Alabama Power Co. v. Costle, No. 78-1006

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM; LEVENTHAL; ROBINSON; WILKEY
Parties, 204 U.S.App.D.C. 51, 10 Envtl. L. Rep. 20,001 ALABAMA POWER COMPANY, et al., Petitioners, * v. Douglas M. COSTLE, as Administrator, Environmental Protection Agency, et al., Respondents,* Sierra Club, et al., Intervenors.*
Docket NumberNo. 78-1006
Decision Date21 April 1980

Page 323

636 F.2d 323
13 ERC 1993, 204 U.S.App.D.C. 51, 10
Envtl. L. Rep. 20,001
ALABAMA POWER COMPANY, et al., Petitioners, *
v.
Douglas M. COSTLE, as Administrator, Environmental
Protection Agency, et al., Respondents,*
Sierra Club, et al., Intervenors.*
No. 78-1006.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 20, 1979.
Decided Dec. 14, 1979.
As Amended April 21, 1980.

Page 342

Petitions for Review of Orders of the Environmental Protection agency.

Henry V. Nickel, Washington, D. C., with whom George C. Freeman, Jr., Richmond, Va., Michael B. Barr, Andrea S. Bear, Washington, D. C., were on 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, Washington, D. C., with whom Francis M. Shea, Richard T. Conway, William R. Galeota and Joseph C. Zengerle, Washington, D. C., were on 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, III, Asst. Corp. Counsel, Washington, D. C., were on brief, for District of Columbia in No. 78-1752.

Jim Mathews, Asst. Atty. Gen., State of Texas, Austin, Tex., with whom John L. Hill **, Atty. Gen., David M. Kendall, Jr. **, First Asst. Atty. Gen., State of Texas, Austin, Tex., were on brief, for State of Texas in No. 78-1825.

John J. Adams, Washington, D. C., and David F. Peters, Richmond, Va., were on 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 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 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 brief, for The Pittston Company in Nos. 78-1810 and 78-1832.

Roger M. Golden, Washington, D. C., was on brief, for American Iron and Steel Institute in Nos. 78-1811 and 78-1832.

George J. Miller, Denver, Colo. and William A. White, Washington, D. C., were on brief, for Westmoreland Coal Company, et al., in Nos. 78-1823, 78-1824 and 78-1832.

James L. Lyons, Washington, D. C., was on 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 brief, for Colorado Interstate Gas Company, et al., in Nos. 78-1832 and 78-1834.

William S. Hemsley, Jr., Washington, D. C., was on 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 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 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 brief, for ASARCO Inc. in Nos. 78-1821 and 78-1832.

Robert C. Rauch, for Environmental Defense Fund in Nos. 78-1006, 78-1008, 78-1525, Part II and 78-1610, Part II.

Peter J. Herzberg, Washington, D. C., with whom H. Anthony Ruckel, Denver, Colo., James H. Cohen and Kristine L. Hall, Washington, D. C., were on brief, for Sierra Club Legal Defense Fund, Inc. in No. 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-

Page 343

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 brief, for respondent Douglas M. Costle, et al.

Peter H. Wyckoff, Atty., Environmental Protection Agency, Washington, D. C., 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, General Counsel, Environmental Protection Agency, Washington, D. C., was on brief, for respondent Environmental Protection Agency, et al.

Lawrence V. Robertson, Jr. and John H. Cheatham, III, Washington, D. C., were on brief, for intervenor, Interstate Natural Gas Association of America in No. 78-1834.

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.

Tom Watson, Washington, D. C., entered an appearance for intervenor Sierra Pacific Power Company in No. 78-1832.

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.

Theodore L. Garrett, Washington, D.C., for Ashland-Warren, Inc., in No. 78-1817, and Manufacturing Chemists Assn., et al., in No. 79-1818; Patricia A. Barald, Washington, D.C., on brief, for Manufacturing Chemists Assn., in No. 78-1818.

Before LEVENTHAL, *** ROBINSON and WILKEY, Circuit Judges.

Opinions for the Court filed by Circuit Judges LEVENTHAL, ROBINSON and WILKEY.

PER CURIAM:

Because of the great number of complex issues, the court's opinion appears in three parts, each written for the court by a member of the panel. Today's opinions supersede the per curiam opinion in this case, issued June 18, 1979. We have entertained narrowly focused petitions for reconsideration, all of which are disposed of by our holdings here.

A table of contents for the three opinions appears at the start of Judge Leventhal's opinion.

LEVENTHAL, Circuit Judge:

This is one of three opinions issued today considering challenges to the validity of final regulations 1 promulgated by the Environmental Protection Agency (EPA) on June 19, 1978 generally 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 Clean Air Act Amendments of 1977. 3 Pertinent provisions are gathered in title I, part C of the Clean Air Act as

Page 344

amended (hereafter sometimes referred to as the "PSD part" or the "PSD provisions").

Before us are consolidated petitions for review filed in this court, as provided by statute, within 60 days of the date of promulgation. 4 A special procedure was employed by the Chief Staff Counsel of the Circuit to coordinate the efforts of counsel and facilitate the presentation of this extraordinarily complex case. 5 Significant preliminary issues raised by these petitions were argued on October 10, 1978, and our ruling on those questions issued March 27, 1979. 6 The remaining issues raised by the petitions, involving primarily interpretative questions of comprehensive importance, 7 came to be argued on April 19 and 20, 1979.

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. Motivated by such concerns, after careful and complete consideration of the case, we issued on June 18, 1979, a per curiam opinion 8 summarizing our rulings on the questions presented. The expedited judgment and per curiam opinion served two additional purposes: (1) it enabled the EPA 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; 9 and (2) it allowed the court to entertain, prior to the issuance of this opinion, narrowly focused petitions for reconsideration directed to the panel by the parties. 10

The three opinions issued today are in part an incorporation, with some enlargement of analysis, of the rulings in our per curiam opinion of June 18, 1979, together with modifications that the court has deemed appropriate in light of the petitions for reconsideration that have been filed. In view of the large number of questions raised, the members of the panel divided responsibility for preparation of discrete parts.

 TABLE OF CONTENTS
                Opinion for the Court by Judge Leventhal Page
                 I. BACKGROUND OF PSD PROGRAM AND
                 REGULATIONS UNDER REVIEW ......... 346
                 II. POTENTIAL TO EMIT ................ 352
                 III. EXEMPTION OF 50 TPA CONTROLLED
                 SOURCES .......................... 355
                 IV. PROTECTION OF THE INCREMENTS ..... 361
                 V. APPLICATION OF PSD PERMITS TO
                 SOURCES IN NONATTAINMENT
                 AREAS ............................ 364
                 VI. FUGITIVE DUST SOURCES,
                 RULEMAKING, AND EXEMPTION
                 AUTHORITY ........................ 368
                 VII. MONITORING ....................... 371
                Opinion for the Court by Judge Robinson
                 I. BASELINE DATE .................... 374
                 II. BASELINE AND VOLUNTARY FUEL
                 SWITCHES ......................... 376
                 III. MODELING ......................... 381
                 IV. STACK HEIGHT ..................... 388
                Opinion for the Court by Judge Wilkey
                 I. SOURCE DEFINITION ................ 394
                 II. MAJOR MODIFICATION/BUBBLE ........ 399
                 III. POLLUTANTS SUBJECT TO PSD
                 REGULATION AND THE "MAJOR
                 EMITTING FACILITY" THRESHOLD ..... 403
                 IV. DEFINITION OF BACT TO INCLUDE A
                 VISIBLE EMMISSION STANDARD ....... 407
                 V. "COMMENCED CONSTRUCTION" FOR
                 PHASED CONSTRUCTION PROJECTS ..... 409
                

Page 346

I. BACKGROUND OF PSD PROGRAM AND REGULATIONS UNDER

REVIEW 11

A. Clean Air Amendments of 1970

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    • Federal Register June 03, 2010
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    ...DC Circuit set out the doctrine of ``administrative necessity'' in a line of cases that most prominently includes Alabama Power v. Costle, 636 F.2d 323 (DC Cir. 1980). The Court cited the doctrine most recently in New York v. EPA, 443 F.3d 880, 884, 888 (DC Cir. As we stated in the proposed......
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    ...to cloud a statutory text that is clear." Ratzlaf, 510 U.S. at 147–48, 114 S.Ct. 655 ; see also118 F.Supp.3d 208Ala. Power Co. v. Costle, 636 F.2d 323, 400 (D.C.Cir.1979) (noting that, despite "some indication in the legislative history [of the Clean Air Act] to suggest that at least one Se......
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    • United States District Courts. United States District Court (Columbia)
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    ...“[c]ategorical exemptions from the clear commands of a regulatory statute,” though disfavored, are permissible. Ala. Power Co. v. Costle, 636 F.2d 323, 358–60 (D.C.Cir.1979) (outlining situations where agency could promulgate broad, categorical exemptions from statute even if “not explicitl......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 26, 1983
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    • United States District Courts. United States District Court (Columbia)
    • July 29, 2015
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    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • August 26, 2003
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