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Environmental Protection Agency, (D.C. Cir.) (No. 03-1380). The states involved in the lawsuit are Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin. The states seek review of a new rule adopted by the EPA on the same day. 68 Fed. Reg. 61248 (October 27, 2003) (to be codified at 40 C.F.R. §§ 51.165, 51.166, 52.21 and 52.24). The new rule, which takes effect on December 26, 2003, clarifies and relaxes current requirements for installation of state-of-the-art pollution control devices on major stationary sources of air pollution, such as coal-fired electric generation facilities. The Clean Air Act (the “Act”), 42 U.S.C. §§ 7401 et seq., generally requires installation of state-of-the-art pollution control devices on major stationary sources of air pollution constructed or modified after promulgation of regulations implementing the Act. 42 U.S.C. § 7411(a). The new rule relates to the question of whether a pre-existing source has been “modified” such that it triggers this requirement. Under currently applicable regulations, “modification” does not include “routine maintenance, repair and replacement” (“RMRR”). See 40 C.F.R. § 52.21(b)(2)(iii)(a). The new rule, as summarized by the EPA, specifies that the RMRR exclusion encompasses “the replacement of components of a process unit with identical components or their functional equivalents,” provided that “[(1)] the cost of replacing the component falls below 20 percent of the replacement value of the process unit of which the component is a part, [(2)] the replacement does not change the unit’s basic design parameters, and [(3)] the unit continues to meet enforceable emission and operational limitations.” The EPA explains that it has historically “applied the RMRR exclusion on a case-by-case basis using a multifactor test for determining whether a particular activity falls within or outside the exclusion.” Its case-by-case determinations have been criticized, however, “for giving the exclusion a narrow scope that disallows replacement of significant plant components with identical or functionally equivalent components,” with the result that plant owners and operators are discouraged from “replacements that are important to restoring, maintaining and improving plant safety, reliability, and efficiency.” Moreover, uncertainties created by the case-by-case approach “discourage replacements that would promote safety, reliability and efficiency even in instances where, if the matter were brought to [the] EPA, [it] would determine that the replacement in question was MRR.” The EPA states that it is persuaded that these outcomes do not advance its central objective, which “is not to cut back on emissions from existing major stationary sources through limitations on their productive capacity, but rather to ensure that they will install state-of-the-art pollution controls at a juncture where it otherwise makes sense to do so.” The short petition filed by the states does not specify the basis for their objection to the rule, but simply asks the court to review it.
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