US appeals court blocks EPA's revised NSR maintenance rule

By OGJ Editors
WASHINGTON, DC, Dec. 26 -- The US Court of Appeals for the District of Columbia Circuit Wednesday blocked a new US Environmental Protection Agency rule designed to let refiners and power generators make certain plant repairs without obtaining new clean air permits.

Responding to a lawsuit filed by several northeastern states, the court temporarily stopped the agency from expanding exemptions for routine maintenance repair and replacement included in EPA's 17-year-old New Source Review program. EPA finalized the changes last summer (OGJ Online, Oct. 28, 2003).

The court next fall is expected to hold a hearing on the disputed rule; EPA had originally scheduled the regulation to go into effect Dec. 26. In issuing the stay the court found that "petitioners have demonstrated the irreparable harm and likelihood of success on the merits required for the issuance of a stay pending review."

Industry supported EPA's updates but environmental groups and most state air regulators opposed them. The new rules generally allow power generators and refiners to replace up to 20% of the value of their plant without obtaining new clean air permits or specific pollution controls.

In a related action, the appeals court again refused to block other NSR updates, finalized by EPA in December 2002. Those revisions give industry more flexibility to meet emission targets.

Industry reaction
"While granting a stay of the equipment replacement rule is a setback for energy efficiency and environmental protection, we are confident that the court will uphold the rule when the rule is properly before the court," said Electric Reliability Coordinating Council (ERCC) Director Scott Segal. "The rule was based upon a substantial agency record with analysis, public hearings and hundreds of thousands of rulemaking comments.

"The real losers today are American consumers and workers. The attorneys general of the northeast have long led an effort to put endless litigation in front of environmental protection. In this case, they have temporarily delayed a rule that would that would have spurred maintenance activities necessary for emissions control, workplace safety, energy conservation and electric reliability. We expect the rule will soon be back on course."

Eric Schaeffer, executive director of the Environmental Integrity Project and former EPA Chief of Civil Enforcement applauded the court's decision. "In August, EPA announced a rollback in Clean Air Act regulations that would allow the country's dirtiest power plants to increase their emissions by thousands of tons without obtaining a permit or any public review. The DC Circuit Court of Appeals stopped that rule in its tracks today until it can decide whether or not this Bush administration gift to the energy lobby in fact violates the Clean Air Act. This is an early Christmas present for children with asthma, and for anyone who thinks that the EPA's job is to enforce the Clean Air Act instead of finding ways to get around it."

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