Fifteen states and a coalition of environmental groups filed suit, arguing that the changes to NSR will lead to increase pollution, in violation the Clean Air Act. These opponents of the new rules tried, and failed, to convince the U.S. Court of Appeals to issue a stay in EPA's altered NSR program, while the merits of the case are considered. The decision affects immediately those states that have delegated NSR programs, the rest have three years to change their own programs to reflect the reformed NSR.
"This was a major victory," commented Jeff Marks, director of air quality at the National Association of Manufacturers. "The next step is for the court to take a look at the merits of the case, and we're hoping this will be a quick process."
Opponents of the rule change argue that the new rules will make it easier for facilities to avoid updating pollution controls when they upgrade their facilities. Under the old NSR provisions, changes at industrial facilities resulting in significant pollution increases, e.g. 40 tons per year, trigger cleanup obligations. The coalition of environmental groups say the administration's rule change permits a facility to pick a fictional pollution baseline that is worse than its actual pollution levels, thereby hiding pollution increases.
Another "loophole" according to these opponents, allows companies to increase air pollution without having to install modern pollution controls.
"The weakening changes adopted by the EPA will allow chemical companies, oil refineries, and power plants to increase air pollution while claiming on paper they are not," charged John Kirkwood, president and CEO of the American Lung Association, a member of the environmental coalition challenging the new rules.
Industry groups contend the new rules will cut pollution, and make it easier for companies to modernize their facilities.
"Over the past 10 years, the NSR program has become very complicated, confusing and inflexible," said Marks. "We believe these changes will bring some clarity to the program, and allow energy efficiency projects that reduce air emissions to go forward in a cost-effective way."
The outcome of the court battle hinges on whether or not the changes will lead to increased pollution. If the states and environmental groups can convince the judges the emissions will rise, the altered NSR program would violate the Clean Air Act.
The stakes in the dispute are big, according to Marks, who said media accounts that painted NSR as affecting only the utility industry were inaccurate.
"This will affect 22,000 facilities in the United States, including oil refineries, paper and pulp companies, electronics firms and the chemical industry," he said.