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The Proposed WEPCo Rule: Making the Problem Fit the Solution

March 1992

Citation: ELR 10201

Author: Richard E. Ayres and Richard W. Parker

Editors' Summary: EPA's final decision on its proposed WEPCo rule, which addresses how new Clean Air Act provisions apply to electric utilities, is expected soon. This Article provides a glimpse into the regulatory machinery needed to deal with implementing just one aspect of the Clean Air Act Amendments of 1990: whether an electric utility's proposed renovations at one of its facilities constitutes a "modification" triggering new source performance standards and new source review programs. Although Congress passes legislation and the President signs bills into law, executive branch agencies are usually tasked with the regulatory implementation of those laws. Thus, what Congress writes and the President signs into law is often not what interested parties expect. The Article first explores the origins of the controversy, the parties involved, and reaction to EPA's first ruling on the issue. The authors then analyze EPA's response, the proposed WEPCo rule, and evaluate its potential ramifications if made final. Finally, the authors conclude that the proposed rule softens the modification rule as applied to electric utilities in pursuit of utility cost savings, but possibly at the expense of local impacts and technological innovation.

Richard E. Ayres is a partner with O'Melveny & Myers in Washington, D.C., specializing in environmental and related energy regulatory matters. Prior to joining the firm, he was Senior Attorney at the Natural Resources Defense Council, which he cofounded in 1970. From 1975 to 1991, he was also cofounder and chairman of the National Clean Air Coalition, where he led successful efforts to reshape the federal Clean Air Act in 1977 and 1990. He was appointed by the President to the National Commission on Air Quality, serving from 1979-81. Over the past 20 years, he has been involved in most of the major rulemakings under the Clean Air Act, and has handled numerous air pollution related cases in the federal courts. He earned his law degree and an M.A. in political science from Yale University in 1968.

Richard W. Parker is an associate with O'Melveny & Myers specializing in the practice of environmental law. He earned his law degree from Yale University in 1985.

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