ELR Citation: ELR 20414
No(s). s. 88-3264, 89-1339 (7th Cir. Jan 19, 1990)

The court holds that the Environmental Protection Agency (EPA) properly invoked the "representative emissions" concept in calculating new source performance standards (NSPS) for an electric power plant's renovation project, but that EPA improperly invoked the "potential to emit" concept for prevention of significant deterioration (PSD) in calculating the plant's postrenovation emissions increase. The court first holds that EPA properly determined that the renovation project constitutes a "modification," not a routine replacement, that creates increased pollution subject to NSPS and PSD requirements. EPA's consideration of the project's $70.5 million cost and purpose of completely rehabilitating the plant's deteriorated generating units as an alternative to retirement was not arbitrary or capricious. The court next holds that EPA properly compared the existing unit's representative hourly emissions at maximum capacity to its postrenovation potential emissions at maximum capacity to determine that the project triggers NSPS. The court also held, however, that EPA's reliance for PSD purposes on an assumed round-the-clock operation in calculating the plant's postrenovation potential to emit was not properly supported. Finally, the court upholds EPA's refusal to allow the plant to use lower sulfur coal instead of implementing pollution control technologies to prevent an increase in emissions.

Counsel for Petitioner
Henry Nickel
Hunton & Williams
2000 Pennsylvania Ave. NW,Ste. 9000, P.O. Box 19230, Washington DC 20006
(202) 955-1500

Carol Del Canton
Westinghouse Electric Corp.
11 Stanwick St., Rm. 2193, Pittsburgh PA 15222
(412) 642-5676

Counsel for Respondents
Deborah Djeu
Environmental Protection Agency, Region 5
Office of Regional Counsel, 230 S. Dearborn St., Chicago IL 60604
(312) 886-0558

Before CUDAHY and FLAUM, Circuit Judges, and GRANT, Senior District Judge.^*