719 F.2d 436 (D.C. Cir. 1983), 82-1384, Sierra Club v. E.P.A.

Docket Nº:82-1384, 82-1412, 82-1845 and 82-1889.
Citation:719 F.2d 436
Party Name:Envtl. SIERRA CLUB and Natural Resources Defense Council, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Kennecott Minerals Co., Tennessee Valley Authority, States of New York, et al., State of Vermont, American Petroleum Institute, et al., Intervenors. COMMONWEALTH OF PENNSYLVANIA, Petitioner, v.
Case Date:October 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 436

719 F.2d 436 (D.C. Cir. 1983)

Envtl.

SIERRA CLUB and Natural Resources Defense Council, Inc., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Alabama Power Company, et al., Kennecott Minerals Co.,

Tennessee Valley Authority, States of New York, et

al., State of Vermont, American

Petroleum Institute, et al.,

Intervenors.

COMMONWEALTH OF PENNSYLVANIA, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, and Anne M. Gorsuch,

Administrator, Respondents,

States of New York, et al., Alabama Power Co., et al., State

of Vermont, American Petroleum Institute, et al.,

Intervenors.

SIERRA CLUB and Natural Resources Defense Council, Inc., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Alabama Power Company, et al., American Petroleum Institute,

et al., Intervenors.

COMMONWEALTH OF PENNSYLVANIA, Petitioner,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, and Anne M. Gorsuch,

Administrator, Respondents,

Alabama Power Company, et al., American Petroleum Institute,

et al., Intervenors.

Nos. 82-1384, 82-1412, 82-1845 and 82-1889.

United States Court of Appeals, District of Columbia Circuit

October 11, 1983

Argued April 18, 1983.

Page 437

[Copyrighted Material Omitted]

Page 438

Petitions for Review of Orders of the Environmental Protection agency.

Richard E. Ayres and Howard I. Fox, Washington, D.C., for petitioners in Nos. 82-1384 and 82-1845.

Thomas Y. Au, Asst. Counsel, Commonwealth of Pa., Harrisburg, Pa., was on the brief for petitioners in Nos. 82-1412 and 82-1889.

Catherine A. Cotter, Atty., Dept. of Justice, Washington, D.C., of the bar of the Supreme Court of Cal., pro hac vice by special leave of Court, and Christina Kaneen, Atty., E.P.A., Washington, D.C., of the bar of the Supreme Court of Ill., pro hac vice by special leave of Court, with whom Carol E. Dinkins, Asst. Atty. Gen., Dept. of Justice, Robert M. Perry, Gen. Counsel, and Charles S. Carter, Acting Asst. Gen. Counsel, E.P.A., Washington, D.C., were on the brief, for respondents. Barry S. Neuman, Atty., Dept. of Justice, and Jesse Carrillo, Atty., E.P.A., Washington, D.C., also entered appearances for respondents in Nos. 82-1384, 82-1412, 82-1845 and 82-1889.

Henry V. Nickel, Washington, D.C., with whom F. William Brownell and Michele Pollak, Washington, D.C., were on the brief, for intervenors, Alabama Power Co., et al., in Nos. 82-1384, 82-1412, 82-1845, and 82-1889.

Stark Ritchie and David T. Deal, Washington, D.C., were on the brief for intervenors, American Petroleum Institute, et al., in Nos. 82-1384, 82-1412, 82-1845, and 82-1889.

Alfred V.J. Prather and Kurt E. Blase, Washington, D.C., were on the brief for intervenor Kennecott Minerals Co. in No. 82-1384.

Hebert S. Sanger, Jr., Gen. Counsel, James E. Fox, Assoc. Gen. Counsel, Thomas C. Doolan, Gregory R. Signer, Knoxville, Tenn., were on the brief for intervenor Tennessee Valley Authority in No. 82-1384.

Francis X. Bellotti, James R. Gomes and Stephen M. Leonard, Boston, Mass., for Com. of Mass., Robert Abrams and David R. Wooley, Albany, N.Y., for State of N.Y. and Dennis J. Roberts, II, Providence, R.I., for State of R.I., were on the brief for intervenors,

Page 439

State of N.Y., et al., in Nos. 82-1384 and 82-1412. Val Washington, Albany, N.Y., also entered an appearance for State of N.Y. in No. 82-1384.

Before EDWARDS, Circuit Judge, McGOWAN and MacKINNON, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

This case concerns the amount of credit electric power plants and other major sources of air pollution may receive for the height of their emissions stacks in calculating limitations on their emission of pollutants.

Under the Clean Air Act as amended ("the Act") and its regulations, emissions limitations for each such source are fixed on the basis of local, ground-level concentrations of pollutants, which cannot exceed certain national standards or incremental increase limitations. Since taller stacks tend to disperse pollutants over a greater area, a utility or other source can lower the ambient pollution concentrations not only by reducing the amount of pollutants it emits into the air, but also by raising the height of its stack. After the basic provisions of the Act were passed in 1970, many chose the latter route. In 1977 amendments to the Act, Congress declared that such tall stacks and other dispersion techniques were not to be taken into account in calculating the limitations on emissions imposed by the Act. 42 U.S.C. Sec. 7423 (Supp. V 1981). Rather, pollution standards were to be achieved by direct limitations on emissions. The present case brings before us final regulations issued by the Environmental Protection Agency (EPA) to implement this provision.

The regulations at issue are detailed and somewhat complex. Generally speaking, under the 1977 amendments credit for stack height in calculating emissions limitations is limited to the height dictated by "good engineering practice" (GEP). Id. Sec. 7423(a)(1). This height was defined by Congress to be that necessary to ensure against certain kinds of localized atmospheric disturbance created by the source itself or nearby obstacles, and resulting in excessive concentrations of pollutants in the immediate vicinity of the source. Id. Sec. 7423(c). The regulations under review define a number of the statutory terms, such as "nearby" and "excessive," provide various methods for determining GEP height and determine when each may be used, implement a statutory bar on credit for use of "dispersion techniques" other than stack height, define a statutory "grandfather" clause for pre-1970 stacks, and provide a timetable for implementation of the regulations by the states, which are the primary enforcers of the Act.

We have reviewed carefully the specific provisions challenged here. Among them we find certain aspects of the regulatory scheme to be contrary to the terms of the statute and others to be arbitrary and capricious exercises of the discretion conferred on the EPA by the Act. These provisions must therefore be overturned. We remand certain other provisions for further consideration by the agency in light of our discussion here. The remainder of the challenged regulations we uphold.

I

The events leading up to the enactment of the section of the Clean Air Act Amendments of 1977 involved in this case have been described in our opinion in Alabama Power Co. v. Costle, 636 F.2d 323, 388-91 (D.C.Cir.1979), 1 and in the House committee

Page 440

report accompanying those amendments, H.R. REP. NO. 294, 95th Cong., 1st Sess. 81-92 (1977), [U.S.Code Cong. & Admin.News 1977, p. 1077] [hereinafter cited as HOUSE REPORT]. Briefly, under the drastic overhaul of the Clean Air Act undertaken in 1970, EPA was directed to prescribe national ambient air quality standards for various pollutants. 42 U.S.C. Sec. 1857c-4 (1976). Upon promulgation of an air quality standard, each state was required to adopt and submit to EPA a state implementation plan providing for attainment and enforcement of the standard. Id. Sec. 7410(a).

Initially, EPA approved state plans that authorized, in place of direct limitations on emissions, the use of tall stacks to meet air quality standards. EPA also allowed the use of other dispersion techniques called supplemental or intermittent control systems, which are programs that vary the release of pollutants over time depending on whether meteorological conditions favor dispersion. EPA's policy was overturned by the courts, which, led by the Fifth Circuit, ruled that the Act allowed reliance on dispersion techniques only after implementation of "the maximum degree of emission limitation achievable." NRDC v. EPA, 489 F.2d 390, 410 (5th Cir.1974), rev'd on other issues sub nom. Train v. NRDC, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); see Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1151-60 (9th Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976); Big Rivers Electric Corp. v. EPA, 523 F.2d 16, 20-22 (6th Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). "Informed as well as chastened by these judicial decisions," Alabama Power, 636 F.2d at 390, EPA in 1976 issued guidelines that, while placing primary emphasis on emissions reductions, allowed the use of tall stacks to meet ambient standards in two situations: (1) where the source was already using "the best available emission control technology," or (2) where use of such technology would be "economically unreasonable or technologically unsound." Stack Height Increase Guideline, 41 Fed.Reg. 7450, 7451-52 (1976) [hereinafter cited as 1976 Guideline]. 2

Congress emphatically rejected this approach in the 1977 amendment of the Act that is the subject of the present controversy. In introducing the bill on the Senate floor, Senator Muskie criticized the 1976 guidelines for allowing any use of tall stacks whatsoever in meeting ambient standards: "Far from prohibiting the construction of tall stacks or the use of intermittent controls, the guidelines provide that once minimal emission control requirements are met, polluters are encouraged to substitute unlimited stack height for any further control of emissions." 123 CONG.REC. 18,027 (1977). The mood in the House was the same, id. at 16,203 (remarks of Rep. Waxman, a sponsor of the House bill) ("The committee has unequivocally rejected the use of tall stacks and intermittent controls as a final means of compliance with the Clean Air Act's requirements."), and in section 123 of the amended Act Congress banned virtually all reliance on tall stacks or "any other dispersion technique" in achieving compliance with ambient air quality standards, 42 U.S.C. Sec. 7423(a) (Supp.V 1981).

Congress did not,...

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