By OGJ editors
WASHINGTON, DC, Feb. 7 -- Ten northeast states Thursday petitioned the US Court of Appeals for the District of Columbia Circuit to stop federal regulators' plan to streamline certain clean air rules for refinery and power plant emissions.
The Environmental Protection Agency last year issued both proposed and final revisions to the 1977 New Source Review provision of the Clean Air Act. Current NSR regulations typically require industrial facilities to upgrade pollution control equipment when major changes are made to a plant (OGJ, Dec. 2, 2002, p 34).
States participating in the stay motion are Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont.
EPA's proposed rule clarifies definitions for "routine repair and replacement." Plant repairs are generally not supposed to trigger a permit review under NSR. But regulators and companies often disagree over what is maintenance and what requires a new permit application. A final rule, effective Mar. 3, changes the way the agency measures actual emissions. It includes incentives that industry says will encourage manufacturers to undertake pollution control and prevention projects. A refinery should be able to modernize without triggering a new permit review provided it operates within site-wide emissions caps.
The National Petrochemical and Refiners Association called the NSR changes "an important and well-considered step which will help maintain a healthy and diverse US refining and petrochemical industry." The group said the updated regulations are "common-sense, environmentally friendly changes" that will help eliminate widespread confusion.
Other industry groups also support the changes; power generators and refiners are soon expected to file legal documents urging the court to let the rules move forward.
States' view
The states argue that both the proposed and final rules violate federal clean air rules because they in effect exempt numerous refineries, factories, and power plants from meeting emission targets.
"Once the rules are in effect, states may immediately need to begin incorporating the reforms into their own programs, and some states will have to immediately change the way they regulate major polluters," the states said. "The ensuing confusion will increase costs and delays and compromise enforcement efforts. In addition, companies in some states will immediately be able to avoid installation of state-of-the-art pollution controls that would be required but for the new regulatory loopholes."
The states originally filed suit in the US Court of Appeals for the District of Columbia Circuit immediately after the rules were published. The lawsuit argues that the exceptions to NSR program of the Clean Air Act are beyond EPA's legal authority and contrary to the law. Because a decision in that lawsuit is not expected for several months, the states want the court to suspend the new rules "both to prevent additional pollution from harming their communities before the case is decided and to prevent confusion if the new rules are implemented and later thrown out by the court." The stay application was filed with the same court that is hearing the underlying lawsuit and seeks a ruling on the stay request before the rules take effect.
"The Bush administration continues to attack the laws protecting our nation's air at a time when the administration should be moving to reduce the public's exposure to dangerous air pollution. I will do all I can to ensure that our environmental laws are not undermined by the Bush administration and its allies in the coal and oil industries," said New York Attorney General Eliot Spitzer.
The northeast coalition also argues that EPA is mandating that states adopt the new rules without having analyzed their impact on public health and the environment in the individual states.
