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Texas Mun. Power Agency v. EPA

ELR Citation: 26 ELR 21541
Nos. Nos. 93-1325 et al., 89 F.3d 858/43 ERC 1137/(D.C. Cir., 07/23/1996)

The court upholds the U.S. Environmental Protection Agency's (EPA's) allocation of initial sulfur dioxide emission allowances to several utilities under the acid rain program. EPA calculated the allowances for each utility using EPA's National Allowance Database (NADB). The NADB contains data on each utility unit's baseline fuel consumption and emmissions rates as listed in the National Acid Precipitation Assessment Program Emissions Inventory/National Utility Reference File (NAPAP/NURF) database. The court first holds that it has jurisdiction to hear the utilities' challenges. The court rejects EPA's claim that Clean Air Act (CAA) §402(4)(C)'s bar on judicial review of corrections of factual errors in the baseline data bars any database challenge. The statutory language makes a distinction between challenges to factual errors and challenges to legal/statutory interpretation issues; however, the court is presented with no principled way to implement this distinction, and therefore must review the merits. Similarly, the court refuses to apply the preclusion to the utilities' procedural claims. The court next holds that CAA §307(b)(1)'s requirement that challenges to locally or regionally applicable EPA actions be filed in the appropriate Circuit Court is a venue provision, not a jurisdictional provision. Because EPA's failure to object waives the venue requirements, the petitions are appropriately before the D.C. Circuit.

The court next upholds EPA's allocation of allowances to a utility that was not listed in the NAPAP/NURF database and that submitted incomplete supporting data regarding its actual emissions rates. EPA's interpretation of §402(16) as allowing it to base the utility's allowances on an emission rate calculated using the average sulfur content of the fuel burned by utilities in the state was reasonable and consistent with the CAA. Further, EPA had no procedural duty to remind the utility to submit the supporting data or to explain how it determined the emission rate it used. The court next upholds EPA's denial of allowances to two utilities that failed to timely submit information ontheir annual fuel consumption and emissions rates. The utilities' interpretation of EPA's notice specifying the deadline as not applying to units that were to become operational in 1992 is not reasonable. The court next upholds EPA's denial of a baseline adjustment to a utility whose baseline was artificially low due to a 33-day outage. EPA reasonably interpreted CAA §401(a)(4)(A)'s provision allowing it to make adjustments for "prolonged" outages as applying only to outages of three or more months. The court dismisses procedural challenges to the adjustment denial because the utility did not raise the challenges before EPA. Finally, the court upholds EPA's conversion of one utility's actual allowable emission rate, which applied at each instant, into a lower allowable rate that would apply annually on average. EPA correctly applied §402(18)'s requirement that where the averaging period of the emissions limitation for a unit is not expressed on an annual basis, EPA must calculate an annual equivalent of the emissions limit.

Counsel for Petitioner
Lambeth Townsend
Lloyd, Gosselink, Fowler, Blevins & Mathews
111 Congress Ave., Ste. 1800, Austin TX 78701
(512) 322-5800

Counsel for Respondent
Alice L. Mattice
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.