Routine? New source rules don’t apply.

At issue is the point at which powerplant maintenance constitutes upgrades that trigger the need for new source review permits. The case involves a coal-fired powerplant owned by Alabama Power, which the Environmental Protection Agency claimed violated the Clean Air Act by upgrading the plant without obtaining NSR permits. Judge Virginia Hopkins, in U.S. District Court for the Northern District of Alabama, on June 3 sent EPA and Alabama Power to mediation to resolve the particulars of the case.

Ruling on the correct legal tests to determine if the law was violated, Hopkins said that maximum hourly emissions—not just annual actual emissions—must increase before the new source performance standard is triggered.

Alabama Power officials say they are pleased with the ruling. But the environmental community is distressed. "This is the bitter fruit of EPA’s unlawful routine maintenance rules," says David McIntosh, attorney for the Natural Resources Defense Council, New York City.

Lawsuits against Alabama Power and other utilities were filed in 1999 under the Clinton administration. EPA issued new rules in 2002 and 2003. The 2003 rules were stayed by a federal court and have not been implemented. EPA officials from the Bush administration have testified that the new rules would not affect pending lawsuits. Environmentalists disagree. "This ruling was heavily influenced by [the] changes," says Eric Schaeffer, director of the Environmental Integrity Project, Washington, D.C.

A federal appeals court will rule by the end of July on the emissions increase issue. "If they come in with more definition, the government will have a good argument against the Alabama ruling. But if it upholds the broader view, it will be tough," Schaeffer says.

federal judge in Alabama has sided with the power industry, ruling that the law requiring additional emission control equipment can only be triggered when maximum hourly emissions are increased and routine maintenance goes beyond the industry norm.