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Publication date: Dec. 19, 2003


A group of 6 states filed a FOIA request on Dec. 4, 2003, for documents on how EPA arrived at its controversial "New Source Review" (NSR) decision.

Connecticut, Illinois, New Jersey, New York, Maryland, Wisconsin, and Washington, DC, are seeking information on communications between three agencies - Environmental Protection Agency (EPA), Department of Energy (DOE), and the White House Council on Environmental Quality (CEQ) - and a host of utility industry groups they suspect may have secretly and improperly influenced EPA to weaken a 3-decade-old provision requiring utilities to install pollution control equipment when they rebuild old plants.

Normally, staff at EPA and other agencies are supposed to be tight-lipped about pending enforcement actions. But EPA's enforcement of New Source Review cases has been a red-hot topic since staff leaks contradicted the Air Administrator's testimony that the Bush Administration's "Clear Skies" Policy wouldn't impact enforcement.

Little surprise, then, at an Oct. 28, 2003, memo from enforcement head John Suarez, reminding staff to stay mum about all enforcement matters. You can read the story and the memo on the site of OMB Watch as well as Grist, where Amanda Griscom broke it.

The states' FOIA seeks documents on EPA, DOE, and CEQ communications with Vice President Cheney's Energy Task Force, Edison Electric Institute, Utility Air Regulatory Group, National Energy Policy Development Group, Electric Reliability Coordinating Council, First Energy Corporation, Duke Energy Corporation, Southern Company, Cinergy Corporation, American Electric Power Service Corporation, Dynegy Midwest Generation Inc., Illinois Power Company, and Hunton & Williams LLP, according to the Maryland Attorney General's office.

The NSR program, enacted by Congress in 1977, grandfathers old utility equipment and other pollution sources - exempting them from Clean Air Act requirements that they install costly new pollution-control equipment, until they replace or modify their furnaces and boilers. Meeting standards with new equipment is less expensive than retrofitting old equipment, and Congress assumed clean-up would occur as old utility powerplants reached the end of their useful life.

To avoid pollution-control costs, utilities found ways to extend the useful life of their equipment beyond anything imagined in 1977. Finally, during the 1990s, the Clinton administration cracked down on various utilities, factories, and refineries - saying they had been illegally modifying and upgrading their equipment while claiming it was only routine maintenance - and took new regulatory and enforcement action to force them to clean up. The incoming Bush administration reversed most of those Clinton-era initiatives. They claimed the Bush NSR program would make the air cleaner at less cost - a claim that environmentalists and downwind states hotly disputed.

When EPA issued its final NSR rule revisions in 2002, a group of downwind states filed a lawsuit challenging them. Fourteen states, led by New York, and DC eventually joined that lawsuit; nine coal-producing and pollution-exporting states, led by Virginia, eventually took the other side of the legal fray.

Last revised January 22, 2013

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