The NAM is a member of the Equipment Replacement Rule Coalition, which filed a brief 12/9/05 in a suit brought by the State of New York against the EPA over the agency's 10/27/03 final rule titled "Prevention of Significant Deterioration (PSD) and Non-Attainment New Source Review (NSR): Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement Exclusion." This rule governs the factors that determine whether companies must obtain EPA permits before replacing broken or deteriorating equipment at their industrial facilities. New York challenged the rule as too lenient. The Equipment Replacement Rule Coalition, comprising various trade associations, manufacturers and utilities, generally support the EPA's new rule.
Our brief on the merits argued that EPA has discretion under the Clean Air Act to issue the rule, and that major modifications are not any physical plant changes, but only those that increase an existing unit’s design capacity to emit.
On 3/17/06, the Court vacated the rule. It decided that the Clean Air Act’s permit requirements for “any physical change” do not allow the EPA to expand the category of projects that it views as “routine replacement.” The only exceptions are projects that do not result in emissions increases or that are de minimis. The decision leaves the existing Routine Maintenance, Repair and Replacement Exclusion in place.