545 F.2d 1351 (4th Cir. 1976), 75-1200, Appalachian Power Co. v. Train

Docket Nº:75-1200 and 75-1203.
Citation:545 F.2d 1351
Party Name:APPALACHIAN POWER COMPANY et al., Petitioners, v. Russell E. TRAIN, as Administrator Environmental Protection Agency, Respondent, Alabama Power Company et al., Intervenors. Nos. 74-2096, 74-2188, 74-2196, 74-2236, 74-2263 to 74-2265, 74-2268 to 74-2270, 74-2286, 74-2298, 74-2312, 74-2313, 74-2315, 74-2339 to 74-2341, 74-2343, 74-2365, 74-2366, 74-2
Case Date:July 16, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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545 F.2d 1351 (4th Cir. 1976)

APPALACHIAN POWER COMPANY et al., Petitioners,

v.

Russell E. TRAIN, as Administrator Environmental Protection

Agency, Respondent,

Alabama Power Company et al., Intervenors.

Nos. 74-2096, 74-2188, 74-2196, 74-2236, 74-2263 to 74-2265,

74-2268 to 74-2270, 74-2286, 74-2298, 74-2312, 74-2313,

74-2315, 74-2339 to 74-2341, 74-2343, 74-2365, 74-2366,

74-2396, 75-1014, 75-1021, 75-1022, 75-1047, 75-1074,

75-1078, 75-1091, 75-1094, 75-1095, 75-1198, 75-1199,

75-1201, 75-1223, 75-1255, 75-1345 to 75-1347, 75-1020,

75-1200 and 75-1203.

United States Court of Appeals, Fourth Circuit

July 16, 1976

Argued Sept. 23, 1975.

Order on Motion for Clarification and Modification Filed

Aug. 31, 1976.

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[Copyrighted Material Omitted]

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George C. Freeman, Jr., Richmond, Va. (Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for Appalachian Power Co., Boston Edison Co., Florida Power and Light Co., New England Power Co., Pacific Gas and Electric Co., Public Service Co. of New Hampshire, San Diego Gas and Electric Co., Southern California Edison Co., and Virginia Electric and Power Co.

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Edward J. Sack, New York City (Joyce P. Davis, Raleigh, N.C., on brief), for Consolidated Edison Co. of New York, Inc.

Linda Aaker, Austin, Tex., for State of Texas.

Turner T. Smith, Jr., Richmond, Va. (William A. Anderson, II, Andrea S. Bear, Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for Appalachian Power Co.

Charles B. McGregor, Waco, Tex. (Beard & Kultgen, Waco, Tex., on brief), for Brazos River Authority.

Spencer C. Relyea, Dallas, Tex. (Worsham, Forsythe & Sampels, Dallas, Tex., on brief), for Texas Utilities Generating Co.

Robert W. Harmon, New York City, for Appalachian Power Co., Indiana and Michigan Electric Co., Indiana Michigan Power Co., Kentucky Power Co., Ohio Electric Co., Ohio Power Co.; Dale G. Stoodley, Boston, Mass., on brief, for Boston Edison Co.; William H. Green, Jacksonville, Fla., on brief, for Florida Power and Light Co.; Philip H. R. Cahill, Westboro, Mass., on brief, for New England Power Co.; John B. Gibson, San Francisco, Cal., on brief, for Pacific Gas and Electric Co.; Russell A. Winslow, Manchester, N.H., on brief, for Public Service Co. of New Hampshire; Guenter S. Cohn, San Diego, Cal., on brief, for San Diego Gas and Electric Co.; Charles R. Kocher, Rosemead, Cal., on brief, for Southern California Edison Co.; John Goldsum, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, Tex., on brief, for Central Power and Light Co. and West Texas Utilities Co.; Erle Nye, Dallas, Tex., on brief, for Dallas Power and Light Co.; J. A. Gooch, Cantey, Hanger Gooch, Cravens & Munn, Fort Worth, Tex., on brief, for Texas Electric Service Co.; H. Sam Davis, Jr., Burford, Ryburn & Ford, Dallas, Tex., on brief, for Texas Power and Light Co.

Ray McDevitt, Atty., Environmental Protection Agency, Thomas F. Bastow, Atty., U. S. Dept. of Justice, Washington, D.C. (Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Alfred T. Ghiorzi, Attys., U. S. Dept. of Justice, Robert V. Zener, Gen. Counsel, Bruce M. Diamond, Atty., Environmental Protection Agency, Washington, D.C., on brief), for respondent, Russell E. Train.

Before RIVES [**] and BREITENSTEIN, [***] Senior Circuit Judges, and WIDENER, Circuit Judge.

WIDENER, Circuit Judge:

This action is brought under § 509(b)(1) 1 of the Federal Water Pollution Control Act (Act) 2 and seeks review of certain regulations promulgated by the Environmental Protection Agency (EPA) pursuant to its authority under §§ 301, 304, 306 and 316(a). 3 These regulations establish limitations on the discharge of heat from steam electric generating plants into navigable waters. 4 The petitioners in this action include seventy members of the United Water Act Group (UWAG), who include both publicly and privately owned companies and collectively own and operate over 50% of the nation's electric generating capacity.

The regulations here under review implementing §§ 301, 304, and 306 were first issued in preliminary form on March 4, 1974. 5 The proposed regulations under § 316(a) of the Act were issued on March 28, 1974. 6 Following a comment period,

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EPA issued its final regulations on October 8, 1974. 7 Prior to that time, however, the first of the petitions in this case was filed with the Court. 8

The Act establishes as the national goal the elimination of discharges of pollutants into navigable waters by 1985. 9 Among the substances defined as a pollutant by Congress was heat. 10 It was recognized, however, that a basic technological approach to water quality control could not be applied in the same manner to the discharge of heat as to other pollutants since the temporary localized effects of thermal discharges might, in certain instances, be beneficial. 11 Thus, Congress included within the Act § 316(a) which modifies the requirements of both sections 301 and 306 as they pertain to thermal discharges from point sources.

In the instant case, the petitioners challenge the regulations generally and specifically. 12 For the sake of clarity, we will first consider the general challenges and then discuss those applying to specific regulations.

STANDARD OF REVIEW

Before addressing the issues raised by the Industry, it is important to note that the standard of review imposed upon the court is narrowly prescribed by Section 706(2)(A) of the Administrative Procedure Act. 13 That section requires a finding that the administrative action in question is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" before it may be set aside. The scope of review thus permitted was discussed by this court in Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir. 1973). There, we stated:

"Courts require that administrative agencies 'articulate the criteria' employed in reaching their result and are no longer content with bare administrative ipse dixits based on supposed administrative expertise. . . . While an agency may have discretion to decide, '(D)iscretion to decide does not include a right to act perfunctorily or arbitrarily'; and, in order for a Court to make a critical evaluation of the agency's action and to determine whether it acted 'perfunctorily or arbitrarily,' the agency must . . . 'explicate fully its course of inquiry, its analysis and its reasoning'." 477 F.2d at 507.

While the court may not substitute its judgment for that of the agency, the grounds upon which the agency acted must be clearly disclosed in, and substantiated by, the record. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); FTC v. Sperry and Hutchinson, 405 U.S. 233, 249, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972); duPont v. Train, 541 F.2d 1018, No. 74-1261, et al. (4th Cir. 1976). In evaluating the course of conduct employed by the EPA, we must, of course, bear in mind that Congress vested that agency with the power to choose among alternative strategies. South Terminal Corp. v. EPA, 504 F.2d 646, 655 (1st Cir.

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1974). Nevertheless, because of the "drastic impact" of the statute, see Appalachian Power Co., p. 503, and the anticipatory review provisions of § 509(b)(1) of the Act, which require review of the EPA's regulations under §§ 301, 302 and 306 within 90 days of their issuance rather than at the time of application to a particular point source, EPA must ordinarily be held to a standard of at least literal compliance with the provisions of the Act.

THE REGULATIONS

Under the final regulations promulgated by EPA, all existing generating plants of 500 megawatts or more which came on line on or after January 1, 1970 must backfit closed-cycle cooling systems by July 1, 1981. All existing units, regardless of size, that began or will begin operation on or after January 1, 1974, are likewise subject to the backfit requirements. Limited exemptions are provided, however, based upon land availability, salt drift impact, and interference with commercial aviation. 14 Finally, all new plants are made subject to narrowly limited no-discharge thermal limitations without exception. 15 The regulations also approve of the use of existing cooling lakes by existing but not new generating units. 16 Cooling ponds but not lakes are deemed acceptable for all units. By definition, cooling water impoundments which impede the flow of a navigable stream are cooling lakes while those which do not are cooling ponds. 17

There are presently three basic methods of closed-cycle cooling systems which may be employed to meet the requirements set forth in EPA's regulations. These are: (a) evaporative cooling systems such as wet cooling towers and spray systems; (b) cooling ponds and lakes; and (c) dry cooling towers. EPA itself has indicated, however, that this latter method of cooling, which employs huge radiator-like devices, cannot generally be applied to large electrical generating units due to the significant loss of plant efficiency which results. 18

The most commonly used form of evaporative cooling is the wet cooling tower, either natural or mechanical draft. Natural draft cooling towers are enormous concrete cylinders, which may be 350 to 550 feet in diameter and 300 to 600 feet tall. 19 The bottom one-tenth of the tower is filled with slats and baffles to break up the water and expose a larger surface area to the air flow so as to increase evaporation. Warm water from the condenser is pumped to the top of the tower, there discharged, and cooled by moving air as it falls to the bottom. It is there collected and returned to the condenser.

Mechanical draft...

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