Duquesne Light Co. v. E.P.A., s. 80-2103
| Decision Date | 05 April 1983 |
| Docket Number | 80-2123,80-2160,Nos. 80-2103,s. 80-2103 |
| Citation | 225 U.S.App.D.C. 290,698 F.2d 456 |
| Parties | , 225 U.S.App.D.C. 290, 13 Envtl. L. Rep. 20,251 DUQUESNE LIGHT COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., (Utility Intervenors) Duquesne Light Company, et al., (Industry Intervenors) Natural Resources Defense Council, Inc., Intervenors. to 80-2163, 80-2165, 80-2166, 80-2176 to 80- 2181, 80-2185, 80-2186, 80-2188 to 80-2190 and 81-1736. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Andrea S. Bear and Henry V. Nickel, Washington, D.C., with whom Mark G. Weisshaar, Washington, D.C., was on the briefs for Alabama Power Company, et al., petitioners/intervenors in 80-2103, 80-2190 and 81-1736.
Jeffrey O. Cerar, Washington, D.C., with whom Glenn M. Young, J. Van Carson and Kenneth C. Moore, Cleveland, Ohio, were on the briefs for Morgan Adhesives Co., et al., petitioners in 80-2166, 80-2186, 80-2188 and 80-2189.
James E. Fox, Assoc. Gen. Counsel, Knoxville, Tenn., with whom Herbert S. Sanger, Jr., Gen. Counsel, Thomas C. Doolan, Steven A. Brigance and Robert C. Glinski, Knoxville, Tenn., were on the briefs for Tennessee Valley Authority, petitioners in 80-2179.
Paul L. Landry, Pittsburgh, Pa., with whom John McN. Cramer, Robert A. Emmett and Lee A. Rau, Pittsburgh, Pa., were on the briefs for Duquesne Light Company, et al., petitioners in 80-2103 and 80-2123.
Christopher R. Schraff, Columbus, Ohio, with whom J. Jeffrey McNealey, Robert L. Brubaker, William J. Kelly, Jr., and Charles S. Carter, Columbus, Ohio, were on the briefs for Ohio Edison Company, et al., petitioners in 80-2180 and 80-2181.
Roger M. Golden, Chester R. Babst, III, Peter G. Veeder and Louise W. Yoder, Pittsburgh, Pa., were on the briefs for American Iron and Steel Institute, et al., petitioners in 80-2160.
Alfred V.J. Prather and J. William Doolittle, Washington, D.C., were on the briefs for Kennecott Corp., petitioner in 80-2161.
Ralph J. Moore, Jr., and Frederick C. Schafrick, Washington, D.C., were on the briefs for Magma Copper Company, petitioner in 80-2162.
Michael K. Glenn, Washington, D.C., and Rigdon H. Boykin, New York City, were on
the briefs for American Paper Institute and National Forest Products Association, petitioners in 80-2163.
Thomas H. Truitt, Thomas W. Brunner, D. Michael Freedman and Mark R. Joelson, Washington, D.C., were on the briefs for Ford Motor Company, petitioner in 80-2165.
Edmund B. Frost, Patrick C. Joyce and David F. Zoll, Washington, D.C., were on the briefs for Chemical Manufacturers Association, petitioner in 80-2176.
Gary H. Baise, Charles A. Patrizia and Scott W. Bowen, Washington, D.C., were on the briefs for Dow Chemical Company, et al., petitioners/intervenors in 80-2103, 80-2177 and 80-2178.
Jerome Heckman and Peter De La Cruz, Washington, D.C., were on the briefs for The Society of the Plastics Industry, Inc., et al., petitioners in 80-2178.
Frank H. Morison and Roberta L. Halladay, Denver, Colo., were on the briefs for ASARCO, Inc., petitioner in 80-2185.
William F. Pedersen, Jr., Atty. E.P.A., Washington, D.C., of the bar of the Supreme Court of Massachusetts pro hac vice by special leave of Court, Christopher C. Herman, Atty. E.P.A., Dean K. Dunsmore and Michael W. Neville, Attys., Dept. of Justice, Washington, D.C., with whom Robert M. Perry, General Counsel, Todd M. Joseph, Atty. Environmental Protection Agency and Donald W. Stever, Jr., Atty., Dept. of Justice, Washington, D.C., were on the briefs for respondent E.P.A., et al., in all cases.
Ronald J. Wilson and Richard E. Ayres, Washington, D.C., were on the brief for Natural Resources Defense Council, Inc., intervenor in 80-2103.
Paul Rodgers and Charles D. Gray, National Association of Regulatory Utility Commissioners, Washington, D.C., amicus curiae in 80-2103.
Before ROBINSON, Chief Judge; MIKVA, Circuit Judge and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MIKVA.
To speed improvement of the nation's air quality, Congress adopted the Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685 (Amendments). An innovative feature of the 1977 Amendments was the authorization of penalties to recoup the economic benefits derived by pollution sources that fail to comply with air pollution limitations, 1977 Amendments Sec. 120, 42 U.S.C. Sec. 7420 (Supp. IV 1980). Section 120 directed the Administrator of the Environmental Protection Agency (EPA) to promulgate regulations by February 1978 for assessing the noncompliance penalties. Id. Sec. 120(a)(1)(A), 42 U.S.C. Sec. 7420(a)(1)(A) (Supp. IV 1980). EPA's final rules implementing section 120 were adopted nearly a year and one half later. 45 Fed.Reg. 50,086 (1980) (codified at 40 C.F.R. Secs. 66.1 to 67.43 (1981)).
In these twenty consolidated cases, industry petitioners seek review of a variety of aspects of the final rules. 1 In nearly
all respects, we find that EPA complied with the statutory mandate: to recover the economic benefits of continued noncompliance with air quality standards, swiftly but fairly. Before discussing the merits, it would be useful to outline the statutory plan.
The Clean Air Act (Act) imposes an interlacing set of emission controls on stationary sources of air pollution. National standards limiting levels of pollutants in the air we breathe, termed ambient air quality standards, are set for particular pollutants by EPA. Act Sec. 109, 42 U.S.C. Sec. 7409 (Supp. IV 1980). 2 They are put into effect, by state implementation plans (SIPs), approved by EPA, which limit emissions from particular sources within the state in a manner designed to attain the ambient air quality standards. Id. Sec. 110, 42 U.S.C. Sec. 7410 (Supp. IV 1980). Additional, highly protective federal standards are set by EPA to limit emissions by particular sources of hazardous air pollutants, such as asbestos, that are capable of causing serious injury or death. Id. Sec. 112, 42 U.S.C. Sec. 7412 (Supp. IV 1980); see, e.g., Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.1976). EPA also sets separate, uniform standards for new stationary sources of emissions under Sec. 111, 42 U.S.C. Sec. 7411 (Supp. IV 1980). These separate standards are designed so that pollution controls will be installed when the plant is being built and design changes are easiest, and so that the states will not compete for new industry by adjusting emissions levels for air pollution. 3
Although the original statutory framework was only put in place in 1970, by 1977 Congress expressed serious dissatisfaction with the slow progress towards improving air quality. 4 Part of the explanation for the slow pace was that the original timetables for developing and implementing air quality standards had been overly optimistic in light of the technological, economic, and political complexities of the problem of air pollution. 5 Another part was that the With this view of the problem, Congress both revised the substantive standards of the Act and strengthened the methods it provided for enforcing air quality standards. Substantive changes included new provisions for state plans to implement air quality standards in areas of persistent pollution--so-called "non-attainment areas." Act Secs. 171-178, 42 U.S.C. Secs. 7501-7508 (Supp. IV 1980). The Amendments also required the states to set standards to prevent significant deterioration of air quality in areas relatively free from pollution. Id. Secs. 160-169A, 42 U.S.C. Secs. 7470-7491 (Supp. IV 1980). Congress also revised the new source performance standards, requiring new sources to use the best available systems of emissions controls. Id. Sec. 111, 42 U.S.C. Sec. 7411 (Supp. IV 1980). 8
Act is "technology-forcing": 6 sources must meet emissions standards or else face statutory penalties for continuing operations, regardless of whether available technology enables them to meet the standards. At least as important an obstacle, however, was the expense of reducing emissions, making it profitable for industry to delay needed expenditures as long as possible. 7
The Act, as established in 1970, provided for criminal fines of up to $25,000 per day or imprisonment of up to one year for knowing violations of standards under the Act. It also empowered EPA to order sources to comply with applicable air quality standards, and to seek injunctive relief for violations of its orders. Pub.L. No. 91-604, Sec. 113(b), 84 Stat. 1676, 1686-87 (1970). The 1977 Amendments added civil penalties to the enforcement scheme. Act Sec. 113(b), 42 U.S.C. Sec. 7413(b) (Supp. IV 1980). Together with these changes in traditional methods, the 1977 Amendments also added section 120 noncompliance penalties to the enforcement scheme of the Act.
Section 120 is a unique federal experiment with economic penalties. It is designed to alter economic behavior by changing the costs of emitting pollutants in violation of applicable air quality standards. See H.R.REP. NO. 294, 95th Cong., 1st Sess. 72-79 (1977) [hereinafter 1977 HOUSE REPORT], reprinted in 4 A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1977 at 2539-46 (1978) [hereinafter 1977 LEGISLATIVE HISTORY]. Congress added section 120 to the Act because it anticipated that even the augmented civil and criminal penalty scheme would not create sufficient incentives for sources to comply with air quality standards. Id. at 72. Congress also hoped that the section 120 penalties would increase administrative flexibility in enforcing the Act, by serving as a middle ground between stiff criminal sanctions or shutdown of noncomplying facilities. Id. at 5. Equally important, by removing the economic benefits of noncompliance with the Act, Congress hoped to place polluters on the same...
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