EPA is defending what it says is its Clean Air Act power to pursue enforcement actions against industrial facilities for alleged new source review (NSR) violations based on pre-construction projected emissions associated with plant upgrades, saying that a ruling blocking such enforcement is at odds with prior decisions and EPA policy. The arguments, outlined in an April 3 brief that the Department of Justice (DOJ) filed on the agency's behalf with the U.S. Court of Appeals for the 6th Circuit, mark the administration's latest attempt to reverse a lower court's ruling that DOJ has warned risks "eviscerating" the NSR permit program. NSR mandates that facilities making upgrades assess whether emissions from the upgrades require stricter air pollution control requirements. The brief is available on lnsideEPA.com. See page 2 for details. (Doc. ID: 180296) Critics of the program argued that changes made to the NSR policy during the George W. Bush administration show that pre-construction emissions cannot count toward determining compliance with the program. They argue that EPA could only base an alleged NSR violation on actual emissions once an upgrade is complete.
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