DEQ Agrees to Keep Air Pollution Requirements Intact

In a victory for Montana’s environment, the Montana Department of Environmental Quality (DEQ) agreed to drop a proposal to substantially weaken certain air pollution permitting requirements. The proposal would have had serious consequences for air quality in national parks, wilderness areas, and areas that already have air pollution problems. Here is the story.

When the federal Clean Air Act (CAA) was expanded in 1977, polluting industries argued that it would be too expensive for them to comply with the more stringent requirements in the new law. To accommodate this concern, the CAA contained a grandfather provision for plants in existence at that time. This provision did not require plants built before 1977 to comply with the law immediately, but instead allowed them to delay the upgrade of air pollution controls until other modifications were made to the facilities. This proved to be a fatal flaw in the CAA.

Instead of complying with this provision, large industrial polluters simply ignored it. Then in the mid-1990s the U.S. Environmental Protection Agency began enforcing this provision in earnest. In fact, by the late 1990s EPA had successfully settled with many companies, and had many more at the negotiation table. But then the Bush Administration took over. EPA staff were forced to drop 50 investigations of power plants that had violated the law. Four top EPA officials resigned or retired in protest of this shift in policy. One 30-year EPA veteran was quoted as saying “the rug was pulled out from under us.”

Despite having the lawsuits dropped, polluting industries still complained that the CAA provision stifled innovation and equipment upgrades at grandfathered facilities. So in 2002, EPA adopted a new rule that significantly weakened air pollution permitting requirements for these facilities. The new EPA rule said that many of these old plants do not need to get permits when they make modifications. The EPA produced the new rule without conducting any state-specific environmental analysis and, according to the Government Accounting Office, using only anecdotal examples from these industries. The result will be more air pollution because these old plants will not have to upgrade inefficient and outdated air pollution control equipment.

Fourteen states and numerous environmental organizations filed suit against EPA, challenging the new rule.

The list of industries involved in the subsequent lawsuit reads like the “who’s who of industrial polluters.” Defending the EPA’s rule were nearly early every major utility in the country: the Alliance of Automobile Manufacturers, American Chemistry Council, American Forest and Paper Association, American Iron and Steel Institute, American Petroleum Institute, National Association of Manufacturers, National Mining Association, National Petrochemical and Refiners Association, Portland Cement Association, and many more. The stakes were high.

When it adopted the rule EPA said that every state also had to adopt its weaker rule or risk harsh penalties. Under intense scrutiny from the court EPA reversed its position and said that states are not required to adopt the new rule if they can demonstrate to EPA that their existing air quality rules are at least as strong as the new EPA rule.

In June 2005 the D.C. Circuit Court of Appeals threw out two of the five provisions of the new rule. It remanded another provision back to EPA for increased record-keeping and reporting requirements, and it left the door open for states to file lawsuits as individual plants avoided the permitting process. But the Court allowed the other provisions in the new rule to stand.

In December 2005 DEQ and polluting industries asked the Montana Board of Environmental Review to adopt the new federal rule with some minor improvements. MEIC and 14 other environmental organizations opposed the request, arguing that the Board should not adopt the rule until DEQ had analyzed its environmental impacts. The Board agreed and directed DEQ to conduct that analysis.

When the Board met in February 2006 DEQ had reversed itself and finally agreed with MEIC’s position. So, DEQ now will do what most of the states in the Northeast have done. It will tell EPA that Montana’s rules are already stronger than the federal ones and do not need to be changed. Montana will be one of the first states in the West to submit such a demonstration and avoid adopting the weaker EPA rule.

It’s nice to see that you can teach an old dog a new trick.