By Shane Robinson
January 20, 2003

The Environmental Protection Agency (EPA) published its final rule on December 24 for revisions to the New Source Review (NSR) air permitting program. A group of nine states responded by filing a petition on December 31 asking the U.S. Circuit Court of Appeals to review the rule. The petitioners argued that these changes will impede efforts to help non-attainment areas come into compliance with federal air quality standards.

Any city wishing to participate in the litigation has three options: file a motion to intervene by Jan 31, or by March 1 either file its own petition for review or provide notice of intent to file an amicus brief.

Background

The goal of the NSR program is to minimize air pollution from both new and existing large stationary sources. The NSR provisions of the Clean Air Act combine air quality planning, air pollution technology requirements, and stakeholder participation. NSR is a pre-construction permitting program. If new construction or making a major modification will increase emissions by an amount large enough to trigger NSR requirements, then the source must obtain a permit before it can begin construction. Under the Act, states have the primary responsibility for issuing permits, and they can customize their NSR programs within the limits of regulations developed by the Environmental Protection Agency. EPA's role is to approve state programs, to review, comment oThe NSR permit program for major sources has two different components -- one for areas where the air pollution exceeds federal standards, and the other for areas where the air is cleaner. Under the Clean Air Act, geographic areas are designated as being in "attainment" or "non-attainment" of the health-based National Ambient Air Quality Standards (NAAQS) for ozone and other pollutants — the air quality standards which are set at levels to protect human health.

The NSR permit program for major sources has two different components -- one for areas where the air pollution exceeds federal standards, and the other for areas where the air is cleaner. Under the Clean Air Act, geographic areas are designated as being in "attainment" or "non-attainment" of the health-based National Ambient Air Quality Standards (NAAQS) for ozone and other pollutants — the air quality standards which are set at levels to protect human health.

In non-attainment areas, NSR is designed to assure that large stationary sources do not hold back progress toward cleaner air. And in attainment areas, especially pristine areas like national parks, the program prevents emissions from new and modified sources that could significantly degrade air quality.

Changes Spark Controversy

While the NSR program has had many benefits, it has not been without it detractors in the regulated community, and among air regulators who find some of the provisions unworkable. Through the 1990's, EPA led a stakeholder group through a process to try to develop consensus on reforms to the NSR program. The aim of the stakeholder process was to develop new rules giving industry flexibility, but with safeguards and verified pollution improvements that could be enforced. However, no consensus was reached that could meet both those tests. Because of that, EPA did not moved forward with any regulatory changes in this area.

NSR reform was stalled but it was taken up again by EPA in 2001. This time, however, the agency held no stakeholder input process — drawing criticism from several members of Congress, as well as representatives from groups representing local interests. The EPA asserted in a Congressional hearing, however, that this was simply the second step of the reform process initiated under the Clinton Administration. Officials from the previous Administration disputed this claim at the same hearing.

In addition to the final rules for the revisions to the NSR program promulgated by EPA on December 24, on December 31 the agency published its proposal for a second set of revisions. This second set of revisions, re-defining what constitutes "routine maintenance, repair, and replacement," has been met with criticism by state and air regulators. EPA has established a March 3 comment deadline for this set of proposed revisions and is planning a public meeting in North Carolina.