By OGJ editors
WASHINGTON, DC, Mar. 7 --The US Court of Appeals for the District of Columbia Circuit rejected Thursday a request by 10 northeast states to temporarily stop federal regulators from streamlining certain clean air rules that apply to refinery and power plant emissions.
The states argued that the changes violate federal clean air rules by effectively exempting numerous refineries, factories, and power plants from meeting emission targets.
The judicial stay requested by the states targeted both proposed and final revisions to the 1977 New Source Review provision of the Clean Air Act issued last year by the Environmental Protection Agency. 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).
The states participating in the stay motion were Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont.
Those 10 states as well as California, Wisconsin, Illinois, Delaware, and the District of Columbia sued EPA over proposed and final adjustments to the NSR program. The lawsuit argues that exceptions to the NSR provision are beyond EPA's legal authority and contrary to the law. The states called for the court to temporarily suspend the new rules because they feared a court ruling would take too long.
Environmental groups supporting the lawsuit said the court's action does not reflect the merits of the case. Frank O' Donnell of the Clean Air Trust noted that while the court rejected a stay, it did call for an expedited review of the case.
Industry reaction
Meanwhile, industry representatives supporting EPA's NSR updates praised the court action.
"By denying the request, the court has allowed the first step toward clarification of the NSR program to proceed. Ultimately, a clearer NSR program will allow for efficiency upgrades that protect the environment, safety, and consumer interests," said Scott Segal, director of the Electric Reliability Coordinating Council.
"Now that this preliminary matter has been settled, states can get on with the important business of implementing more rational clean-air policy," he said.
Segal noted that the decision did not deal with what he says industry thinks is the most significant NSR
issue yet to be resolved: clarification of the definition of routine maintenance. "The time for taking action on routine maintenance is long overdue," he said.
EPA's proposed rule clarifies definitions for "routine repair and replacement." Comments originally were due Mar. 3 but interested parties now may file comments through May 2. The agency also has scheduled five public regional hearings (OGJ Online, Feb. 17, 2003).
A separate final rule that changes the way EPA measures actual emissions became official Mar. 3.
It includes incentives that industry says will encourage manufacturers to undertake pollution control and prevention projects. Under that rule, they said, a refinery should be able to modernize without triggering a new permit review, provided it operates within site-wide emissions caps.
