US v. Alabama Power Co.

Decision Date24 July 2008
Docket NumberCase No. 2:01-cv-00152-VEH.
Citation681 F. Supp.2d 1292
PartiesUNITED STATES of America, Plaintiff, Alabama Environmental Council, Plaintiff-Intervenor v. ALABAMA POWER COMPANY, Defendant.
CourtU.S. District Court — Northern District of Alabama

Alice H. Martin, US Attorney, Lloyd C. Peeples, III, US Attorney's Office, Birmingham, AL, Richard M. Gladstein, David Rosskam, Deborah N. Behles, James R. Macayeal, Katherine Erin Konschnik, United States Department of Justice, Environmental Enforcement Section, Washington, DC, for Plaintiff.

J. Blanding Holman, IV, Charleston, SC, Gilbert B. Rogers, Atlanta, GA, Jeffrey M. Gleason, Charlottesville, VA, for Plaintiff-Intervenor.

P. S. Gidiere, III, Spencer M. Taylor, Michael D. Freeman, R. Bruce Barze, Jr., Steven F. Casey, Steven G. McKinney, Balch & Bingham LLP, Birmingham, AL, Steven J. Hewitson, Daniel S. Reinhardt, Margaret Claiborne Campbell, Troutman Sanders LLP, Atlanta, GA, for Defendant.


(Routine Maintenance and Repair)


This matter is before the court on the renewed motion of the defendant, Alabama Power Company ("APC") for summary judgment. (Doc. 193). APC asks this court to find that the applicable legal test for the "routine maintenance repair, and replacement" exclusions found in the Clean Air Act should be applied to activities that are considered "routine in the industry," rather than "routine at the unit."


On June 28, 2004, this action was reassigned to the undersigned. A scheduling order was entered on August 5, 2004. (Doc. 68). In response to (3) of page 2 of that order, the parties1 agreed that there were two legal issues that were ripe for adjudication: (1) the correct legal test for determining a physical change, including the correct legal test for determining routine maintenance, repair, and replacement ("RMRR"); and (2) the correct legal test for determining a significant net emissions increase. After the parties briefed those issues, the court issued a Memorandum Opinion on Correct Legal Tests. (Doc. 140).

After court-ordered mediation, the parties stipulated to certain facts.2 APC moved for summary judgment. On August 14, 2006, 2006 WL 6457564, the court entered Final Judgment in favor of APC. (Doc. 175). EPA filed a Motion to Clarify the Final Judgment Order. (Doc. 176). APC opposed the Motion. (Doc. 177). An Amended Order granting EPA's motion to clarify in part and denying the motion in part was entered on August 28, 2006, 2006 WL 4012179. (Doc. 179). EPA appealed. (USCA 06-15456F).

By motion dated October 27, 2006, EPA moved the Eleventh Circuit to stay the appeal pending resolution of the Supreme Court's decision in Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007) (Duke Energy III).3 APC filed an Opposition to EPA's Motion to Stay on October 30, 2006. On November 14, 2006, the Eleventh Circuit stayed the appeal to await Duke Energy III.

Following Duke Energy II, the Eleventh Circuit vacated this court's entry of summary judgment against the United States, and remanded the action for proceedings consistent with Duke Energy II. The Duke Energy II remand proceedings are found in the court's Order Vacating In Part Memorandum On Correct Legal Tests, entered February 25, 2008, implementing the remand Order. (Doc. 197). That Order also sets out the remainder of the procedural history of the appeal, and it will not be repeated here.

APC filed a renewed motion for summary judgment, accompanied by a supporting brief. (Doc. 194). EPA has filed its opposition (doc. 195), and APC its reply (doc. 196). The matter has been under submission while the court considered the filings, the record, and relevant legal authority.


Subject matter jurisdiction is present pursuant to the Clean Air Act, codified at 42 U.S.C. §§ 7401-767 (2000) ("CAA"; "the Act"). The implementing regulations are found at 40 C.F.R., pts. 50-99. The original Act and the amending legislation can be found, respectively, at Clean Air Act Amendment of 1970, Pub.L. No. 91-604, 84 Stat. 1676 (1970); Clean Air Act Amendments of 1977, Pub.L. 95-95, 91 Stat. 685 (1977); Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 108 Stat. 2399 (1990).


The Eleventh Circuit recently summarized the summary judgment burden, including when a defendant seeks judgment as a matter of law on the basis of an affirmative defense:

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to "come forward with specific facts showing that there is a genuine issue for trial." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quotations and emphasis omitted). If the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense. See Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir.2003).
International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1273-74 (11th Cir.2006).

The litigants are very familiar with the history of Clean Air Act enforcement actions brought by the EPA in the Fourth, Sixth, Seventh, and Eleventh Circuits, citing to those decisions that they say support their arguments here. These cases have addressed, among other issues, how emissions increases would be measured under the NSPS and PSD provisions of the Act, supra. For other readers, an abbreviated history of this action follows.

The Attorney General of the United States, acting at the request of the Administrator of the United States Environmental Protection Agency and through the United States Attorney for the Northern District of Alabama, filed this action against Defendant Alabama Power Corporation. (Doc. 1).4 The EPA originally sued APC and others on November 12, 1999, in the Northern District of Georgia, Case No. 99CV2589. That action was dismissed against APC on the grounds of lack of in personam jurisdiction, and refiled in this District on January 12, 2001.

The EPA alleged that APC constructed new, or made modifications to existing, coal-fired, steam driven electrical power generating plants APC operates in Alabama in violation of the Clean Air Act. The work was conducted many years ago at five (5) APC plants. (Doc. 127). At four of the plants (Gorgas, Barry, Gaston, and Greene County), the EPA alleged that APC commenced maintenance, repair, and replacement activities between 1985 and 1993 that were not "routine," but were "major modifications" of those plants. (Doc. 127 at ¶¶ 64-67). See Ala. Admin. Code r. 335-3-14-.04(2)(b), which excludes "routine maintenance, repair and replacement" from the definition of "major modification." The EPA alleged that APC failed to obtain New Source Review ("NSR") permits in violation of the Prevention of Significant Deterioration ("PSD") provisions of the Act, 42 U.S.C. § § 7470-92, and APC violated Alabama's State Implementation Plan ("SIP").

On April 26, 2001, the Alabama Environmental Council ("AEC") moved to intervene. (Doc. 6). On May 21, 2001, EPA, APC, and AEC filed a Joint Stipulation permitting AEC to intervene under the same terms as had been set by the Northern District of Georgia when this action was pending there.5 (Doc. 12).

On May 29, 2001, the court granted the Joint Stipulation on intervention, and denied as moot the AEC intervention motion. (Doc. 13).


Any discussion of NSPS and PSD review, and their relation to RMRR, is controlled, where binding, and informed, where not binding, by Duke Energy III, New York v. EPA, 413 F.3d 3, 11-17 (D.C.Cir.2005) ("New York I") and New York v. EPA, 443 F.3d 880 (D.C.Cir.2006), cert. denied, 550 U.S. 928, 127 S.Ct. 2127, 167 L.Ed.2d 882 (2007) ("New York II").

The Supreme Court summarized the history of NSPS and PSD in Duke Energy III:

In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term "modification," 42 U.S.C. § 7411(a)(4), while the PSD provisions use that word "as defined in" NSPS, § 7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on "modification" to their NSPS counterparts, and that EPA's 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals's reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act's restrictions on judicial review of EPA regulations for validity.
The Clean Air Amendments of 1970, 84 Stat. 1676, broadened federal authority to combat air pollution, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845-846, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U.S.C. §§ 7409, 7410.

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