The Case Against Alabama Power

In November 1999, the EPA filed suit against Alabama Power over modifications to units at five plants, including Barry, Gaston, Gorgas, Greene County and Miller, without installing appropriate pollution control technology to control emissions of nitrogen oxides, sulfur dioxide and particulate matter ("PM") and, with respect to all but one of the foregoing plants, without first obtaining appropriate permits authorizing the construction as required by the Clean Air Act. SELC, on behalf of the Alabama Environmental Council, joined forces with EPA to force Alabama Power to follow the law and to close the loophole of grandfathered power plants.

Under the New Source Review program, if a power plant is modified and pollution increases as a result of that modification, the plant must install the best available pollution control equipment. However, facilities are allowed to perform routine maintenance without risking their grandfathered status. Two key issues in the Alabama Power case involve 1) what defines "routine maintenance" and is therefore exempt from New Source Review requirements and 2) how to measure pollution increases to determine if modifications result in an increase in pollution, triggering New Source Review and requiring stricter pollution controls.

Unfortunately, in June 2005 the U.S. District Court for the Northern District of Alabama ruled in favor of industry largely based on what the court felt were "inconsistent positions EPA has taken on core application of the NSR Rules" and therefore refusing to defer to EPA's interpretations of its own regulations.

Measurement of Emissions

Under New Source Review, a utility must install modern pollution controls whenever modifications are made that result in an increase in emissions. Since most equipment replacements and upgrades are designed to improve a plant's efficiency, allowing it to operate longer hours, these modifications will result in an increase in total pollution. The EPA contended that this total pollution increase should result in the facility being required to install modern pollution controls.

Industry argued for emissions to be measured on an hourly basis. Such a measurement allows plants to make modifications that result in a substantial increase in pollution while avoiding installing pollution controls, as long as the hourly rate of emissions doesn't increase.

The Court held that an hourly emissions test should be applied to determine a net emissions increase. However, the U.S. Supreme Court has since ruled that an annual test should be applied when measuring pollution.