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Ever since Vice President Cheney’s Energy Task Force took up the issue in 2001, the Environmental Protection Agency (EPA) has looked for ways to loosen the New Source Review (NSR) rules that require old power plants to meet modern pollution standards. NSR amendments to the Clean Air Act in 1977 exempted existing power plants, allowing them to maintain their pollution levels until they were retired, expanded, or significantly modified. In 1999, the EPA and the Department of Justice launched an enforcement campaign after discovering that 70 percent of coal-fired power plants in the United States had violated this arrangement by modifying their facilities while passing it off as “routine maintenance.” This allowed the aging plants to emit tens of millions of tons of pollutants that pose health risks such as respiratory problems and heart disease.

After Cheney’s task force examined the NSR, the EPA proposed a series of rules in 2002 and 2003, which critics say undercut the NSR rules and related enforcement cases. The new rules called for power plants to be reviewed only at higher emission levels than previously established, while simultaneously widening the definition of routine maintenance. The U.S. Court of Appeals struck down that routine maintenance rule in 2006. By then, the EPA had proposed further changes allowing power plant operators to “modify” their facilities as long as maximum hourly emissions do not rise — while making no requirements for annual emissions. Internal documents revealed the Air Enforcement Division of the EPA strongly opposed the proposal.

Representative Henry Waxman, Democrat of California, wrote the EPA in June 2008 saying that the agency’s proposed rules for aging power plant emissions would result in “exacerbating pollution problems” and increasing global warming emissions. The EPA press office did not respond to a request for comment, but, on December 10, 2008, an EPA spokesman told reporters the agency would drop its pursuit of the rule change, despite working hard to complete it in recent weeks. “We didn’t want to be faced with putting a midnight regulation in place,” he told The New York Times.

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