Normally, a “modification” to a “stationary source of air pollution” that will increase emissions triggers a Clean Air Act permitting process that imposes pollution control requirements. The EPA promulgated a rule excluding modifications effected by routine maintenance, repair, and replacement from that New Source Review (NSR) process.
The agency then decided to expand the rule, stating “categorically that the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change” that triggers the NSR process regardless of the effect on emissions. Industry liked the new Equipment Replacement Provision (ERP); states and environmentalists didn’t. They sued.
Yesterday, the DC Circuit Court of Appeals handed them a victory in State of New York v. Environmental Protection Agency. The court held that the EPA’s new rule conflicted with the plain language of the Clean Air Act and vacated it.
Much of the court's legal analysis turned on Congress' use of the word “any” in Section 111(a)(4) of the Clean Air Act, which defines “modification” to mean “any physical change . . .” Only lawyers could quibble about the meaning of the word “any”—a word commonly used and understood by the most uneducated among us. Yes, even pre-schoolers. Can “any” really mean “any”? Congress couldn't possibly have meant “any” in the “any” sense, argued the EPA. Think I'm kidding? Read the opinion.
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