New Source Review equipment replacement rule published, sparking lawsuits

WASHINGTON, Oct. 27, 2003 — The final New Source Review Equipment Replacement rule has recently been published in the Federal Register, immediately sparking lawsuits from 12 states that had earlier vowed to sue.

The final rule was signed and announced by U.S. Environmental Protection Agency (EPA) Acting Administrator Marianne Horinko in late August. The rule’s Federal Register publication was delayed in order to correct typographical, grammatical and other non-substantive editorial errors.

Twelve states, the District of Columbia and some local governments waited until the changes were published in the Federal Register Oct. 27, then filed a lawsuit to stop EPA from adopting changes to the “routine maintenance” definition under the New Source Review portion of the Clean Air Act.

The lawsuit argues that the new regulations will weaken air pollution protections by allowing older power plants to release more pollutants.

The plaintiffs contend only Congress can make extensive changes to the Clean Air Act and that the new EPA rules undermine Congress.

Specifics on this rule including a fact sheet and copy of the final rule as well as the errata memorandum that outlines the changes are on http://www.epa.gov/nsr. A PDF version of this publication can be found at this link:
http://www.epa.gov/nsr/03-26320.pdf

The Electric Reliability Coordinating Council has released a white paper in defense of the New Source Review changes, arguing that the changes make it easier for plants to upgrade their equipment, but other, market-based incentives now in place will encourage facilities to reduce their emissions. The white paper is available at http://www.electricreliability.org/Statements/NSR-wp.htm.

This rule was proposed in December 2002. The final rule announced in August and published Oct. 27 applies only to equipment replacement. The rule becomes effective 60 days following publication in the Federal Register. States, other than those who have delegated federal New Source Review programs, will have up to 3 years to revise their state implementation plans to reflect these new requirements.

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. 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. EPA will continue to vigorously enforce violations of the previous New Source Review rules and will enforce any violations that occur under this new equipment replacement rule.

EPA does not believe that this rule will result in any significant changes in emissions. It is a rule that will boost the reliability, efficiency and safety of industrial 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, the agency said.

This final rule intends to preserve the public health protections provided by the Clean Air Act (CAA). As this New Source Review Equipment Replacement rule takes effect, the public health protections provided by implementation of the Acid Rain program, the National Air Quality Standards and many other programs under the CAA are in place.

The Acid Rain control program was established to cap emissions of sulfur dioxide (SO2) from power plants and other large sources. The program went into effect in 1995, and SO2 emissions from power plants have already been reduced by more than 40 percent from 1980 levels, EPA said.

EPA and states are also preparing to implement more stringent standards for particle pollution and ground-level ozone that are intended to create further improvements in air quality.

There is nothing in this rule that changes the increasingly strict and absolute caps on sulfur dioxide or the new more stringent health-based air quality standards for particulate pollution and ground-level ozone, the agency said.

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