40 F.3d 450 (D.C. Cir. 1994), 94-1170, Alabama Power Co. v. United States E.P.A.

Docket Nº:94-1170, 94-1329.
Citation:40 F.3d 450
Party Name:th 215, 25 Envtl. ALABAMA POWER COMPANY, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Natural Resources Defense Council, Intervenor. NATIONAL COAL ASSOCIATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:November 29, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 450

40 F.3d 450 (D.C. Cir. 1994)

th 215,

25 Envtl.

ALABAMA POWER COMPANY, et al., Petitioners,



Natural Resources Defense Council, Intervenor.




Nos. 94-1170, 94-1329.

United States Court of Appeals, District of Columbia Circuit

November 29, 1994

Argued Oct. 20, 1994.

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F. William Brownell argued the cause, for petitioners. On brief were Henry V. Nickel, Craig S. Harrison, David S. Harlow, Harold P. Quinn, Jr. and Peter A. Gabauer, Jr., Washington, DC.

Robert J. Martineau, Jr., Atty., E.P.A., and Christopher S. Vaden, Atty., Dept. of Justice, Washington, DC, argued the cause, for respondent. On brief were Lois J. Schiffer, Asst. Atty. Gen., Naikang Tsao, Atty., Dept. of Justice, Jean C. Nelson, Gen. Counsel, and Alan Eckert, Associate Gen. Counsel, E.P.A., Washington, DC.

On brief for the intervenor were David G. Hawkins and David M. Driesen, Washington, DC.

Before BUCKLEY, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.


In an effort to control acid rain, Congress amended the Clean Air Act in 1990 to limit the amount of nitrogen oxide particles that coal-burning electric power facilities can emit into the atmosphere. Many of the nation's electric utilities and the National Coal Association now petition for review of the Environmental Protection Agency's rule partially implementing that legislation. The petitioners contend that the rule impermissibly expands the 1990 amendments by interpreting the statutory term "low NO subx burner technology" more broadly than Congress intended and that the agency's failure to issue the rule by its statutorily prescribed deadline should postpone their compliance obligations. We agree that the agency exceeded its statutory authority and accordingly vacate the rule.


In 1990 Congress determined that emissions resulting from the combustion of fossil fuels constitute a major source of the atmospheric phenomenon known as acid deposition or, more popularly, acid rain. Concerned that acid rain threatens natural resources and public health, it enacted programs to limit the levels of nitrogen oxides (NO subx ) and sulfur dioxides (SO sub2 ) emitted by specific sources. Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2399, 2584-634 (1990 amendments); see 42 U.S.C. Sec. 7651 (acid deposition program findings and purposes).

The NO subx reduction program included in section 407 of the 1990 amendments requires

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the Administrator of the Environmental Protection Agency (EPA or agency) to set, by rule, mandatory limits on NO subx emissions from certain types of coal-burning boilers used by electric power utilities. The boilers are separated into two groups. 42 U.S.C. Sec. 7651f (section 407). The group at issue here includes "tangentially fired boilers" and "dry bottom wall-fired boilers." 1 42 U.S.C. Sec. 7651f(b)(1). The limits set by the Administrator must not exceed maximum rates specified by Congress in section 407 unless the Administrator determines that the statutory rates cannot be achieved using "low NO subx burner technology," id., a recurring phrase whose meaning is the central issue on appeal. The statute requires the Administrator to determine the NO subx limits within eighteen months of its enactment, translating to a deadline of May 15, 1992. Id.; 104 Stat. at 2712. The statute requires the utilities to reach compliance by January 1, 1995. See 42 U.S.C. Sec. 7651f(b)(1).

A utility can avoid the prescribed NO subx limit, however, if it obtains an "alternative emission limitation" (AEL) from the Administrator. The Administrator must authorize an AEL if a utility demonstrates that it cannot meet the limit by using "low NO subx burner technology." 42 U.S.C. Sec. 7651f(d). 2 The statute further provides that the EPA cannot require a utility to install "any additional control technology beyond low NO subx burners" in order to be eligible for an AEL. Id. The terms "low NO subx burner technology" and "low NO subx burners" in effect set the outer boundaries of a utility's duty to reduce NO subx emissions under the 1990 amendments because the Administrator can increase the emission limit if "low NO subx burner technology" cannot meet that limit and a facility must be granted an AEL allowing it to emit a greater level of NO subx if it cannot comply with the prescribed limit using "low NO subx burners."

Accordingly, the EPA devoted considerable attention to defining the term "low NO subx burner technology" during the rulemaking process. Substantial controversy arose among the agency, interested parties and experts regarding whether the term refers only to burners designed to reduce NO subx emissions or, construed more broadly, also to the emission control method known as overfire air. 3

The dispute over whether the statutory term "low NO subx burner technology" includes overfire air was a primary focus of the regulatory proceedings and contributed to a significant delay in the issuance of the final rule. An advisory committee of interest group representatives

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formed by the agency in July 1991 to attempt a negotiated rulemaking failed to resolve the issue and the EPA did not issue a proposed rule for comment until November 1992, six months after the statutory deadline for issuance of a final regulation. 57 Fed.Reg. 55,632 (1992).

The EPA's final rule, not promulgated until March 1994, defines "low NO subx burner technology" to include overfire air and offers four reasons for its conclusion. 59 Fed.Reg. 13,538 (1994) (Final Rule ). First, the agency found that low NO subx burners and overfire air should be considered a common technology because both reduce NO subx emissions through modification of the combustion process. "[B]ased on the combustion chemistry, EPA believes it would be arbitrary and illogical to artificially exclude the use of overfire air which is an integral part of the combustion staging process...." Id. at 13542. Second, the EPA determined that the relevant technical literature frequently refers to low NO subx burners and overfire air as "integral components of a complete combustion system and not as separate technologies." Id. Third, the agency concluded that a broad definition better effectuates congressional intent because more facilities will be required to meet the prescribed emission limits. Id. 4

The EPA also took two other actions challenged here. First, it refused to postpone the utilities' January 1, 1995 compliance deadline to allow for its own delay in issuing the implementing rules. See id. at 13,566 (Sec. 76.5(a)). Second, the agency failed to provide for conditional approval of alternative "emissions averaging" plans as the utilities urged. JA 955-56.


  1. Definition of "Low NO subx Burner Technology"


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