Congress has been abdicating responsibility in many ways for a long time. One of the most egregious ways is in giving bureaucrats too much leeway in writing regulations. In the case at hand there is confusion about what constitutes a "new source" of pollution wrt the Clean Air Act.
Alright, what would a "new source" of pollution be? One might well expect a reasonable person to say a "new source" would be a new generating facility, chemical plant or other regulated entity. No, in fact this can be applied to existing facilities under certain conditions, as described here.
The Bush Administration will soon introduce much-needed reforms of the New Source Review (NSR) program. NSR, adopted in 1977 in an amendment to the Clean Air Act (CAA), was intended to regulate air pollution from new "sources" by requiring newly constructed facilities and old facilities undergoing "major modifications" to go through extensive permitting requirements and to install top-technological pollution control equipment. 1 But since 1996, the Environmental Protection Agency (EPA) has applied a new and extreme interpretation of the law, subjecting old and existing plants to the stringent NSR rules in cases where the modifications were not significant and where they had actually improved the safety of operations, increased energy efficiency, or reduced the emissions of the regulated air pollutants.Much more is available on the Heritage link above.
Congress intended the New Source Review program to target plants that were built after 1977; it exempted older ones, unless companies made extensive physical modifications to them. Congress recognized when it enacted the program that to require existing plants to be retrofitted with the most up-to-date technological emissions controls would be an extreme, prohibitively costly, and unnecessary burden on industry. 2 Congress also recognized that it is "cheaper to install control technologies" at the time a plant is being constructed or extensively modified than "to retrofit old units." 3 It therefore intended that existing plants would be subjected to NSR at the time they underwent "major modifications," defined under NSR as "any physical change or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under CAA." 4 Activities of old plants that were not "major modifications," such as "routine maintenance, repair, and replacement," did not fall under the modification rule and therefore did not trigger NSR. 5
Despite Congress's intent, the Clinton Administration expanded the NSR program by making it applicable to existing facilities that make efficiency or operational improvements, even if the changes are routine and regardless of whether or not those activities actually increase emissions. Under the EPA's reinterpretation of the law, existing facilities that improve their capacity, efficiency, or even the safety of their operations would now fall under NSR's costly and exhaustive modification requirements. The direct result has been to discourage energy-efficient modification and the safety of plant operations.
In essence, Clinton's regulators abused their discretion. Some plants had been grandfathered, and regulators were attempting to force those out of business the minute they needed maintenance. Bush's administration is simply attempting to return to past practice, and this will not result in increases in pollution.
It's fashionable to question the motives of "polluters", and of course there is a concern that old plants would be kept limping along forever under their grandfather arrangement. That's unlikely - eventually something becomes too expensive to fix and the plant is shut down.
And if we can extend the useful lives of existing facilities, that's a good thing. There has been so much regulatory turmoil involving refineries and power plants that we aren't building enough of them. Building a new facility isn't exactly pollution-free - we shouldn't do that any more often than necessary.
Mercifully we have a President who understands these industries and their vital importance to the economy. The flak he's catching should be recognized as just more partisan yapping.