A federal judge in Birmingham, Ala., on Monday dismissed all claims in an Environmental Protection Agency (EPA) lawsuit that alleged Southern Co. subsidiary Alabama Power built or made modifications to existing coal-fired power plants in Alabama that were in violation of New Source Review (NSR) regulations under Prevention of Significant Deterioration provisions of the Clean Air Act.

In her opinion, Judge Virginia Hopkins of the U.S. District Court for the Northern District of Alabama, Southern division, said the EPA’s Clean Air Act enforcement action was similar—if not identical—to a number of other actions brought against other Midwestern and Southeastern utilities in November 1999, including Ohio Edison, Southern Indiana Gas and Electric, and Duke Energy. “Many, if not all, of the parties’ arguments and authorities set out in their briefs and responses have been raised in the other enforcement actions,” she wrote.

Hopkins cited a Seventh Circuit’s decision in Wisconsin Electric Power Co. v. Reilly. In that case, the Seventh Circuit found in 1991 that the EPA had improperly interpreted the NSR and ruled that work that would not “change or alter the design or nature of the facility” would render the facility exempt from the NSR rules.

In a statement, Alabama Power said it had maintained “from the start that its activities were always in full compliance” with the federal Clean Air Act. “The ruling by U.S. District Judge Virginia Hopkins rejected EPA’s accusations and methods for determining whether power plant maintenance projects trigger an obligation to get a new clean air permit,” it said.

Alabama Power said the ruling was significant for the power sector because it “supports the position that electric utilities can do routine maintenance and repairs on their coal-fired generating units without running afoul of EPA’s ‘New Source Review’ regulations.”

The case was originally filed in 1999 in Georgia; it was refiled in 2001 in Alabama as part of a nationwide enforcement initiative targeting owners of coal-fired generating plants.

The EPA argued that owners of coal-fired generating units needed to obtain new Clean Air Act permits prior to performing routine maintenance work that is typically carried out at power plants to maintain reliability of the electric system. Alabama Power maintained that NSR permits are required only for construction projects that increase emissions.

According to Alabama Power, the agency had “accused” it of violating the law by performing several maintenance projects in the 1980s and 1990s without first obtaining new permits. All the units involved were properly permitted under the federal Clean Air Act and were operated in compliance with those permits, it said, noting that it had spent nearly $2.6 to install clean air technology at plants in its coal fleet.

The federal agency’s lawsuit involved eight maintenance projects conducted at four Alabama Power plants between 1985 and 1997: Plant Barry in Mobile County, Plant Gaston in Shelby County, Plant Gorgas in Walker County, and Plant Greene County in Greene County.

Last summer, the EPA dropped five of the claims. “At the heart of the remaining claims was testimony of two experts that EPA hired to prove there was an increase in emissions from the projects,” Alabama Power said. “Under EPA’s approach, nearly any work conducted at the plants to improve reliability would result in increased emissions.”

Sources: POWERnews, Alabama Power, U.S. District Court Northern Alabama