ELR Citation: ELR 20056
No(s). 03-1380 (D.C. Cir. Mar 17, 2006)

The court vacates the U.S. Environmental Protection Agency's equipment replacement provision (ERP) rule, which expanded the routine maintenance, repair, and replacement exclusion from new source review (NSR) requirements by allowing sources to avoid NSR when replacing equipment that does not exceed 20% of the total unit's value notwithstanding a resulting increase in emissions. Clean Air Act (CAA) §111(a)(4) defines "modification" as "any physical change" that results in increases of emissions. Congress' use of the word "any" in defining a "modification" means that all types of "physical changes" are covered. Although the phrase "physical change" is susceptible to multiple meanings, the word "any" makes clear that activities within each of the common meanings of the phrase are subject to NSR when the activity results in an emission increase. As Congress limited the broad meaning of "any physical change," directing that only changes that increase emissions will trigger NSR—no other limitation can be implied. The definition of "modification," therefore, does not include only physical changes that are costly or major. Second, Congress defined "modification" in terms of emission increases, but the ERP would allow equipment replacements resulting in non-de minimis emission increases to avoid NSR. The ERP rule is therefore contrary to the plain language of CAA §111(a)(4).

[A related decision in this litigation is digested at 35 ELR 20135.]