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Alabama Power Co. v. EPA

ELR Citation: 25 ELR 20166
Nos. Nos. 94-1170, -1329, 40 F.3d 450/39 ERC 1737/(D.C. Cir., 11/29/1994)

The court vacates a U.S. Environmental Protection Agency (EPA) regulation limiting nitrogen oxide emissions from "tangentially fired" and "dry bottom wall-fired" coal burning boilers, and holds that the Agency exceeded its authority under §407 of the Clean Air Act Amendments of 1990 by defining "low NOx burner technology" to include overfire air. Congress enacted a NOx reduction program in §407 of the 1990 Amendments. Under the program, EPA must set mandatory limits on NOx emissions from certain types of coal burning boilers. The limits must not exceed maximum rates set forth in §407, unless EPA determines that the rates cannot be achieved using "low NOx burner technology," which EPA defined to include overfire air. EPA must grant facilities that cannot meet the rates of an alternative emission limitation (AEL). Electric utilities and an industry trade group petitioned the court for review of the EPA's "low NOx burner technology" rule. The court first holds that the phrase "low NOx burner technology" does not include overfire air. None of the technical literature EPA relied on indicates that the phrase "low NOx burner technology" is commonly used to refer to the use of low NOx burners and overfire air in combination. The technical literature's routine use of "combustion technology" as applying to the combination of low NOx burners and overfire air does not establish that Congress intended the phrase "low NOx burner technology" to refer to that combination. Moreover, the language of §407 as a whole suggests that the phrase "low NOx burner technology" unambiguously refers to low NOx burners. Absent any indication that Congress intended to draw a distinction between its and the technical literature's use of the phrase "low NOx burner technology," the logical reading of "low NOx burner technology" is that it excludes overfire air. Also, §407(d), the AEL provision, demonstrates that Congress intended to tie utilities' obligation to meet the NOx emission limit to the use of low NOx burners. The AEL provision's mandatory language indicates that EPA's view that Congress intended to limit the issuance of AELs through the inclusion of overfire air in "low NOx burner technology" is erroneous. Further, §407's text, structure, and legislative history indicate that Congress unambiguously intended the phrase "low NOx burner technology" to encompass only low NOx burners, not overfire air.

The court holds that although the utilities are obligated to comply with NOx limits set by regulation, the court's vacatur of the regulation suspends the utilities' compliance obligation pending further rulemaking. Finally, the court rejects the utilities' assertion that EPA arbitrarily decided not to allow utilities to obtain conditional approval in advance of alternative emissions averaging plans, as the Agency allowed in its sulfur dioxide program, because the utilities submitted minimal comments on this issue during the rulemaking. Also, EPA reasonably responded to the comments and explained that it chose not to provide such plans because of distinctions between the NOx and SO2 programs that would have resulted in a significantly more intrusive administrative burden.

Counsel for Petitioners
F. William Brownell
Hunton & Williams
2000 Pennsylvania Ave. NW, Washington DC 20036
(202) 955-1500

Counsel for Respondent
Robert J. Martineau Jr.
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Christopher S. Vaden
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BUCKLEY, GINSBURG and HENDERSON, Circuit Judges.