Judge places injunction on Clean Air Act changes

By Sylvie Dale, Online Editor

Jan. 8, 2003 — The U.S. Court of Appeals on Dec. 24 placed an injunction on some of the Bush Administration’s recently proposed changes to the Clean Air Act.

The U.S. Environmental Protection Agency (EPA) published the New Source Review Equipment Replacement Rule on Oct. 27, 2003. The rule was a change to the earlier New Source Review which EPA said would not result in significant emissions changes but would boost older power plants’ reliability.

The final rule states that replacement components must be “functionally equivalent” to existing components, i.e., there would be no change to basic design or to emitting capacity, EPA said. It also sets a 20 percent limit on replacement cost for equipment so that there is a clear threshold for plant projects. If these restrictions are exceeded, the replacement work is subject to the New Source Review process.

Soon after, twelve states and some city governments moved to stop implementation of the changes.

According to the EPA, one approach would require coal-fired power plants to install currently available pollution controls known as “maximum achievable control technologies” (MACT) under section 112 of the Clean Air Act. If implemented, this proposal would reduce nationwide emissions of mercury by 14 tons (29 percent) by the end of 2007.

The second approach would set a mandatory, declining cap on the total mercury emissions allowed from coal-burning power plants nationwide. This approach, which allows emissions trading, would reduce mercury emissions by nearly 70 percent from current levels once facilities reach a final mercury cap which takes effect in 2018.

The proposal was strenuously resisted by a coalition of attorneys general from more than a dozen states, and attorneys representing several cities. This coalition claimed that the changes would weaken or eliminate the New Source Review part of the Clean Air Act, allowing aging power generating facilities and other industrial plants to upgrade without being required to modernize their emissions-control systems.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit placed the temporary injunction blocking the new rules, explaining that the coalition had demonstrated the harm of implementing the new rules and were likely to succeed in stopping them permanently.

EPA has been releasing more air quality rules since the October announcement of New Source Review changes.

In December 2003, EPA released proposals for its “Interstate Air Quality Rule,” which covers power plants’ upgrades of their facilities to reduce sulfur dioxide (SO2) and nitrogen oxides (NOx), and its “Utility Mercury Reductions Rule,” which spells out two new approaches for reducing the estimated 48 tons of mercury currently emitted each year by coal-burning power plants in the United States.

For more about these two rules, visit http://www.epa.gov/interstateairquality/ and http://www.epa.gov/mercury/actions.htm (links will open in a new window).

For more information about the New Source Review:


EPA’s Office of Air page:


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