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Court Strikes Down EPA Power-Plant Emission Rule Change

March 17, 2006 -- A federal appeals court has handed a victory to environmentalists and dealt a blow to the U.S. Environmental Protection Agency, which is attempting to revise the New Source Review portion of the Clean Air Act. Meanwhile, the electric utility industry, which would have benefited form the changes, declared the court´s ruling a step backward in efforts to improve the environment and efficient generation of electricity. The U.S. Court of Appeals in Washington on March 17 struck down a U.S. EPA rule change that would have made it easier for coal-burning power plants and industrial plants to modernize without investing in expensive new emission control equipment. "This decision is a major victory for clean air and public health," said New York Attorney General Eliot Spitzer, whose office spearheaded the legal challenge on behalf of 14 states and numerous environmental and public interest groups. "It will encourage industry to build new and cleaner facilities, instead of prolonging the life of old, dirty plants. "Specifically, the court struck down the EPA´s definition of "routine maintenance." The Clean Air Act requires older power plants to upgrade their pollution control systems whenever upgrading or making major plant modifications, unless the changes are defined as routine maintenance. Disputes and litigation have often resulted from disagreements over the definition of routine maintenance.

In 2003, the EPA proposed allowing power plants, refineries and other industrial facilities to replace existing equipment with "functionally equivalent" equipment without undergoing reviews under the New Source Review program as long as the cost of the equipment replacement didn´t exceed 20 percent of the cost of the entire process unit.

The exemption would have applied even if a facility´s air pollution increased by thousands or tens of thousands of tons as a result of the replacement, according to environmental advocates who opposed the change.

Scott Segal, director of the Electric Reliability Coordinating Council, which represents some of the nation´s electric generating companies, said the court´s decision was disappointing. Operators of power plants have argued that allowing electric plants to improve efficiency without fear of triggering expensive New Source Review requirements would benefit the environment in the long run.
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