Petition — Environmental Protection Agency v. Duquesne Light Co.

75-736

Wo, 2: °° jane RODAK, JR..CLERK

Gn the Supreme Court of the Writed States

OcToBER TERM, 1975

_

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

v.

DvuquEsNE Licht COMPANY, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

ROBERT H. BORK,

Solicitor General,

WALTER KIECHEL, JR.,

Acting Assistant Attorney General,

ALFRED T. GHIORZI,

EDMUND B. CLARK,

JOHN E. VARNUM,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Gu the Supreme Court of the United States

OcTOBER TERM, 1975

No.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

DvUQUESNE LIGHT COMPANY, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

The Solicitor General, on behalf of the Environ-

mental Protection Agency, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, infra)

is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on August 21, 1975. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

2

QUESTION PRESENTED

Whether, prior to approving a state implementation

plan under Section 110(a)(2) of the Clean Air Act,

as amended, 84 Stat. 1680, 42 U.S.C. 1857¢e-5(a) (2),

the Administrator of the Environmental Protection

Agency is required to determine that no sources of

emissions in the State will be unable, due to economic

or technological infeasibility, to comply with the plan’s

requirements.

STATUTE INVOLVED

Section 110(a)(2) of the Clean Air Act, as

amended, 84 Stat. 1680, 42 U.S.C. 1857e-5(a) (2), is

set forth in Appendix B, infra.

STATEMENT

Section 110(a)(1) of the Clean Air Act, 42 U.S.C.

1857¢e-5(a)(1), requires each State to adopt and

submit to the Administrator of the Environmental

Protection Agency (‘‘EPA”) a plan providing for the

implementation, maintenance, and enforcement of the

national “primary’’ and “secondary’’ ambient air qual-

ity standards’ within the air quality control regions

in that State. The Administrator must approve or dis-

approve a state plan within four months of its sub-

mission. 42 U.S.C. 1857c-5(a)(2). If he determines

that the plan meets the requirements of Section 110

(a)(2)(A) to (H), 42 U.S.C. 1857ce-5(a)(2)(A) to

‘ National primary standards are those “requisite to protect the

public health,” while secondary standards are those “requisite to

protect the public welfare.” Section 109(b), 42 U.S.C. 1857c-4(b).

il A EE TT

3

(H), he is required to approve the plan. If he finds

the State plan deficient, then he must disapprove it

and, after giving the State an opportunity to revise

the plan, propose and promulgate his own regulations

correcting the deficiency. 42 U.S.C. 1857¢-5(c¢).

On January 27, 1972, the Commonwealth of Penn-

sylvania submitted its implementation plan to the Ad-

ministrator, who, on May 31, 1972, approved the pro-

visions of the plan at issue here. 37 Fed. Reg. 10842,

et seq. On June 26, 1972, respondents filed in the court

of appeals a petition for review challenging the

Administrator’s approval of the Pennsylvania plan.

One of the grounds on which respondents challenged

EPA’s approval was that certain of the emission limi-

tations concerning sulfur oxides (25 Pa. Code Regs.

§ 123.21(b)), were economically and technologically

infeasible as applied to respondents’ power plants

located in southwestern Pennsylvania.’ Having con-

solidated the petition for review with another such

petition,’ the court of appeals initially decided that

? Respondent Duquesne Light Company operates three power

plants in Allegheny and Washington Counties, Pennsylvania.

Pennsylvania Power Company operates a power station in New

Castle, Pennsylvania. These respondents and respondent Ohio

Edison Company are co-owners of a power plant under construc-

tion in Shippingport, Pennsylvania.

* The other petition was filed by St. Joe Minerals Corporation,

which challenged EPA’s approval on the ground that certain of

the emission limitations concerning sulfur oxides were infeasible

on economic and technological grounds as applied to its zinc

smelter at Monaca, Pennsylvania. See St. Joe Minerals Corp, v.

4

EPA was required either to give the petitioners before

it a hearing concerning their claims of infeasibility or

to defer enforcement of the plan against them pend-

ing resolution of their challenges to the plan at the

state level. Duquesne Light Co. v. Environmental Pro-

tection Agency, 481 F. 2d 1, 10 (C.A. 3). On remand

EPA elected the first alternative and, after providing

an opportunity for comments by both sides on the

feasibility issues, filed with the court of appeals the

augmented record and its conclusion that the sulfur

oxide emission limitations of the Pennsylvania plan

were technologically and economically feasible as ap-

plied to respondents’ power plants.*

In the proceeding which is the subject of the instant

petition, the court of appeals reaffirmed its view that

economic impracticality or technological infeasibility

ef a particular implementation plan provision are

grounds for disapproval of the provision by EPA

(App. A, infra, pp. 13a, 17a-19a, 23a n. 36). On re-

view of the record, moreover, the court found that

EPA on remand had failed to review in sufficient de-

tail the economic impact of the sulfur oxides emission

limitation on the respondents and their customers

(id. at 13a-17a,. The court vacated EPA’s approval

of the Pennsylvania implementation plan as it relates

Environmental Protection Agency, 508 F, 2d 748 (C.A. 3), peti-

tion for a writ of certiorari filed June 28, 1975. No. 74-1650 ;

note 6, infra.

‘After EPA’s decision respondents moved in the court of ap-

peals for a second remand to give them an opportunity to rebut

information in a report relied upon by EPA. On June 5, 1974, the

court ordered a second remand for that purpose (App. A, infra,

p. 8a).

. to respondents’ power plants and remanded the action

to the agency for review of the economic practicality,

as well as technological feasibility (id. at 17a-19a),

of this portion of the plan.

REASONS FOR GRANTING THE WRIT

The question presented in this case is for all rele-

vant purposes the same as that presented in Union

Electric Co. v. Environmental Protection Agency, 515

F. 2d 206 (C.A. 8), petition for a writ of certiorari

granted October 6, 1975, No, 74-1542. |

Dismissing the petition for review in Union Elec-

tric for lack of jurisdiction, the court of appeals there

held that under Section 307(b)(1) o- the Act (42

U.S.C. 1857h-5(b)(1)) it had authority to set aside

the Administrator’s approval of a state implementa-

tion plan only on grounds that would have required

the Administrator to disapprove the plan and that

claims of economic or technological infeasibility did

not constitute such grounds.’ However, the court of

appeals in the instant case proceeded on the basis that

° The Court’s grant of the petition for a writ of certiorari in

Union Electric Co., supra, was limited to the first question pre-

sented by the petition (p. 2), which reads as follows: “i. Does the

Section of the Clean Air Act (Section 307(b) (1)), which provides

for judicial review by the Court of Appeals of EPA approval of

sulfur dioxide emission regulations in the Missouri implementa-

tion plan, prevent the Court of Appeals from considering tech-

nological and economic factors applicable to petitioner and such

regulations, when the petition for judicial review was filed more

than 30 days after EPA approval of such plan, when such techno-

logical and economic factors arose more than 30 days after EPA

approval and when those factors make it impossible for petitioner

to comply with those regulations and manifestly against the pub-

lic interest for it to attempt to do so?”

6

the EPA Administrator has the duty to consider the

economic and technological feasibility of a state im-

plementation plan and, if he finds it infeasible in

either respect, to disapprove it.°

Whether the Administrator has an obligation under

the Act to consider economie and technological diffi-

culties of compliance by point sources of pollution in

determining if he will approve a state implementation

plan is thus the basic issue presented in Union

Electric and in this case. The decision of the court

below, ordering the Administrator to consider further

respondents’ contentions of economic and technological

infeasibility, assumes not only that the Administrator

must evaluate and weigh these factors but also that he

must disapprove a state implementation plan if he

®In St. Joe Minerals Corp, v. Environmental Protection

Agency; F. 2d 743, 747 (C.A. 3), petition for a writ of certiorari

filed June 28, 1975, No. 74-1650, the court of appeals stated:

“{ A)n interpretation of the Clean Air Act Amendments empower-

ing the Administrator to disapprove the Pennsylvania plan if he

finds it technologically unworkable is implicit in our decision in

Duquesne Light. If the Administrator has no authority to disap-

prove such plan or provision, there would have been no cause to

remand the case «o the EPA so as to conduct a hearing

on precisely this subject. Indeed, the agency argued in

Duquesne Light, in urging a denial of the remand, that the statute

had not intended the Administrator to consider economic and tech-

nological factors. Yet we ordered the remand.”

In view of a proposed amendment to the state implementation

plan that may render St. Joe moot, we filed with the Court on

September 25, 1975, a motion to defer consideration of the petition

for a writ of certiorari, pending EPA’s disposition of the pro-

posed amendment.

We are serving upon respondent’s counsel in this case a copy of

our petition in St. Joe and our memorandum in Union Electric.

es

7

accepts the contentions. Howevér, if the Court holds

in Union Electric that the Administrator has no such

obligation under the Act, as we there argue, the court

of appeals in this case erred in requiring the Admin-

istrator to find, as a prerequisite for valid approval

of a state implementation plan, that compliance would

be economically and technologically feasible.

CONCLUSION

The Court should defer consideration of this peti-

tion for a writ of certiorari until after it has decided

Union Electric Co., No. 74-1542.

Respectfully submitted.

Ropsert H. Bork,

Solicitor General.

WaLTeR KIECHEL, Jr.,

Acting Assistant Attorney General.

ALFRED T. GHIORZzI,

Epmunp B. CLarRK,

JOHN E. VaRNUM,

Attorneys.

NOVEMBER 1975.

APPENDIX A

UNITED STATES COURT OF APPEALS

For tue Txuirp Circuit

No. 72-1542

DUQUESNE LIGHT COMPANY, PENNSYLVANIA

POWER COMPANY and OHIO EDISON COM-

PANY,

Petitioners

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

On Pevition ror Review or THE ORDER OF THE

ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY

Argued May 12, 1975

Before: Apams, Rosenn and Hunrer, Circuit Judges.

la

597-093 O- 75-2

2a

OPINION OF THE COURT

(Filed August 21, 1975)

Apams, Circuit Judge.

Resolution of this appeal requires us to address two

principal issues with respect to the approval by the Ad-

ministrator of the Environmental Protection Agency of

the sulfur oxide emission limitations in the implementation

plan adopted by Pennsylvania in response to the Clean Air

Act Amendments of 1970:!

(1) Did the Administrator act arbitrarily in conclud.

ing that compliance with the challenged emission

limitations within the time allowed by the plan is

economically feasible for the petitioning utilities’

coal-burning electric generating plants through

ihe use of flue gas desulfurization devices?

(2) Did the Administrater act arbitrarily when he

concluded that conformity with the sulfur oxide

emission limitations by the petitioners’ coal-burn-

ing generators was technologically feasible?

The Statutory Scheme

Essential to an understanding of the issues in this

case is a brief overview of the program established by the

1970 amendments to the Clean Air Act for purging the na-

tion’s atmosphere of detrimental amounts of synthetically

produced substances. The Administrator of the Environ-

mental Protection Agency (EPA) is directed to fix national

primary * and secondary * standards governing the permis-

sible concentration in the ambient air throughout the

country of each pollutant deemed by the Administrator to

-_—

1. 42 U.S.C. §§ 1857-1858a.

2. Primary ambient air quality standards are those necessary, in the

Administrator's judgment, to protect public health, 42 U.S.C. § 1857c-4.

3. Secondary ambient air quality standards are those necessary, in the

Administrator's judgment, to preserve the general welfare. 42 U.S.C. § 1857c-4.

3a

have an adverse impact upon the national health or wel-

fare.*

Each state is required to design an air pollution con-

trol scheme, called an implementation plan, by which the

emissions from existing stationary sources® of impurities

will be controlled at least to the degree necessary to attain

the national standards. Thus the extent of the controls to

he imposed on different types of polluters so as to achieve

the mandated overall level of purity was left, in the first

instance, to the states. ;

Each implementation plan must be submitted to the

Administrator. He is to approve or disapprove each plan

within four months of its submission. Before sanctioning

a plan the EPA must determine, inter alia, that it provides

for achieving the primary air quality standards ‘‘as ex-

peditiously as practicable but . . . in no case later than

three years from the date of approval of such plan.’’®

This Court has indieated that in deciding whether to ap-

prove an implementation plan the agency must review its

technological and economic feasibility.’

Upon the Administrator's approval of an implementa-

tion plan, he may enforce the plan, presumably already

enforceable by the state, as a federal regulation. The

Administrator is to notify any person known to be in vio-

lation of the applicable implementation plan. If the viola-

tion persists more than 30 days after the issuance of a

notice of violation, the EPA may enter an order requiring

4. 42 U.S.C. §§ 1857Zc-3, 1857-4.

5. The act directed the EPA to adopt limitations governing emissions by

new Stationary sources of pollutants and by mobile sources such as automobiles

See 42 U.S.C. §§ 1857c-6, 1857f-1 et seq.

6. 42 U.S.C. §1857c-5(a)(2). For a description of the process of EPA

review, see St. Joe Minerals Corp. v. Environmental Protection Agency, 508

F.2d 743, 749 (3d Cir. 1975), petstion for cert. filed, 44 U.S.L.W. 3001 (July

8, 1975).

7. St. Joe Minerals, 508 F.2d 743; Duquesne Light Co. v. Environmental!

Protection Agency, 481 F.2d 1 (3d Cir. 1973) [hereafter Duquesne Light 1};

Getty Oil Co. v. Environmental Protection Agency, 467 F.2d 349 (3d Cir.

1972), cert. demied 409 U.S. 1125 (1973). See also Appalachian Power Co. y

Environmental Protection Agency, 477 F.2d 495 (4th Cir. 1973); Buckeye

+~ ty Inc. v. Environmental Protection Agency, 481 F.2d 162 (6th Cir

1973).

4a

compliance by the polluter, or mvy bring an action in the

district court to enjoin further disobedience. In addition,

any person who knowingly violates the provisions of the

applicable implementation plan more than 30 days after the

issuance of a notice of violation, or who fails to conform

to the requirements of a compliance order, is subject to a

$25,000 fine or imprisonment."

Any person aggrieved by the Administrator’s action

in approving an implementation plan may, within 30 days

after the Administrator's approval of the plan, petition the

appropriate court of appeals for review of that decision.

With one limited exception,’ the statute provides that

‘*fa}etion of the Administrator with respect to which re-

view could have been obtained [in a court of appeals within

30 days after the approval] shall not be subject to judicial

review in civil or criminal proceedings for enforcement.’’'®

In Getty Oil Co. v. Ruckelshaus," this Court interpreted

the statute as barring the courts from entertaining claims

regarding the technological or economic infeasibility of an

implementation plan after the expiration of the 30 day

period.

The Controversy Before The Court

Petitioners—Duquesne Light Co., Pennsylvania Power

Co. and Ohio Edison Co.—are electric utility companies

operating coal-fired generating plants in Pennsylvania.

The Administrator designated sulfur oxides as a pol-

lutant hazardous to the publie health ana welfare, and then

promulgated primary and secondary ambient air standards

regulating the maximum permissible concentration of the

sulfur oxides in the atmosphere. Nearly 60% of the sulfur

oxides polluting the nation’s air, estimates the EPA, result

from the generation of electricity.

8. 42 U.S.C. § 1857c-8.

9. 42 U.S.C. § 1857h-5(b).

10. 42 U.S.C. § 1857h-5(b) (2).

11. 467 F.2d 349 (3d Cir. 1972), cert. denied 409 US. 1125 (1973).

5a

During December, 1971, Pennsylvania held four days

of hearings focused on the control of sulfur oxides. In

January of the following year Pennsylvania submitted to

the Administrator an implementation plan which provided

that, because of their size and location, the coal-burning

generators owned by these electric companies must restrict

their discharge of sulfur oxides to 0.6 pounds of pollutants

per million BTU’s of heat input to the combustion equip-

ment.'* On May 31, 1972, the Administrator, without hold-

ing any additional hearings, approved the emission limita-

tion.**

The Pennsylvania plan restricts the amount of sulfur

oxides which may be emitted from the smokestacks of the

generating stations. It does not specify the means by which

the emission restrictions must be met. Theoretically the

utilities have three alternative methods by which to reduce

the volume of sulfur oxides released into the atmosphere:

(1) burn low-sulfur coal; (2) obtain high-sulfur coal and

clean it before burning it; and (3) burn high sulfur coal

and cleanse the exhaust gases through use of flue gas de-

sulfurization devices, communly referred to as scrubbers.

The EPA and the utilities agree that low-sulfur coal is

presently scarce and will not be available to satisfy the

needs of the utility industry for at least five years. Nor

will it be feasible until the 1980’s, EPA admits, to clean

coal before burning it, because the necessary technology for

coal liquification or gasification is not available. The Ad-

ministrator therefore has predicated his sulfur oxide con-

trol strategy on purifying flue gases through the use of

scrubbers.

In 1970 Duquesne Light began experimenting with a

flue gas desulfurization device for a 400-megawatt generator

at its Phillips power station. After an expenditure of ap-

proximately $42 million on the project, the Phillips scrubber

12. 2 Pa. Bull. 388 (Mar. 4, 1972).

13. 37 Fed. Reg. 10842, 10889-91.

6a

was not, at the time of the Administrator’s decision, operat-

ing on a reliable basis. It had been shut down for modi-

fications much of the time since operations had begun.

The three petitioners are joint owners of a new 1600-

megawatt coal-burning generating plant at Shippingport,

Pa., which is also designed to incorporate flue gas desul-

furization equipment. That facility, however, had not

reached the operational stage at the time of the EPA’s

decision.

Because of the high concentration of pollutant. in the

air in the regions in which the generators operated by

these companies are located, conformity with the Pennsyl-

vania implementation plan would require that they—aunlike

most coal-burning electric companies across the country—

install scrubbers on eack of their generating plants. Con-

struction of the necessary facilities would cost Duquesne

Light an estimated $202 million."* Annual operating and

maintenance expenses for the scrubbers would total $56

million. If Duquesne Light installed all the scrubbers re-

quired by the Pennsylvania plan and passed the additional

cost on to the consumers, as EPA recommends, an average

23% increase in cost of electric service would result. For

customers of Pennsylvania Power the increase in cost is

estimated at 34.91%.

Prior Proceedings

Duquesne Light, Pennsylvania Power and Ohio Edi-

son timely petitioned this Court to review the Administra-

tor’s initial approval of the Pennsylvania plan. The utili-

ties alleged at that time that the Administrator had not

fulfilled certain procedural requirements and asked that

the case he remanded to the agency. On January 22, 1973,

we granted the motion for a remand without specifying

14. The EPA has conceded before this Court that the utilities’ cost esti-

mates correctly represeit the magnitude of the expenditures involved. Indeed.

these costs are in 1974 dollars and, as a result of inflation, are undoubtedly

higher today.

7a

the type of proceedings to be conducted by the EPA. The

Administrator then asked the Court for clarification of

the order or for a rehearing. After scrutinizing the records

of the state proceedings we were not convinced that the

utilities had been afforded ‘‘a truly meaningful hearing’’

with respect to the technological and economic feasibility

of the plan. In addition, we stated that in the lapse of

time since the state hearings, events had occurred which

might render the plan obsolete. Accordingly, the Ad-

ministrator was ordered (a) to suspend enforcement of

the plan against these three utilities while they presented

their infeasibility claims in the available state administra-

tive and judicial forums or (b) to convene a hearing at

which these companies could substantiate their assertions

regarding the infeasibility of the plan.’

The EPA elected to conduct a hearing. The utilities

were permitted to make written submissions as well as

to present oral testimony. Although the hearing schedule

suggested by the Court specifically afforded the Common-

wealth of Pennsylvania an opportunity to provide the Ad-

ministrator with comments and information in support of

the implementation plan,’® the Commonwealth advised the

Administrator that it declined to do so."". The staff of the

EPA thereupon undertook to defend the feasibility of the

plan.

On March 15, 1974, the Administrator reaffirmed his

approval of the Pennsylvania plan. He concluded that

the sulfur oxide emission limitations applicable to these

utilities are technologically and economically feasible. His

determination relied in large part upon the Report of the

EPA Hearing Panel of the National Public Hearings on

15. Duquesne Light 1, 481 F.2d 1, 8-9.

16. Id, at 10.

17. The Commonwealth apparently advised the Administrator in a letter

dated August 14, 1973 that it did not wish to defend the feasibility of the plan.

No other written comments on the plan were presented by the Commonwealth.

One state official appeared briefly at one of the EPA hearings to deny any

responsibility for the technological and economic detefminations embodied in

the plan.

8a

Power Plant Compliance with Sulfur Oxide Air Pollution

Regulations [the Arlington Report]. That report was the

product of a special hearing called by the EPA to review

nationwide progress in compliance with sulfur oxide emis-

sion standards.

As a result of the Administrator’s decision, Duquesne

Light, Pennsylvania Power and Ohio Edison moved on

April 10, 1974 for a second remand to the agency. The

utilities argued that although at least some of them had

been summoned to present certain evidence to the Arling-

ton panel, the companies had not been parties to the Arling-

ton hearings, and had not fully participated in them. In

addition, the power companies asserted that the decision

of the Arlington panel had not been filed until after the

record of the agency’s proceedings with respect to the

Pennsylvania plan had been closed. This Court on June 5,

1974 ordered a second remand to enable the utilities to

rebut the findings of the Arlington panel.

Pursuant to the second remand the companies pre-

sented further documentation, and an additional hearing

was held on July 30, 1974. On September 17, 1974, the

Administrator filed his response to the second remand.

He informed the Court that “I hereby find that the

Agency’s use of the [Ariington Report] to affirm the exist-

ing approval of the Pennsylvania Plan, as it relates to

the petitioners’ power plants, was proper.’’

Il.

As a result of the Administrator’s reendorsement of

the sulfur oxide restrictions, the protesting utilities are

once again before this Court. On this appeal they avow

that the EPA has not given adequate attention to the

‘economic impediments to their compliance with the Penn-

sylvania plan’s sulfur oxide provisions. The EPA, the

utilities assert, has not considered the economic and social

dislocations which would result from the rate increases

necessary to finance the required flue gas desulfurization

9a

devices. Nor, the companies insist, has the EPA realisti-

cally appraised the likelihood of the state regulatory

agency’s allowing the enormous rate increases without

which the utilities cannot defray the costs of construction

and maintenance of the essential equipment. The utilities

also contend that they will be unable to attract the volume

of capital investment needed to purchase the required pol-

lution control equipment. Adoption of the proposed im-

plementation plan without a resolution of the above

economic preblems, the companies maintain, was arbitrary,

capricious and an abuse of the agency’s discretion.

The companies also claim that the EPA committed a

clear error of judgment when it concluded that compliance

with the emission limitations is technologically feasible.

First, the companies argue that there are no devices avail-

able which will, on a reliable basis, significantly reduce

the amount of sulfur oxide emissions from coal-burning

electric generators. Even if there is some scrubber device

available, continue the companies, there is no evidence

that such equipment will sufficiently purify flue gases to

enable their power plants to conform to the Pennsylvania

emission restrictions. In addition, the utilities declare

that installation of the type of flue gas desulfurization

equipment that has demonstrated the greatest advances

toward workability would in itself have an adverse

ecological impact. Such scrubbers are said to create vast

amounts of waste products for which there is no known

disposal method that does not create a serious water pollu-

tion hazard. Finally, the utilities contend that the applica-

ble sulfur oxide provision is grounded on crroneous air

quality data and upon incorrect meteorological anda topo-

graphical assumptions.

In adopting the Clean Air Act Amendments, the Ad-

ministrator asserts, Congress decided that the expense of

pollution control was not to be regarded as an impediment

to achieving clean air. It is .he Administrator’s position

that in light of that legislative judgment the costs of

597-093 O - 75 - 3

10a

achieving the Pennsylvania plan’s sulfur oxide emission

standard do not impose undue burdens on the power com-

panies or their customers.

The EPA also contends that it was reasonable for

the Administrator to determine from all the evidence be-

fore him, including that adduced at the Arlington hearing,

that flue gas desulfurization technology is available and

is transferable to the type of combustion units operated

by Duquesne Light, Pennsylvania Pewer and Ohio Edison.

The agency notes that the Administrator also cited reasons

for ruling that suitable waste disposal technology is or will

be available. In addition, the Administrator declares that

he has considered and has reasonably rejected the utilities’

objections to the air pollution estimates and to the pollu-

tion model underlying the challenged emission restraints.

We remand the matter so that the Administrator may

resolve the likelihood of certain economic hardships that

might result from enforcement of the plan.

ITI.

The role of the judiciary when adjudicating a chal-

lenge to the lawfulness of administrative action is gen-

erally a limited one,'* In particular, the scope of judicial

review of an approval by the EPA of a state implementa-

tion plan is restricted to determining whether the Ad-

ministrator’s decision was ‘‘arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law.’’ ®

The Administrator’s conduct is entitled to a presumption

of regularity,*® and a court is not at liberty to substitute its

evaluation for that of an agency that is expert in the field.”"

18. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).

19. Delaware Citizens for Clean Air, Inc. vy. Administrator, 480 F.2d 972,

975-76 (3d Cir. 1973). Cf. Pennsylvania v. Environmental Protection Agency,

500 F.2d 246, 250, 254 (3d Cir. 1974). See also Appalachian Power Co. v.

Environmenta! Protection Agency, 477 F.2d 495, 505 (4th Cir. 1973): Portland

Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973): CPC Inter-

national, Inc. v. Train, Nos. 74-1447—74-1449 (8th Cir., May 5, 1975).

20. Delaware Citizens fur Clean Air, 489 F.2d at 976.

21. Overton Park, 401 U.S. at 416; Delaware Citizens for Clean Air, 480

F.2d at 976.

lla

The judicial analysis of the Administrator’s approval

of an implementation plan to which the objector is entitled

is nonetheless a rigorous one. In Delaware Citizens for

Clean Air,” we embraced as guidelines for our inquiry in

such cases the agenda for judicial review of agency action

set out in the Supreme Court’s opinion in Overton Park: *

[T]hat presumption [of regularity} is not to shield

[the agency’s] action from a thorough, probing, in-

depth review. . . . Serutiny of the facts does not end

. . with the determination that the [agency] has acted

within the scope of [its] statutory authority. Section

706(2)(A) [of the Administrative Procedure Act] re-

quires a finding that the actual choice made was not

‘‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’’... To make

this finding the court must consider whether the de-

cision was based on a consideration of the relevant

factors and whether there has been a clear error of

judgment.**

We must, therefore, ascertain whether the Administra-

tor ‘‘has exercised a reasoned discretion.’’ *

As experience with flue gas desulfurization equipment

grows, so does the quantity of information regarding the

22. 480 F.2d at 976. See Pennsylvania, 500 F.2d at 250.

23. 401 U.S. at 415-16. See Essex Chemical Corp. v. Ruckelshaus, 486

F.2d 427, 434 (D.C. Cir. 1973).

24. The utilities argue that we should employ a substantia! evidence test

because a record was made in the EPA. However, the Supreme Court declared

in Overton Park that the substantial evidence test is permissible “only when

the agency action is taken pursuant to a rulemaking provision of the Admin-

istrative Procedure Act . . . or when the agency action is based on a_ public

adjudicatory hearing.” 401 U.S. at 414. Neither of those “specifically limited

situations” is present here. See Duquesne Light I, 481 F.2d at 5-8; Dehosave

Citizens for Clean Air, 480 F.2d at 976.

Nor is judicial review limited, as it was in Dunlop v. Buchowski to an

examination of the agency's statement of reasons supporting its decision, for

the overriding congressional concern there for averting delay in order to avoid

disrupting the normal functioning of labor unions is not present here. 43

wy ef 4669, 4672 (U.S, June 2, 1975). Cf. Appalachian Power, 477 F.2d

at 506-07.

25. International Harvester, 478 F.2d at 648. See South Terminal Corp.

v. Environmental Protection Agency, 504 F.2d 646, 661 (1st Cir. 1974).

12a

feasibility of such systems. Since the function of the judi-

ciary is not to derive its own conclusions from the mass of

data available at any given time, but only to review the

EPA‘s decision, and since the judiciary generally lacks the

expertise necessary to assimilate such information inde-

pendently, we will confine our inquiry to the facts available

to the Administrator at the time of his decision.

The Pennsylvania plan has twice been remanded to

the agency. Additional comments were added to the record

cach time the agency considered the matter. At oral argu-

ment in this Court the parties indicated we should evaluate

the approval of the plan on the basis of the information of

record in March, 1974. However, the case was again re-

manded to the agency in June, 1974. Although the .Ad-

ministrator did not at that time fully re-examine his posi-

tion with respect to the plan, it seems appropriate that we

consider his decision in light of the additional evidence

produced at that time. On the other hand, the information

developed subsequent to the Administrator's most recent

deliberations concerning the Pennsylvania plan should first

be evaluated by him rather than by the Court.**

26. Subsequent to the Administrator's final decision with respect to the

Pennsylvania plan pursuant to the second remand, the EPA submitted directly

to this Court EPA’s September, 1974 Report on Flue Gas Desulfurization:

Installations and Operations; Pedco’s December, 1974 Report on FGD Status:

a May, 1974 report on Health Consequences of Sulfur Oxides written by

the EPA’s Community Health and Environmenial Surveillance System: and

excerpts from the EPA’s July, 1972 Report on Toxicology of Atmoepheric

Sulfur Oxide Decay Products.

The utilities asked the Court to consider the following new material: the

Hearing Examiners’ Report and Recommendations In the Matter of the Con-

solidated (Ohio) Electrics Utility Cases before the Ohio Environmental Pro-

tection Agency; Robert J. Phillips, “Operating Experiences with a Commercial!

Dual Alkalai SO2 Removal System;” H. Schimmel, T. J. Murawski, N.

Gutfeld, “Relation of Pollution to Mortality in New York City, 1963-1972.”

and excerpts from Fortune and Electrical Week.

On the day before oral argument in this case the EPA sent to the Court

the March, 1975 report by the Commission on Natural Resources. the Nationa!

Academy of Sciences, the National Academy of Engineering, and the National

Research Council on Air Quality And Stationary Source Emission Control

ee ad

13a

IV.

After this Court in Duquesne Light I remanded to the

EPA feasibility objections set forth by the petitioning com-

panies, the agency received further submissions from the

utilities and conducted additional hearings. The Admin-

istrator then declared:

After reviewing the [administrative] record [in the

Duquesne Light proceeding] and the information avail-

able to me in the record of the National Public Hear-

ings on Power Plant Compliance with Sulfur Oxide

Air Pollution Regulations, I find that the sulfur

dioxides emission standard of the Pennsylvania imple-

mentation plan as applied to [the plants of these

utilities] are economically . . . feasible.

In support of the economic feasibility of the plan, the

EPA argues that Congress intended the cost of complying

with an implementation plan not be a barrier to achieving

the primary air quality standards. In addition, the agency

urges that the Administrator’s conclusion regarding the

economic feasibility of the Pennsylvania plan for these

utilities is supported by the Arlington report. The Arling-

ton panel, according to the EPA, assessed the costs of

cleaning up the air and reasonably concluded that the costs

are not unduly burdensome.

Although the contribution of a clean environment to

public health and welfare, indeed to the quality of life, is

inestimable, this Court has already decided that, contrary

to the EPA’s contention, the Clean Air Act contemplates

that the economic impracticability of a particular imple

mentation plan would be grounds for its rejection.*’ Re

pudiation of a particular implementation plan as unwork-

able, however, does not mean that attainment of the

national ambient air quality standards is impractical.

Rather, it means that the state or the EPA should formu-

27. St. Joe Minerals, 508 F.2d at 747, 748; Duquesne Light I, 481 F.2d

at 8-9; Getty Oil, 467 F.2d 349.

l4a

late a different combination of restrictions upon the sundry

sources of the contaminant. .

Among the topics examined at the Arlington hearings

was whether, on a nationwide basis, compliance with sulfur

oxide emission limitations is economically feasible. The

panel estimated that reaching the national primary sulfur

oxide standard set by the Administrator would result by

1980 in a 3% increase in the national average cost of

electricity. The concomitant increase in the electrie in-

dustry’s capital investment requirements was assessed at

4%. While the panel believed these expenses ‘‘substan-

tial,”’ it concluded thad ‘*the overall national costs will not

impose an undue burden. . . .”’

Both sides to this litigation acknowledge that because

of variations in the purity of the air and in the density of

fossil-fueled power plants in different regions, scrubbers

would not be necessary at al) power stations throuzhout the

country, Duquesne Light, Pennsylvania Power and Ohio

Edison, however, are required by the Pennsylvania plan to

construct scrubbers for each of their coal-burning boilers

in Pennsylvania. As already pointed out, Duquesne Light

and Pennsylvania Power predict, and the Adminiatestor

has not questioned, that to offset the cost of these scrubbers

the average increase in the price of their electricity would

respectively be 23% and almost 35%, as o l

national average of 3%.

Although the Arlington panel did observe that in some

areas rate increases might reach 20%, it did not specifically

consider the economic impact of such increases upon the

power companies so affected, or upon their customers

Similarly, the Administrator—in evaluating the Penusyl-

vania plan—apparently made no attempt to guage the

severity of the adverse consequences of the plan upon the

individual utilities or upon the public which thev serve

His only explanation to this Court of his conclusion that the

plan is feasible for these companies is:

pposed to the

15a

The National Panel also determined that, assuming a

3 mills/kw hour annualized cost and a 7.5 percent an-

nual inflation factor, average increase in the price of

electricity by 1980 would be about 3%. Duquesne is a

regulated public utility which is allowed to obtain rate

increases to maintain a reasonable return on invest-

ment. Control costs should, therefore, be passed on

readily to its customers.

Thus the Administrator’s statement in support of the

plan merely declares that the costs should be passed on to

the utilities’ customers. He makes no attempt to evaluate

the severity of the problems the companies have pointed to

with respect to the unfavorable impact such increases may

have on the economic structure of their service territories.

A 23% or 35% inerease may reasonably be expected to

raise the cost of living and seriously to diminish the level

of business activity, thus increasing the incidence of unem-

ployment and oceasioning considerable hardship to many

people. The EPA has not sought to controvert the infer-

ence of a disadvantageous impact on the regional economy,

nor has it sought to measure the magnitude of such effects.

The companies also argue that the Publie Utilities

Commission will be hesitant to permit the rate increases

necessary to finance the scrubbers. They presented evi-

dence that because of the current economic and political

climate, utilities have experienced lengthy delays in obtain-

ing rate increases necessary to meet inflating operating

expenses. Consequently, the utilities insist, if the sulfur

oxide restrietions are approved, their stockholders will be

forced to bear the enormous cost of compliance, thus threat-

ening the financial viability of the companies.

The EPA’s response is that it has recommended to the

Federal Power Commission and to state utility commis-

-ions that the eleetrie companies be permitted an automatic

pass-through of the cost ef meeting pollution control regu-

lations. These recommendations, however, are not bind-

16a

ing. Indeed, the FPC has expressed unwillingness to go

along with such costs. Although there may be a point

beyond which refusal to allow the utilities to recover the

cost of operations constitutes taking of property without

just compensation,”* the Administrator should realistically

evaluate the likely consequences of scrubber installation on

the profitability of the utilities.

Another disquieting lacuna in the Administrator's re-

port relates to the utilities’ expert testimony to the effect

that Duquesne Light, Pennsylvania Power and Ohio Edi-

son would experience grave difficulties in acquiring the

capital needed to comply with the plan. An officer of a

nationally known investment banking firm testified that a

company could not obtain such financing ‘‘without very

severe impact upon its ability to raise other capital re-

quirements.’’ Indeed he said the utility might not be able

to attract such large sums on any terms.

The EPA disvounts this testimony, arguing that it re-

flects an abnormal and temporary depression in the money

market. The agency also declares that the difficulties can

be alleviated by spreading the demands for capital over

time as well as by prompt rate increases as pollution con-

trol costs are incurred. We have already discussed the

difficulty experienced by utilities in expeditiously obtaining

rate increases. Besides, the EPA presented no testimony

regarding the probable state of the market during the

period the utilities will be required to obtain the capital.

Nor has the EPA shown to what degree its compliance

schedules for these companies would alleviate the problem

cited in the expert testimony.

Neither the Administrator’s statement regarding the

Pennsylvania plan nor the Arlington report on which he

relies provides evidence that the ageney has dealt with

these three areas of concern. In short, the Administrator

does not appear to have considered the rigors that the spe-

28. Sec, ¢.g., Wabash Valley Electric Co. v. Young, 287 U.S. 488 (1933);

Groesbeck v. Duluth, S.S. & A. Ry., 250 U.S. 607 (1919).

17a

cifie restrictions imposed by Pennsylvania will have on

these companies and their customers. Rather, he seems

to have viewed the plan only within the framework of the

consequences of meeting the primary ambient standards

nationally.

Approval of the ‘ uplementation plan without investi-

gating and resolving | * serious economic questions raised

by the objecting companies was ‘‘arbitrary, capricious

[and] an abuse of diseretion.’’ While we are unabie, on

the present record, to uphold the Vdministrator’s determi-

nation regarding economic feasibility, we cannot say his

conclusion was necessarily incorrect. Without the ex-

pertise of an economist, we are in no position to judge the

ultimate validity of the objections raised by the utilities.

We hold here only that these arguments are too cogent |

and too critical to be disregarded. They merit further in-

vestigation and response by the EPA.”

Accordingly, the plan will be returned to the agency

for clarification of these matters.

Ve

Since we have already determined that the matter

must he remanded to the Administrator for consideration

of adverse economic effects arising from the plan, it ordi-

narily would not be necessary to address the companies’

technological objections to .e plan as well. However, re-

manding the plan without confronting the technological

matters might well have the effect of further prolonging

already protracted litigation concerning a subject which

Congress hoped to have settled as quickly as possible.”

Consequently we shall briefly describe some concerns cre-

ated by the present record regarding the technological

feasibility of the Pennsylvania plan. Since the EPA will

29. See Overton Park, 401 U.S. at 416; Portland Cement, 486 F.2d at

393; International Harvester, 478 F.2d at 615; South Terminal Corp. v.

Environmental Protection Agency, 504 F.2d 646, 665 (Ist Cir. 1974).

30. See 42 U.S.C. §§ 1857c-5, 1857h-2.

18a

be re-evaluating the emission limitation in any case, and

since much additional information regarding flue gas de-

sulfurization has become available subsequent to the Ad-

ministrator’s decision, it would seem unproductive to

determine whether such concerns alone would be sufficient

to disturb the Administrator’s approval.

The utilities’ chief technological objection to the sulfur

oxide limitation is that there are, they claim, no serubbers

available for installation on utility-size coal-burning gen-

erators that will provide dependable service under the

operating conditions extant in the electric utility industry.

Therefore, the objectors say in effect although they are

willing to participate in the development of scrubber tech-

nology through experimentation such as that at their Phil-

iips and Mansfield power stations, it is technologically

unworkable to install scrubbers on all their coal-burning

plants.

EPA’s answer to this criticism is that Congress rec-

ognized that the pollution control technology necessary to

attainment of the primary standards had not been devel-

oped and intended the Act to force industry to formulate

such technology.

We agree with the Administrator that the Act was

designed to prod technological progress.*' In determining

the feasibility of an implementation plan for a given in-

dustry, therefore, the Administrator is not bound by the

industry’s recalcitrance in adopting new techniques. Nor

must he concentrate solely upon the machinery presently

available for ordinary use within the industry. Instead,

he may make reasonable projections of future technological

growth.

31. See Senate Report No. 91-116, 9ist Cong., 2d Sess. (1970) ; 116 Cong.

Record 32902, 32919 (1970).

32. See International Harvester v. Ruckelshaus, 478 F.2d 615, 628 (D.C.

Cir. 1973); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 391 (D.C.

Cir. 1973) ; Essex Cnemical Corp. vy. Ruckelshaus, 486 F.2d 427, 433-34 (D.C.

Cir. 1973) ; CPC international v. Train, Nos. 74-1447—74-1449 (8th Cir, May

5, 1975), slip op. at 37, 40.

ee

19a

The Administrator’s authority to make projections,

however, is not unbounded. ‘‘ His latitude for projeetion is

subject to the restraints of reasonableness, and does not

open the door to ‘crystal ball’ inquiry.... One must dis-

tinguish between prediction and prophecy.’’ ™

The development period reflected in the projections

cannot exceed the time available to the industry before the

technology must be applied.** Here the plan necessitates

that the utilities commence scrubber installations immedi-

ately. Therefore, if workable scrubbers are not now avail-

able for coal-burning boilers, the anticipated enhancement

must be such that machinery currently constructed may be

economically modified to incorporate the technological im-

provements that will render scrubbers practicable for this

industry.

Four basic problems, the utilities argue, make serub-

bers unreliable: plugging, sealing, corrosion and equip-

ment failure.”

The Administrator contends, in effect, that on the

basis of the Arlington report he reasonably projected that

scrubbers are or will be available for the objecting utilities.

The Arlington report states:

Although some FGD [flue gas desulfurization] instal-

lations in the U.S. have encountered reliability prob-

lems ..., the panel finds that each of these problems

can be solved through careful system design and

proper control of system chemistry. Testimony at

the hearing by utility and vendor witnesses revealed

that all of the above problems have Leen solved at one

or more full seale FGD installations in this country or

Japan. [emphasis added}

33. International Harvester, 478 F.2d at 629, 642: Portland Cement, 486

F.2d at 391; CPC International, slip op. at 37, 40.

34. See International Harvester, 478 F.2d at 629; Portland Cement, 486

F.2d at 391-92.

35. Plugging is the accumulation of soft solids in the boiler and the scrub-

ber preventing the passage of gases through the system. Scaling is the deposi-

tion of hard material on the surfaces of control equiprnaent. Corrosion is the

deterioration of the system resulting from interaction between the surfaces of

the machinery and the chemical compounds flowing through the system.

20a

As support for its conclusion, the Arlington panel re-

lied primarily on the experience with the following installa-

tions: (1) the Mitsui Miike scrubber; (2) Louisville Gas and

Electric’s Paddy’s Run scrubber; and (3) Japan Synthetic

Rubber Company’s Chiba scrubber.

These installations are not valid evidence, the utilities

assert, that scrubbers will function dependably when used

with a coal-burning generator under the conditions prev-

alent at an American utility plant.

The Mitsui scrubber is part of an industrial power

plant rather than a utility one. Thus the companies con-

tended that although it is admittedly used with a coal-

burning boiler, its experience is not comparable because

the Mitsui unit does not have to adjust to the wide and

frequent fluctuations in power output and flue gas flow

rate common to the operation of a utility boiler. The com-

panies further allege that the Mitsui scrubber has been

operated as an ‘‘open loop’’ system discharging liquid

wastes into the ocean. As the EPA concedes, the water

pollution resulting from open loop systems is unacceptable

in this country.

In addition, the utilities assert that the Mitsui scrubber

does not establish the feasibility of scrubbers for them be-

cause they cannot obtain the scrubbing agent—carbide

sludge—used at Mitsui to remove the sulfur oxide from the

stack gases. The difference in composition between carbide

and limestone sludge, the utilities say, has a critical effect

upon the plugging and scaling problems. Also, the com-

panies claim that the Mitsui generator, unlike their own,

has not had to operate on coals with a wide variety of

sulfur content.

The EPA responds by citing testimony that the Mitsui

scrubber has operated in a closed loop mode at least for

short durations. The agency points to statements of a

general nature that there have been variations in the

electric output demanded of the Mitsui generator and in

the sulfur content of the coal it bas utilized. Some wit-

2la

nesses at the Arlington hearings, especially vendors of

scrubber equipment, declared that they did not ‘‘believe’’

that the difference in compounds used to react with the

sulfur oxide would be significant.

We find two uncontroverted facts with respect to the

Mitsui system particularly disturbing. First, the owner of

the Mitsui scrubber does not plan to utilize the same de-

sulfurization process in subsequent scrubbers. Second,

Chemico, the designer and installer of the Mitsui scrubber,

has so far been unsuccessful with the experiments at

Duquesne Light’s Phillips station. Since neither of these

factors has been explained by the EPA, it would not appear

that the Mitsui unit is proof that scrubbers are available

for installation by the objecting utilities.

With respect to the Paddy’s Run scrubber, the utilities

object that it is only a 79 megawatt demonstration unit op-

erated intermittently with a peak-load generator rather than

with a full utility-size-base load generator. They point out

that at the time of the Arlington hearings the unit's longest

period of sustained operation was 45 days. They also note

that, like the Mitsui scrubber, Paddy’s Run circulates a

scrubbing compound not available to the Pennsylvania

power companies. At the Arlington hearings representa-

tives of both Louisville Gas and Electric, the owner of the

Paddy’s Run scrubber, and of the FPC testified that

Paddy’s Run had not demonstrated suflicient reliability

for widespread commercial application. In addition, as

with the Mitsui serubber, the operator of the Paddy’s Run

scrubber has decided not to use the same process in future

attempts at full-scale installations.

The third scrubber accorded particular importance in

the Arlington report is a 75 megawatt industrial oil-fired

boiler owned by the Japan Synthetic Rubber Company. The

utilities, disputing the feasibility of serubbers, provided

the Administrator with considerable evidence that ex-

perience with oil-lired boilers is not transferable to coal-

burning boilers. They also point out that the scrubber used

22a

by Japan Synthetic Rubber unacceptably discharges sodium

sulfate waste into surrounding waters.

In defense of the Administrator’s finding of techno-

logical feasibility, the EPA directs our attention to op-

timistie testimony regarding the transferability of the

Paddy’s Run and Japan Synthetic Rubber processes to full

scale coal-burning public utility generators and concerning

the dependability of serubbers in general. One witness

testified that ‘‘stack gas serubbing will be useful and

valuable’’ in controlling sulfur oxide emissions. Another

indicated that ‘‘it looks like we might have that one [diffi-

culty] under control.’’ ‘‘Many’’ of the problems pre-

viously experienced, it was said, ‘‘are well underway to

having adequate solutions.’’

Much of the testimony emphasized by the EPA as sup-

port for the feasibility of scrubbers is, however, equivocal.

The agency focuses our attention on testimony that ‘‘ proper

engineering judgments [and] selection of materials could

eliminate both erosion and corrosion problems.’? The same

witness continued, however, ‘‘It still takes time to develop

this knowledge, I think.’’ Also singled out by the EPA is

the following opinion: ‘‘{T]his tends to be a very com-

plicated control system, and I think we have mastered this

[sealing problem], not absolutely completely, and we don’t

want to lead anybody to believe that we have. But so far

we have had some very encouraging results.’’

The proceedings here reflect the significant progress

that has occurred—at least in part because of the EPA’s

assiduous efforts te assure that primary air standards are

met as soon as possible—in the development of scrubber

technology since passage of the Act. The present record

does not, however, seem to contain the technical data neces-

sary for a rational determination that past experience with

flue gas desulfurization devices, under conditions admit-

tedly at variance from those that will be experienced by the

protesting utilitics, provides a suflicient basis for wide-

spread installation of serubbers. There is little to specify

en

- .

ee ee Se

eee ee!

Ab a ON AP Mae! pate. on ioe

Oe ne es

23a

at what pace the technology will develop, and there is also

a paucity of testimony regarding the cost of adjustments

necessary to render currently produced equipment effective

and reliable. Without some evidence that such technical

data was available to the Administrator when he approved

the emission limitations, we would be hesitant to conclude

that he had not acted arbitrarily.*

It is also averred by the companies that serubber tech-

nologies are not available for currert installation because

no adequate method of waste disposal has been discovered.

The Arlington report reaches the conclusion that lime and

limestone scrubbers are the best ones adapted for immedi-

ate installation on existing coal-burning generators. The

KPA concedes that such scrubbers produce vast amounts

36. The Court is cognizant that in Essex Chemical Corp. v. Ruckelshaus

486 F.2d 427, 440 (1973) the District of Columbia Circuit. in approving the

federal emission standards for new sources of pollutants held that the avail-

ability of flue gas desulfurization devices for coal-burning power plants was

adequately demonstrated. That decision was based on a different record from

that presently befcre this Court. In promulgating those emission limitations

the Administrator had pointed primarily to the Meramac No. 2 station of the

Union Electric Co. and the Lawrence No. 4 unit of the Kansas Power and

Light Co. as demonstrating the availability of scrubber technology. The

Arlington hearings, however, established that neither of those is currently

regarded as a successful operation, and the Meramac Station has been

abandoned

In Commonwealth v. Pennsylvania Power Co., 337 A.2d 823 (1975), the

Pennsylvania Supreme Court affirmed a ruling that Pennsylvania Power was

not in contempt of court for not complying with the Pennsylvania implementa-

tion plan in 1972. The ruling is based in part upon the Supreme Court's

affirma won of the trial court's conclusion that in 1972 scrubbers had not been

shown to be technologically feasible. The Pennsylvania courts did not intimate

any views regarding the feasibility of scrubbers at any later date.

A hearing panel of the Ohio EPA, see footnote 26, has determined after

- i ee are ay annem d available for installation

- utilities. vat Cecision has i !

vector a i os te. en stayed pending review by the

ve Seventh Circuit in Indiana & Michigan Power Co. v. Environmental

Protection Agency, 509 F 2d 839, 843 (1975) has upheld the Administrator's

approval of the Illinois and Indiana sulfur oxide emission restrictions in spite

of allegations that meeting such limitations is technologically infeasible. That

Court decided, however, that, contr to our decision in Getty Oil, Duquesne

Light 1, and St. Joe Minerals, the Administrator is not required to evaluate

the technological and economic feasibility of the plan before approving it

Rather, that court held, those factors should be considered in enforcement

— ; . ‘

: n bnots appellate court, however, in Commonwealth Edison v. Pollution

oe ge b> a 25 IN. a yt Fame — 84 (1975), has held that state’s

oxide emission controls arbitrary and unreasonabl ]

scrubbers had not been demonstrated 44 be workable. a oo

24a

of a water-saturated waste product with a consistency simi-

lar to that of toothpaste.

The utilities allege that no one- -including the operators

of the Paddy’s Run and Mitsui plants—has yet devised a

system for hardening this sludge into a form which may

be disposed of as landfill or as building material. They

also contend that because of the location of their plants in

already-developed communities there is no feasible site

upon which they can deposit the tremendous amount of

sludge that is to be expected from a scrubber operating on

a full-scale utility power plant. In addition, the sludge,

say the utilities, presents a serious hazard of groundwater

pollution.

A two-fold response is presented by the EPA. First,

it contends that there are scrubbers that, through the use

of scrubbing agents other than lime or limestone, produce

saleable ‘‘waste products,’’ such as sulfuric acid, instead

of ‘‘throwaway’’ wastes. Both of the agency’s principal

examples of such systems, however, have been successfully

utilized only on oil-burning boilers. In addition, one of

them—that belonging to Japan Synthetic Rubber—ejects

sodium sulfate into the sea, as already noted.

The EPA’s second proffered solution to the waste dis-

posal problem is the alleged availability of systems which,

according to the agency, will harden and detoxify the

sludge. As in its discussion of scrubber dependability,

the EPA notes that the Arlington hearings occasioned

much optimistic testimony, particularly from vendors of

waste disposal systems, to the effect that the differences

between this and other industrial wastes “are not huge”

and that they believed the disposal problem could be

solved. Again, however, the Administrator has not demon-

strated that such optimism is founded upon scientific in-

formation from which he could reasonably conclude that

the waste problem will be cured soon enough for the solu-

tion to be incorporated in scrubbers constructed now. It

ctl SO OO a

fae Manewde «eee ae we ea we ee 26. e oe

25a

would seem that the choice of a scrubbing agent would be

one of the first steps in scrubber design.

Landfill sites adequate for the quantity of sludge the

utilities’ coal-burning plants would produce with the in-

stallation of limestone scrubbers are available, the EPA

suggests, throughout the eastern United States, particu-

larly in abandoned mines. This proposal, however, does

not appear to have taken into account the cost of transport-

ing the waste to these areas.

Since the sulfur oxide emission limitations will be re-

examined by the Administrator in any case, it is antici-

pated that more recent experience within the field of flue

gas desulfnrization will dispel the uncertainties outlined

above concerning the workability of scrubbers.

An additional challenge mounted against the sulfur

oxide restrictions is that even if scrubbers are available,

no scrubber is efficient enough to meet the Pennsylvania

standards, which are twice as stringent as the federal limi-

tations on new power plants. Assuming that the relia-

bility of scrubbers has been adequately demonstrated, the

evidence regarding the efficiency of those scrubbers at re-

moving sulfur oxides from the air constituted a reasonable

basis for the Administrator’s conclusion that the Pennsyl-

vania levels are achievable.

The utilities also contend that approval of the plan

was arbitrary because the plan is predicated upon incor-

rect data and assumptions regarding the severity of the

pollution problem and the topography of the regions in

which they operate. Upon review of the evidence intro-

duced at the various hearings on the plan, we cannot say

that the Administrator committed a “clear error of judg-

ment” in this regard.

The final complaint of the utilities is that the Pennsyl-

vania plan was unreasonable in setting a July, 1975 dead-

line for meeting the sulfur oxide limitation. The Admin-

istrator contends that section 1857¢-5(a)(2)(A)(:) in effect

imposes that time limit.

26a

Section 1857c-5 contemplates approval of a plan if it

“provides for the attainment of such primary standard as

expeditiously as practicable but . . . in no case later than

three years from the date of approval of such plan... .”

Since, as a result of our decision today, the Administrator

has not yet given final approval to the plan, that section

does not lock him into a July, 1975 deadline. It is now

obvious that compliance cannot be achieved within the

time originally set forth in the plan. On remand, there-

fore, the Administrator should ensure that whatever im-

plementation plan is eventually approved incorporates a

reasonable period for compliance by Duquesne Light, Penn-

sylvania and Ohio Edison.

VI.

Accordingly, the matter will be remanded to the Ad-

ministrator for further consideratior of the economie fea-

sibility of the sulfur oxide emission restrictions in the

Pennsylvania plan and for a determination of a reasonable

date for compliance by the petitioning utilities. The Ad-

ministrator is also directed to evaluate the technological

feasibility of the emissior restrictions in light of more

recent developments. Proceedings should be conducted

consistent with this opinion and as previously indicated

in our order of June 5, 1973.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit. |

er et ee

ee AED

as nO. one

eo owamttens “ao mene oe

ee

APPENDIX B

Section 110(a)(2) of the Clean Air Act, as

amended, 84 Stat. 1680, 42 U.S.C. 1857e-5(a) (2), pro-

vides as follows:

“(2) The Administrator shall, within four

months after the date required for submission

of a plan under paragraph (1), approve or dis-

approve such plan, or any portion thereof. The

Administrator shall approve such plan, or any

portion thereof, if he determines that it was

se gy after reasonable notice and hearing and

that—

“(A)(i) in the case of a plan implementing a

national primary ambient air quality standard,

it provides for the attainment of such primary

standard as expeditiously as practicable but

(subject to subsection (e) of this section) in no

case later than three years from the date of ap-

proval of such plan (or any revision thereof to

take account of a revised primary standard) ;

and (ii) in the case of a plan implementing a

national secondary ambient air quality stand-

ard, it specifies a reasonable time at which such

secondary standard will be attained;

“(B) it ineludes emission limitations, sched-

ules, and timetables for compliance with such

limitations, and such other measures as may be

necessary to insure attainment and maintenance

of such primary or secondary standard, includ-

ing, but not limited to, land-use and transporta-

tion controls;

**(C) it ineludes provision for establishment

and operation of appropriate devices, methods,

systems, and procedures necessary to (1) moni-

tor, compile, and analyze data on ambient air

(27a)

28a

quality and, (ii) upon request, make such data

available to the Administrator;

“(D) it includes a procedure, meeting the re-

quirements of paragraph (4), for review (prior

to construction or modification) of the location

of new sources to which a standard of perform-

ance will apply;

“(E) it contains adequate provisions for in-

tergovernmental cooperation, including meas-

ures necessary to insure that emissions of air

pollutants from sources located in any air qual-

ity control region will not interfere with the at-

tainment or maintenance of such primary or

secondary standard in any portion of such

region outside of such State or in any other

air quality control region;

“(F) it provides (i) necessary assurances

that the State will have adequate personnel,

funding, and authority to carry out such im-

plementation plan, (ii) requirements for instal-

lation of equipment by owners or operators of

stationary sources to monitor emissions from

such sources, (ili) for periodie reports on the

nature and amounts of such emissions; (iv)

that such reports shail be correlated by the State

agency with any emission limitations or stand-

ards established pursuant to this chapter, which

reports shall be available at reasonable times

for public inspection; and (v) for authority

comparable to that in section 1857h-1 of this

title, and adequate contingency plans to imple-

ment such authority ;

“(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing

of motor vehicles to enforce compliance with

applicable emission standards; and

‘“(H) it provides for revision, after public

hearings, of such plan (i) from time to time as

may be necessary to take account of revisions

of such national primary or secondary ambient

29a

air quality standard or the availability of im-

proved or more expeditious methods of achiev-

ing such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis

of information available to him that the plan is

substantially inadequate to achieve the national

ambient air quality primary or secondary stand-

ard which it implements.”

U.S. COVERNMENT PRINTING OFFICE. 1975