Thirteen states, mainly in the US Northeast, and several cities Oct. 27 fulfilled their promise to sue the US Environmental Protection Agency over its latest efforts to streamline clean air rules governing refineries and power plants.
EPA's revisions to its New Source Review program make it easier for older industrial plants to replace equipment without installing modern pollution controls. Under the 1977 NSR program, refiners were typically told to install new emission-control equipment whenever a facility was expanded or remodeled. But over the years, the agency and industry often disagreed on what should trigger permit changes.
In an industry-supported move, EPA took final action in September to broaden existing exemptions for routine maintenance and repair. That measure, published Oct. 27 in the Federal Register, becomes effective Dec. 26. States have 3 years to comply with the new rule but also have the option of enforcing a stricter regulation with prior agency approval.
The decision to expand the routine maintenance definition follows an earlier EPA action in which the agency gave industry more options for calculating NSR emission levels. Federal regulators later invited comment on the new methods following various state lawsuits.
States' position
In a joint statement, 12 states (Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin) along with New York City, San Francisco, New Haven and several other cities in Connecticut, and Washington, DC, said the agency overstepped its authority.
"The new rules by [EPA] undermine congressional intent in passing this pioneering environmental legislation. Specifically, the new rules will allow coal-fired power plants, oil refineries, and other large industrial sources to release more pollution into the nation's skies," the group said.
Illinois also filed a similar, separate claim that might be consolidated with that of the larger group; meanwhile, as many as seven other states, including California, also might sue EPA, according to those familiar with the latest lawsuits. Several environmental groups also are expected to join in supporting the states' action.
The 12-state group maintains there is no legal foundation for allowing plant retrofits that cost as much as 20% of the replacement price of the unit to be included in the NSR routine maintenance exemption.
Further, they maintain that EPA's new rule undermines pending lawsuits the agency is pursuing against companies that tried to skirt the permitting process.
"The new regulation guts the very provision of the Clean Air Act that states and the EPA have successfully used in lawsuits targeting dirty power plants, oil refineries, and other polluting facilities," the states said.
Environmentalists and state regulators also cited a recent report by the independent General Accounting Office that criticized the agency for using anecdotal evidence instead of specific data to make the case that NSR reform will encourage companies to invest in pollution prevention equipment sooner.
Federal reaction
EPA defended its decision, saying the new rules represent a good balance. "EPA does not believe that this rule will result in any significant changes in emissions," it stated. "It is a rule that will boost the reliability, efficiency, and safety of industrial and power plants while maintaining all of the CAA programs and standards that have driven down levels of emissions from power plants and other large industrial sources."
At presstime last week, the US Senate was scheduled to consider a spending bill that funds EPA's annual budget. Congressional sources said Sen. John Edwards (D-NC), a presidential candidate, might again propose an amendment preventing the agency from implementing the latest NSR revisions.
Industry supporters of the NSR changes noted that a previous effort by Edwards on the first NSR rule failed 46-50.
But given the pending lawsuits, "it is suspected that [proponents] will certainly try to make this political amendment a reality," said Frank Maisano, a spokesman for the power industry-supported Electric Reliability Coordinating Council.
ERCC also predicted the lawsuit would fail. "We do not think legal challenges to the final rule will succeed. When the first NSR rules finalized in 2002 were challenged, the courts refused to set the rules aside despite the insistence of the [Northeast] attorneys general. Similar requests should fail this time," the group said.
"But if the Northeast attorneys general succeed, the country loses. A clear approach to NSR is needed to spur efficiency, reductions in the rate of pollution, safety improvements, and better reliability of the power system. No litigation from the Northeast attorneys generals can produce anything but confusion," they said.
