Court Puts EPA Rule on Hold

A federal court on Dec. 24, 2003, blocked a Bush Administration regulation that would have made it easier for chemical companies, refineries, and power plants to upgrade older facilities without installing modern air pollution controls. The EPA regulation was scheduled to take effect on Dec. 26.

At issue is the new source review provision of the Clean Air Act. That provision requires companies to install modern pollution controls when renovations to plants built before 1970 increase emissions. The regulation would allow businesses to modify facilities without triggering these requirements if the cost of new equipment does not exceed 20% of the replacement value of the entire manufacturing unit (C&EN, Sept. 1, 2003, page 7).

Industry groups, including the American Chemistry Council, support the regulation, saying new source review has held them back from modernizing plants.

However, many state regulators and environmental groups strongly oppose the regulation, saying it guts new source review provisions and will increase air pollution.

Fourteen states, 30 cities, and several environmental groups sued the Bush Administration over the rule. At their request, the U.S. Court of Appeals for the District of Columbia Circuit halted implementation of the regulation until the court reaches a final decision, sometime late this year. The court said the regulation's opponents "have demonstrated the irreparable harm" from the rule "and likelihood of success" of their legal case.

The court action directly affects more than 100 old coal-fired power plants that are the U.S.'s largest air polluters and were facing federal legal action before the new regulation was issued.

Ronald A. Shipley, counsel for ACC's air team, says the chemical manufacturers group is disappointed in the court's action. "Irreparable harm" would not occur to public health or the environment if the regulation is implemented before the case is resolved, he says.