ELR Citation: ELR 21086
No(s). 77-2989 (5th Cir. Nov 5, 1981)

Following the Supreme Court's reversal, 10 ELR 20353, of its initial negative jurisdictional determination, 9 ELR 20086, the Fifth Circuit Court of Appeals rules that the Environmental Protection agency (EPA) imporperly applied its new source performance standards for fossil fuel-fired steam generating units to petitioner's waste heat boilers. These boilers are heated by a combination of turbine exhaust gases and fossil fuel combustion. EPA's standards are based on sulfur dioxide emissions per unit of fuel-derived heat input. The court finds that these standards are arbitrary as applied to waste heat boilers, since they give no credit for non-fuel heat input. Since the regulations allow the use of mixtures of fuels to achieve the emissions limitations, they should give the same benefit to mixtures of fuel and waste heat.In addition, the manner of EPA's application of its standards to waste heat boilers in effect requires the use of low-sulfur fuel to meet the emissions limitations. EPA had no authority under §111 of the Clean Air Act to establish work practice or operational requirements, as opposed to emissions limitations, at the time it reached the determination challenged in this case.

[The Supreme Court's jurisdictional ruling in this case is analyzed at 10 ELR 10021 — Ed.]

Counsel for Petitioner
Oliver P. Stockwell
P.O. Box 2900, Lake Charles LA 70601
(318) 436-9491

George P. Cheney Jr.
PPG Industries, Inc.
One Gateway Center, Pittsburgh PA 15222
(412) 434-2145

Counsel for Respondents
Michael P. Carlton; James W. Moorman, Ass't Attorney General; Angus C. Macbeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5286

Earl Salo, Bethami Auerbach
Office of the General Counsel
Environmental Protection Agency, Washisngton DC 20460
(202) 755-2511

Before RONEY, TJOFLAT, and HILL, Circuit Judges.