Environmental Protection Agency Assistant Administrator William Wehrum told House members he supports the legislative effort to alter New Source Review (NSR) permitting regulations under the Clean Air Act during a committee hearing on Wednesday.
Draft legislation, introduced by Rep. Morgan Griffith, R-Va., seeks to define “modifications” in order to remove regulatory burdens from NSR, which requires pollution controls on power plants and other industrial facilities when they're built or when modifications will significantly increase emissions. The bill faces opposition from Democrats, who say the proposed changes will increase air pollution.
EPA Administrator Scott Pruitt told House lawmakers in April that the EPA would pursue "a comprehensive rule" to alter NSR regulations. "What we’re thinking about doing is basically a supplemental proposal" of the rule changes proposed in 2007, Wehrum told reporters.
While the EPA does not have an official position on the draft bill, it's aligned with the agency's current regulatory efforts to alter NSR permitting.
"I would love for there to be legislation of the sort we were talking about in the hearing because that would improve the program, making it easier to implement and making it more effective," Wehrum told reporters after the House Energy and Commerce subcommittee on environment hearing.
Wehrum tried pushing through similar rule changes when he served as acting head of EPA's air office in the George W. Bush Administration, but those efforts were blocked by Congress.
Weeks after Wehrum was sworn in to his latest stint in the air office, the EPA issued a memo ending its policy of "second guessing" company estimates of future pollution levels before they retrofit a plant. In addition, in January, Wehrum signed a memo rescinding the "once in, always in" policy which held major sources of hazardous air pollutants to tougher air standards, writing that a plant that takes steps to limit pollution could now be redefined under the less-stringent definition of an "area source."
During Wednesday’s testimony, Wehrum echoed previous confirmations from an EPA spokesperson that the agency intends to codify these policy memos in a formal rulemaking.
The lack of codified guidelines creates further uncertainty for what construction will run afoul of the NSR program, Wherum said, making the regulation overly confusing and complicated.
Some state air regulators cannot enforce federal policy memos and therefore need the EPA to codify changes through rulemaking, Sean Alteri, director of the Kentucky Division for Air Quality, told House lawmakers. That’s the case in Kentucky.
Disagreement remains on the consequences of proposed changes to NSR, even among former EPA employees who have a lot of experience with the program.
The facilities affected by NSR "are covered by many, many other different programs" that would ensure a decrease in emissions over time, Jeff Holmstead, a partner at Bracewell LLP who previously worked in the EPA with Wehrum, said during the hearing.
Bruce Buckheit, an independent analyst who served as the director of EPA’s Air Enforcement Division while Holmstead and Wehrum were at the agency, wrote in his testimony to the House that Rep. Griffith's discussion draft changes will effectively exempt "a number of coal-fired power plants with extremely high emission rates" from the NSR permitting obligations. He credited these requirements with reducing emissions of sulfur dioxide and nitrous oxides by millions of tons per year.
"No other regulations would specifically prevent this issue," Buckheit told House members of the potential for increased emissions during plant modifications and construction.
Environmental groups say that changing the program, such as removing "once in, always in," will allow plants to escape NSR provisions when they make upgrades to boost output. But, "the studies that purport to show that, they’re just shoddy," Wehrrum told House members.
Wehrum also said the EPA's estimates on potential emission increases due to the "once in, always in" policy are based on information from public comments submitted in 2007.
"What we've seen is a preponderance of information indicating that, we think ultimately, this policy is actively going to produce emissions reductions and is not going to result in the hypothetical increases that many people are worried about," Wehrum told House members.