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Court Rejects EPA's Nox Plan
The U.S. Court of Appeals for the District of Columbia Circuit has vacated the Clean Air Act (CAA) compliance rules for reducing NOx emissions from coal-burning electric facilities (Alabama Power Co. v. EPA, No. 94-1170, 94-1329, Nov. 29, 1994). The ruling suspends any obligation to comply with the NOx standards pending further rulemaking by the Environmental Protection Agency (EPA). The court said the EPA had improperly broadened the statutorily defined type of pollution control technology that utilities would be required to install in attempting to meet the CAA's NOx emissions standards.
Section 407 of the 1990 amendments to the CAA required the EPA to set NOx emissions within specified limits and mandated compliance by January 1, 1995. That date has now been put on hold.
The CAA amendments specifically require the EPA to allow higher emissions where a utility can demonstrate that "low NOx burner technology" cannot meet the standard requirements. Many of the nation's utilities, joined by the National Coal Association, objected after the EPA ruled that "low NOx burner technology," as used in the statute, includes more extensive "overfire air" emission control methods.
The court said Congress had referred to both technologies separately in the CAA amendments, and that the separate definitions conform with common usage in the technical literature. It added that the EPA had mistakenly read into the legislation an intent to maximize emission reductions using leading technology, despite plain language indicating a preference for specific, albeit less than optimal, pollution control methods. According to the court, Congress never intended to require utilities to consider the "full range of low NOx combustion techniques," regardless of the number of utilities who would qualify for waivers under the restrictive definition clearly laid out in the statute. (em LG
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