N.J. Challenges EPA Recordkeeping Rule

New Jersey Attorney General Anne Milgram and Department of Environmental Protection Commissioner Lisa P. Jackson recently announced that the state has petitioned a federal appeals court to review a U.S. Environmental Protection Agency record-keeping rule that, the state contends, makes it difficult for state regulators to determine if factories and coal-fired plants should be required to install new pollution controls.

Filed with the U.S. Court of Appeals for the District of Columbia Circuit, New Jersey's petition challenges a final EPA rule that, in certain circumstances, exempts plants from having to keep emissions records. Such records can document emissions increases that, under the Clean Air Act's New Source Review program, would require installation of state-of-the-art pollution control equipment.

Under New Source Review, the installation of state-of-the-art pollution controls is required for any new source of emissions, and for any source that has been modified. The Clean Air Act defines "modification" as any physical change or any change in method of operationthat increases the amount of any pollutant emitted.

According to Milgram, in order for state regulators to determine that emissions at a given facility have increased -- thereby triggering the New Source Review requirement that state-of-the-art pollution controls be installed – the type of change at and the emissions from the facility must be known. However, the EPA rule being challenged essentially works against regulators knowing the nature and quantity of plant emissions, Milgram said.

Under the rule, plant operators can determine whether there is a "reasonable possibility" that their emissions will not exceed 50 percent of a specified level. If a plant operator determines no such "reasonable possibility" exists, the plant is exempted from having to maintain records.

"This rule undermines a vital accountability mechanism – a mechanism by which it can be determined whether a plant's emissions have increased to the point where New Source Review requirements are triggered," said Milgram. "What this rule does, essentially, is leave plant operators to determine for themselves whether their emissions call for installation of new pollution controls. The quality of our air is too important a consideration to be left to the discretion of those who are polluting it. "

In addition to filing its challenge, the state filed a Petition for Reconsideration of the record-keeping rule with the EPA.

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