Clean Air New Source Review Update—Victory!

In a major victory for clean air, the DC Circuit Court of Appeals ruled in March in favor of a broad coalition of states, cities and environmental organizations, and vacated an EPA rule that would have allowed nearly unfettered  ability for industry to upgrade major facilities without modernizing pollution controls.  The Center represented the Delaware Nature Society, one of the groups in the coalition opposing the EPA New Source Review regulation.  The Court’s ruling dealt a significant setback to the Bush EPA’s push to eliminate a powerful Clean Air Act tool for reducing air pollution.  The New Source Review (NSR) provisions of 1977 were designed to ensure that old polluting facilities eventually caught up with the pollution reductions achieved by more modern industrial facilities.  NSR set up standards for technological improvements of pollution control systems.  The investments in new controls are only required when facilities make physical changes to the plant that result in significant new pollution.  The EPA’s rule would have severely limited the occasions when controls would be required by creating a massive exemption for “equipment replacement.”  The Court rejected this as inconsistent with the act’s “plain meaning.”  EPA’s appeal for reconsideration of the decision has been denied.

New Source Review Reform Implementation at the State Level

MAELC serves on the Delaware Department of Natural Resources and Environmental Control’s NSR Reform Committee, tasked with revising the Department’s Regulation No. 25 to implement the mandates of the EPA’s first NSR rule. MAELC has attended the numerous Committee meetings for more than six months and has consistently voiced perspectives urging maintenance of a New Source Review program in Delaware that will provide the greatest likelihood of holding industrial emissions in check. Recently, DNREC has shifted toward replacing its current NSR program entirely with a mandatory “plantwide applicability limit” for all major emission sources in the state. Delaware’s “facility emission limit” concept has garnered widespread industry support, but MAELC has thus far been discouraging this track.

In addition, Pennsylvania’s Department of Environmental Protection is also facing an EPA deadline to submit an NSR regulatory program that will be substantially equivalent to EPA changes. DEP’s approach and proposals have been a major topic of discussion at the DEP Air Quality Technical Advisory Committee. As a member of this Committee, MAELC Executive Director Michael D. Fiorentino has been engaged in ensuring DEP moves forward with an environmentally acceptable program, recently by securing a presentation to the Committee and DEP representatives from Bruce Buckheit, a former top EPA enforcement official. Mr Buckheit resigned in 2003, largely over EPA’s manipulation of the NSR enforcement initiative.