US EPA reopens comment for NSR changes after court action

By OGJ editors
WASHINGTON, DC, July 1 --Responding to pending legal challenges, the US Environmental Protection Agency (EPA) said Wednesday it will reconsider recent changes it wanted to make to a clean air permit program for refineries, power plants, and other industrial operators.

But EPA predicted the courts ultimately will agree with the agency's proposed revisions, which seek to update a 1977 provision of the Clean Air Act called New Source Review (NSR).

Last year, industry supported the way EPA chose to streamline the often-contested rules but environmentalists and most state air regulators opposed most of the agency's proposal. The new rules generally allow power generators and refiners to replace up to 20% of the value of a plant without obtaining new clean air permits or specific pollution controls.

Several northeast states, along with a coalition of environmental and public health groups, argue that the disputed rules violate federal clean air laws because they allow old, dirty plants to increase emissions by thousands of tons without permits or public review.

Court action
The agency will accept additional public comment for 60 days on the equipment replacement provision of the NSR program. It also plans a public hearing this summer.

Last December, the US Court of Appeals for the District of Columbia Circuit essentially stopped EPA from proceeding with some of the new NSR rules. The appeals court however refused to block other NSR updates, finalized by EPA in December 2002. Those revisions give industry more flexibility to meet emission targets.

A court hearing is expected in December 2004 in which representatives from several northeastern states will argue that EPA's equipment replacement proposal will mean refineries and power plants will be allowed to release unlawful amounts of harmful pollution into the air, making it difficult—if not impossible—for states to meet federal clean air standards.

Industry maintains that updating NSR rules in the manner EPA proposes will create the regulatory certainty that industry needs to install expensive new pollution control equipment and clean the air.

"A clearly defined, understandable equipment replacement rule is essential for energy efficiency and environmental protection," said Scott Segal, executive director of the Electric Reliability Coordinating Council (ERCC), an industry group.
"If opponents of a clear new source review policy continue to push for delay, however, they will only risk diminished emissions control, energy efficiency, workplace safety, and industrial jobs," he said.

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