FOR IMMEDIATE RELEASE TUESDAY, JANUARY 15, 2002 WWW.USDOJ.GOV OLP (202) 514-2008 TDD (202) 514-1888 WASHINGTON, D.C. -- The Justice Department announced today its conclusion that the Environmental Protection Agencys "new source review" (NSR) enforcement actions against certain facilities, such as power plants and oil refineries, are consistent with the Clean Air Act and that ongoing prosecutions will proceed. The Departments Office of Legal Policy conducted the review following a directive by the Vice Presidents National Energy Policy Development Group last May.
"The Department takes seriously its obligation to enforce the laws protecting our nations environment," said Attorney General John Ashcroft. "Ensuring cleaner air for the health and well-being of all Americans is critically important." NSR is a pollution-reduction program created to help promote healthy air quality. Under the program, facilities that construct new, or modify existing, sources of pollution are required to obtain a permit and install pollution control devices. The Department is now pursuing a number of enforcement actions on behalf of EPA against companies alleged to have made NSR-triggering modifications to their facilities. Controversy surrounds the interpretation of the word "modification." For its report, the Department asked two questions: Is EPAs interpretation of "modification" reasonable in light of the Clean Air Act? And second, should EPA have initiated a public rulemaking before it brought the enforcement actions? The Department concluded that EPA has a reasonable basis for arguing that the enforcement actions are consistent with both the Clean Air Act and the Administrative Procedure Act. First, the EPAs belief that the defendants have "modified" their facilities, and thus are subject to NSR is reasonable. This is so because the courts generally defer to agency interpretations of ambiguous statutory terms, such as "modification." Second, the Department concludes that the EPAs alleged failure to enforce the Clean Air Act in the past may not reflect a binding interpretation of that statute, and therefore the enforcement actions do not violate the Administrative Procedure Act.
"The effect of the Departments conclusion is retrospective. It examines only currently pending enforcement actions to determine their lawfulness, and expresses no opinion on how the Clean Air Act should be enforced in the future. Those policy determinations rest with the EPA," said Viet Dinh, Assistant Attorney General for the Office of Legal Policy.
The full Department of Justice NSR report and the Attorney Generals letter adopting the report will be posted this afternoon at www.usdoj.gov/olp. 02-017
Source: US Department of Justice
