657 F.2d 298 (D.C. Cir. 1981), 79-1565, Sierra Club v. Costle

Docket Nº:79-1565, 79-1719, 79-1867, 79-1874, 80-1187, 80-1201, 80-1213, 80-1338.
Citation:657 F.2d 298
Party Name:SIERRA CLUB, Petitioner, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent, National Coal Association, Alabama Power Company, et al., Intervenors.
Case Date:April 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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657 F.2d 298 (D.C. Cir. 1981)

SIERRA CLUB, Petitioner,

v.

Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Respondent,

National Coal Association, Alabama Power Company, et al., Intervenors.

Nos. 79-1565, 79-1719, 79-1867, 79-1874, 80-1187, 80-1201, 80-1213, 80-1338.

United States Court of Appeals, District of Columbia Circuit.

April 29, 1981

Argued Sept. 22, 1980.

As Amended June 1, 1981.

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On Petitions for Review of Regulations of the Environmental Protection agency.

Henry V. Nickel, Washington, D.C., with whom George C. Freeman, Jr., Richmond, Va., Michael B. Barr, F. William Brownell, Washington, D.C., Louis E. Tosi and John Murtagh, Toledo, Ohio, were on the brief, for petitioners Appalachian Power Co., et al. in Nos. 79-1719 and 80-1187 and intervenor in Nos. 79-1867, 79-1874, 80-1201 and 80-1213.

Joseph J. Brecher, Oakland, Cal., for petitioner Sierra Club, Nos. 79-1565 and 80-1201 and intervenor in No. 79-1719.

William Butler, Washington, D.C., with whom Larry Martin Corcoran and David J. Lennett, Washington, D.C., were on the brief, for petitioner, Environmental Defense Fund in Nos. 79-1874 and 80-1213. Robert J. Rauch also entered an appearance for Environmental Defense Fund.

Mary E. Hackenbracht, Deputy Atty. Gen., State of California, San Francisco, Cal., was on the brief for petitioner, California Air Resources Bd. in Nos. 79-1867 and 80-1388.

Earl Salo, Atty., Environmental Protection Agency, Charlotte Uram, Atty., Dept. of Justice, Washington, D.C., with whom Angus MacBeth, Acting Asst. Atty. Gen., Dept. of Justice and Todd M. Joseph, Deputy Associate Gen. Counsel, Environmental Protection Agency, Washington, D.C., were on the brief for respondents. James Moorman and Mark Sussman, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondents.

Ridgway M. Hall, Jr., Washington, D.C., with whom John A. Macleod, Timothy M. Biddle and John T. Scott, III, Washington, D.C., were on the brief for intervenor, National Coal Ass'n in No. 79-1565.

George C. Freeman, Jr., Richmond, Va., Henry V. Nickel and Michael B. Barr, Washington, D.C., also entered appearances for intervenor, Alabama Power Co., et al. in No. 79-1565.

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Christopher S. Bond and Charles A. Blackmar, Jefferson City, Mo., also entered appearances for intervenor, Missouri Ass'n of Municipal Utilities in No. 79-1719.

Table of Contents Page

I. INTRODUCTION 312

A. The Challenged Standards 312

B. The Parties 312

C. Background 313

D. Procedural History 314

II. THE VARIABLE PERCENTAGE REDUCTION OPTION 316

A. EPA's Authority Under Section 111 to Issue a Variable Standard 318

1. The Statutory Language 318

2. The Legislative History 319

B. The Reasonableness of EPA's Decision to Issue a Variable Standard 322

1. Technical Background 323

2. EPA's Explanation for the Variable Standard 325

(a) The Factors Considered by EPA 325

(b) EPA's Regulatory Analysis 326

(c) EPA's Stated Rationale for the Variable Standard 327

3. An Examination of EPA's Rationale for the Variable Standard 328

(a) The Lengitimacy of EPA's Regulatory Analysis 329

(1) EPA's Authority to Analyze Long Term National and Regional Impacts 329

(2) The Reliability of EPA's Econometric Computer Model 332

(b) The Reasonableness of EPA's Conclusions 336

(1) The Reasonableness of EPA's Conclusion that Variable Control Reflects a Better Balance of the Section 111 Factors Than Uniform Control 336

(2) The Reasonableness of EPA's Conclusion that Variable Control Promotes the Policies of the Act 338

C. The Dry Scrubbing Controversy 340

1. The Role of Dry Scrubbing Technology in EPA's Rationale for the Variable Standard 340

2. The Legitimacy of Considering Emerging Technology in Setting Section 111 Standards 346

3. The Adequacy of the Record for Dry Scrubbing's Role in EPA's Rationale 352

D. The Adequacy of Notice and the Opportunity to Comment on the Rationale for the Variable Standard 352

III. THE 90 PERCENT REMOVAL STANDARD 356

A. Notice As to the Basis of the 90 Percent Standard 356

1. The Basis of the Final Standard 356

2. Notice that the Basis of the Standard Had Changed Since Proposal 358

B. The Achievability of the 90 Percent Standard 360

1. The Support For EPA's Conclusions About FGD Performance 360

(a) The Achievability of 92 Percent Long Term Removal Efficiency 361

(b) The Reasonableness of EPA's Assumption About FGD Variability 364

2. The Support for EPA's Conclusion that the 90 Percent Standard Was Achievable by the Use of Coal Washing in Conjunction with Scrubbing 367

(a) Description of the Coal Washing Process 368

(b) The Percentage Reduction Achieveable by Washing High Sulfer Coal 369

IV. THE STANDARD FOR EMISSION OF PARTICULATE MATTER 374

A. Technical Background 374

1. ESP Control Technology 374

2. Baghouse Control Technology 375

B. The Evolution of the Particulate Standard 376

C. The Achievability of the Standard 377

1. EPA's ESP Data 377

2. EPA's Baghouse Data 380

V. THE 1.2 LBS./MBTU EMISSION CEILING 384

A. EPA's Rationale for the Emission Ceiling 384

B. EDF's Procedural Attack 386

1. Late Comments 387

2. Meetings 387

C. Standard for Judicial Review of EPA Procedures 391

D. Statutory Provisions Concerning Procedure 392

E. Validity of EPA's Procedures During the the Post-Comment Period 396

1. Written Comments Submitted During the Post-Comment Period 397

2. Meetings Held with Individuals Outside EPA 400

(a) Intra-Executive Branch Meetings 404

(b) Meetings Involving Alleged Congressional Pressure 408

VI. CONCLUSION 410

APPENDIX 411

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Before ROBB, WALD and GINSBURG, Circuit Judges.

Opinion

WALD Judge.

Circuit Judge ROBB concurs in the result.

WALD, Circuit Judge:

This case concerns the extent to which new coal-fired steam generators that produce electricity must control their emissions of sulfur dioxide and particulate matter into the air. In June of 1979 EPA revised the regulations called "new source performance standards" ("NSPS" or "standards") governing emission control by coal burning power plants. On this appeal we consider challenges to the revised NSPS brought by environmental groups which contend that the standards are too lax and

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by electric utilities which contend that the standards are too rigorous. Together these petitioners present an array of statutory, substantive, and procedural grounds for overturning the challenged standards. For the reasons stated below, we hold that EPA did not exceed its statutory authority under the Clean Air Act 1 in promulgating the NSPS, and we decline to set aside the standards.

I. INTRODUCTION

A. The Challenged Standards

The Clean Air Act provides for direct federal regulation of emissions from new stationary sources of air pollution by authorizing EPA to set performance standards for significant sources of air pollution which may be reasonably anticipated to endanger public health or welfare. 2 In June 1979 EPA promulgated the NSPS involved in this case. 3 The new standards increase pollution controls for new coal-fired electric power plants 4 by tightening restrictions on emissions of sulfur dioxide and particulate matter. 5 Sulfur dioxide emissions are limited to a maximum of 1.2 lbs./MBtu 6 (or 520 ng/j) 7 and a 90 percent reduction of potential uncontrolled sulfur dioxide emissions is required except when emissions to the atmosphere are less than 0.60 lbs./MBtu (or 260 ng/j). When sulfur dioxide emissions are less than 0.60 lbs./MBtu potential emissions must be reduced by no less than 70 percent. In addition, emissions of particulate matter are limited to 0.03 lbs./MBtu (or 13 ng/j).

B. The Parties

Petitioners in this case are Sierra Club and the State of California Air Resources Board ("CARB"), which oppose the variable 70 to 90 percent reduction requirement of the NSPS; Appalachian Power Co. ("APCO"), et al., a group comprised of APCO, the Edison Electric Institute, the National Rural Electric Cooperative Association, and 86 individual utilities ("Electric Utilities"), which challenge both the maximum 90 percent reduction requirement and the 0.03 lbs./MBtu limit on emissions of particulate matter; and, the Environmental Defense Fund ("EDF"), which challenges the 1.2 lbs./MBtu ceiling imposed by the NSPS.

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Intervenor-respondents filing briefs in these consolidated actions are the Electric Utilities and the Missouri Association of Municipal Utilities ("MAMU"), aligned in favor of both the variable percentage reduction standard and the 1.2 lbs./MBtu emissions ceiling; and the National Coal Association ("NCA"), which opposes EDF's claim that the 1.2 lbs./MBtu ceiling is invalid due to procedural impropriety.

Respondents are the United States Environmental Protection Agency ("EPA") and its Administrator, Douglas M. Costle.

C. Background

The importance of the challenged standards arises not only from the magnitude of the environmental and health interests involved, but also from the critical implications the new pollution controls have for the economy at the local and national levels. Further heightening the significance of this controversy is the crucial role coal burning power plants are expected to play in our nation's effort to cope with the problems associated with energy scarcity. 8

Coal is the dominant fuel used for generating electricity in the United States. 9 When coal is burned, it releases sulfur dioxide and particulate matter into the atmosphere. At the very least these pollutants are known to cause or...

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