EPA orders review of key Clean Air document

Copyright © 2009
Gallup Independent
By Kathy Helms
Diné Bureau

WINDOW ROCK — The U.S. Environmental Protection Agency granted a petition Tuesday for reconsideration of a Bush Administration memo regarding the scope of the Clean Air Act.

The interpretive memo, put forward by then-EPA Administrator Stephen Johnson in December 2008, addresses when the Prevention of Significant Deterioration program applies to carbon dioxide, a chief greenhouse gas.

Concerns were soon raised about the memo’s potential impact on American communities and neighborhoods. The Sierra Club and other parties in early January petitioned EPA to reconsider the Johnson memorandum.

“I am granting this petition because we must learn more about how this memo affects all relevant stakeholders impacted by its provisions,” said EPA Administrator Lisa P. Jackson

“This will be a fair, impartial and open process that will allow the American public and key stakeholders to review this memorandum and to comment on its potential effects on communities across the country. EPA’s fundamental mission is to protect human health and the environment and we intend to do just that.”

EPA will vigorously review the Johnson memo to ensure that it is consistent with the Obama Administration’s climate change strategy and interpretation of the Clean Air Act. While conducting this review, EPA will abide by the three core principles outlined by Jackson: overwhelming transparency, adherence to the rule of law, and science-based policies and regulations.

To facilitate a transparent, impartial and fair review, EPA will seek comment from the general public on this memo and its potential impact on American communities. This public comment period is consistent with the recommendations of the Environmental Appeals Board and allows for a measured, inclusive approach to reviewing this memo.

The appeals board last year held that EPA had not adequately articulated why its interpretation of the Prevention of Significant Deterioration program did not apply to carbon dioxide.

Today’s action is the latest in a series of steps intended to ensure EPA policies and procedures are consistent with EPA’s overall mission to protect human health and the environment.

Frank Maisano, media liaison for Sithe Global Power, co-developer with Diné Power Authority of the Desert Rock Energy Project, stated in his weekly energy update to media that the development was “expected,” bit added that EPA “clearly cannot just eviscerate the Johnson decision without undertaking the normal administrative procedure.”

Former EPA Air Administrator Jeff Holmstead, who has been working on the Desert Rock project, said EPA’s agreement with the Sierra Club comes as no surprise. “It’s a clever procedural move that allows the new administration to distance itself from the Bush administration without actually changing anything about how CO2 is regulated.

“As a legal matter, the Johnson memo will remain in place until the Obama EPA does its homework and goes through a public process to create a new framework for dealing with CO2 under the Clean Air Act. Coming up with this new framework will be a huge challenge, unless the new administration wants to force every significant construction project in the U.S. to stop work until they go through a years-long process to get a Clean Air Act permit.”

Maisano said the irony remains that many states could regulate CO2 if they wanted to in Prevention of Significant Deterioration permits. “None have yet to do so, only complaining loudly about EPA inaction,” he said.

EPA’s appeals board withdrew a portion of the air permit for the proposed Desert Rock power plant in December and sent it back to EPA Region 9 for reconsideration. The appeals board order stated that the Desert Rock permit was partly based on reasoning rejected in a recent decision issued in the Deseret Power Electric Cooperative case, which found that carbon dioxide levels had to be considered.

Region 9 intends to prepare a new statement addressing the issue of whether the permit should contain an emissions limit for carbon dioxide. The remaining issues in the matter were not affected by the withdrawal.