Amicus Brief — Alabama Power Co. v. Sierra Club

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E No. 82-1429

IN THE

Supreme Court Of The Harited States

October Term, 1984

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 OF ASSOCIATED INDUSTRIES OF

ALABAMA, INC. FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Fournier J. Gare lil 7

H. THomas WELLS, Jr. ee

(Counsel of Record) 4

; Maynard, Cooper, Frierson “a

& Gale, P.C. -

Twelfth Floor, Watts Building iF

. ? Birmingham, Alabama 35203 a

Ay (205) 252-2889 . 3

m Counsel for Amicus Curiae a

q Associated Industries of =

a Alabama, Inc. :

CONTENTS

MOTION OF ASSOCIATED INDUSTRIES

OF ALABAMA, INC. FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF

ETD si bniinnicienhiniinichitcinaditehiictictimniinaiaiamaisnavetions iii

BRIEF OF ASSOCIATED INDUSTRIES

OF ALABAMA, INC. IN SUPPORT OF

PETITIONER tae 1 SSE eee l

INTEREST OF AMICUS CURIAE

ASSOCIATED INDUSTRIES OF

RE AE EE I ees ay

SUBSTANCE OF THE BRIEF AMICUS CURIAE...

REASONS FOR GRANTING THE PETITION _..._ 4

I. The Lower Court's Opinion Dictates Stack

Height Concepts That Will Severely Com-

licate Air Quality Regulation By Changing

Basis For State Implementation Plans

From Actual To Fictitious Pollution

Concentrations. toni

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II. The tory Plan Preferred

Lower rt Would Impose saciue Coal te Regu-

| latory Requirements Which Have No

Relationship To Public Health And Wel-

fare And Were Never Intended By

In Enacting §§ 110 Or 123 Of The Act... 7

III. The Lower Court's Rejection Of EPA's

Plume Impaction Rule Exposes Sources

In R Terrain To Harsh Impacts

And Unreasonable Discrimination. ......0.0..099

CONCLUSION ll

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No. 82-1429

IN THE

Supreme Court Of The Huited States

October Term, 1984

ALABAMA POWER CO., et al.,

Petitioners,

Vv.

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 OF ASSOCIATED INDUSTRIES OF

ALABAMA, INC. FOR LEAVE TO FILE BRIEF

AMICUS CURIAE IN SUPPORT OF PETITIONER

Pursuant to Rule 36 of the Rules of the Supreme Court

of the United States, Associated Industries of Alabama, Inc.

(hereinafter “AIA”) moves this Court for leave to file as

amicus curiae the accompanying brief in support of Peti-

tioners’ position in this case. This motion is made neces- :

sary because all parties to the proceedings below would nots

consent to the filing of this brief. s

AIA is an association of business and industrial con- a

cerns throughout the State of Alabama interested in the

vitality and growth of Alabama's economy. AIA appears in

iv

this case because the decision of the lower court will have

a significant and substantial negative impact upon the eco-

nomic well-being of the State of Alabama, the economic

opportunities available to AIA members in Alabama, and

the ability of AIA members to engage in productive indus-

trial activities at competitive prices.

The lower court's decision unnecessarily requires com-

plicated changes to the existing system of air quality regula-

tion which bear no relationship to the public's health and ~

welfare, but will be very costly for AIA members and other

sources. In addition, the lower court's decision needlessly

imposes harsh discriminatory impacts upon sources in hilly

terrain, such as found in North Alabama. The decision's

deleterious impact upon these interests of members of AIA

has not been and cannot be fully and adequately repre-

sented before the Court by the parties.

Upon the aforesaid justification, AIA moves this Court

for leave to file as amicus curiae the accompanying brief.

Respectfully submitted,

Fournier J. Gale III

Maynarp, Coorger, Frierson

& Gate, P.C.

1200 Watts Building

Birmingham, Alabama 35203

(205) 252-2889

Counsel for Amicus Curiae

Associated Industries of

Alabama, Inc.

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No. 82-1429

IN THE

Supreme Court Of The Rnited States

October Term, 1984

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 ASSOCIATED INDUSTRIES OF ALABAMA,

INC. IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

ASSOCIATED INDUSTRIES OF ALABAMA, INC.

Associated Industries of Alabama, Inc. (hereinafter

“AIA") is an association of business and industrial con-

cerns throughout the State of Alabama interested in the

vitality and growth of Alabama's economy. AIA’s broad-

based membership includes small businesses employing as

few as two persons as well as large industrial

with thousands of employees. One function of the associa-

tion is to represent the interests of Alabama business and

industry in significant matters of public policy which affect

the state’s economy in such a way as to be a matter of con-

cern to the entire business community.

AIA appears in this case because the decision of the

lower court will have a significant and substantial negative

impact upon the economic well-being of the State of Ala-

bama, the economic opportunities available to AIA mem-

bers in Alabama, and the ability of AIA members to engage

in productive industrial activities at competitive prices.

The lower court's decision unnecessarily requires compli-

cated changes to the existing system of air quality regula-

tion which bear no relationship to the public's health and

welfare, but will be very costly for AIA members and other

sources. In addition, the lower court's decision needlessly

imposes harsh discriminatory impacts upon sources in hilly

terrain, such as found in North Alabama. The decision be-

low will impose upon all industry in such hilly areas much

more stringent emission limitations, and concomitant

higher costs, than are necessary to protect public health and

welfare. Some AIA members will be directly harmed by

the consequences of this decision while other members and

all citizens of Alabama will suffer the economic losses in-

extricably associated with such a serious discriminatory

impact.

AIA believes that the decision of the lower court is in

Petition for Writ of Certiorari filed by Petitioners herein

and urges the Court to review the decision of the lower

The brief amicus curiae herein discusses the statutory

construction of § 123 of the Clean Air Act (“Act”), 42

U.S.C. § 7423 (Supp. V 1981) and the regulatory authority

and interpretation of that provision by the Environmental

Protection Agency (“EPA”).

Under § 110 of the Act, 42 U.S.C. § 7410 (Supp. V

1981), states must adopt State Implementation Plans

(“SIPs”) which limit emissions from specific sources so as

to ensure compliance with the National Ambient Air Qual-

ity Standards (“ambient standards”) or the Prevention of

Significant Deterioration (“PSD”) increments. The addi-

tion of § 123 to the Act in 1977 clarified that SIP emission

limitauions must allow for aerial dispersion of smokestack

emissions to the degree associated with a stack height con-

sistent with “good engineering practices” (“GEP”). Un-

der § 123, emissions from any stacks built taller than GEP

height will be assumed to reach ground level with the

greater density (less dispersion) associated with the calcu-

lated GEP height for that smokestack. This assumed GEP

stack height would then be included in the computer mod-

eling of the stack that is used to set the emission limitations.

Congress assigned the task of defining GEP stack height to

EPA.

EPA adopted final stack height regulations based largely

upon the traditional engineering formula used to calculate

the stack height necessary to avoid “downwash” from the

top of the stack caused by air currents moving around

buildings or other obstacles near the stack. EPA defined

the statutory terms “excessive concentrations” resulting

from downwash caused by “nearby structures” and “nearby

terrain obstacles” consistent with traditional engineering

principles and the legislative history of § 125. EPA also in-

cluded a provision to deal with a computer modeling phe-

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nomenon unique to air quality regulation in rugged terrain

known as “plume impaction”. Without this provision, the

determination of GEP stack heights and related emission

limitations for sources in rugged terrain will place unjusti-

fiably severe limits upon such areas, leading to harsh dis-

crimination against states with rugged terrain. The EPA

plume impaction rule avoided an absurd result not intend-

ed by Congress and applied the § 123 mandate with fair

and effective results throughout the country.

The lower court’s October 11, 1983 decision set aside

much of EPA’s final stack height regulations and made

clear that court's preference for a set of proposed regula-

tions withdrawn by EPA in 1979 after substantial adverse

public comment. The lower court also reversed EPA's

plume impaction provision, which EPA adopted to prevent

harsh discrimination against states with hilly terrain, and

remanded other regulations to EPA, ordering the agency

to promulgate new stack height regulations within six

months and to require completely revised SIPs from all

states within nine months after adoption of the new regu-

lations.

On February 28, 1984, a Petition for Writ of Certiorari

was filed by parties to the proceeding below. AIA has re-

viewed that petition and appears here in support thereof.

REASONS FOR GRANTING THE PETITION

I. The Lower Court’s Opinion Dictates

Concepts That Will Severely Complicate

Regulation By The Dat, Pes Sune

mentation Plans From To Fictitious Pollution

Concentrations.

The effects on the ambient air of emissions from a spe-

cific source are calculated by means of a computer simula-

tion or model that takes into account the stack height, stack

5

gas temperature, volume flow, and other variables, as well

as meteorological conditions and surrounding terrain. It is

by use of these computer models that regulators can esti-

mate the effect of the emissions of a particular source on

the ambient standards or the PSD increments. Thus, if the

model is constructed properly, it will give a good approxi-

mation of the actual effects of the emissions of a particular

source. As in any formula, however, changes in any of the

variables will cause a change in the estimated effect of the

source's emissions on the ambient air. Thus, if any variable

is put into the computer program at an assumed figure

rather than at its actual one, the estimated ambient air

effect will further deviate from the actual real world effect.

Stack height is one of those critical variables, and is the

one at issue herein, as Congress mandated that sources be

given credit for, but only for, stack heights that accorded

with good engineering practice.

Historically, “good engineering practice” height or

“GEP” height was a technical engineering term describing

the stack height required to avoid undesirable ‘““downwash”

of emissions from the top of the stack due to turbulent air

currents partially caused by surrounding structures and

obstacles. Properly engineered stacks have always been and

should continue to be built to GEP height in the tradition-

ally understood sense of that term. Congress enacted § 123

of the Act with apparent reliance upon and deference to

this traditional understanding of good engineering prac-

tice. Likewise, previous EPA guidance and the challenged

regulations followed the engineering understanding of

GEP stack height, as did state implementation of the Act.

Understandably, AIA members have relied for many years

upon the traditional engineering concept of GEP stack

height.

The lower court rejected EPA's reliance upon the engi-

6

neering meaning of GEP and indicated preference for a

concept of GEP stack height unrelated to engineering prin-

ciples or previous EPA practices, but clearly mandating

emission limitations based upon fictional stack heights sig-

nificantly lower than heights justified by the traditional

engineering practice. From an engineering standpoint, no

source has any reason to build a stack shorter than GEP

height as that term is understood in the engineering sense.

Obviously, then, the lower court's decision could affect the

emission limitation calculations associated with virtually

every existing source by mandating that emission limita-

tions be set utilizing computer modeling that includes an

unrealistically low stack height. Depending upon the stack

height and air quality fictions assumed under the court's

plan for each respective source, the decision could impose

massive compliance costs for many industrial concerns even

though the ambient standards and PSD increments are in

fact protected by the actual conditions and currently exist-

ing limitations.

The lower court's decision will require states to reevalu-

ate emission limits for existing sources using fictitious

stack height assumptions. In addition, the “assumed” data

for the necessary computer modeling process must incorpo-

rate fictional stack heights for other contributing sources

and false air quality assumptions related to the fictional

heights imagined for existing sources in the area. Besides

the obvious difficulty of creating and maintaining a com-

pliance program for such a complex and esoteric regulatory

concept, the lower court's mandate will require sources to

devote environmental resources to protect against fictitious

ambient concentrations rather than the pollution concen-

trations that people actualiy breathe. The cost to AIA

members of complying with the regulatory program pre-

ferred by the lower court will be great and is not justifiable

7

under § 110, § 123, or by any relation to the public health

standards of the Act.

AIA agrees with the arguments presented in the Petition

for Writ of Certiorari. EPA's final stack height regulations

are common sense applications of the traditional under-

standing of technical statutory terms used by Congress in

§ 123 of the Act. Most importantly, the regulations fulfill

statutory purposes without yielding unreasonable or absurd

results. The final regulations are a reasonable application

of the statute’s provisions and are within the agency's rule-

making mandate and authority. The lower court has ex-

ceeded the limits of judicial review. This Court should

grant certiorari and review that decision.

Il. The Regulatory Plan Preferred By The Lower Court

Would Impose Regulatory

Which Have No Relationship To Public th And

Welfare And Were Never Intended By Congress In

Enacting §§ 110 Or 123 Of The Act.

The lower court's preferred regulatory program would

reject the formulary approach to GEP stack height and the

traditional concepts of excessive concentrations caused by

downwash and instead give sources credit for only the

amount of stack height necessary to avoid a violation of the

ambient standards. This approach forces a false assumption

as to area air quality upon all other sources and the local air

quality program, i.c., that the air surrounding every source

is at the threshold of violating the ambient standards. This

assumption bears no relation to actual air quality, the

health and welfare of local citizens or the real air quality

standards fixed by Congress. Nevertheless, such a false as-

sumption could operate to establish a whole new set of

de facto air quality standards by requiring emissions re-

ductions or offsets from existing or new sources as if the

ambient standards were being violated even though the

8

actual air meets or surpasses the ambient air quality stan-

dards prescribed by Congress.

Such imaginary air quality violations could smother in-

dustrial growth and existing industrial activity unless emis-

sion reductions or offsets could be obtained. Naturally, the

cost of such offsets would be high, if available at all. Not

only would such offsets have no demonstrated relationship

to public health and welfare, but these new de facto stan-

dards would also change with future modeling changes and

future changes in the emissions of any other contributing

sources. For example, as background concentrations in an

area decreased, a lower stack could be assumed without

causing an ambient standard violation, thereby changing

the basis for calculating GEP stack height under the court's

decision, and hence necessitating changes in individual

source emission limitations. This ever-changing system of

emission standards based on false stack height assumptions

has no basis in § 110 or § 123 of the Act. Maintaining con-

sistent compliance with such regulatory system would be ex-

tremely difficult and expensive.

The court below justified its view of this matter in large

part by its desire to err in favor of overall emissions reduc-

tions. Congress, however, should not be presumed to have

fashioned sub silentio such a comprehensive change in air

quality standards and regulations within the plain and rela-

tively specific provisions of § 123. The Congressional pur-

pose was far narrower than the purposes of the lower court.

AIA believes that the lower court wholly misconstrued

§ 123 and its intended impact. This Court should grant

the writ and review the decision below. :

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Ill. The Lower Court’s Rejection Of EPA’s Plume Im-

paction Rule Exposes Sources In Rugged Terrain

To Harsh Impacts And Unreasonable Discrimina-

tion.

EPA's final stack height regulations included a provision

to deal with a phenomenon unique to air quality computer

modeling in hilly terrain known as plume impaction. When

the emissions from a stack at a source in hilly terrain are

falsely assumed to have been released from an imaginary

stack shorter than the surrounding terrain, the computer

simulation may reflect, albeit imaginarily, a dense and un-

dispersed plume hitting an elevated portion of the local

terrain. In reality, such a spot specific impact will not ac-

tually occur because the true stack height will be sufficient

to allow the plume to pass above all nearby elevations. This

phantom effect—called ‘plume impaction’’—could literally

eliminate any new sources from locating in rugged terrain

areas as well as imposing exorbitant costs on sources already

located in such areas.

While Congress required in § 123 that emission limita-

tions not be based upon the dispersion associated with stack

height above GEP height, Congress did not intend to dis-

criminate against sources in rugged terrain areas. EPA's

plume impaction rule allowed for modeling adjustments to

avoid the imaginary spot impact associated with the imagi-

nary stack height. With the corrective influence of the rule,

the stack height regulations effectively restrict sources in

rugged terrain areas to the GEP stack height credit intend-

ed by Congress, but avoid harshly discriminating against

economic growth and activity in such areas based upon

plume impaction that does not occur in reality. EPA has

the authority to adopt regulations reasonably necessary to

effectuate all of the objectives of the Act, and should imple-

ment the Act in a way that avoids harsh and discriminatory

impacts not intended by Congress.

10

North Alabama, in the foothills of the Appalachian

range, includes rugged terrain where application of the

lower court's preferred regulatory program, without the

corrective influence of the plume impaction rule, could

have unreasonably harsh results. Left uncorrected, phan-

tom plume impactions could require severe emissions re-

ductions from existing sources and a virtual moratorium on

new source growth. Such hilly areas could lose present and

future industries and jobs to flat terrain areas where such

hypothetical emissions problems are not assumed. Again,

this matter has no relation to the health and welfare of local

citizens or the actual air quality of an area. EPA’s plume

impaction rule was a simple device reasonably necessary to

make the final regulations applicable to all areas without

unintended discrimination.

Some of AIA’s members will feel directly the harsh and

discriminatory impact of the lower court's refusal to accept

EPA's plume impaction rule. All AIA members will suffer

indirectly by sharing in the overall negative economic im-

pact on business and industry in the area, AIA encourages

this Court to grant certiorari and review the decision of the

lower court.

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CONCLUSION

Because of the foregoing and the arguments contained in

the Petition for Writ of Certiorari, AIA believes the deci-

sion below is in error and contrary to the intent of Con-

gress in adopting § 123 of the Act and the authority of EPA

to promulgate regulations to implement that legislation.

The writ of certiorari should be granted and the decision

below reviewed by the Court.

Respectfully submitted,

Fournier J. Gale III

H. Thomas Wells, Jr.

MAYNARD, Cooper, FRIERSON

& Gate, P.C.

1200 Watts Building

Birmingham, Alabama 35203

(205) 252-2889

Counsel for Amicus Curiae

Associated Industries of

Alabama, Inc.

12

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Motion of

Associated Industries of Alabama, Inc. for Leave to File

Brief Amicus Curiae and Brief Amicus Curiae in Support

of Petitioner, in accordance with Rule 28 of the Rules of

the Supreme Court, have been served on the following

parties to this action by depositing the copies in a United

States post office, with first class postage affixed, addressed

to the counsel of record set forth below at their post office

addresses, this 30th day of May, 1984:

Tuomas Y. Au

Assistant Counsel

Commonwealth of

Pennsylvania

Department of Environmental

esources

505 Executive House

P. O. Box 2357

Harrisburg, Pennsylvania

17120

Howarp I. Fox

Sierra Club Legal Defense

Fund

1424 K Street, N.W.

Suite 600

Washington, D.C. 20005

Hersert S. SANcER, JR.

General

Tennessee Valley Authority

Knoxville, Tennessee 37902

State of New York

Albany, New York 12224

EVA, it.

CuHarLes McKINLEY

Special Assistant Attorney

General

85 Park Street

Providence, Rhode Island

02903

Jim Gomes

STEPHEN LEONARD

Environmental Protection

Division

a of the Attorney

neral

1 Ashburton Place, 19th Floor

Boston, Massachusetts 02108

RICHARD AYRES

NRDC

JOHN SPIEGEL

Office of General Counsel

Environmental! Protection

Agency

401 M Street, S.W.

Washington, D.C. 20460

Acrrep V. J. PRATHER

Prather, Seeger, Doolittle

& Farmer

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

Rex E. Lee

Solicitor General

U.S. Department of Justice

10th Street & Pennsylvania

Avenue, N.W.

Washington, D.C. 20530

MEREDITH WRIGHT

Assistant Attorney General

Environmental Division

109 State Street

Montpelier, Vermont 05602

STarK RITCHIE

Davip T. DEAL

American Petroleum Institute

2101 L Street, N.W.

Washington, D.C. 20037

Henry V. NICHOL

Hunton & Williams

P. O. Box 19230

2000 Pennsylvania Avenue,

N.W.

Washington, D.C. 20036

H. Thomas Wells, Jr.

Counsel of Record for

Associated Industries of

Alabama, Inc.