NSR Litigation and Reform: An Introduction to the Topic

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The New Source Review (NSR) rule has recently been the subject of considerable judicial, regulatory, and media attention. This month, EM presents a series of articles that focus on NSR. In the first article, Debra Jezouit1 summarizes several recent developments relating to the NSR rule. This is followed by four2-5 stakeholder groups’ perspectives on these issues.

Introduced by the U.S. Environmental Protection Agency (EPA) in the 1970s, the NSR rule under the Clean Air Act (CAA) is a preconstruction permitting program that governs air pollutant emissions from new and existing industrial sources that undergo “major modifications.” If determined to be applicable, the NSR rule mandates the installation of Best Available Control Technology (BACT) or Lowest Achievable Emission Rate (LAER), depending on whether the source is located in an “attainment” or “nonattainment” area (relating to National Ambient Air Quality Standards [NAAQS] area designations), respectively. The NSR program has worked well in the case of permitting new industrial sources. With respect to existing sources, however, NSR remains a complex, confusing, and controversial regulatory program. Much of the controversy concerns the exclusion from the rule of emissions associated with “routine maintenance, repair, and replacement” (RMRR) activities and analyses of emission changes before and after modifications that determine NSR applicability.

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