Opposition — Alabama Power Co. v. Sierra Club

RAL

Powe

FILED a

MAY 29 1984 3

No, 83-1429

, | pppAnOes L. STEVAS

In the Supreme Court of the United States

OCTOBER TERM, 1983

ALABAMA POWER CO., ET AL., PETITIONERS

Vv.

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

Rex E. Lee

Solicitor General

F. Henry Hasicat, II

Assistant Attorney General

JOHN A. BRYSON

CATHERINE A. COTTER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

WILLIAM F. PEDERSEN

CHARLES 8. CARTER

Attorneys

Environmental Protection Agency

QUESTION PRESENTED

Whether the court of appeals erred in setting aside

regulations promulgated by the Environmenta! Pro-

tection Agency under Section 123 of the Clean Air

Act, 42 U.S.C. (Supp. V) 7423, governing the maxi-

mum amount of stack height a facility may use as a

pollution control technique.

(1)

ad

TABLE OF CONTENTS

Page

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i aad eld adaeiciatinsiiadnesiont 7

SEAT. BIE SO OO FO a a 12

TABLE OF AUTHORITIES

Cases:

Big Rivers Electric Corp. v. EPA, 523 F.2d 16,

“SS | Eee 2

BE PII, GID WEI, BIO ccc cceccccccccesecsvcccecsccasssnecess 8

Kennecott Copper Corp. v. Train, 526 F.2d 1149,

Se 2-3

Natural Resources Defense Council, Inc. v. EPA,

489 F.2d 890, rev’d on other grounds sub nom.

Train V. Natural Resources Defense Council, Inc.,

RR 2 GRE SI ae a 2

Statutes :

Clean Air Act Amendments of 1970, § 110(a) (2)

(B), 42 U.S.C. 1857c-6(a) (2) (B) ..................... 2

Clean Air Act Amendments of 1977, 42 U.S.C.

(Supp. V) 7401 et seq.:

§ 128, 42 U.S.C. (Supp. V) 7423 _.... 1, 2, 3, 4, 8, 10, 12

§ 128(a), 42 U.S.C. (Supp. V) 7428(a) .......... 2,3

§ 123(c), 42 U.S.C. (Supp. V) 7428(c) —...... 8,4,11

§ 169(4), 42 U.S.C. (Supp. V) 7479(4) _.......... 4

§ 802(k), 42 U.S.C. (Supp. V) 7602(k) _....... 2

128 Cong. Rec. 27071 (1977) _... ...........-.............. 6

44 Fed. Reg. (1979) :

45 Fed. Reg. 42279 (1980) ....................-cecssscesesecsesees

46 Fed. Reg. 28650 (1981) -..2..............ssessssessesseseeses

Ey Fs Us CU IID ceceercrecccscetenstonssninceceocnaetion

H.R. Rep. 95-294, 95th Cong., Ist Sess. (1977)

6, 10, 1

4

4

.

4

4

1

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-1429

ALABAMA POWER Co., ET AL., PETITIONERS

Vv.

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

la-69a) is reported at 719 F.2d 436.

JURISDICTION

The judgment of the court of appeals was entered

on October 11, 1983. A petition for rehearing was

denied on December 13, 1983 (Pet. App. 70a-7la).

The petition for a writ of certiorari was filed on

February 28, 1984. The jurisdiction of this Court is

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

STATEMENT

1. This case involves a challenge to regulations

promulgated by the Environmental Protection Agency

(EPA) under Section 123 of the Clean Air Act, 42

U.S.C. (Supp. V) 7423, governing the maximum

(1)

2

amount of stack height that a facility may use as a

pollution control technique. There are two basic

methods by which a facility can reduce pollution emis-

sions to meet applicable emission limitations. The first

is to reduce its total emissions through the use of

cleaner fuels or the installation of pollution control

equipment. Alternatively, a source can simply in-

crease the dispersion of its emissions in the atmos-

phere and thereby decrease localized pollution con-

centrations. This second method is known as a dis-

persion technique, and includes the use of “tall

stacks.” *

Prior to 1970 there were no constraints on the use

of stack height and other dispersion techniques. The

1970 Amendments to the Clean Air Act did not explic-

itly regulate the use of tall stacks. Congress directly

addressed the use of dispersion techniques for the

first time in the 1977 amendments to the Clean Air

Act by enacting Section 123, 42 U.S.C. (Supp. V)

7423.2 Under Section 123 a facility may not employ

1 Other dispersion techniques include devices or processes

that increase the temperature or velocity of emissions, thereby

pushing them higher into the atmosphere. The court of ap-

peals overturned EPA’s regulatory definition of these tech-

niques, but petitioners do not seek review of this aspect of the

decision. Pet. App. 50a-57a.

* Congress also made it clear that an emission limitation

requires reduction of “the quantity, rate, or concentration” of

pollutants, not merely dispersion. Section 302(k), 42 U.S.C.

(Supp. V) 7602(k).

Before 1977, the courts of appeals had construed Section

110(a) (2) (B) of the 1970 Act, 42 U.S.C. 1857c-5(a) (2) (B),

to preclude the use of dispersion techniques unless other con-

trols were “unachievable or infeasible.” Natural Resources

Defense Council, Inc. v. EPA, 489 F.2d 390, 410 (5th Cir.

1974), rev’d on other grounds sub nom. Train v. Natural Re-

sources Defense Council, Inc., 421 U.S. 60 (1975) ; see, ¢.g.,

Big Rivers Electric Corp. v. EPA, 528 F.2d 16, 20-22 (6th

Cir. 1975), cert. denied, 425 U.S. 984 (1976) ; Kennecott Cop-

3

a stack greater than “good engineering practice”

(GEP) height, which is defined as follows:

[G]ood engineering practice [height] means * * *

the height necessary to insure that emissions

from the stack do not result in excessive concen-

trations of any air pollutant in the immediate

vicinity of the source as a result of atmosphere

downwash, eddies and wakes which may be

created by the source itself, nearby structures or

nearby terrain obstacles (as determined by the

Administrator [of EPA]).

The Act as amended does not directly prohibit the

construction of excessively tall stacks. Instead, it pro-

vides that the increased dispersion of pollutants

created by such stacks may not be considered when

setting an emission limitation for a source.* As a

result, an emission limitation must be sufficiently

stringent to protect the national ambient air quality

standards as though pollutants were emitted into the

air at GEP stack height, even if actual stack height

is greater. The Act thereby eliminates the incentive

for construction of excessively tall stacks.

The statute does recognize, however, that stacks

constructed to GEP height are necessary to avoid

harmful local air pollution due to “downwash, eddies

and wakes.”* Section 123(c) adopts the traditional

per Corp. V. Train, 526 F.2d 1149, 1154-1155 (9th Cir. 1975),

cert. denied, 425 U.S. 9385 (1976).

* Section 123(a) states: “The degree of emission limitation

required for control of any air pollutant under an applicable

implementation plan under this subchapter shall not be af-

fected in any manner by—(1) so much of the stack height of

any source as exceeds good engineering practice (as deter-

mined under regulations promulgated by the Administrator),

or (2) any other dispersion technique.” 42 U.S.C. (Supp. V)

7423 (a).

* Downwash is caused by buildings or terrain features lo-

cated upwind of a stack that can disrupt normal airflow,

oy fee a

4

estimate of GEP height—two and one half times the

height of a nearby building or terrain feature—as the

presumptive GEP stack height in most instances. 42

U.S.C. (Supp. V) 7423(c). A facility may obtain

credit for additional stack height only if it demon-

strates that such height is necessary to avoid “exces-

sive” air pollution concentrations. These height limi-

tations apply to all stacks “in existence” on Decem-

ber 31, 1970, the effective date of the 1970 amend-

ments to the Act.°

2. Section 123 requires EPA to promulgate regu-

lations defining GEP stack height and identifying

other dispersion techniques. EPA first proposed regu-

lations on January 12, 1979. 44 Fed. Reg. 2608. At

the request of several commenters, EPA held a public

hearing and subsequently provided three additional

comment periods. 44 Fed. Reg. 15735 (1979); 44

Fed. Reg. 24329 (1979) ; 44 Fed. Reg. 40359 (1979).

On June 24, 1980 EPA issued an interim stack height

policy addressing existing stacks (45 Fed. Reg.

42279) which it subsequently withdrew. 46 Fed. Reg.

28650 (1981). EPA reproposed its regulation on

October 7, 1981, and published the final regulations

at issue here on February 8, 1982. 47 Fed. Reg.

5864.

The final rules, so far as is relevant here, establish

two basic methods of determining GEP stack height.

creating a turbulent “wake” of air filled with circulating

eddies. If a stack is located within this wake, the turbulence

can pull its emission plume down to ground level, creating

localized episodes of high pollutant concentrations.

5 There are two “grandfather” clauses in the Act that ex-

empt certain stacks designed or constructed prior to 1975.

Sections 123(c) and 169(4), 42 U.S.C. (Supp. V) 7428(c) and

7479 (4).

5

A source may rely on a general formula ° or, if it de-

sires additional height, it may submit a physical dem-

onstration of GEP height using fluid modeling tech-

niques or field studies." The formula may be applied

only to buildings, not terrain features,’ and only to

“nearby” buildings—defined by the regulation as

those within one-half mile of a stack. Those sources

that wish to assess the effects of terrain features, or

to obtain credit for a stack taller than formula height,

must employ a physical demonstration. The demon-

stration must show that downwash, eddies, or wakes

will cause “excessive” pollution concentrations, which

EPA defined as an increase of 40% or more above

prevailing concentrations.

Finally, a physical demonstration may consider not

only pollution resulting from downwash, eddies and

wakes, but also increased concentrations from a

phenomenon known as “plume impaction,” the ac-

cumulation of pollutants that occurs when a source’s

emissions run into a hill or mountainside. This aspect

of the regulations allows a source located in moun-

tainous terrain to lift its emissions plume over the

mountains through use of a taller stack. Further-

*The general formula uses the dimensions of a source to

define GEP height as 1 + 1.5L, where “L” equals the height

or width of the building, whichever is greater. Sources con-

structed prior to EPA’s 1979 proposal may use the traditional

formula of two and one half times the height of a nearby

building.

" A fluid)typically uses a small-scale model of an industrial

facility placed in a wind tunnel. An investigator releases

tracer gas from the model stack and then measures the effects

on the stack’s emission plume caused by surrounding buildings

and terrain features. A field study relies on actual observa-

tions and ineasurements made at the facility.

* Terrain features are often irregular in shape, and applica-

tion of the formula is therefore impractical.

more, the regulations place no limitation on the ob-

stacles that may be considered “nearby” in a demon-

stration, so long as the demonstration predicts exces-

sive concentrations.

8. Respondents Sierra Club, the Natural Resources

Defense Council, and others filed petitions for review

of each significant provision in EPA’s regulations.

Petitioners here, which are utility companies, inter-

vened in support of EPA’s regulation. The court of

appeals set aside significaut portions of the agency’s

regulations, concluding that they failed to serve Con-

gress’s “predominant purpose” of reducing air pollu-

tion emissions (Pet. App. 18a), and remanded those

aspects of the case to the agency. The court of ap-

peals relied on the legislative history and, in partic-

ular, on the Conference Report accompanying the

1977 amendments, which states that “the Administra-

tor’s rule [on GEP height] should give ‘credit’ only

for the height needed to avoid [downwash, eddies and

wakes].” 123 Cong. Rec. 27071 (1977) (emphasis

added). The court reasoned that Congress had there-

by directed EPA to go beyond traditional engineering

practice and to define GEP height so as to identify

the minimum stack height needed to avoid localized

pollution problems. See Pet. App. 10a, 20a-23a. The

court also cited portions of the House Report discuss-

ing the failure of dispersion techniques, and tall

stacks in particular, to reduce total emissions. See id.

at 8a, 39a, citing H.R. Rep. 95-294, 95th Cong., 1st

Sess. 84-86 (1977) (hereinafter House Report). The

House Report noted that long-range dispersion of pol-

lutants from tall stacks has been linked to “acid

rain,” and the court viewed this discussion as addi-

tional support for a strict interpretation of Section

128 (Pet. App. 8a, 39a).

The court accordingly rejected the EPA's inter-

pretation of several key terms in the definition

7

of GEP stack height: “excessive” concentrations,

“nearby” with respect to physical demonstrations,

and the “plume impaction” rule. It also criticized

EPA’s decision to rely on generalized formulas in

many instances, since it was not convinced that the

formulas calculated the minimum stack height neces-

sary to protect public health (see Pet. App. 44a).

The court of appeals did uphold certain aspects of the

regulations, including EPA’s decision not to regulate

flares—“pipe[s] used * * * to vent combustible

gases by burning them at the top” (Pet. App. 47a-

48a)—as stacks (id. at 47a-49a). The court left

largely intact the “grandfather” provisions exempt-

ing older sources from the more stringent require-

ments of the final regulations (id. at 57a-66a), and it

deferred to EPA’s technical judgment that its general

stack height formula adequately considered “plume

rise,” the natural bouyancy of emissions that causes

them to rise above the height of a stack (id. at 3la-

39a).

ARGUMENT

The decision below does not conflict with any deci-

sion of this Court or any other court. Furthermore,

although we believe EPA’s interpretation of various

statutory terms in Section 123 was reasonable and

should have been sustained by the court of appeals,

the court’s invalidation of the agency’s interpretation

does not present any legal issue of sufficient signifi-

cance to warrant review by this Court.

1. We agree with petitioners (¢.g., Pet. 18-20)

that courts should accord special weight to an

agency’s interpretation of technical terms in a statute

it is charged with administering; it is settled law

that a court may not disturb an agency’s reasonable

interpretation of a statute even when another view

may be equally reasonable. See, e.g., INS v. Wang,

450 U.S. 189, 144 (1981). But in this case the court

of appeals did not clearly err in the legal standard

of review it applied to EPA’s interpretation of the

Clean Air Act. Rather, the court applied an argu-

ably correct legal standard but resolved most of

the questions of statutory construction against the

agency. Although we believe that the court of appeals

could have (and should have) accepted EPA’s defini-

tion of key technical terms in Section 123 of the Act,

its rejection of EPA’s interpretation stemmed not

from its failure to accord the proper degree of defer-

ence, but from its conclusion that the legislative his-

tory and objectives of Section 123 compelled a differ-

ent outcome.

2. a. While we, like petitioners, disagree with the

court of appeals’ construction of Section 123 in sev-

eral respects, we do not believe that the court’s errors

were egregious or otherwise warrant this Court’s re-

view. Petitioners focus particular attention on the

court of appeals’ reversal of the “plume impaction”

rule (see Pet. 22-26). As we noted, this rule provided

that a source may obtain a greater GEP stack height

based on a physical demonstration that additional

height is necessary to ruise emissions above a hill or

mountain. In the absence of such additional stack

height, a source would be required to control emis-

sions in some other fashion, such as pollution control

equipment.

The statute is silent on the question of plume

impaction; EPA adopted the plume impaction rule

because it believed that plume impaction is within

the general category of air pollution problems that

Congress was attempting to remedy in Section

123. In addition, EPA sought to avoid imposing

9

significantly more stringent emission controls on

sources located in hilly terrain, a result that would

discriminate on the basis of geographical location

(see Pet. App. 38a). Petitioner asserts, as EPA did in

the court of appeals, that Congress’s failure to pro-

vide an explicit remedy for plume impaction was in-

advertent and that EPA must be given the authority

to supplement the regulatory scheme in this respect.

The court of appeals itself noted that “there is much

to commend [the plume impaction rule] from a policy

perspective” (Pet. App. 38a), but it declined to allow

EPA to augment the statutory scheme because there

is legislative history suggesting that Congress may

have been aware of the problem of plume impaction

and that Congress’s failure to act may have been

deliberate (id. at 35a-36a). While we continue to

believe that the legislative history is ambiguous on

this issue and that EPA should have been allowed to

fill the gap created by Congress, we cannot say that

the court of appeals’ contrary ruling was so clearly

erroneous as to merit correction by this Court.’

b. Petitioners also contend (see Pet. 14-15, 18)

that the court of appeals erred in invalidating the

regulatory provisions defining “excessive” local pollu-

tion concentrations and GEP stack height in general.

As we noted, a facility may establish that a certain

stack height is GEP height by showing through phy-

sical demonstrations that the height is necessary to

avoid “excessive” local concentrations of pollutants.

EPA’s regulations define excessive concentrations as

any increase of 40% or more above prevailing concen-

trations, regardless of how clean or dirty the ambient

* We disagree with petitioners’ suggestion (Pet. 24) that

the court based its decision on erroneous factual assumptions.

Whatever the merits of the court’s holding, it is founded on a

legal, not factual, analysis of the regulations.

10

air may be in a particular locality. The agency

derived this definition from traditional engineering

practice.

The court of appeals ruled, however, that an in-

crease in local air pollution is not excessive and does

not justify additional stack height unless it repre-

sents a threat to public health or welfare (Pet. App.

20a-24a). On this ground, the court also directed

EPA to consider whether automatic application of

the 1+1.5L formula (see pages 4-5 and note 6, su-

pra) in all circumstances is consistent with its ruling

on excessive concentrations (Pet. App. 44a). The

court based this ruling on its conclusion that Con-

gress’s “predominant purpose” was not the codifica-

tion of historical practice but the reduction of total

air pollution. The court relied specifically on the

House Report, which does provide some support for

this view. See Pet. App. 2la (citing House Report

93).

This aspect of the court of appeals’ opinion is cer-

tainly questionable, because the statute itself and

other legislative history lend support to EPA’s reli-

ance on traditional engineering practice. Because

the legislative history is ambiguous and EPA’s inter-

pretation of the statute is reasonable, the court of

appeals should have upheld the agency. Nevertheless,

we believe review by this Court is not necessary at

this time because EPA has flexibility to explore other

regulatory approaches. In setting aside the agency’s

action, the court “[did] not condemn the historical

approach EPA has taken,” and left open the opportu-

% Section 123 itself arguably adopts the traditional “two

and a half times” formula as a good estimate of the GEP

height, and the House Report “affirms” that formula. House

Report 98. The formula specified in the regulations is merely

a refinement of this traditional formula.

11

nity for EPA to establish a formula for a stack

height that is linked to public health hazards (Pet.

App. 28a, 44a-45a). EPA may therefore adopt a gen-

eralized stack height formula on remand that will

ease the regulatory burdens created by case-by-case

demonstrations of GEP stack height.

c. Finally, petitioners object (Pet. 18) to the court

of appeals’ partial remand of EPA’s definition of

“nearby” obstacles. The House Report (at 93) states

that Congress intended to eliminate consideration of

downwash caused by objects more than “one-fourth

to one-half mile” away. The court upheld EPA’s one-

half mile maximum for application of the general

GEP formula, but directed the agency to adopt the

same maximum for fluid models and field studies.

EPA had placed no limitation on such demonstra-

tions, reasoning that these more sophisticated tech-

niques—which closely reproduce real-world condi-

tions—obviate the need for an arbitrary distance

limitation.

The lower court noted that “[w]hile [EPA’s] ap-

proach might make a good deal of sense,” Section

123(c) unequivocally applies the “nearby” limitation

to both the formulas and physical demonstrations

(Pet. App. 15a-16a). The court concluded that if

EPA’s approach were upheld, the term “nearby”

would “effectively be read out of the statute” with

regard to physical demonstrations of GEP height (id.

at 15a n.3). The opinion also relied upon legislative

history clarifying Congress’s intent that the “nearby”

limitation be strictly construed (id. at 18a-l4a). In

light of the statutory language and legislative history

supporting the court’s analysis, we cannot say that

this aspect of the decision is an unreasonable applica-

tion of this statutory provision. Nor does the court’s

12

decision prevent EPA from devising an appropriate

regulatory approach, because although the agency

must adopt a distance limitation applicable to physi-

cal demonstrations, it retains considerable discretion

in deciding precisely how to apply that limitation.

In sum, although we believe that certain aspects of

the court of appeals’ decision are incorrect, the

court’s interpretation of the statute is not unreason-

able in all respects, and it left the EPA considerable

discretion in implementing the court’s mandate.

Moreover, the court’s narrow analysis of Section 123

is unlikely to have great precedential significance. We

accordingly believe that there is no sufficient reason

for this Court to grant review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

JOHN A. BRYSON

CATHERINE A. COTTER

Attorneys

WILLIAM F. PEDERSEN

CHARLEs S. CARTER

Attorneys

Environmental Protection Agency

May 1984

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