Amicus Brief — Alabama Power Co. v. Sierra Club

yn? : No. 83-1429

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

ALABAMA POWER Co., et al.,

Petitioners,

V.

SIERRA CLUB, et al.,

Respondents.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

MOTION FOR LEAVE TO FILE AND BRIEF OF

AMICI CURIAE ARIZONA ELECTRIC POWER

COOPERATIVE, INC., ET AL., IN SUPPORT

OF THE PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT ee

Of Counsel: Joun B. WN Don, In. *

(Counsel of Record)

William P. Hopkins, Jr. Jenninos, Strouss & Salo

City 111 West Monroe, Suite 1600 3

City of Anaheim, California Phoenix, Arizona 85003 He

Of Counsel:

William B. Rudell Frank R. Manzano

City Attorney City Attorney

City of Burbank, California City of Glendale, California

275 East Olive Avenue 613 East Broadway, Room 220

Burbank, California 93021 Glendale, California 91206

818/953-9614 818/956-2080

James G. Colvin II

City Attorney

City of Colorado Springs, Colorado

30 South Nevada Avenue

Colorado Springs, Colorado 80903

303/578-6670

e a ee eS ee

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

Arizona Electric Power Cooperative, Inc., Arizona Power

Authority, Arizona Public Service Company, Colorado-Ute

Electric Association, Inc., El Paso Electric Company, Ne-

vada Power Company, Pacific Power & Light Company,

Platte River Power Authority, Public Service Company of

Colorado, Public Service Company of New Mexico, San

Diego Gas & Electric Company, and Sierra Pacific Power

Company hereby move for leave to file a Brief of Amici Curi-

ae in support of the petitioners in this case. The proposed

brief accompanies this motion. The amici sought and

obtained the consent of petitioners Alabama Power Co., et

al., respondents Kennecott, American Petroleum Institute,

Tennessee Valley Authority, and the Solicitor General of the

United States on behalf of the respondent Environmental

Protection Agency. However, counsel for the respondents

Sierra Club, Natural Resources Defense Council, the Com-

monwealths of Pennsylvania and Massachusetts and the

states of New York, New Hampshire, Rhode Island and

Vermont have withheld their consent.

Consent to the filing of this brief by amici City of

Anaheim, City of Burbank and City of Glendale, political

subdivisions of the State of California, and City of Colorado

Springs, a political subdivision of the State of Colorado, is

not necessary under Rule 36.4, Rules of the Supreme Court

of the United States, since they are political subdivisions of

the states of California and Colorado, respectively, and this

— 4 oe Act which

n or

tailed statement, see the following brief at 2-3. The amici

believe that a discussion of the effect of the lower court’s

decision in the Western states, where the fossil fuel-fired

2

electric generating facilities owned, operated and managed

by these amici are located, will assist this Court in the prop-

er resolution of whether the petition for the writ of certiorari

should be granted. If for any reason this motion is denied,

we ask that this Court accept for filing the brief which fol-

lows on behalf of the four political subdivisions of the states

of California and Colorado which need not seek leave to file

the brief under Rule 36.

May 29, 1984.

Respectfully submitted,

Jenninos, Srrouss & SaLMon

By —

John B. Weldon, Jr.

(Counsel of Record)

111 West Monroe, Suite 1600

Phoenix, Arizona 85003

602/262-5865

Counsel for Amici Curiae

Arizona Electric Power

Cooperative, Inc., et al.

No. 83-1429

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

ALABAMA POWER Co., et al.,

Petitioners,

V.

SIERRA CLUB, et al.,

Respondents.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE

ARIZONA ELECTRIC POWER

COOPERATIVE, INC., ET AL.,

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

TABLE OF CONTENTS

Page No.

e ii

INTERESTS OF THE AMICI CURIAE. . 1

. 3

Z eee 3

II. The Plume Impaction Credit is Necessary to

Avoid Harsh Discrimination Against

Sources Located in Mountainous Areas q

III. EPA's Definition of Nearby Terrain Obsta-

cles” Implements Section 123’s Statutory

// RE a AEA

TABLE OF AUTHORITIES

CASES: Page

Sierra Club, et al. v. EPA, 719 F. 2d 436 (D.C.

Zen eee 4, passim

STATUTES:

42 U.S.C. § 7410 (Supp. V 1981) Section 110, Clean

1 3

42 U.S.C. § 7423 (Supp. V 1981) Section 123,

SE EEE RES REE, 2, passim

FEDERAL REGISTER:

46 Fed. Reg. 49814, 49815—16 (1981) . 5

47 Fed. Reg. 5864, et seq. (1982) . . . . . . . 2, 3, 7

MISCELLANEOUS:

Environmental Research and Technology, Analysis

of EPA Proposed Regulations on Stack Height

Limitation (March 1979) . . . . .. 5

No. 83-1429

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

ALABAMA POWER Co., et al.,

Petitioners,

V.

SIERRA CLUB, et al.,

Respondents.

ON PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE

ARIZONA ELECTRIC POWER

COOPERATIVE, INC., FT. AL.,

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

INTERESTS OF THE AMICI CURIAE

Arizona Electric Power Cooperative, Inc., Arizona Public

Service Company, City of Anaheim Public Utilities Depart-

2

Association, Inc., El Paso Electric Company, Nevada Power

Company, Pacific Power & Light Company, Platte River

Power Authority, Public Service Company of Colorado, Pub-

lic Service Company of New Mexico, San Diego Gas &

Electric Company, and Sierra Pacific Power Company own,

operate and manage fossil fuel-fired electric generating facili-

ties in the states of Arizona, California, Colorado, New

Mexico, Nevada, Texas and Utah. Arizona Power Authority

distributes electricity generated by some of those facilities.

These amici curiae are directly affected by the regulations at

issue in this case, which were, in large measure, invalidated

by the Court of Appeals for the District of Columbia Circuit.

In contrast to 64 of 67 of the individual utility

petitioners, ' all of the generating facilities of these amici,

many of which burn low sulfur Western coal, are located in

seven Western states renowned for their mountainous to-

pography. Many of these generating facilities were built in

remote areas of complex, elevated terrain. To prevent harsh

economic discrimination against such facilities, in favor of

their identical flatland counterparts, through an overly rigid

and arbitrary application of Section 123 of the Clean Air

Act, the Environmental Protection Agency (EPA) specially

tailored two of the regulations implementing this Section for

facilities located in mountainous areas. These provisions,

both of which were invalidated by the court below, would

! The petitioners Salt River Project Agricultural Improvement and

Power District, Southern California Edison Company and Tucson Electric

Power Company have interests in generating facilities in Arizona, Cali-

fornia, Nevada and New Mexico.

2 The first of these provisions permits additional stack height credit in

downwind hills and mountains. See 47 Fed. Reg. 5864, 5866-67, 5869

(1982); Pet. App. at 90a-94a, 100a. The second provision involves the defi-

nition of the statutory term “nearby terrain obstacles” which cause

excessive concentrations of pollutants as a result of atmospheric

downwash, wakes or eddies. See 47 Fed. Reg. at 5865, 5868-69; Pet. App.

at 86a, 100

.

3

have equalized the emissions limits for identical facilities

without regard to whether the facilities were located in

mountainous or flat terrain. As a result of the court’s rejec-

tion of these two rules, however, some of the generating

facilities of these amici, which are located in mountainous or

hilly areas, now may be subjected to emissions limits ten

times more stringent than those for identical facilities lo-

cated in flat regions. The amici submit that the petition for

the writ of certiorari filed by Alabama Power Company and

the other electric utilities should be granted to rectify the

discriminatory impact sanctioned by the lower court's opin-

ion.

ARGUMENT

I. Introduction

Section 123 of the Clean Air Act“ requires the states to

use good engineering practice (GEP) stack height assump-

tions when establishing emissions limitations under Section

110 of the Act.‘ Section 123 grants the Administrator of

EPA discretion to define GEP stack height, based upon two

statutory criteria. First, the statute provides that GEP

height is to be the height necessary to insure the prevention

of excessive concentrations of emissions in the vicinity of

the source due to downwash, wakes and eddies created by

the source, nearby structures or nearby terrain obstacles as

determined by the Administrator. Second, GEP is not to ex-

ceed two and one-half times the height of the source unless

the source demonstrates, to the Administrator’s satisfaction,

that a greater height is GEP.

The Administrator exercised that discretion on

February 8, 1982 when he issued final regulations imple-

menting Section 123. On October 11, 1983, the Court of

Appeals for the District of Columbia Circuit rejected the Ad-

ministrator’s exercise of discretion under Section 123 and

3 42 U.S.C. § 7423 (Supp. V 1981).

* 42 U.S.C. § 7410 (Supp. V 1981).

5 See 47 Fed. Reg. 5864, et seq. (1982); Pet. App. 80a-102a.

4

invalidated virtually every significant portion of that

rulemaking. *

These amici agree with petitioners and respondent

Kennecott that the court below impermissibly substituted its

judgment for that of the Administrator when it set aside

these regulations. Moreover, the court’s rejection of the

plume impaction credit and the Agency’s definition of near-

by terrain obstacles” have particular significance to these

amici since their generating facilities are located in Western

states where mountainous topography is frequently en-

countered.

II. THE PLUME IMPACTION CREDIT IS

NECESSARY TO AVOID HARSH

DISCRIMINATION AGAINST SOURCES

LOCATED IN MOUNTAINOUS AREAS.

Plume impaction occurs when a plume of exhaust gases

emitted from a stack hits a higher hill or mountain down-

side.’ In reality this impaction does not usually occur

false impaction will result in a “modeled” plume impaction.

Establishment of emissions limits for the source on the basis

of the modeled plume impaction will require emissions limi-

See 719 F.2d 436, 452; Pet. App. at 31a-32a.

5

tations ten times more stringent than would be necessary if

the identical facility were surrounded by flat terrain.

The unreasonableness of this result was acknowledged by

EPA, and, in October 1981, the Agency determined that

sources should receive stack height credit when modeled

plume impaction produced concentrations high enough to vi-

olate an NAAQS or applicable PSD increment.* The

wisdom of this rule and its policy did not go unnoticed by

the court below. Indeed, the court admitted that from a poli-

cy perspective there was much to commend EPA's adoption

of the plume impaction rule. Moreover, the court

acknowledged that without the plume impaction rule, the

law “discriminates harshly against utilities located in moun-

tainous terrain, for it will require them to emit far less than

their flatland counterparts.” 719 F.2d at 455; Pet. App. at

38a. Then, after conceding that Congress did not “focus on,

and resolve” the problems created by plume impaction, the

court inexplicably sanctioned the harsh geographic discrimi-

nation by invalidating the plume impaction credit. 719 F.2d

at 455, 456; Pet. App. at 37a, 39a.

Although the court described its holding as not “utterly

irrational”, this apologetic conclusion stands in stark

contrast to the rulemaking record before the Agency which

establishes that the expenditure of billions of dollars will be

required if states are forced to establish emissions limits

based upon false plume impactions. ”

The elimination of the plume impaction rule not only

countenances totally irrational economic discrimination

8 See, e. Environmental Research and Technology, Analysis of EPA

Proposed Regulations on Stack Height Limitation (March 1979)

(submitted as Appendix C to Comments of the Utility Air Regulatory

Group (March 1979)) at 14-20; Pet. App. 116a-122a.

9 See 719 F.2d at 452; Pet. App. at 32a; 46 Fed. Reg. 49614, 49615—16

(1981).

10 See Comments of the Utility Air Regulatory Group (June 16, 1981) at

37-38; Comments of the Southern Company (May 29, 1981) at 1-2.

6

against existing generating facilities located in mountainous

areas, in favor of identical facilities located in flat terrain, it

also severely restricts the siting of new plants throughout the

Western states. The irrationality of the court’s decision is

further evidenced by the court’s own admission that under

the rejected rule emissions from facilities benefiting from the

plume impaction credit would still be equal to or even less

than an identical facility located in flat terrain.“

The generating facilities of these amici are spread

throughout the states of Arizona, California, Colorado, New

Mexico, Nevada, Texas and Utah. Many are located in val-

leys, on desert plateaus dotted with higher mesas, or near

hills and mountains. Although their stacks are actually high

enough to avoid plume impaction on these areas of elevated

terrain, calculation of emissions limits at a GEP height

which models a fake plume impaction will mandate retro-

installation of additional costly emissions control devices,

even though those additional controls would not be neces-

sary if the facility were in a flat area. The legislative history

of Section 123 is absolutely devoid of evidence that Congress

intended to impose this harsh discrimination against ex-

isting facilities located in these mountainous areas. Yet, that

is the result expressly sanctioned by the court below. These

amici submit that this senseless discrimination cannot also

be sanctioned by this Court. The petition for the writ of cer-

tiorari should be granted to correct this injustice and to

reinforce the sanctity of the Administrator’s exercise of

discretion.

III. EPA’s DEFINITION OF

“‘NEARBY TERRAIN OBSTACLES”

IMPLEMENTS SECTION 123’8

STATUTORY DIRECTIVE.

In defining the term “nearby” for purposes of establishing

the existence of concentrations of emissions caused by

downwash, wakes or eddies, EPA drew a distinction between

1! 719 F.2d at 452 n.4; Pet. App. at 32a.

}

7

“nearby structures” and “nearby terrain obstacles”. Based

upon extensive data, d the Agency defined “nearby struc-

tures”, characterized by regular sizes and shapes, by a

formula: “up to five times the lesser of the height or width

dimension of a structure but not greater than 0.8 km (one

half mile).” 47 Fed. Reg. at 5869; Pet. App. at 100a.

Naturally occurring terrain obstacles are, however,

generally larger than buildings and do not have regular sizes

and shapes. Because of these geometric irregularities, EPA

found that unacceptable downwash from terrain obstacles

occurs at greater distances from the source and that a rigid

formula simply could not satisfy the statutory directive to in-

sure” against excessive concentrations as a result of

downwash, wakes and eddies created by nearby terrain

obstacles. Accordingly, the Agency defined “nearby terrain

obstacle” as one that is actually demonstrated through a flu-

id model or field study to be close enough to the source to

cause at least a 40 percent increase in local ambient

emissions concentrations due to downwash. "

The court affirmed EPA’s definition of “nearby

structures”, but rejected its definition of “nearby terrain

obstacles” even though it conceded that the Agency’s de-

monstrable approach to defining terrain obstacles “might

make a good deal of sense. .. 719 F. ad at 444; Pet. App. at

15a. Moreover, the court also acknowledged that the rejected

definition “would certainly be rational” because the fluid

model or field study would actually demonstrate the occur-

rence of excessive concentrations resulting from downwash,

wakes or eddies created by the terrain obstacle. /d.

Nevertheless, the court refused to follow the good sense, ra-

tional approach adopted by EPA because it believed

Congress intended a strict interpretation of Section 123 and

12 See GEP Guidelines at 5-15, 24-26.

13 47 Fed. Reg. at 5865, 5868-69; Pet. App. 86a, 100a; GEP Guidelines at

47-48.

8

that it “sought to discourage utilities from locating in hilly

terrain. 719 F. ad at 445; Pet. App. at 17a.

In according overriding significance to a strict and not

“utterly nonsensical” interpretation of Section 123," the

court completely overlooked Congress’ statutory directive to

EPA to insure against the occurrence of excessive concentra-

tions of emissions resulting from downwash, wakes and

eddies caused by nearby terrain obstacles. The Agency’s

rational, but rejected definition, implemented this directive

by actually identifying through demonstrations those terrain

obstacles causing the forbidden excessive concentrations. In-

stead of this precise and accurate determination, the court

opted for a rigid formula which “could conceivably be used

to give credit for the height of any obstacle upwind of the

stack, even though the turbulence created in the wake of

those obstacles could not possibly disrupt the plume.” 719

F.2d at 444; Pet. App. at 16a. What is even more ironic,

however, is that by limiting the definition of nearby terrain

obstacles to those within one-half mile of the source, as is

the case under the court-approved rigid formula, the court is

defeating its perception of Congress’ intent by encouraging

sources to locate within one-half mile of large terrain obsta-

cles!

It is not the intent of these amici to flaunt congressional

intent by advantageously locating new facilities immediately

adjacent to complex terrain simply because a court in the

District of Columbia favors a rigid formula over demon-

Congress intended a definition of “nearby terrain obstacle”

that makels] a good deal of sense”, one that “would cer-

tainly be rational”, not a reading that must be described by

its author as not “utterly nonsensical”.

14 Location of large electric generating facilities is a complex matter,

dependent upon water, coal transportation availability and proximity,

airshed qualities, and geological and archaeological criteria, just to men-

tion a few.

1 See, 719 F.2d at 445; Pet. App. at 16a.

9

The elimination of modeled emissions concentrations

caused by terrain obstacles greater than one-half mile from

the source is a costly result of the court’s decision, particu-

larly since existing stacks are physically high enough to

avoid these concentrations. Here, as with plume impaction,

the excessive concentrations will occur only in theory, not

reality. Here, as with plume impaction, the economic cost re-

sulting from the court’s refusal to accept the Agency’s

exercise of discretion will be borne disproportionately by

western utilities such as these amici. Here, as with plume

impaction, certiorari is warranted to eliminate the harsh dis-

crimination against the mountainous regions of the West

and to reinstate the Agency’s rational response to the

statutory directives of Section 123 of the Clean Air Act.

Respectfully submitted,

Of Counsel: JOHN B. WELDON, JR.

8 ; (Counsel of Record)

William P. Hopkins, Jr. J 8 48

City Attorney 111 West Monroe

City of Anaheim, California Suite 1600 :

200 South Anaheim Blvd. s

Anaheim, California 92805 aa 85003

714/999-5169 2

William B. Rudell Counsel for Amici Curiae

Arizona Electric Power

City A 5 Cooperative, Inc., et al.

City of Burbank, California *

275 East Olive Avenue Frank R. Manzano

Burbank, California 93021 City Attorney

818/953-9614 City of Glendale, California

613 East Broadway, Room 220

rey le ai Glendale. California 91206

ttorney : 818/956-2080

City of Colorado Springs,

Colorado

30 South Nevada Avenue

Colorado Springs, Colorado 80903

303/578-6670