838 F.2d 1224 (D.C. Cir. 1988), 85-1488, Natural Resources Defense Council, Inc. v. Thomas

Docket Nº:85-1488 and 86-1331.
Citation:838 F.2d 1224
Party Name:18 Envtl. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, Respondent, Alabama Power Company, et al., American Paper Institute and the National Forest Products Association, National Coal Association, Kennecott, Natural Resources Defense Council, Inc. and Si
Case Date:January 22, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1224

838 F.2d 1224 (D.C. Cir. 1988)

18 Envtl.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

Lee M. THOMAS, Administrator, United States Environmental

Protection Agency, Respondent,

Alabama Power Company, et al., American Paper Institute and

the National Forest Products Association, National Coal

Association, Kennecott, Natural Resources Defense Council,

Inc. and Sierra Club, State of Ohio, Intervenors.

OHIO POWER COMPANY, Petitioner,

v.

Lee M. THOMAS, Administrator, United States Environmental

Protection Agency, et al., Respondents,

Natural Resources Defense Council, Inc. and Sierra Club, Intervenors.

Nos. 85-1488 and 86-1331.

United States Court of Appeals, District of Columbia Circuit

January 22, 1988

Argued Sept. 25, 1987.

As Amended April 13, 1988.

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David G. Hawkins, with whom Richard E. Ayers and Howard I. Fox, Washington, D.C., for the Natural Resources Defense Council, Inc., et al., James M. Shannon, Atty. Gen. and Janet G. McCabe, Asst. Atty. Gen., the Commonwealth of Massachusetts, Boston, Mass., James E. Tierney, Atty. Gen. for the State of Maine, Augusta, Me., and Robert Abrams, Atty. Gen. for the State of New York, Albany, N.Y., were on the brief for petitioners.

Robert Whitehead and Kenneth N. Tedford, Asst. Atty. Gen., State of Conn., Hartford, Conn., and Greg Sample, Asst. Atty. Gen., State of Maine, Augusta, Me., also entered an appearance for Natural Resources Defense Council, Inc., et al.

Henry V. Nickel, with whom F. William Brownell and Mel S. Schulze, Washington, D.C., for Alabama Power Co., et al., Donald

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  1. Winson and Richard S. Wiedman, Pittsburgh, Pa. for Ormet Corp.; Robert F. Stauffer, Washington, D.C. and David C. Branand, Cleveland, Ohio for National Coal Ass'n, and Michael H. Holland and Earl R. Pfeffer, Washington, D.C., for United Mine Workers of America were on the joint brief for petitioners Alabama Power Co., et al. John W. Ublinger, Jr. also entered an appearance for petitioner Ormet Corp.

    Lawrence A. Demase, Pittsburgh, Pa., and J. Daniel Hull, Washington, D.C., were on the brief for petitioners Monongahela Power Co. and Potomac Edison Co.

    Ann G. Daniels, San Francisco, Cal., entered an appearance for petitioner Environmental Defense Fund, Inc.

    Paul H. Schneider, Asst. Atty. Gen., State of New Jersey, Trenton, entered an appearance for petitioner, State of New Jersey.

    Charles Carter, Asst. Gen. Counsel, EPA and Lisa F. Ryan, Atty., U.S. Dept. of Justice, with whom Scott Slaughter, Atty. Dept. of Justice, Alan Eckert, Associate General Counsel, EPA and Patricia Embrey, Atty., EPA, Washington, D.C., were on the brief for respondents. Michael W. Steinberg, Atty., U.S. Dept. of Justice and Gaylene Vasaturo, Atty., EPA, Washington, D.C., also entered an appearance for respondents.

    Alfred V.J. Prather and Kurt E. Blase, Washington, D.C., were on the brief for intervenor Kennecott.

    Dale T. Vitale, Asst. Atty. Gen., Columbus, Ohio for the State of Ohio, was on the brief for intervenor-respondent the State of Ohio.

    Henry V. Nickel, F. William Brownell and Mel S. Schulze, Washington, D.C. for Alabama Power Co., et al., Michael K. Glenn, Washington, D.C., for American Paper Institute, et al., and David C. Branand, Washington, D.C., for National Coal Ass'n., were on the brief for intervenors Alabama Power Co., et al. Richard S. Wasserstrom, Washington, D.C., also entered an appearance for American Paper Institute, et al. Robert F. Stauffer, Washington, D.C., also entered an appearance for National Coal Ass'n.

    Edwin Lloyd Pittman, Atty. Gen. State of Mississippi and Robert Franklin Spencer, Asst. Atty. Gen., State of Mississippi, Jackson, Miss., were on the brief for amici curiae the State of Mississippi, et al. urging affirmance.

    Before RUTH B. GINSBURG and WILLIAMS, Circuit Judges, and AUBREY E. ROBINSON, Jr., Chief Judge, U.S. District Court for the District of Columbia. [*]

    Opinion for the Court filed by Circuit Judge WILLIAMS.

    1. BACKGROUND ................................................................ 1231 II. STACK HEIGHT VALIDATION: EMISSIONS RATE ASSUMPTIONS IN DEMONSTRATIONS ..... 1233 A. The Control-First Dispute .............................................. 1233 B. Demonstrations Supporting Stack Height Increases Within the Formula ................................................................ 1239 1. Attacks on the formula .............................................. 1239 2. Attacks on the demonstration procedures ............................. 1239 C. The NSPS Presumption for Above-Formula Stacks .......................... 1240 1. Substantive objections .............................................. 1241 2. Procedural challenges ............................................... 1242 III. STACK GRANDFATHERING ISSUES ............................................... 1243 A. Sheltering pre-October 1, 1983 Within-Formula Stack Increases from the Demonstration Requirement .......................................... 1244 B. Automatic Credit to Formula Height for pre-January 12, 1979 Stacks ..... 1246 1. Credit up to 2.5H for pre-1979 sources showing reliance ............. 1247 2. Credit up to H+1.5L for pre-1979 sources not showing reliance ....... 1248 C. EPA's Definition of "Stack Height in Existence" ........................ 1248

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  2. Application of New Demonstration Requirements to Sources that Have Completed Demonstrations .......................................... 1249 IV. PLUME RISE ................................................................ 1251 A. Original Design and Construction as One Stack .......................... 1252 B. General Rule for Merged Stacks ......................................... 1254 C. Partial Grandfathering of Stacks Merged Before July 8, 1985 ............ 1255 V. MISCELLANY ................................................................ 1256 A. Multi-Point Rollback ................................................... 1256 B. Definition of "Nearby" as Used in Demonstrations ....................... 1256 C. Modeling Adjustments for Complex Terrain ............................... 1257 CONCLUSION ..................................................................... 1257 Page 1230

    WILLIAMS, Circuit Judge:

    Under the Clean Air Act as amended in 1970, 42 U.S.C. Secs. 7401 et seq. (1982), the Environmental Protection Agency sets national ambient air quality standards ("NAAQS") for various pollutants. Id. Sec. 7409. Once they are set, each state must adopt and submit to the EPA a state implementation plan ("SIP") providing for achievement of the standards in each air quality control region. Id. Sec. 7410(a)(1). 1 Such plans obviously must distribute the necessary pollution cutbacks among the various pollution sources. From 1970 to this day a dispute has raged over the extent to which pollution sources may make their required contribution toward these localized clean air goals by dispersing pollution rather than by reducing their emissions.

    Dispersion may be either through space or time. A source may disperse its pollution through space by such devices as "tall stacks," which carry the pollutants away from the region and from the ground levels at which satisfaction of the NAAQS is measured. It may disperse pollution over time by intermittent controls systems ("ICS"), which vary the time of discharges so as to take advantage of changes in weather conditions.

    Dispersion techniques vary from emission reductions in two fundamental ways. They are, at least up to a point, considerably cheaper than emissions reductions. This makes them attractive to industry and often to the states of origin. (The attraction may be particularly great where the state of origin produces high-sulphur coal.) On the other hand, reliance on such techniques increases the aggregate amounts of pollution dumped into the atmosphere. This makes them unattractive to environmentalists and to the citizens of downwind states, 2 to which the pollution will be swept and where acid rain may result.

    First the courts and then Congress intervened to prevent states from allowing pollution sources to satisfy their obligations by means of dispersion. As a result, reductions in local ground-level pollution do not "count" toward satisfaction of the NAAQS to the extent that they rely on those dispersion techniques that are disapproved.

    While these limitations obviously relate to important goals, the system has a certain eccentricity. The ambient air quality standards are ones to be fulfilled in more than 236 specific local areas. The anxiety over dispersion stems primarily from dispersion's impact outside the region of origin. But the means of allaying that anxiety is to disregard, for purposes of measuring contribution to local clean air, conduct which indisputably helps clean local air.

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    Yet none of the constraints on dispersion, whether devised by courts, EPA or Congress, has forged an operating link between those constraints and the injuries inflicted by dispersion. Thus, although the parties adduce some figures as to changes over time in total atmospheric "loadings" of sulphur dioxide, these are not related to any statutory goal or to any scheme for attaining specific cutbacks. This incongruity may account for some of the logical difficulties encountered in trying to apply the statute and controlling precedents.

    The battle has proceeded in the agency, the courts and Congress. The latter tried to...

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