Bunker Hill Co. v. E.P.A., 75-3670

• Citation: 572 F.2d 1286
• Decision Date: 05 July 1977
• Docket Number: No. 75-3670,75-3670
• Parties: , 11 ERC 1204, 7 Envtl. L. Rep. 20,681, 8 Envtl. L. Rep. 20,144 The BUNKER HILL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1286

572 F.2d 1286

10 ERC 1401, 11 ERC 1204, 7 Envtl. L.

Rep. 20,681,

8 Envtl. L. Rep. 20,144

The BUNKER HILL COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 75-3670.

United States Court of Appeals Ninth Circuit.

July 5, 1977.

Rehearing Denied Dec. 28, 1977.

Edwin H. Seeger, Prather, Levenberg, Seeger, Doolittle, Framer & Ewing, Washington, D. C., argued for petitioner.

Peter E. Heiser, Jr., Wayne Kidwell, Atty. Gen., Boise, Idaho, argued for respondent (amicus).

Charles L. Shipley, Atty., Environmental Protection Agency, Washington, D. C., argued for respondent.

Petition for Review of an Action of the Administrator of the Environmental Protection Agency.

Before SNEED and KENNEDY, Circuit Judges, and POOLE, ^* District Judge.

SNEED, Circuit Judge:

Petitioner challenges the actions of the Environmental Protection Agency (EPA) in rejecting portions of the State of Idaho's implementation plan under the Clean Air Act, 42 U.S.C.A. §§ 1857, et seq. (Supp.1977), and substituting therefor its own regulations. See 40 Fed.Reg. 53584 (1975). The rejected portions of the Idaho implementation plan deal with the control of sulfur dioxide (SO 2) from the Idaho plant of petitioner. The petitioner's challenge relies on several grounds. While we find in favor of the Administrator on various legal and procedural issues, we remand this proceeding to the EPA for further consideration of the technological feasibility of certain modifications of petitioner's smelter operations which would be required by the substituted regulations.

I.

History of the Case.

Bunker Hill's Kellogg, Idaho operations include lead and zinc smelters that emit substantial amounts of SO 2 gas. Some of the SO 2 gas presently is vented directly to the atmosphere; the remainder is treated in three acid plants two servicing the zinc operations, and the third handling the lead smelter. There is no dispute that, as presently operated, Bunker Hill's Idaho plant is not meeting the federal ambient air quality standards for SO2. ¹ The primary issue before us is what modifications Bunker Hill must make in its operations in order to satisfy the requirements of the Clean Air Act. To understand this issue the administrative proceedings culminating in this challenge will be outlined and thereafter the focus will be upon the technological feasibility of the control technology made necessary by EPA's substituted regulations. Our disposition of this challenge will conclude with a discussion of certain other issues raised by petitioner and with our instructions pertaining to the procedure on remand to the EPA.

On January 3, 1975, the Idaho Department of Health and Welfare (IDHW) adopted a regulation requiring Bunker Hill to "capture" 72 percent of its SO 2 emissions; ² the IDHW had decided, after lengthy hearings, that this percentage emission control was the maximum percentage feasible under currently available technology. ³ This level of emission control would be achieved through a series of specific emission limitations: (i) a 4000 parts per million (ppm) SO 2 limitation on the emissions from each of Bunker Hill's acid plants and from its zinc plant main stack, based on eight-hour averages; (ii) a 100 tons per day limitation on emissions from the lead plant main stack; and (iii) a 1200 tons per week limitation on emissions from the entire smelting complex.

Since even this level of emission control would not meet the ambient air quality standards, the Idaho plan also would require Bunker Hill to supplement its control program with whatever dispersion enhancement techniques ⁴ prove necessary to meet these standards. Bunker Hill would be held responsible for violations in the Kellogg Valley of any federal ambient air quality standard, although, in the case of the primary annual standard, ⁵ a 30-day investigation period would be provided for purposes of determining whether other undetected and uncontrolled sources might have been the actual cause of the violation, in which case Bunker Hill would not be held liable. Finally, Bunker Hill would be required to conduct research and development aimed at improving emission control techniques; as these techniques became feasible, Bunker Hill's emission limitations would be tightened.

The EPA refused to approve Idaho's proposed emission limitations and instead substituted standards that would guarantee 82 percent control. On the basis of a study commissioned by EPA of Bunker Hill's operation, together with other evidence, the EPA held that 82 percent, rather than 72 percent, was the maximum level of control technologically and economically feasible for Bunker Hill. The EPA study (prepared for EPA by Mr. Tim Browder, an expert in SO 2 control technology hereinafter referred to as the Browder Study) contended that various efficiency problems presently plaguing Bunker Hill's control process could be solved by modifying Bunker Hill's acid plants. In particular, the Browder Study argued that adding sulfur burners to the acid plants would guarantee sustained autothermality. ⁶

Under the EPA regulations, SO 2 emissions from Bunker Hill's acid plants would not be allowed to exceed 2600 ppm on a 6-hour average; ⁷ emissions from the main lead stack would not be allowed to exceed 2000 ppm; and a 680 tons per day limitation would be imposed on the entire Kellogg operation. Since even 82 percent control would not guarantee attainment of the air quality standards, dispersion enhancement techniques would again be required. As under the Idaho provisions, Bunker Hill would be held accountable for any violations of the federal ambient air quality standards; however, the EPA made no provision for a 30-day investigation period. Again, Bunker Hill would be required to carry on a research and development program with the objective of raising over the years the level of constant emission control.

Bunker Hill focuses its attack on the EPA's determination that Bunker Hill can feasibly achieve 82 percent emission control. First, it argues that the EPA was bound by the contrary conclusion of the IDHW that only a 72 percent control level is feasible. Second, even assuming that the EPA was free to reconsider the question of the maximum feasible control level, Bunker Hill argues that the EPA's determination was "arbitrary and capricious" and was marred by various procedural irregularities. Bunker Hill also attacks the EPA's decision to eliminate the 30-day review period provided for in the original Idaho regulations.

Our study of the administrative record cast considerable doubt on whether the sulfur burner system proposed in the Browder Study, a necessary element in EPA's proposed 82 percent emission control standard, is indeed technologically feasible. ⁸ In particular, Bunker Hill's principal expert witness contended that sulfur burners could not track, or be coordinated with, the wide fluctuations in SO 2 concentration that plague Bunker Hill's smelter gases. Mr. Browder failed to respond fully and satisfactorily. However, because of the complexity of the technological issues involved and the importance of clearly establishing the deficiencies in the Administrator's deliberations before remanding the regulations, we requested a supplemental brief from the EPA clarifying Browder's sulfur burner proposal; ⁹ a reply brief was requested from Bunker Hill and both parties were allowed to augment the record. ¹⁰ The EPA was also granted permission to file a response to Bunker Hill's reply brief.

In reviewing administrative regulations, the courts generally are forbidden from conducting a full-fledged and independent evidentiary hearing. See, e. g., Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 239 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976). Neither can the courts uphold regulations on the basis of post-hoc rationalizations offered by the agency. See, e. g., Local 814, International Brotherhood of Teamsters v. NLRB, 546 F.2d 989, 992 (D.C.Cir. 1976); Bradley v. Weinberger, 483 F.2d 410, 414-15 (1st Cir. 1973). See generally Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420-21, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). But in the often difficult task of reviewing administrative regulations, the courts are not straightjacketed to the original record in trying to make sense of complex technical testimony, which is often presented in administrative proceedings without ultimate review by nonexpert judges in mind. Here, the augmenting materials were merely explanatory of the original record. No new rationalization of the SO 2 regulations was offered by the EPA. Instead, the augmenting materials clarified a dispute that we felt was less than clear from the original record and were clearly admissible.

Despite this clarification in dealing with a technical subject with respect to which we are not experts and ever mindful of our limited authority in reviewing the Administrator's actions, we nonetheless reluctantly are compelled, on the basis of the record as augmented, to conclude that the Administrator has not "exercised a reasoned discretion" in concluding that the Browder sulfur burner proposals, and hence an 82 percent emission control standard, are technologically feasible. See Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 402 (1973), cert. denied,417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). We must, therefore, remand to the EPA for further proceedings.

II.

Maximum Feasible Control Technology.

The importance of the technological feasibility of the Browder sulfur burner proposals has its source in the fact that cases in this and other circuits have established that the national ambient air quality standards must be met, to the maximum extent possible, by constant emission controls (such as acid plants augmented or not by sulfur burners); dispersion enhancement...