Article by Stephanie S Couhig, Thomas A Hamilton, Charles T Wehland
On December 31, 2002, EPA issued a proposed rule to provide much-needed clarification as to which activities constitute exempt "routine maintenance, repair and replacement" ("RMRR") under Prevention of Significant Deterioration and Non-Attainment New Source Review (collectively "NSR") rules. Current NSR rules do not define RMRR, which resulted in widespread confusion within the regulated community and disagreement with EPA, culminating in the ongoing NSR enforcement litigation against numerous electric utilities for activities that the utilities believe to be RMRR.
As the NSR program exists today, an owner or operator is required to make a case-by-case determination of whether a particular activity at a source is RMRR. This case-by-case approach results in uncertainty for sources who cannot be sure that their activities are excluded from the NSR rules without an applicability determination from EPA, which can be
