On Oct. 24, 2008, the Wall Street Journal reported that the Bush Administration, over the opposition of many members of Congress, had ordered the Environmental Protection Agency to finalize the EGU Hourly Test Rule (“Rule”), which would have allowed power plants to upgrade the plants and extend their life spans without having to install more modern emission control equipment. The gist of the Rule, which was initially proposed in May 2007, was that the definition of the term “emission increase” as used in New Source Review regulations, would require both an increase in the hourly emissions rate and an increase in actual emission for the year. The current rule defines emission increase as an increase in actual emissions measured on an annual basis. 

The Administration had based its support for the Rule on the anticipated emissions reductions that would result from the Clean Air Interstate Rule (CAIR). However, as we noted in a previous e flash, CAIR was vacated in its entirety July 111 by the Court of Appeals for the D.C. Circuit.  

The Journal reported that EPA had been asked to finalize the Rule by Nov. 1. However, the expected final version did not appear then, or at any time thereafter. Finally, Dec. 10, EPA announced that it would not finalize the Rule after all. Given the opposition of Congressional Democrats, the Rule is unlikely to be revived.