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Court sides with EPA on modernizing plants

Pollution controls rejected in N.E.

WASHINGTON -- The Bush administration's plan to let aging industrial plants modernize without buying expensive new pollution controls was upheld yesterday by a federal appeals court.

A three-judge panel of the US Court of Appeals for the District of Columbia sided with the Environmental Protection Agency, saying Massachusetts, the five other New England states, and seven other states failed to show how key areas of the administration's new regulations violate the 1970 Clean Air Act.

But the unanimous decision also came down against the EPA on two parts of the rule changes, and told the agency to review a third, giving environmental activists some reason for optimism within the 73-page decision.

The Bush administration contended that its decision to let older power and industrial plants modernize without making them install expensive new pollution controls will remove barriers to innovation and increase productivity -- and will not worsen air quality.

But environmental critics say the changes also will increase sulfur dioxide and nitrogen oxides that contribute to acid rain and public health problems such as pulmonary and cardiovascular disease, leading to thousands of premature deaths a year.

The judges' ruling said it is not clear if the administration's changes in ''new source review" regulations -- rules governing industrial sources of pollution -- will lead to greater pollution, or if leaving the old rules in place would deter companies from modernizing.

The new source review rules apply to about 17,000 facilities around the country, including power plants, refineries, steel mills, and pharmaceutical factories.

Industry officials cheered a concurring opinion submitted by Judge Stephen Williams, who wrote:

''This case illustrates some of the painful consequences of reliance on command-and-control regulation in a world where emission control is typically far more expensive, per unit of pollution, when accomplished by retrofitting old plants than by including state-of-the-art control technology in new ones."

The states in the lawsuit were Massachusetts, California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Wisconsin.

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