Alabama Officials Fight Feds over Emission Standards

Published October 9, 2008

Power plant and manufacturing emissions are taking center stage in Alabama as state environmental officials clash with the U.S. Environmental Protection Agency (EPA) over permissible emission levels.

At the same time, a federal district court has ruled EPA overstepped its authority in asserting routine maintenance performed by Alabama Power triggered New Source Review provisions requiring the electricity provider to install expensive new emissions reduction equipment.

Incidental Violations

The Alabama Department of Environmental Management (ADEM) is seeking EPA approval of a proposed emissions law that codifies some of the state’s informal enforcement policies.

ADEM has long had an informal policy of not initiating enforcement actions against power plants or manufacturing plants that exceed their allowable emissions by less than 2 percent. The state’s emissions standards are more stringent than some neighboring states, such as Georgia, and Alabama air quality has been consistently becoming cleaner for decades.

In light of the state’s clean air success, ADEM and Gov. Bob Riley (R) want to ensure manufacturers and energy providers don’t face Clean Air Act penalties for incidental emissions exceedances.

“As a practical matter there will be no more pollution in the air,” ADEM air division chief Ron Gore told the Mobile Press-Register for a July 24 story. “In the past, even though it has been a violation, we have not treated this 2 percent (above the permitted level of pollution) as such.”

EPA, however, is refusing to allow Alabama to codify its custom of overlooking incidental violations.

Routine Maintenance Protected

While state officials were clashing with the federal EPA in that arena, power provider Alabama Power won an important victory against EPA in federal court.

The U.S. District Court for the Northern District of Alabama ruled on July 24 routine maintenance at a power plant, even if it does not conform to earlier maintenance at the same plant, does not trigger a need to purchase and install expensive new emissions-reduction equipment.

The key to whether maintenance is judged “routine” should be determined on an industry-wide basis rather than on whether such maintenance has been routine at the particular plant in question, the court ruled.

“The court thinks EPA’s current arguments, particularly in light of its stipulation that all of [Alabama Power Company’s] work is of a type routinely performed in the industry, sounds in litigation [like] strategy more than regulatory interpretation,” the court explained.

The Clean Air Act of 1970 requires new power plants to install the best available technology to reduce emissions. In order to discourage companies from stretching out the natural lifetime of existing power plants merely to avoid paying the price for best available emissions control technology, the Clean Air Act’s New Source Review provisions, added in 1977, require existing power plants undergoing significant renovations and upgrades to install the best available emissions technology. Under the provisions, routine maintenance is not supposed to trigger the mandate.

Sound Science the Key

Michael Ciamarra, vice president of the Alabama Policy Institute, said environmental activists have a history of seeking more emissions restrictions than are necessary to safeguard human health.

“We are looking for peer-reviewed sound science to win the day,” said Ciamarra. “Government restrictions on power production and manufacturing should be firmly grounded in sound science and realistic economic considerations rather than emotion.”

The Alabama Policy Institute has in the past submitted comments to ADEM regarding emissions, economics, and public health.

Krystle Russin ([email protected]) writes from Texas.

For more information:

“New Source Review: An Evaluation of EPA’s Reform Recommendations,” Heartland Policy Study No. 99, July 2002: