Alabama Power Co. v. Costle, 78-1006
| Citation | 606 F.2d 1068,196 U.S.App.D.C. 161 |
| Decision Date | 14 December 1979 |
| Docket Number | No. 78-1006,78-1006 |
| Parties | , 196 U.S.App.D.C. 161, 9 Envtl. L. Rep. 20,400 ALABAMA POWER COMPANY et al., Petitioners, * v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, et al., Respondents,* Sierra Club et al., Intervenors.* |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Henry V. Nickel, Washington, D. C., with whom George C. Freeman, Jr., Richmond, Va., Michael B. Barr, Washington, D. C., Andrea S. Bear, Richmond, Va., were on the brief, for Alabama Power Company, et al., in Nos. 78-1006, 78-1591, 78-1592, 78-1801, 78-1802 and 78-1832.
Michael K. Glenn, Washington, D. C., for American Paper Institute, et al., in Nos. 78-1815 and 78-1832.
James R. Bieke with whom Francis M. Shea, Richard T. Conway, William R. Galeota and Joseph C. Zengerle, Washington, D. C., were on the brief, for Montana Power Company, et al., in Nos. 78-1610, 78-1807 and 78-1832.
Richard G. Wise, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, John C. Salyer, Washington, D. C., Asst. Corp. Counsel, were on the brief, for District of Columbia in No. 78-1752.
Jim Mathews, Asst. Atty. Gen., State of Texas, with whom John L. Hill, ** Atty. Gen., David M. Kendall Jr.,** First Asst. Atty. Gen., State of Texas, Austin, Tex., were on the brief, for State of Texas in No. 78-1825.
John J. Adams and David F. Peters, Richmond, Va., were on the brief, for American Petroleum Institute, et al., in Nos. 78-1008, 78-1595, 78-1596, 78-1801 and 78-1832.
J. Michael Hines, John D. Field, III and John R. Feore, Jr., Washington, D. C., were on the brief, for Hampton Roads Energy Company in Nos. 78-1590 and 78-1832.
Alan B. Mollohan and J. Roy Spradley, Jr., Washington, D. C., were on the brief, for Mining and Reclamation Council of America, Inc. in Nos. 78-1805 and 78-1832.
Jonathan B. Hill and Donald W. Markham, Washington, D. C., were on the brief, for The Pittston Company in Nos. 78-1810 and 78-1832.
Roger M. Golden, Pittsburgh, Pa., was on the brief, for American Iron and Steel Institute in Nos. 78-1811 and 78-1832.
George J. Miller, Philadelphia, Pa., and William A. White, Washington, D. C., were on the brief, for Westmoreland Coal Company, et al., in Nos. 78-1823, 78-1824 and 78-1832.
James L. Lyons, Washington, D. C., was on the brief, for Mitchell Energy Co., et al., in Nos. 78-1827, 78-1828, 78-1829, 78-1830 and 78-1832.
Carl W. Ulrich, William R. Duff and Henry E. Brown, Washington, D. C., were on the brief for Colorado Interstate Gas Company, et al., in Nos. 78-1832 and 78-1834.
William S. Hemsley, Jr., Washington, D. C., was on the brief, for GATX Terminals Corporation, et al., in Nos. 78-1832 and 78-1836.
Albert J. Beveridge, III and Charles A. Patrizia, Washington, D. C., were on the brief, for Reynolds Metals Company, Inc. in No. 78-1833.
Thomas C. Matthews, Jr., Charles C. Abeles and Donald T. Bucklin, Washington, D. C., were on the brief, for Occidental Oil Shale, Inc., et al., in Nos. 78-1832 and 78-1837.
Frank H. Morison, Donald Quander and James L. White, Denver, Colo., were on the
brief, for ASARCO Inc. in Nos. 78-1821 & 78-1832.
Robert J. Rauch, Washington, D. C., for Environmental Defense Fund in Nos. 78-1006, 78-1008, 78-1525, Part II and 78-1610, Part II.
Peter J. Herzberg, Trenton, N. J., with whom H. Anthony Ruckel, Denver, Colo., James H. Cohen and Kristine L. Hall, Washington, D. C., were on the brief, for Sierra Club Legal Defense Fund, Inc. in Nos. 78-1006, 78-1008, 78-1591, 78-1592, 78-1595, 78-1596, 78-1752, 78-1839, Part II, 78-1801, 78-1802, 78-1805, 78-1806, 78-1807, 78-1810, Part II, 78-1811, 78-1815, Part II, 78-1816, 78-1817, 78-1818, 78-1819, Part II, 78-1821, 78-1822, 78-1823, 78-1824, 78-1825, 78-1827, 78-1828, 78-1829, 78-1830, 78-1832, 78-1833, 78-1834, 78-1836, 78-1837 and 78-1838, Part II.
Erica L. Dolgin, Angus Macbeth and Elizabeth Stein, Attys., Dept. of Justice, Washington, D. C., with whom Sanford Sagalkin, Acting Asst. Atty. Gen., Washington, D. C., was on the brief, for respondent Douglas M. Costle, et al.
Peter H. Wyckoff, Atty., Environmental Protection Agency, Syracuse, N. Y., a member of the bar of the Supreme Court of New York pro hac vice by special leave of Court, Jeffrey C. Smith and Lydia N. Wegman, Attys., Environmental Protection Agency, Washington, D. C., with whom Joan Z. Bernstein, Gen. Counsel, Environmental Protection Agency, Washington, D. C., was on the brief, for respondent Environmental Protection Agency, et al.
Theodore L. Garrett, Washington, D. C., with whom Patricia A. Barald, Washington, D. C., was on the brief, for petitioners Manufacturing Chemists Ass'n, et al., in Nos. 78-1818 and 78-1819, and Ashland-Warren, Inc., in Nos. 78-1816 and 78-1817.
Lawrence V. Robertson, Jr., Las Vegas, Nev., and John H. Cheatham, III, Washington, D. C., were on the brief, for intervenor, Interstate Natural Gas Association of America in No. 78-1834.
Kenneth C. Moore and Geoffrey K. Barnes, Cleveland, Ohio, were on the brief for Koppers Co. in No. 78-1838.
Robert T. Connery, Denver, Colo., with whom William E. Murane and Paul D. Phillips, Denver, Colo., were on the brief, for American Min. Congress, et al., in Nos. 78-1822 and 78-1832.
William E. Murane, Denver, Colo., with whom Robert T. Connery and Paul D. Phillips, Denver, Colo., were on the brief, for Colorado Interstate Gas Co., et al., in Nos. 78-1832 and 78-1834.
Also James W. Moorman and Earl Salo, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, Douglas M. Costle, et al. in Nos. 78-1006 and 78-1008.
Also Tom Watson, Washington, D. C., entered an appearance for intervenor Sierra Pacific Power Company in No. 78-1832.
Also Bruce J. Terris and Philip G. Sunderland, Washington, D. C., entered appearances for intervenor, Environmental Defense Fund, et al. in No. 78-1610, Part II.
Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.
This case concerns the validity of final regulations 1 promulgated by the Environmental Protection Agency (EPA) on June 19, 1978 embracing the prevention of significant deterioration of air quality in the nation's "clean air areas." 2 These "PSD" regulations interpreted and began the implementation of various provisions of the Before us are consolidated petitions for review filed in this court, as provided by statute, within 60 days of the date of promulgation. 4 Significant preliminary issues raised by these petitions were argued on October 10, 1978, and our ruling on those questions issued March 27, 1979. 5 The remaining issues raised by the petitions, involving primarily interpretative questions of comprehensive importance, 6 came to be argued on April 19 and 20, 1979.
Clean Air Act Amendments of 1977. 3 Pertinent provisions are gathered in title I, part C of the Clean Air Act as amended (hereafter sometimes referred to as the "PSD part" or the "PSD provisions")
The judicial review provisions as well as other features of the Clean Air Act Amendments set a tone for expedition of the administrative process that effectuates the congressional purpose to protect and enhance an invaluable national resource, our clean air. We are motivated by such concerns to issue today this Per curiam opinion, after careful and complete consideration of the case. This opinion summarizes our final rulings on the questions presented. In view of the large number of questions raised, the members of the panel have divided responsibility for preparation of the court's more comprehensive opinions, which will issue in due course. 7 The purpose of today's expedited judgment and Per curiam opinion is to enable EPA to proceed as soon as possible to commence rulemaking or other proceedings necessary to promulgate those revisions in the PSD regulations required by our rulings, and to take other prudent action to effectuate congressional policies.
The definition of "major emitting facility" is of central importance to the statutory scheme and is the source of a pivotal question in this case. Only major emitting facilities are subject to the preconstruction review and permit requirements of section 165 of the Act. Such facilities are defined in section 169(1) as those stationary sources of air pollutants from among 28 listed categories which "emit, or have the potential to emit" 100 tons per year or more of any air pollutant plus any other stationary source with the "potential to emit" 250 tons per year or more of any air pollutant. 8
EPA has interpreted the phrase "potential to emit" as referring to the measure of a source's "uncontrolled emissions" I. e., the projected emissions of a source when operating at full capacity, with the projection increased by hypothesizing the absence of the air pollution control equipment designed into the source. 9 We think the fairly discernible meaning of the statute, applying its text and giving consideration both to the comprehensive statutory scheme and to the legislative history, is that an emitting facility is "major" within the meaning of section 169(1), only if it either (1) actually emits the specified annual tonnage of any air pollutant, or (2) has the potential, when operating at full design capacity, to emit the statutory amount. The purpose of Congress was to require a permit before major amounts of emissions were released. In our view, the design capacity of the facility takes into account not only its maximum productive capacity (which EPA uses) but also the design controls on emissions. The "potential to emit" of any stationary source must be calculated on the assumption that air pollution control equipment incorporated into the design of the facility will function to control emissions in the manner reasonably anticipated when the calculation is made. EPA's regulations are remanded in this respect for appropriate revision.
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