emissions. If that increase was significant – as defined by EPA regulations – then that plant was required to install pollution controls.

The new rule now allows plants to use their highest two years of emissions out of the past ten as their baseline. As documented in a study released by EIP in October, Turning the Clock Back on the Clean Air Act, the effect will be to allow companies to inflate their emissions baselines so that comparing historical emissions to future emissions will no longer register as a significant increase. Today’s Report shows that in addition to the worst two-in-ten loophole, plants can now include accidental emissions from those same years to boost their baselines even more. Use of accidental emissions, in addition to the already-inflated baseline, proves even more that, at least according to the Bush Administration, it pays to pollute.