Nine northeastern states last Tuesday filed a lawsuit challenging the final version of a rule recently issued by the Environmental Protection Agency (EPA) aimed at improving its New Source Review (NSR) process related to power plant emissions, but which the states claim is the equivalent of saying “Northeast, drop dead.”

The EPA rolled out the rule in late November but danced around the question of how to define what constitutes “routine maintenance, repair and replacement” that would be exempt from NSR review (see Power Market Today, Nov. 25). That central question has been encompassed in a proposed rule seeking comments as to the definition, extending the decision-making process.

The states charged that the rule, which was published in the Federal Register on Tuesday, is “particularly damaging because, unlike the draft version of the regulations, the Bush administration has made the new rules effectively mandatory for all states, potentially undermining any state’s ability to adopt stronger clean air protections.” In addition, the states think that the final regulations “give facilities — including those that EPA and the states accuse of violating the law — significant unmonitored discretion to determine when the law applies.”

Attorneys general from the Northeastern states challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit believe that the changes are “so sweeping and damaging” that the EPA cannot make them without congressional approval.

“It seems that the Bush administration’s New Year’s resolution is to appease the energy industry by sacrificing the lives of people in the Northeast,” said Connecticut Attorney General Richard Blumenthal. “In effect, the administration is saying: ‘Northeast, drop dead.’ The NSR standards are a matter of life and death to countless citizens of the Northeast who receive all of the pollution but none of the power from these contaminating coal-burning plants in the Midwest. Our fight in court and elsewhere will be to uphold the letter and spirit of the Clean Air Act, endorsed by the first Bush administration and now eviscerated by the second.”

“We are standing up to the Bush administration and pursuing our legal options to prevent the EPA from making it easier for power plants to continue to pollute our air, make Rhode Islanders sick and damage our quality of life,” added Rhode Island Attorney General Sheldon Whitehouse. Joining Rhode Island and Connecticut in the lawsuit are the following states: New York, Maine, Maryland, Massachusetts, New Hampshire, New Jersey and Vermont.

Under the rule activities by power plants meeting the definition — whatever that may be — of routine maintenance, repair and replacement, would not trigger the NSR process, which can involve restructuring the whole plant to meet environmental requirements.

NSR requires power plants and other industrial facilities to add modern air pollution controls to smokestacks when the facilities are upgraded or modified and substantially increase air pollution. NSR is the foundation of a series of lawsuits brought by the states, the EPA and environmental groups in 1999, 2000 and 2001 against dozens of old coal-fired power plants and other industrial sources.

The states challenge several elements of the new rule, including:

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