Petition for Writ of Certiorari — Appalachian Power Co. v. Environmental Protection Agency

Supreme Court brief1974

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IN THE

Supreme Court of the United States

OcTOBEK TERM, 1973

APPALACHIAN POWER (OMPANY,

Ixmiana & MicuicaNn Erecrric Co.,

KENTUCKY POWER COMPANY,

Ouio POWER COMPANY,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

H. Epwarp DUN KELBERGER, JR.

TuHeopore L. GARRETT

Covington & Burling

SSS Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petiiioners

January 1974

TABLE OF CONTENTS

Page

IN TERI ec ae oe at ee ea a ey 1

UNE RN Geet ete os babe teteakeeucwe due 2

GIR CNN ss cnn hs hake eee vn eeenees 2

StaTuTes axnp Recviations INVOLVED ................ 3

DURSRMENY OF THE CARE oaks oc vc cc cu becccxcccucvoce 4

Promulgation Of The Standards By EPA ........ 6

The Basis For The Standards .................. Ss

The Decision Of The Court Of Appeals .......... 11

Reasons ror GRANTING THE WRIT ................00¢ 13

I. The Decision Below Is Inconsistent With Con-

II.

gressional Clean Air Act Poliey. Directly Con-

flicts With A Decision Of The D. C. Cirenit,

Departs From This Court’s Decision In Orer-

ton Park, And Involves Questions Of Continu-

IIR cs rae uneven caren hye

The Decision Below Conflicts With Congres-

sional Policy Concerning NEPA And Involves

A Question Of Continuing Importance To EPA

POMNTONY ACMI ck ieee ener cens

IRL Si wee eres rer tee ee Bee ond Ue

TABLE OF AUTHORITIES

CASES:

Calvert Cliffs’ Coordinating Committee v. Atomic En-

ergy Commission, 449 F.2d 1109 (D.C. Cir. 1971)

99 25, 29, 2

od. Zu.

Citizens to Preserve Overton Park, Ine. v. Volpe, 401

ee A re Se Pr oe |. er ec ee 12, 13, 20

Commonwealth of Pennsylvania v. Pennsylvania Power

Co.. 5. E.R.C. 1373 (Lawrence County Ct. CP.,

PE RN ie os eas re a ee oe ie 19

Environmental Defense Fund v. E.P.A. (D.C. Cir. Nos.

72-1548 et al., Deeember 13, 1973) .............. 28

Greene County v. FPC, 455 F.2d 412 (2d Cir. 1972),

oted: Geneee. Gee OU OO . eke is eck

ii Contents Continued

Page

International Harvester Co. v. Ruckelshaus, 478 F.2d

eS Ta ae ep eee rent. 24,28

Kennecott Copper Corp. v. Environmental Protection

Agency, 462 F.2d 846 (D.C. Cir. ot) ery 7,2:

Natural Resources Defense Council v. Morton, 458 F.2d

G27 CTA, Cie. WOTR) nn wc ne ce eer gs easensiweses 24

Portland Cement Association v. Ruekelshaus., D.C. Cir.

No. 72-1073, 5 E.R.C. 1598 (June 29, 1978) ...- passim

United States v. Oregon, 366 U.S, 645 (1961) ...-.--- 27

STATUTORY PROVISIONS:

Clean Air Act, As Amended

PRs 2 ome Bo ree Peer e ee eee. 5. Oy

BO SSG Se SOO ooo ks xnen es cones seen 5, 6, 20, 22

BO TRL. € WBBIOG oii ccc ask cea nsw asrs neces passim

Pe ie er TCDS) eee ree 3, 11,15

42 UIS.C. § 1857e-6(b) (1) (B) . 6. eee eee eee ee eee 6

49 U.S.C. § WSTCS 2.0... ccc cece ees ecensermees )

ee it Vian a 5 Aer reer errr Sar ere 24

42 U.S.C. § 1857h-5(b) (1) Peer irre:

Federal Water Pollution Control Act, As Amended

229 US.C.A. §§ 1314(b)(1)(B), (b)(2)(B) ..----- 28

Oe Wy OE A BATHE cox ee cs nese se casveee’s 28

National Environmental Policy Act, 42 U.S.C. §§ 4821

SS POTENT U CTT Cee eT Ler LL TA tap 7

49 Wi, 8 GSSSISMIC) ... 2.22 c sen as 4, 23, 26, 29, 30

£5 TR. & ASSBIQD) 2g. 20 nn ccs cin cenceses 23

REGULATIONS:

96 Fed. Reg. 7725 (1971) (CEQ NEPA Guidelines) .. 27

26 Fod. Ree. 15704-722 (EPA Proposed Standards)... 6

26 Fed. Reg. 24876-95 (EPA Statement Accompanying

Binal Standards) ......-.0-sseccesssssesessess 4,7

97 Fed. Reg. 5767-71 (1972) (EPA Supplemental State-

ment on Standards) ..........--eeeeeeeercecces 7

28 Fed. Reg. 1696, 1697 (1973) (EPA Interim NEPA

Regulations) ......-.--ccescseeescccececsssces 25

98 Fed. Reg. 10856, 10865 (Proposed CEQ NEPA

MAR een, pap eke sees ee he Wi sm ae 27

38 Fed. Reg. 20530, 20555 (CEQ NEPA Guidelines) .27, 30

Contents Continued lil

Page

LEGISLATIVE MATERIAL:

NEPA Legislative History

115 Cong. Ree. 40417, 40418, 40425 (1969) ....... 26

14 Dame. Mee. BOG Come ows ck ced scsccuwase 27

116 Cone. Ree. 32902, 33075 (1970) ............. 6

aoe. Come Bcc: ASO CSO oe cas sass "

Federal Water Pollution Control Act Debates

S18 Comm. Mee. SORSS (INTE) ois ccc nn deccesias 26

538 Conm, Bee. 16887 (9972) oo. os ewes ees 31

H. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970) ..... 16

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) ..... 16

Joint Hearings Before the Senate Committees on Pub-

lie Works and Interior and Insular Affairs on the

National Environmental Policy Act, $2d Cong., 2d

Piet NE kn oa eos a oy eaiekeak ewe nes 26

MISCELLANEOUS:

‘Air Quality Criteria for Sulfur Oxides,’’ U.S. De-

partment of Health, Education and Welfare (Jan-

RN tice cn oe a nee eee eeu eas cae woes 22

Anderson, F., NEPA In The Courts (1973) ........ 27, 28

Baum, Jurgiel, and Gross, ‘*Establishing Environ-

mental Criteria’? Archives of Environmental

Bt INE | Stee aa oan ona ease reece 22

Federal Power Commission, 1970 National Power Sur-

CEM LP POOINON TEED sro nace sc AcsA ceennnss ewes 14, 31

Summary of Proceedings, Conference on Health Ef-

fects of Air Pollution, National Academy of Nci-

ences, Oetober 3-5, 1973 (G.P.0., November 1973) 22

The Second Annual Report of the Council on Environ-

bile ntal Quality (.\ugust 1971) pop ig Ee RES ye tae aU a ee 10

IN THE

Supreme Court of the United States

OcTOBER TERM, 1973

No.

APPALACHIAN POWER COMPANY,

Inprana & MicHiGan ELectric Co.,

KENTUCKY POWER COMPANY,

OnIO POWER CoMPANY,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners pray that a writ of certiorari issue to

review the judgment of the Court of Appeals for the

District of Columbia entered in this case.

OPINION BELOW

The opinion of the Court of Appeals is unofficially

reported at 5 E.R.C. 1820 and is reprinted in the

Appendix to this Petition at App. la-26a.’

*The opinion below consolidated the decision sought to be

reviewed here with that in Essex Chemieal Corp., et al. v. Ruckels-

haus, No. 72-1072. The Esser ease involved review of standards

for new sulturic acid plants.

JURISDICTION

The judgment of the Court of Appeals was ren-

dered on September 10, 1973, Petitioners’ timely mo-

tion for rehearing and suggestion for rehearing ¢1

bane was denied on October 3, 1973, by an order

which appears at App. 27a. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. 9 1254(1).

QuESTIONS PRESENTED

The ability of electrie power generating companies

to meet the growing demands for electricity for com-

mereial, industrial and private use in the next few

deeades will almost certainly depend upon the degree

to which those companies will he able to utilize the

nation’s abundant supplies of coal. Increasingly acute

shortages of oil and natural gas from domestic

sourees. the uncertainties surrounding the availabilty

of oil and gas from abroad, and growing demands

from other segments of the economy for these fossil

fuels all make it absolutely necessary for electric

companies to make effective and efficient use of the

vast deposits of coal lying principally in Northern

Appalachia, the Midwest. and the Northern Rocky

Mountains. The prospects for the use of much of

this coal in the near future in new or modified elec-

trie generating plants. however, are severely threat-

ened by regulations promulgated under the Clean Air

Act by the Administrator of the Environmental Pro-

tection Agency (EPA) on December 31, 1971, estab-

lishing air pollution emission standards for coal-fired

electrie power plants, the construction or modifica-

tion of whieh was commenced after August 17, 1971.

Convineed that the effect of the standards will be to

force electric utilities to expend billions of dollars

tay

for installation of a svstem of pollution control tech-

nology that has not been shown capable of meeting

the emission standards, petitioners sought review of

the regulations in the Court of Appeals pursuant to

Section 307(b) (1) of the Clean Air Act. Despite the

failure of the standards to have been achieved by any

pollution control system, and EPA's noncomplance

with the National Environmental Policy Act

(NEPA), the Court of Appeals for the most part

upheld the standards. The questions presented are:

1. Whether Section 111 of the Clean Air Act

authorizes EPA to promulgate binding emission

standards which have never been shown to be achiev-

able or to be based on an adequately demonstrated

system.

2. Whether the Court below erroneously held

that no NEPA environmental impact statement need

be filed by EPA in promulgating standards under

Section 111 of the Clean Air Act.

STATUTES AND REGULATIONS INVOLVED

Section 111 of the Clean Air Act of 1970, 42 U.S.C.

§ 1857e-6, authorizes the EPA Administrator to pro-

mulgate **standards of performance” for new station-

ary air pollution sources, which are defined in Section

11l(a)(1) as

‘a standard for emissions of air pollutants which

reflects the degree of emission limitation achiev-

able through the application of the best svstem

of emission reduction which (taking into account

the cost of achieving such reduction) the Admin-

istrator determines has been adequately demon-

strated.”

Section 102(2)(C) of the National Environmental

Policy Act of 1969, 42 U.S.C. § 4332(2) (©), provides

in pertinent part:

“The Congress authorizes and directs that, to tie

fullest extent possible: . . . (2) all agencies of

the Federal Government shall—

on proposals for legislation and other major

Federal actions significantly affecting the quality

of the human environment. a detaile| statement

by the responsible official on—

(i) the environmental impact of the pro-

posed action,

* * *

(iii) alternatives to the proposed action,

(iv) the relationship between local short-

term uses of man’s environment and the main-

tenance and enhancement of long-term pro-

ductivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it he imple-

mented. * * *’’*

The regulations involved, “Standards of Perform-

ance for New Stationary Sourees.’’ were published

in 36 Fed. Reg. 24876-24895 (December 25, 1971),

40 C.F.R. §§ 60.1 et seq. (1972).

STATEMENT OF THE CASE

The principal means by which the Clean Air Act,

as amended by the Clean Air Amendments of 1970.°

2 The foregoing and other relevant portions of NEPA and the

Clean Air Act appear in the Appendix to this Petition at App.

28a-38a.

$42 U.S.C. §§ 1857-1858a. The Clean Air Act will also here-

inafter be referred to as **the Act.”

2 A SN Cann, Se

provides for the protection of public health and wel-

fare from the harmful effects of air pollution is the

promulgation of national ambient air quality stand-

ards by EPA under Section 109 of the Act* and the

adoption under Section 110 of state implementation

plans providing for the attainment of these standards

within a specified time by the imposition of emission

limitations upon various stationary sources of pol-

lutants.© A somewhat different means of control is

provided in Section 111,° which is applicable only to

new or modified stationary sources, and which re-

quires that ‘**new major industry plants such as power

plants ... achieve a standard of emission perform-

ance based on the latest available control technology,

‘processes, operating methods, and other alterna-

tives.’’* In this manner Congress sought to place all

new sources of pollution on an equal footing by as-

suring that they not be located on the basis of which

states had the highest air quality and thus the most

lenient emission limitations in their implementation

plans. The Act thus provides for a complimentary

* Primary and secondary standards are designed to protect the

publie health and welfare, respectively. 42 U.S.C. § 1857e-4.

°42 U.S.C. § 1857e-5. Such plans must be adopted by the states

and approved by the Administrator. Violations of state implementa-

tion plans may give rise both to state and federal enforcement

actions. 42 U.S.C. § 1857e-8.

€42 U.S.C. § 1857e-6.

*Summary of the Provisions of Conference Agreement on the

Clean Air Amendments of 1970, submitted by Senator Muskie.

116 Cong. Ree, 42384 (1970).

*Section 111 of the Act was added reflecting Congressional

eoncern that ‘‘[t]hose areas which have levels of air quality

which are better than the national standards [might] find their

quality degraded by the construction of new sources. There should

be no ‘shopping around’ for open sites.’’ Remarks of Senator

¢ raw

Pay

28. NYP IEADIAL SAO DRE FO ETT MRNAS OR RAW Tt ST RL RAR

yearend pram

RIA Eero

WS EPL RAE ES eT

Qirerrerenes ptennesan A IR HEN

system of controls under which all designated sta-

tionary sources. both existing and new, must comply

with the Section 110 emission limitations promulgated

by the states for the achievement of the ambient air

quality standards, and new or modified sources must

in addition comply with Section 111 emission limita-

tions based upon the best available technology.

Promulgation Of The Standards By EPA. Pursu-

ant to Section 111 of the Clean Air Act, the Adminis-

trator on August 17, 1971, published in the Federal

fossil fuel-fired steam electric generators, and invited

interested persons to submit written comments.” The

preamble to the proposed regulations stated that the

standards were based on “‘stationary souree testing”

and on data derived from technical literature and

‘‘other sources,’ and that **[s]Jummaries of the perti-

nent data” were available from EPA."

Muskie on introduction of S. 4358 (the Senate version of the

Clean Air Amendments of 1970), 116 Cong. Ree. 32902 (1970).

See also remarks of Senator Randolph, 116 Cong. Ree. 33075

(1970).

°36 Fed. Reg. 15704 et seq. The proposed regulations are re-

printed in relevant part -in the Appendix to the Briefs in the

Court of Appeals (hereinafter cited ““C.A. Appx."") at 1-20, a

eopy of which is being filed with the Clerk of this Court together

with the Petition.

(b)(1)(B) of the Act. Comments on the proposed standards of

performance were submitted by petitioners and other interested

parties, including utility companies, and local, state and federal

agencies. A number of these are included in the Appendix below

at C.A. Appx. 69-224.

11 The data referred to consisted of two documents. containing

‘*Background Information”’ and **Test Data.” These documents

are reprinted in relevant part in the Appendix below at C.A. Appx.

21-68.

‘

The final standards, promulgated on December 23,

1971, establish limits for the emission of three pol-

lutants from ‘tnew’’ coal-fired steam generator

plants.” fe.. those the construction or modification of

which was commenced after August 17, 1971. The

publication of the standards was accompanied by a

terse description of ‘tthe principal revisions*’ result-

ing from ‘ta review of the proposed regulations and

consideration of the comments."** At no stage during

the rulemaking proceeding did the Administrator pre-

pare an environmental impact statement, or other-

wise comply with the provisions of the National En-

vironmental Policy Act.”

Standards of Performance for New Stationary Sources, 36

Fed. Reg. 24876 ef seq. 40 CLFLR. $§ 60.40-60.46 (hereinafter also

referred to as “the Standards"*).

The pollutants are particulate matter, sulfur dioxide, and nitro-

gen oxides. The other sources, not involved here, for which stand-

ards were also established on this date are portland cement plants,

incinerators, nitric acid plants, and sulfurie¢ acid plats.

13 36 Fed. Reg. 24876. ( App. 38a-43a). The sole reference to the

statutory provisions controlling the promulgation of standards of

performance and to the basis fer the Administrator's rejection

of objections to the standards was contained in a single con-

clusory paragraph. Id. 24876-77 (App. 42a-43a). Subsequently on

Mareh 21, 1972, in response to a decision of the D.C. Cireuit

(Kenneeott Copper Corp. v. Environmental Protection Ageney, 462

F.2d S46 (1.C, Cir. 1972)), the Administrator published a post

hoc **Supplemental Statement”” of the basis for the standards. 37

Fed. Reg. 5767-71 (App. 43a-61a). In general. the Supplemental

Statement simply elaborated on the basis for the standards as set

out in the two background documents distributed by EPA when

the proposed standards were announeed.

#42 U.S.C. §§ 4521 et seq.. hereinafter referred to as ** NEPA.”

So far as the record shows, the Administrator did not even make

a formal determination as to whether complianee with NEPA was

required.

Oh ila Tal she

nereen

POY MT EUIY EET ROP IIT EL

Pere, Ah

The Basis For The Standards. In its briefs in the

Court below,” petitioners discussed in detail the basis

for and manner in which the Administrator estab-

lished the standards of performance at issue. Peti-

tioners will not reiterate all of these points here since

the basie facts were undisputed below. However, in

order to place the legal issues in perspective, peti-

tioners will briefly discuss the background and sig-

nificance of the decision of the Court of Appeals in

connection with the Administrator’s promulgation

of the controversial sulfur dioxide standards.”

The sulfur dioxide emission standard” established

by EPA is based on the use of a pollution control

system known as a limestone injection wet scrubbing

process. This process attempts to make use of the

fact that sulfur dioxide, which is released in the

boiler exhaust gas as the sulfur in coal burns, is

chemically active and combines readily with alkaline

materials.”

EPA’s methodology in establishing the standards

was to obtain data ‘‘from references listed in the

literature for those control systems exhibiting the

most advanced technology in SO:z extraction supple-

mented by a test program conducted by the Office of

5 Copies of the briefs of petitioners and the Government below

are being filed with the Clerk of this Court with this Petition.

16 The nitrogen dioxide and particulate standards were also

challenged below.

17 The standard prohibits discharge into the atmosphere of sulfur

dioxide in excess of 1.2 Ibs. per million Btu heat input averaged

over a maximum two-hour period when solid fossil fuel—e.g..

coal—is burned. 40 C.F.R. § 60.45(b).

1 For a more detailed description of the system, see Petrs. Br.

41-42.

Air Programs.’ Four coal-fired facilities in the

United States were found to have used the lime-slurry

scrubbing system, which EPA coneluded was the

‘only’? system ‘‘considered adequately demonstrated

on large steam generators."’ Of these four units, the

best that could be said of their performance was that

**fa] lime-slurry serubbing svstem, demonstrated for

6 months on two coal fired units of 125 and 140 mw

capacity, approached the SOz emission limit of 1.2

pounds per million Btu.”’” The EPA Test Data show

that all four units in fact failed to meet the stand-

ards." Further, the units had considerable operating

difficulties, never operated continuously for more than

several days, and experienced frequent breakdowns

due to malfunctions and scealing.*? The record clearly

demonstrated that the specifie SOz standards were

simply never achieved, and the svstem upon which

the sulfur dioxide standards were based is at best

9% CLA. Appx. 58.

2°C.A, Appx. 34-35 (emphasis added). Although EPA char-

acterized these units as *‘large steam generators,’ all units installed

in new plants will generally be in the 600-800 mw range, and some

will be considerably larger. The absence of test data on units of

this size further undereuts the Administrator's conelusions.

*tC.A. Appx. 62. EPA’s so-called *‘test program’’ attempted

a ‘‘verification’’ of reported performanee data for the 125 mw

units operated by the Kansas Power and Light Company at

Lawrence, Kansas. However, the data resulting from the EPA

test showed SO. emission of about 1.4 lbs. per million Btu, 16

percent in excess of the amount allowed by the standards. (C.A.

Appx. 35, 62).

22? For example, of the two units whieh ‘‘approached”’ the

standards, the Kansas Power unit switched from coal to gas

during malfunctions, and had sealing problems preventing high

efficiency (see Petrs. Br. 45-47), and Union Electrie’s plant was

abandoned in 1971 after four years’ effort and expenditures in

excess of $5 million because of frequent shut-downs caused by

plugging of the boiler. (See Petrs. Br. 48-50).

EEA UO NT AIL ARMA SIP I! NERO ME OE TSG

eeereescrogeervews:

only experimental, and demonstrated no ability to

perform reliably under normal, commercial operating

conditions. This was the conclusion of the other fed-

eral agencies with expertise in this area.’ For ex-

ample, in its comments on the proposed standard,

the Federal Power Commission concluded that the

background information supplied by EPA, which set

forth the test data, was ‘‘not suffciently definitive or

conclusive to provide design and operating bases that

assure conformity through developed technology with

the proposed standards.’** In the same month that

the proposed standards of performance were an-

nounced by EPA, the President transmitted to Con-

gress the annual report of the Council on Environ-

mental Quality. which concluded that *[tjechnology

to control sulfur oxides and nitrogen oxides emissions

is not yet commercially proven."’* Nothing in the

record casts doubt on this conclusion, which under-

cuts the entire predicate for EPA’s decision.

23 Since electricity eannot be stored, obviously continuous opera-

tion and a high degree of reliability are of paramount importance

to electrie power companies.

24 Indeed. EPA itself had doubts about the system relied upon.

On June 30. 1971—just fwo months before the proposed sulfur

dioxide new source standards were announeed—EP.A contracted

with Combustion Engineering, Ine., for a researeh project, the

‘*hackground and purpose’* section of whieh contract diseussed

the two serubbing units on the 125 mw Kansas Power facility

and coneluded that ‘*[T]o date, neither unit has demonstrated suf-

ficiently adequate operation to be considered a viable approach

to SO, control.”’ See Petrs. Br. 4.

27.4. Appx. 71. Beeause of the absence of demonstrated con-

trol technology, the Federal Power Commission concluded that

EPA should have deferred promulgation of final standards, (C..A.

Appx. 74).

2° The Second Annual Report of the Council on Environmental

Quality 81 (August 1971).

The Decision Of The Court Of Appeals. On Janu-

ary 24, 1972, petitioners. each of which is an electric

utility that is or will be adversely affected by the

standards,” filed a petition for review of the stand-

ards in the Court of Appeals pursuant to Section

307(b)(1) of the Act.* In their briefs below, peti-

tioners challenged on two principal grounds the law-

fulness of the standards of performance. First, peti-

tioners objected to the absence of any basis in the

record for the conclusion that the specific emission lim-

itations are ‘achievable’? and are based on systems

of emission reduction which, **taking into account the

eost of achieving such reduction,’ are ‘*adequately

demonstrated** as required by Section 111(a)(1) of

the Act. Second, petitioners objected to the failure of

the Administrator to comply with the explicit re-

quirements of NEPA.

The Government did not challenge the basic factual

claims made by petitioners. It was undisputed that

at no stage of the proceedings had EPA prepared an

27 Each petitioner is a part of the American Electrie Power

system, one of the largest investor-owned electric power systems

in the United States. Petitioners rely almost exclusively on coal

to fuel their existing generating units, and since coal is the only

fuel readily available in commercial] quantities in the localities

which they serve it is anticipated that coal would be used to fuel

new steam generating plants constructed to meet the projected

large, increasing demand for electricity. Because the standards of

performance cannot be met by currently available pollution control

systems for coal-fired plants, these standards will make it ex-

tremely difficult, if not in fact impossible, for petitioners to meet

the power needs of the areas that they serve.

2492 TUS.C. §1857h-5(b) (1). On January 21, 1973, petitions

also were filed in the Court of Appeals by Essex Chemical Corp.,

et al. (No. 72-1072), and by the Portland Cement Association

(No. 72-1073) to review the portland cement and sulfuric acid

plant standards respectively.

Pera ae

Saal a Bal Ah Dae oe

ONE ERNST LIP IIE LOTR, LILI LE PRIN ON LM PE RIA

& LUE RACER G LEER EI RMN TTR STOLL MIS ERLE OT POMEL SRY TI HF EH

environmental impact statement or otherwise com-

plied with NEPA. On the issue of the state of de-

velopment of the systems on which EPA based its

decisions. the Government argued simply that—even

if the test data did not show the standards to have

been achieved—the statute vested broad discretion in

the Administrator, and that he was allowed to de-

termine what was ‘achievable’? at some undeter-

mined point in the future based on th agency's

‘expertise.’ This presented the Court of Appeals

with clear legal issues.

In a somewhat terse, consolidated opinion.” which

dealy only briefly with the electric power plant stand-

ards, the Court of Appeals held that EPA is exempt

from filing NEPA impact statements in making Sec-

tion 111 determinations, relying on the decision of

another panel in a companion case, Portland Cement

Association v. Ruckelshaus.' In Part IV. of. its

opinion, the Court held simply that with the excep-

tion of the opacity standard for particles, it could

not “say that the standards represent ‘a clear error

of judgment.’ ”* citing this Court's opinion in Citizens

to Preserve Overton Park, Ine. v. Volpe, 401 U.S.

29 (Gov't Br. 35, 39.) The Government also argued that the

record need not contain all the data (id. at 31), that EPA could

assume that the test data it received from private plant operators

did not reflect ‘normal incentive’’ to develop efficient equipment

(id. at 43, 47, 62), that the standards should be ‘‘stringent enough”

to require new sources to ‘advance’ their technology so that they

may ‘‘operate within the law,”’ (id. at 36-57), and that EPA is

not required by the statute to determine whether the costs are

reasonable in light of the emission reductions achieved. (7d. at 25,

46).

°° The opinion below also dealt with the standards for sulfuri¢e

acid plants, which are not involved in this petition.

315 E.R.C. 1593 (D.C. Cir., June 29, 1973).

402 (1971) (App. 24a-25a). Although the Court did

remand the standards to EPA for further proceed-

ings on certain issues, the Court’s opinion was fina!

and upheld EPA on the issues raised here, namely,

the basic lawfulness of the standards under Section

111 of the Act, and the failure to prepare a NEPA

impact statement.”

REASONS FOR GRANTING THE WRIT

The granting of the Petition for Certiorari in this

case is supported by not one but several of the

grounds that are traditionally deemed sufficient by

this Court to justify plenary review. The decision

below is at odds with the language and legislative

history of NEPA and Section 111 of the Clean Air

Act, and the questions presented in this case involve

recurring issues of fundamental importance concern-

ing the administration of these two paramount en-

vironmental statutes. The decision of the Court of

Appeals has departed from the governing principles

set forth in this Court's decision in Overton Park,

supra. Review is additionally warranted because this

case raises significant questions concerning the elec-

tric-generating capacity of this country, the use of

various fuels, and the ability of utilities to respond

to the energy crisis for years to come.

I. THE DECISION BELOW IS INCONSISTENT WITH CONGRES-

SIONAL CLEAN AIR ACT POLICY, DIRECTLY CONFLICTS

WITH A DECISION OF THE D.C. CIRCUIT, DEPARTS FROM

THIS COURT’S DECISION IN OVERTON PARK. AND IN-

VOLVES QUESTIONS OF CONTINUING IMPORTANCE.

The Court’s unrealistic, constraining construction

of Section 111 of the Clean Air Act is of overwhelm-

ing importance to the electric generating industry

82 See pp. 16-17, 24-25, 28-29, infra.

LEGER ITO TENGEN ONES B

wryiaws,

and to the public. The unquestioned effect of the

Administrator's decision will be to impel the installa-

tion of the lime-slurry serubbing system for control

of sulfur dioxide emissions on virtually al! new coal-

fired steam generating plants,’ which the Federal

Power Commission concluded would require the ex-

penditure of ‘billions of dollars’? for installation of

stack gas cleaning devices that ‘*may not be capable

of meeting the required standards.”* **

These impacts could not have come at a worse

moment for the electric utility industry and the pub-

lic. The country is facing greatly increasing demands

for the use of electricity’ as well as growing short-

ages of utility fuels, particularly oil, gas and low

sulfur coal. Although high sulfur coal is this nation’s

most abundant energy source,” the instant reculations

33 Although it is the industry’s general view that demonstrated

technology is not available to meet the standards, the effect of the

regulations is to impel utilities to install the system upon which

EPA based its standards with the hope that EPA might in turn

feel obligated to grant sueh companies varianees or decline to

bring enforcement action in the event of subsequent failures of

the system to achieve the standards. Utilities with a less sanguine

prediction of EPA enforcement might decide to ecase construction

of new coal-fired plants, which would jeopardize the use of the

nation’s abundant coal reserves, and could well impair their ability

to meet power needs of the areas they serve.

34(C.A. Appx. at 72. EPA’s conservative estimate is that sulfur

dioxide control will cost $18 million for a typical coal-fired unit of

600 mw capacity. (C.A. Appx. 262).

%3In a comprehensive survey, the Federal Power (‘ommission

has projected that the eleetrie power industry's present plant ¢a-

pacity will have to be doubled in this decade, and almost doubled

again in the 1980's. I 1970 National Power Survey at 1-1-17

(December, 1971).

6 In 1970, 54 percent of the nation’s electric power was generated

by coal. (/d., at 1-1-19).

promulgated by EPA have cast a cloud over its fu-

ture use in new generating plants.

The decision is of continuing importance because

EPA has an ongoing responsibility, pursuant to Sec-

tion 111, to update the standards for new coal-fired

electric utilities as technology improves, and to pro-

mulgate standards for other industries. The statutory

question is thus of the greatest importance, and the

prompt resolution thereof is vitally necessary so that

the uncertainty and apprehension surrounding the

construction of new coal-fired plants can be dispelled.

The unfortunate decision below not only impliedly

attributes to Congress an intent to place industry in

an untenable position, but does so unnecessarily.

EPA’s Authority Under Section 111 Of The Clean

Air Act. In Section 111(a)(1) Congress spelled out

the scope of the Administrator's authority for the

promulgation of valid standards of performance. The

standards must reflect an emission limitation that is

‘‘achievable’’: they must he based on application of

the best system of emission reduction which has heen

‘‘adequately demonstrated."” and which takes ‘tinto

account the cost of achieving such reduction.”

The legislative history of Section 111 indieates

Congress’ intent that the Administrator base the new

source standards on a finding of the demonstrated

eapability of the particular industry to reach a speci-

fied degree of emission control in all new facilities

on a continuing, reliable, long-term, and not unduly

costly basis. The Senate Committee sfated

‘that the [Administrator] should examine the

degree of emission control which has heen or ean

be achieved through the application of technology

which is available or normally can be made avail-

able,”’

GOS ODE LE OEE ES POOR IE TOE LO SIO RIE: GPS

=e Re

and noted that new stationary sources subject to

standards of performance under the Act are ‘ex-

pected to be in compliance with those standards

throughout their operating life.“’*’ Similarly, the

House Report stated that “[i]n order to be consid-

ered ‘available’ the technology may not be one which

constitutes a purely theoretical or experimental means

of preventing air pollution.”’*

Based on this legislative history, the Court of Ap-

peals in the companion Portland Cement case, supra,

announced the following standard:

“The Administrator may make a_ projection

based on existing technology, though that pro-

jection is subject to the restraints of reasonable-

ness and cannot be based on ‘crystal ball’ inquiry.

As there, the question of availability is partially

dependent on ‘lead time,’ the time in which the

technology will have to be available. Since the

standards here put inte effect will control new

plants immediately, as opposed to one or two

years in the future, the latitude of projection is

correspondingly narrowed. If actual tests are not

relied on, but instead a prediction is made, ‘its

validity as applied to this case rests on the reli-

ability of [the] prediction and the nature of

[the] assumptions.’ **””

The Court below apparently recognized that it

faced a most difficult question with respect to the

278. Rep. No. 91-1196, 91st Cong., 2d Sess. 16, 17 (1970). It

seems reasonable to infer from this that it was intended that, for

a standard to be ‘tadequately demonstrated,” it should be shown

to be achievable on a basis consistent with normal] operating condi-

tions of the new sources covered.

*H. Rep. No. 91-1146, 91st Cong., 2d Sess. 10 (1970).

°5 E.R.C. at 1603-04, This opinion was rendered by another

panel of the Court prior to the decision in the present case.

sulfur dioxide standard, in view of the fact that lime

scrubbing technology on which it was based was ex-

perimental and ‘tthe EPA tests give results indicat-

ing that a presently installed unit approaches rather

than achieves the 1.2. Ibs./million Btu heat input

standard.’**’ The Court went on to conclude, however,

that

‘‘when the [test] results are considered in con-

junction with the prototype testing data and the

predictions and guarantees of domestic equip-

ment manufacturers for plants under construe-

tion, we cannot say that the standard represents

a ‘clear error of judgment.’ ** (App. 24a-25a).

The only reference to prototype testing data in the

record and relied upon by the Administrator and

cited by the Court are (1) a single one-sentence ref-

erence to a ‘*prototype unit’? and (2) brief mention

of Combustion Engineering ‘pilot studies” for which

no substantiating data are provided.” It is incon-

ceivable that these two exceedingly brief, unsubstan-

tiated references to prototypes or pilot studies could

be thought of by the Administrator as justifving his

disregard of the operations reported in the literature

and in his own test program, and the consistent fail-

ure of actual operating plants to achieve the stand-

ard. Similarly, the ‘“‘predictions and guarantees*’ of

three equipment manufacturers” cited by the Court

# App. 24a. (emphasis added). The references in the record

cited by the Court confirm the conclusion that the best performance

reported exceeded the standard.

CA. Appx. 35, 261. These points are diseussed in greater

detail in the Petition for Rehearing filed below at 5-9, a copy of

which has been filed with the Clerk of this Court,

#2 App. 24a-25a, n.47. The Court refers to the guarantees of

Monsanto, Zurn and Babeock & Wilcox.

eek cn ae

refer to two systems other than that upon which the

standard was based,** and one which must be dis-

counted in the light of the company’s recommenda-

tion ‘“tagainst standards based on the incorrect as-

sumption of commercially proven wet serubbing sys-

tems.’’“* Reliance by the Court upon designers’ guar-

antees for systems not yet in operation as a means

of proving that the system is **adequately demon-

strated”’ is clearly contrary to Congress’ directive.

Moreover, the reliance placed upon guarantees is at

odds with the holding of the Court in the companion

Portland Cement ease, supra.

Neither the statutory language nor the legislative

history suggests that Congress intended that the Ad-

ministrator implement Section 111 in sueh a way as

to require companies at their own risk to incur pro-

hibitive costs for the construction and installation of

inadequately tested emission control systems that had

43 The Monsanto guarantee relates to a catalytic oxidation system

which EPA itself found not adequately demonstrated (C.A. Appx.

35). and the Zurn guarantee is applicable to an oil-fired plant.

(C.A. Appx. 261). -

#4 Bahbeock & Wileox’s comments also state that the lime slurry

system has a low ‘*serubbing efficiency” and **would he far short

of the emission limits for the higher sulfur fuels commonly burned

in large steam generators." (C.A. Appx. at 171-72).

45+ [i]f vendor representations were to be a principal souree of

reliance by the agency, representations peculiarly subject to con-

siderations of self-interest, more might be required than mere

comments.”” (5 ERC at 1610, n.95). The Court also misplaced

reliance on an EPA statement that the standard ean be met by

70-75 pereent removal of sulfur dioxide formed by burning regular

eoal (C_A. Appx. 261), which assumption was disproved by EPA’s

own test data. (C.A. Appx. 53). See note 21, supra.

not been shown to be effective.” The absence of any-

thing in the Court's opinion or in the record justify-

ing the conclusion that the technology is commercially

available for installation on new plants, in the face

of the admitted fact that the standards were never

achieved, provides a particularly appropriate basis

for plenary review of EPA’s statutory responsibili-

ties under Section 111 of the Act.”

Further, the absence in the record of support for

the Administrator's determination that the standards

are achievable compels the conclusion that the Court

below could not have subjected that determination to

Tn the only known ease in which the question of the feasibility

of sulfur dioxide serubbing system has been litigated, the court

held after a lengthy trial—at which leading experts, ineluding

EPA and state ageney representatives, testified—that there was

no system arailable, including in particular the wet limestone

serubbing system, that had been shown to be commercially avail-

able and adequately demonstrated for reliable control of sulfur

dioxide emissions. Commonwealth of Pennsylvania v. Pennsylvania

Power Co., 5 E.R.C. 1373, 1379 (Lawrence County Ct. C.P., April

19, 1973).

* The statutory question is rendered more acute by EPA’s own

recent conclusions regarding the continuing unavailability of sulfur.

dioxide control systems. During October 1973 EPA held three weeks

of hearings on the status of flue gas desulfurization (FGD) tech-

nology for electric power plants. EPA’s October 18, 1973 presenta-

tion at the hearings concluded that the wet limestone boiler injee-

tion process, upon which it based the new source standards, has

heen abandoned (by the manufacturer and EPA) in favor of a

**tail end” serubbing process. and that even as to newer processes.

the best that could be said is:

‘*[I]n view of the fact that a number of large scale plants

scheduled for operation in the U.S. in the near future will

provide additional engineering effort to solve these problems,

EPA believes that an additional twelve months operating ex-

perience should effectively remove engineering barriers to the

application of FGD to many U.S. facilities."’ EPA (Princiotta)

Presentation, § 1V (on file at EPA).

ae ee a,

a ‘thorough, in-depth review’’ by ‘‘engag[ing] in a

substantial inquiry’? and “review [ing] the whole rec-

ord.”’ Citizens to Preserve Overton Park, Inc. V.

Volpe, 401 U.S. 402, 415, 419 (1971). In that ease

this Court made clear that although ‘“*the court is

not empowered to substitute its judgment for that of

the agency,’ the “inquiry into the facts is to be

searching and careful,” and in every case the court

must determine whether *‘the decision was based on a

consideration of relevant factors.”* Id. at 416.

The lower court’s approach cannot be squared with

this Court’s approach in Overton Park. The inescap-

able conclusion is that, despite the obvious impor-

tance of this case, the Court below applied an errone-

ous standard of review and simply failed to take an

in-depth look at the problems presented.”

The Continuing Controversy Over The Ambient Air

Quality Standards. Finally, the problems raised by

the standards of performance for new coal-fired

steam generators promulgated by EPA under Section

111 are compounded by the fact that the primary and

secondary ambient air quality standards—upon which

the Section 110 emission limitations applicable to all

stationary sources are based—remain the subject of

intense controversy and vigorous debate. Even though

the Section 111 emission standards are based on a

In Portland Cement. supra, the Court aptly noted that EPA,

‘*partieularly when its decisions ean literally mean survival of

persons or property, has a continuing duty to take a ‘hard look"

at the problems involved in its regulatory task.”’ 5 E.R.C. at 1605.

In contrast to the Court’s formula finding *‘no clear error of

judgement” in the present ease, the Court in Portland Cement found

numerous problems with EPA’s methodology in establishing the

standards, and remanded the cement regulations in their entirety

to EPA.

best technology requirement rather than the achieve-

ment of the ambient air quality standards,” there is

every indication that the unachievable emission levels

prescribed for sulfur oxides under Section 111 were

established by EPA with an eve more toward the

Section 109 ambient air quality standards than the

available evidence as to the achievability of those

levels through the use of existing technology. It must

be more than coincidence that the sulfur oxide emis-

sion levels in the standard of performance for new

coal-fired steam generators established under Section

111 are identical to the emission levels established

under many state implementation plans, which are in

turn intended to achieve the EPA ambient air quality

standards.

What is particularly unfortunate at this stage is

that the initial ambient air quality standards—in-

eluding those for sulfur oxides—were adopted by

EPA in 1971 at a time when the significance of the

standards was by no means clear to those industries

which would eventually be most directly affected by

them. Although the air quality standards were

adopted pursuant to informal rulemaking procedures,

with an opportunity for submission of written com-

ments, no company or industry had any idea at that

time as to what emission levels would eventually be

established for particular facilities for the attainment

of those standards. The result was that. with one

exception, the ambient air quality standards were not

challenged in statutory judicial review proceedings.”

49 See pp. 4-6, supra.

*° See Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir.

1972), in which the court remanded the standards in question for

a further explanation of their basis.

ata

WROTE

De Cot rte ne a aad

NPT Pate

Dba, 4

TERM RN NGPA

Qe APMP I ten

Only with the subsequent promulgation of the

Sections 110 and 111 emission levels did the signifi-

eanee of ambient air quality standards and the

enormity of the problems created by them become

clear. For example, at the root of the emission levels

established for discharges of sulfur oxide is the EPA

primary ambient air quality standard of 80 ug of

SOz per cubic meter of air.” This standard has been

repeatedly questioned by objective observers, most

recently in a study which coneludes that **more than

13,000 ug of SOz per cubic meter of air is needed

to produce any measurable broncho constriction,” *

the most commonly asserted injury to humans from

sulfur dioxide. The measurable effects level is thus

more than 160 times the level specified in the primary

standard.

Such a study, as well as expressed doubts by EPA

officials as to the factual basis for the ambient air

quality standards,” raises the extremely troublesome

spectre that billions of dollars may he spent unneces-

sarily and vast quantities of domestie coal left un-

used because of the adoption of sulfur dioxide emis-

sion levels that are derived. directly or indirectly,

from standards that cannot bear scientifie scrutiny.

Although the present case does not directly involve

5140 C.F.R. §504(a) (1972). The standard was derived from

‘Air Quality Criteria for Sulfur Oxides,”” U.S. Department of

Health. Education and Welfare (January 1969).

52 Baum, Jurgiel, and Gross, ** Establishing Environmental Cri-

teria,” Archives of Environmental Health, Sept. 1975, at 122.

53.4 leading EPA official has heen recently quoted as coneluding

that a technieal information base is not adequate to ensure sig-

nificantly incontrovertible primary ambient air standards and that

a major inerease in researeh over the next several years will be

needed to aequire such information. Summary of Proceedings, Con-

ference on Health Effects of Air Pollution, National Academy of

Sciences, October 3-5, 1973 (G.P.O., November 1973), at 34.

a challenge to the ambient air quality standards, it

does provide an opportunity for the Court to make

clear to EPA that in promulgating environmental

standards and emission levels that will drastically

affect major aspects of the economy—and in par-

ticular in establishing standards of performance for

new coal-fired steam generators—the agency must

base its actions upon solid evidence rather than specu-

lation and unfounded prediction.

Il. THE DECISION BELOW CONFLICTS WITH CONGRESSIONAL

POLICY CONCERNING NEPA AND INVOLVES A QUESTION

OF CONTINUING IMPORTANCE TO EPA REGULATORY

ACTION

Although the full import of the National Environ-

mental Poliey Act has yet to be spelled out in authori-

tative case law. it is by now clear that the procedural

provisions of NEPA ‘which are designed to see that

all federal agencies do in fact exercise the substantive

discretion given them . . . establish a strict standard

of compliance.”’* Paramount among these procedural

provisions is the requirement in Section 102(2)(C)

that responsible officials of ‘all agencies of the Fed-

eral Government” prepare a ‘‘detailed statement”

covering the impact of particular actions on the en-

vironmental costs which might be avoided, and alter-

native measures which might alter the cost-benefit

equation.” Virtually every agency of the federal gov-

ernment has by now prepared an impact statement.

34 Calyort Cliffs’ Coordinating Committee v. Atomic Energy Com-

mission. 449 F.2d 1109, 1112 (D.C. Cir. 1971).

3349 U.S.C. §4932(2)(C) (1970) (emphasis added): Calvert

Cliffs’, supra, 449 F.2d at 1114. A related requirement under

Section 102(2)(D) is that *‘all agencies .. . ‘study, develop, and

describe appropriate alternatives to recommended courses of action

in any proposal which involves unresolved conflicts concerning

alternative uses of available resources’.”’ 42 U.S.C. § 4332(2) (D).

bia ti aa) dl

SAA IDA TOU ROMNEY PAR Ry ROE CNN Pye

NE ERI NT Ea PLO GG FET

tne erect ornenire

Failure to observe these requirements has been re-

peatedly held to invalidate the federal proposal or

action in question, and to necessitate remand of the

matter to the ageney for full compliance.”

Against this explicit statutory language. the Ad-

ministrator published proposed standards of perform-

anee, promulgated final regulations, and prepared a

‘Supplemental Statement”’ of the basis for his regu-

lations without ever making any attempt to prepare

an environmental impact statement or to document

his consideration of alternative courses of action.

The Court below followed the path of two other

recent D.C. Cireuit decisions and purportedly left

undecided the broad issue of whether EP.\ must ever

eomply with NEPA and prepare an environmental

impact statement when it undertakes major regula-

tory action. Instead, it held that since a **proper”™’

construction of Section 111 requires EPA to “‘take

38 See, ¢.q.. Natural Resources Defense Council v. Morton, 458

F.2d 827 (D.C. Cir. 1972); Greene County v. FPC, 455 F.2d 412

(24 Cir. 1972), cert. denied, 409 Us, S49.

5? In International Harvester Co. v, Ruekelshaus, 478 F.2d 615

(D.C. Cir. 1973). the Court of Appeals remanded to EPA its

decision on a one-year suspension of the 1975 automobile emission

standards under Section 202 of the Act, and expressly declined

to decide the broad NEPA issue based on its determination that

the Administrator's suspension decision was ** necessarily infused”

with environmental considerations, and since its order on remand

required a detailed decision by the ageney. Subsequently in Port-

land Cement Assoeiation v. Ruekelshaus, 5 E.R.C_. 1593 (D.C, Cir.,

June 29. 1973), the Court remanded the Administrator's decision

in promulgating regulations establishing limits on air emissions

for new Portland cement plants. As in the /nternational Harvester

ease, the Court expressly refrained from a determination of the

broad claim of NEPA exemption raised by the Government, based

on its deeision that **section 111 of the Clean Air Act, properly

construed, requires the functional equivalent of a NEPA impact

statement.”" (5 ERC at 1598).

into account’’ the adverse environmental effects of a

standard, **no NEPA statement need be filed by the

Administrator in making his Section 111 determina-

tions,”’ on the basis of the companion Portland Ce-

ment decision. (App. Ga-7a) (emphasis added). How-

ever, finding that the sludge byproduct of the lime

slurry serubbing system upen which the standards

were based presented significant adverse environ-

mental effects not dealt with by EPA in any man-

ner on the record, the Court below remanded the

record to EPA ‘for further consideration and ex-

planation by the Administrator’ of these effects. (/d.

at 25a). Since, as the following discussion will am-

plify, this holding does not require even the **equiva-

lent’? of compliance with NEPA, the statutory ques-

tion should be resolved now by this Court.

There Is No Basis For Evrempting EPA From

NEPA. There surely can be no doubt that the En-

vironmental Protection Agency is an agenev of the

federal government. encompassed by a statutory di-

rective aimed at ‘tall agencies of the Federal Gov-

ernment.”’ and the fact that the proposed standards

of performance qualify as ‘*proposals for ... major

Federal actions significantly affecting the quality of

the human environment.’ For the bases or reasons

for this paradox of the leading environmental agency

totally ignoring the unambiguous language of this

*‘most important’’” environmental statute one must

examine EPA’s position that it is not required to

comply in the ease of “environmentally protective

regulatory activities." The ‘legislative history”

relied upon to support this disregard of the unam-

38 Calvert Cliffs’, supra, 449 F.2d at 1111.

°° EPA Interim NEPA Regulations § 6.15(b)(6), 58 Fed. Reg.

1696, 1697 (January 17, 1973).

Lares

NR NI

SP METI E IN. KORE ENP OE ARNT TERD YE ETI

ger

SOPRA Wa ene REE RT OOM ITP T fe

PRENANT ET e? quer niet

biguous language of the Act derives from a document

submitted by Senator Jackson to accompany the Con-

ference Report on NEPA and introduced into the

Congressional Record just prior to the Senate's adop-

tion of NEPA, and from an ensuing colloquy between

Senators Jackson and Muskie. in which these Sena-

tors agreed, as Senator Muskie put it. “[t]hat the

legislative mandates”’ of ‘agencies having authority

in the environmental improvement field’* are not

changed by NEPA.”

This brief so-called legislative history does not on

its face support the exemption claimed by EPA, and

is at best ambiguous.” The reference to the **man-

dates’’ of environmental agencies indicates that the

concern was with the effect of NEPA on the sub-

stantive mandate of these agencies, and not with the

applicability of NEPA’s procedural requirements

such as the preparation of an environmental impact

statement.” But regardless of its import, there is

Cement Ass'n v. Ruckelshaus, supra, 5 ERC at 1596.

61 The ambiguity of this legislative history was acknowledged by

the Administrator himself during the NEPA Oversight Hearings.

when he stated that ‘‘the ambiguity of that colloquy on the floor

of the Senate ... is a shaky basis for an exemption."” Joint Hear-

ings before the Senate Committees on Public Works and Interior

and Insular Affairs on the National Environmental Policy Act,

924 Cong., 2d Sess. at 564 (1972).

62 The correctness of the foregoing interpretation was confirmed

by Senator Jackson, the author of the document relied upon,

during the debates on the Federal Water Pollution Control Act

Amendments of 1972. ‘*Section 102(2)(C) established procedural

requirements that apply to the decisionmaking process for all major

Federal decisions that could have an adverse environmental im-

pact. It is not a substantive standard and I, therefore, agreed that

the adoption of EPA would not change the substantive mandate

for programs administered by EPA." 118 Cong. Ree, 816886 (daily

ed., October 4, 1972).

ee ee ee

nothing to indicate that the Jackson-Muskie exchange

represented the views of the Congress. It does not

appear in any Committee or Conference Report on

NEPA.” Since the Act itself is unambiguous, resort

to this legislative history to contradict the plain

meaning of the statute is unjustified.” Finally, *‘en-

vironmental’? agencies other than EPA have aec-

quiesced in the preparation of environmental impact

statements.”

It is of particular interest that the Council on

Environmental Quality, which initially concluded

that EPA should not have to prepare impact state-

ments for ‘“‘environmental protective regulatory ac-

tivities.’ has changed its mind and has revoked

this non-statutory exemption in the recent revision

of its NEPA Guidelines.” And in adopting the Fed-

eral Water Pollution Control Act Amendments of

1972, Congress expressly provided EPA with a nar-

63 Indeed. Senator Allott, a Conferce, specifically noted at con-

clusion of the Muskie-Jackson exchange that the document had

not been reviewed, agreed on and signed by the other Senate

Conferees. He emphasized that the Senate would vote on the

language ‘‘of the Conference Report alone’’ and not on the inter-

pretations sect out by Senators Jackson and Muskie. (115 Cong.

Ree. 40422). See Portland Cement, supra, 5 ERC at 1596-97.

64 As the Court stated in United States v. Oregon, 366 U.S. 645,

64S (1961), *‘such statements, even when they stand alone, have

never been regarded as sufficiently compelling to justify deviation

from the plain language of a statute.”

6 Nec Anderson. F.. NEPA in the Courts 107 (1973).

6° 36 Fed. Reg. 7725 (April 23, 1971).

8°40 C.F.R. § 1500.4, 38 Fed. Reg, 20550 (August 1, 1973) : tor

an explanation of the revocation, see 38 Fed. Reg. 10556, 10865

(May 2, 1975). See also Portland Cement v. Ruckelshaus, supra,

5 ERC at 1597, n.31.

LUTE ENTS SABE OT IO PORATION. RET LIES

“gle

| oe LOATH LATHES

row exemption from NEPA,” but at the same time

assured consideration by EPA of all environmental

effects in the promulgation of pollution controls by

expressly adding the requirement that **non-water

quality environmental impact (including energy re-

quirements) *’ be taken into account.” The reasonable

conclusion from this is that NEPA must be deemed

to be fully applicable to EPA in the absence of an

express statutory exemption.

The Issue Of EPA’s Exemption From NEPA

Should Be Resolved Now By This Court. If the de-

cision below is not reviewed at this time, **EP.A would

be the only agency of the federal government which

could ignore the adverse environmental effects of its

actions.” The decision below cannot be read as a

narrow, confined exception from NEPA which pro-

vides a substitute procedure for compliance. The

Court of Appeals has now found a so-called *excep-

tion”? for EPA in all four cases it has decided rais-

ing the NEPA issue.”

Although the Court remanded the case to EPA for

an ‘explanation’? of the adverse environmental ef-

*S Section 511(¢)(1) of. the Act, 53 U.S.CLA, § 1571(¢) (1), pro-

vides that exeept for financial assistance and permits for new

sourees, ‘‘no action of the Administrator taken pursuant to this

Act shall be deemed a major Federal action significantly affecting

the quality of the human environment within the meaning of the

National Environmental Policy Act of 1969... .. a

9 33 U.S.C.A, § 1514(b) (1) (B) and (b) (2) (B).

7 NEPA In The Courts, supra, at 118.

"1In addition to the present case and the Jnternational Har-

vester and Portland Cement cases (see n.57 supra), the Court

recently ruled that EPA was exempt trom NEPA in administering

the FIFRA pesticide programs, Environmental Defense Fund ef al.

y. E.P.A. (D.C. Cir. No, 72-1548 ef al., December 15, 1973).

Cab APRON AT EAE Pa ee eer te ao

fects of the regulations, clearly such a post hoc pro-

cedure is no substitute for compliance with NEDA.

This is because the primary purpose of NEPA is to

require all federal agencies to consider all of the en-

vironmental consequences of their actions “just as

they consider other matters within their mandates. **

A supplementary explanation—such as was ordered

by the Court below—has nothing to do with the in-|

tegral consideration of consequences and alternatives

in the decision making process which NEPA re-

quires.” Decisions affecting the environment must be

reached with ‘individualized consideration and bal-

ancing of environmental factors—conduected fully and

in good faith." “* The preparation of an impact state-

ment, and its requisite consideration of alternatives,

might well have led the Administrator to reach some-

what different conclusions in promulgating standards

of performance.” Virtually every sentence of NEP.A

ealls for a thoughtful consideration and balancing by

2 Calvert Cliffs’, supra, 449 F.2d at 1112. For example, the

Atomie Energy Commission previously considered the radiological

health and safety effeets of nuclear power plants; it must now con-

sider all other effects as well, such as the effeet of thermal dis-

charges on receiving waters.

73 See Portland Coment, supra, 5 ERC at 1508, n.40.

“Calvert Cliffs’, supra, 449 F.2d at 1115, Seetion 102(2)(C)

states that the environmental impact statement must **aecompany

the proposal through the existing ageney review process.’

1f a particular system of emission reduction would possibly

reduce sulfur dioxide emissions, for example, but at the same time

ereate a solid waste disposal problem, or a water pollution problem,

then a question might be raised as to whether such system was

the ‘thest system’’ available. Or if a system of emission limitation

for nitrogen oxides inereases emissions of other pollutants, or re-

quires inereases in overall boiler capacity, then other systems

should have been explored. Those adverse effects did exist here.

See Petrs. Br. at 46, 60, 75-80.

SN POE BOT DY OLB ALPE GEIL EO TIF I LEE IL APE IN

MIE ECY

EPA of all of the environmental factors relative to

the generation of electricity to meet future demands

before any long-term decision regarding only one of

them is made.

Circulation of an impact statement, as opposed to

a supplementary explanation, would also reveal

EPA’s preliminary views in much greater detail to

a wider audience than the resulting limited remand

by the Court below.” Section 102(2)(C) of NEPA

expressly provides that copies of the environmental

impact statement shall be made available to the fed-

eral and state agencies and the public.” This reflects

a major objective of NEPA to allow ‘those removed

from the initial process to evaluate and balance the

factors on their own.’’ The standards of perform-

ance for new stationary sources will have a profound

impact upon the electric-generating capacity of this

country for years to come. Fundamental questions

involving the use of vast reserves of natural re-

sources, selection of sites for generating plants, rela-

tive use of various fuels, and the ability of utilities

to respond to the energy crisis will necessarily be

affected by the standards of performance. \ signifi-

6 Further, the requirements of the Court of Appeals do not assure

that the specifie areas enumerated in Section 12(2)(C) will be

discussed in detail, and that a fair, systematie procedure for

review will be followed every time EPA acts on a major proposal.

7™ The CEQ Guidelines further provide that agencies have a

responsibility to develop procedures “to encourage publie partici-

pation in the impact statement process at the earliest possible

time.’ CEQ Guidelines, supra, 49 C.F.R, § 1500.90), 38 led. Reg

20555.

78 Calvert Cliffs’, supra, 449 F.2d at 1114.

cant statutory purpose would be served by making

those facts clear, to the Congress,” other federal

agencies,”’ and the public, and by describing in detail

the environmental impact of such possible results.

Finally, the view that EPA in its self-described

role of environmental policeman should be exempt,

as Senator Jackson persuasively observed, raises the

vital question ‘‘Who shall police the police ?’’** Clear-

ly Congress contemplated that decisions affecting the

environment would be ‘‘policed’’ by subjecting them

to the scrutiny of the Congress, other agencies, the

states, and the public. This function of NEPA should

not be thwarted, as the result below does, by allowing

EPA to conduct its activities behind closed doors.

°° In Portland Cement, supra, the Court concluded that **Con-

gress receives no required information about the possible adverse

environmental impact of proposed standards for new stationary

sourees.’’ 5 E.R.C, at 1598, n.40.

8° In December 1971, the Federal Power Commission released its

comprehensive 1970 National Power Survey (n.35, supra), which

ineluded numerous comments on environmental considerations re-

lating to the generation and use of electricity, Part I at 1-3-5,

[-11-15, 1-21-16, 1-1-5, 6. Clearly the Administrator would have

benefited from an FPC review of an EPA impact statement ae-

companying the proposed standards of performance,

st**(T]he real point to be made is why environmental control

programs should be exempt from the constraints of environmental

laws? Do we exempt civil rights programs from anti-diserimination

requirements? Are labor programs exempted from minimum wage

and child labor laws? Are law enforcement officers free to disobey

criminal laws? In short, the question is ‘Who shall police the

police?’ EPA should certainly be required to undertake the same

open, balancing decisionmaking which NEP.A has required of

other agencies."’ 118 Cong. Ree, 816887 (daily ed., October 4,

1972).

Tee

SPL GLI LOF

SFG ATE, ETE

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Beers

CONCLUSION

For the reasons stated, the Petition for Certiorari

should be granted.

Respectfully submitted,

H. Epwarp DUNKELBERGER, JR.

THEODORE L. GARRETT

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioners

January 1974

APPENDIX

INDEX TO APPENDIX

Page

Opinion of the Court in Essex Chemical Corporation,

et al. v. Ruckelshaus, No. 72-1072, and Appalachian

Power Company, et al. v. Environmental Protec-

tion Agency, No. 72-1079 (D.C. Cir., September 10,

Ss: cachet ncuh wanna camnedaceaak unseen la

Order of the Court of Appeals for the District of Co-

lumbia Circuit Denying Petitioners’ Petition for

Rehearing, October 3, 1973 ...............020. 27a

Pertinent Provisions of the Clean Air Act, as amended,

42 U.S.C. §§ 1857 et seq. (1970) ................. 28a

Pertinent Provisions of the National Environmental

Policy Act, 42 U.S.C. $$ 4321, 4331-4335 (1970) .. 34a

Statement of the Administrator Announcing Final Pro-

mulgation of the Standards of Performance for

New Stationary Sources, 36 Fed. Reg. 24876 (De-

ee 2 oak poke caeacebeneaneas 38a

Supplemental Statement in Connection with the Final

Promulgation of Standards of Performance for

New Stationary Sources, 37 Fed. Reg. 5767 (March

Pe SE ch otek ont Clap ane Maa Gini 43a

Birsseniucs naa’

= dee Er ar.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT COURT OF COLUMBIA CIRCUIT

No. 72-1072

Essex CHEMICAL CoRPORATION, ET AL,

Petitioners,

Wriusam D. Rvucketsnats,

Administrator, Environmental Protection Agency,

Respondent.

No. 72-1079

APPALACHIAN PowER CoMPANY

Inpiana AND Micuican Evectric Company

Kentucky Power Company

Outo Power Company,

Petitioners,

Vv.

ENVIRONMENTAL Protection AGENCY,

Respondent.

Petitions for Review of an Order of the

Environmental Protection Agency

Decided September 10, 1973

Robert C. Barnard, with whom Donald L. Morgan and

Edward Maguire were on the brief, for petitioners in No.

72-1072. Kenneth L. Rachman, Jr. and Douglas E. Kliever

also entered an appearance for petitioners in No. 72-1072.

H. Edward Dunkelberger, Jr., with whom Theodore L.

Garrett was on the brief, for petitioners in No. 72-1079.

James R. Walpole, Attorney, Department of Justice, with

whom Kent Frizzell, Assistant Attorney General, Edmund

Bese ERT APY VEN PALO IAN ELGAR BBN RAPPER SUITE ROUTE TROND GMM NIN

B. Clark and Martin Green, Attorneys, Department of

Justice, were on the brief for respondent in No. 72-1072.

Thomas C. Lee, Attorney, Department of Justice, of the

bar of the Supreme Court of Michigan, pro hac vice, by

special leave of court, with whom Kent Frizzell, Assistant

Attorney General, Edmund B. Clark and Martin Green,

Attorneys, Department of Justice, were on the brief, for

respondent in No. 72-1079.

Turner T. Smith, Jr., filed a brief on behalf of Long

Island Lighting Company and National Asphalt Pavement

Association, as amici curiae urging reversal.

Before: Wricut and Tamm, Circuit Judges, and Davtes,*

Senior United States District Judge for the District of

North Dakota.

Opinion for the Court filed by Circuit Judge Tamm.

Tamm, Circuit Judge: These two appeals, consolidated

for purposes of argument and decision, are taken from

the action of the Administrator of the Environmental

Protection Agency [EPA] in setting *‘standards of per-

formance’’ for new or modified stationary sources of pollu-

tion pursuant to the mandate of $111 of the Clean Air

Act, as amended [Act], 42 U.S.C. § 1857 e-6 (1970). Among

the stationary sources for which standards were set are

sulfurie acid plants, subject to challenge in No. 72-1072,

and coal-fired steam generators, subject to challenge in

No. 72-1079. See 40 C.F.R. 4{ 60.1 et seq. Even when limited

to the scope of review prescribed by the Supreme Court

in Citizens to Preserve Overton Park v. Volpe, 401 US.

402 (1971), we find that the Administrator’s action as to

certain aspects of the standards must be remanded for

further proceedings; as to the bulk of the standards, how-

ever, we find that the Administrator has acted properly

within the scope of his authority and not in abuse of his

discretion.

* Sitting by designation pursuant to 28 U.S.C. § 294(d).

eee fe ae Se ADR

On March 31, 1971, pursuant to the requirement of § 111

of the Act, 42 U.S.C. § 1857 ¢-6 (1970),’ the EPA published

a list of categories of stationary air pollution sources

which significantly contribute to the endangerment of

public health and welfare. The list included steam gene-

rators, incinerators, sulfuric acid plants, nitric acid plants,

and portland cement plants. 36 Fed. Reg. 5931 (March 31,

1971). Thereafter, on August 17, 1971, proposed regula-

tions were published establishing federal standards of

performance for each new source category on the list. 36

Fed. Reg. 15704 (August 17, 1971). Issued concurrent with

the proposed regulations were documents entitled ‘‘Back-

ground Information for Proposed New-Source Perform-

ance Standards’’ and ‘‘Summaries of Test Data,’’ which

set forth the justification for the new proposed standards.

In December of 1971, after receiving and evaluating more

than 200 comments from interested parties,? the EPA

published final regulations, 40 C.F.R. part 60, incorporat-

ing only minor changes from the proposed regulations. 36

Fed. Reg. 24876 (December 23, 1971).

142 U.S.C. § 1857¢-6(b) (1970) provides in pertinent part:

(1)(A) The Administrator shall, within 90 days after De-

cember 31, 1970, publish (and from time to time thereafter

shall revise) a list of categories of stationary sources. He shall

include a category of sources in such list if he determines

it may contribute significantly to air pollution which causes

or contributes to the endangerment of public health or wel-

fare.

(B) Within 120 days after the inclusion of a category of

stationary sources in a list under subparagraph (A), the

Administrator shall propose regulations, establishing Federal

standards of performance for new sources within such cate-

gory. .. . [H]e shall promulgate, within 90 cays after such

publication, such standards with such modifications as he

deems appropriate.

* See 36 Fed. Reg. 24876 (December 23, 1971).

LORCA YORE INE DP

pte eS

8 isa bah act

On January 21 and 24, 1972, Essex Chemical Corp., et al.

(No. 72-1072), Portland Cement Association (No. 72-1073),

and Appalachian Power Co., et al. (No. 72-1079), petitioned

for review in this court pursuant to § 307(b)(1) of the Act,

42 U.S.C. § 1857h-5(b) (1) (1970),° challenging the stand-

ards set by the EPA for sulfurie acid plants, portland

cement plants, and coal-fired steam generators, respective-

ly. Shortly thereafter this court issued its decision in

Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir.

1972), concerning a national secondary ambient air quality

standard promulgated by the EPA pursuant to § 109(b)

of the Act, 42 U.S.C. § 1857e-4(b) (1970), wherein a re-

mand was ordered so that the EPA might ‘‘supply an

implementing statement that will enlighten the court as to

the basis on which [the Administrator] reached the...

standard. ...’’ Id. at 850. In light of the Kennecott Copper

decision the EPA subsequently published a ‘‘Supplemental

Statement in Connection with Final Promulgation,’’ 37

Fed. Reg. 5767 (March 21, 1972), in order to avoid the

problems presented in Kennecott Copper and thus ‘‘en-

sur[e] the rapid conclusion of judicial review of the validi-

ty of the [stationary source] standards.’’ Id.'

Il.

On June 29, 1973, another panel of this court issued an

opinion remanding the record to the EPA for further

proceedings regarding the standards of performance for

342 U.S.C. § 1857h-5(b) (1) (1970) provides in pertinent part:

A petition for review of action of the .\dministrator in

promulgating . . . any standard of performance under sec-

tion 1857¢-6 of this title . . . may be filed only in the United

States Court of Appeals for the District of Columbia.

‘In issuing the *‘Supplemental Statement’’ the EPA thus hoped

to avoid a remand similar to that required in Kennecott Copper

Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972), by providing addi-

tional information regarding the bases for the standards prior to

argument and decision in this court.

portland cement plants, Portland Cement Association v.

Ruckelshaus, No. 72-1073 (D.C. Cir. June 29, 1973). While

the records in the two cases sub judice are substantially

different from that in Portland Cement and consequently

engender differing conclusions as to the legality of the

standards, several issues are so similar and so conclusively

dealt with by the Portland Cement decision that they can

be treated summarily by this court in its determinations

today.

1. NEPA Impact Statement

One issue raised and extensively briefed in both No.

72-1072 and No. 72-1079 is the consequence of the Admin-

istrator’s failure to file an ‘‘impact statement’’ pursuant

to {102(2)(c) of the National Environmental Policy Act

of 1969 [NEPA], 42 U.S.C. § 4332(2)(c) (1970).° Peti-

tioners here allege (as was alleged in Portland Cement)

that the EPA, merely because it is an environmentally

oriented agency, is not exempt from the NEPA provision

that in ‘‘major Federal actions significantly affecting the

quality of the human environment,*’ all Federal agencies

are subject to the requirement that the responsible official

file ‘‘a detailed statement ...on... the environmental im-

pact of the proposed action.’’ Petitioners pointedly note

that an impact statement, if filed, would have required the

EPA to consider factors such as alternative adverse en-

vironmental effects and cost benefit analyses to a consider-

542 U.S.C. § 4532(2)(e) (1970):

[A]ll agencies of the Federal Government shall—

for legislation and other major Federal actions significantly

affecting the quality of the human environment, a detailed

statement by the responsible official on—

(i) the environmental impact of the proposed action . .

This issue was also extensively briefed by amicus curiae Long

Island Lighting Co. in No. 72-1079, and amici curiae Long Island

Lighting Co. and National Asphalt Paving Co. in No. 72-1072.

eT ee ak Lan

Beever ner (epee CRISIS

ably more significant degree than that which the record

shows actually occurred.

The Portland Cement panel, per Judge Leventhal, ex-

tensively analyzed the considerations pertaining to a gen-

eral, limited, or non-existent exemption for the EPA from

the NEPA impact statement requirements. See Portland

Cement, supra, slip op. at 5-21. The panel concluded, leav-

ing for another time the consideration of whether the

EPA was completely exempt from the rigors of an impact

statement,” that the EPA was exempt at least in its action

in promulgating the {111 standards. The determination

was founded upon a ‘‘proper’’ construction of the $111

mandate that the ‘‘standard of performance’? reflect ‘‘the

best system of emission reduction’? and require the Ad-

ministrator to take into account ‘‘the cost of achieving

such reduction.’’ As ‘‘[t]hese criteria require the Admin-

istrator to take into account counter-productive environ-

mental effects of a proposed standard,’ as well as economic

®We likewise refrain from any broader determination of an

EPA exemption from the NEPA impact statement requirement.

* The EPA argues that §§ 312(a) and 313 of the Clean Air Act,

42 U.S.C, § 1857j-1, 2 (1970), calling for the preparation annually

of *‘economie cost studies for Congress** and a report coneerning

the ‘‘progress and problems of the air pollution control programs

under the Act,’* is an adequate alternative to considering in each

ease the ‘‘counter-productive environmental effects of a proposed

standard.’’ See Brief for Respondent in No, 72-1072, at 29-51, and

Brief for Respondent in No. 72-1079, at 27-28, Such a genera] year

end study simply is not an adequate substitute for a ease by ease

analysis of adverse environmental effects, even to the extent that

the ease by case analysis is limited by time constraints imposed

by Congress. We note that if our interpretation of **best system"’

did not include a requirement that such factors be considered on

such a basis then § 111 of the Clean Air Act, as construed, would

in all likelihood not require the **functional equivalent of a NEPA

impact statement.’" and the workable balanee would no longer

exist. See Portland Cement Assoc, v. Ruckelshaus, No. 72-1073 (D.C.

Cir. June 29, 1973), slip op. at 15 n. 40. Compare Getty Oil Co.

vy. Ruekelshaus, 467 F.2d 349, 359 (3d Cir. 1972), cert. denied,

409 U.S. 1125 (1973).

eure oa . as |

s¢

costs to the industry,’’ the decision that an impact state- ;

ment is not required in this specifie instance strikes a .

‘‘workable balance between some of the advantages and

disadvantages of full application of NEPA.”’ Td. at 18-19.

The court stated: ,

What is decisive, ultimately, is the reality that, section

111 of the Clean Air Act, properly construed, requires

the functional equivalent of a NEPA impact state- ;

ment.

Id, at 16. Finding no good reason to divert from or expand Hy

upon the logic of the Portland Cement decision, we adhere i

to the position that no NEPA impact statement need be é

filed by the Administrator in making his 4 111 determina- :

tions.* &

2. Opacity Standard .

a ij

The standards promulgated by the Administrator re- F

strict ‘‘acid mist’* discharge to no greater than ‘‘10 per- :

cent opacity’’ in sulfurie acid plants and ‘particulate 5

matter’? discharge to no greater than ‘20 percent opacity”’

in coal-fired steam generators.® See 40 C.F.R. 4< 60.83(b),

60.42(b). Opacity is defined as the ‘‘degree to which emis-

sions reduce the transmission of light and obscure the

® See especially Portland Cement Assoe. v. Ruckelshaus, No.

72-1073 (D.C. Cir, June 29, 19735), slip op. at 17 n. 41, for a dis-

eussion of the actions of other courts regarding the impact state-

ment requirement for the EPA, generally relating to the § 110

determination of state plan compliance with the Clean Air Act.

Sce also Buckeve Power, Ine. v. EPA, Nos. 72-1628, -29, -32 (6th ~

Cir. June 28, 1975), issued one day prior to the Portland Cement

decision, a $110 decision holding an impact statement unnecessary

because to do otherwise *‘would mean that an ageney whose sole

purpose is the improvement of the environment, would have to file

an Environmental Impact Statement with itself."’ Jd., slip op.

at 19.

®** Acid mist’’ is defined as **sulfurie acid mist, as measured by

test methods set forth in this part,’’ 40 C.F.R. §60.81(b), while

‘*particulate matter’’ is defined as ‘‘any finely divided liquid or

solid material, other than uncombined water, as measured by

view of an object in the background.’’ 40 C.F.R. § 60.2()j).

A 10 percent opacity standard was established for the

portland cement stationary sources of pollution and the

Portland Cement court, impressed both by the arbitrari-

ness of the test—it is essentially a subjective test on the

part of trained inspectors who attempt to judge the per

cent of opacity present in a smoke plume—and the per-

suasive challenges on the part of the petitioners,’” found

that further consideration and explanation of the efficiency

and objectivity of the test was necessary prior to its

adoption as a standard:

[I]t is one thing to use a method of testing to observe

possible violations of a standard; it is another to con-

stitute that method as the standard itself. If the

opacity test is to be a standard, and if violations

can result in enforcement actions without further

testing, the standard must be consistent with the

statute and congressional intent.

Portland Cement, supra, slip op. at 50, Similar opacity

standards are challenged in both suits before us today

and the principles requiring further consideration are un-

changed. The record must be remanded for additional con-

sideration and explanation by the Administrator regarding

the reasonableness of the opacity standards.”

Method 5.°° 40 C.F.R. §60.41(e¢). In the instanee of both acid

mist and particulate matter alternative methods of measurement

other than the opacity test are promulgated. See 40 C.F.R. §§

60.42(a), 60.83(a), which set quantitative limits based upon

emissions actually detected by appropriately objective test methods.

See especially the disenssion in Portland Cement Assoc. v.

Ruckelshaus, No. 72-1073 (D.C. Cir. June 29, 1973), slip op. at

51, pertaining to a test conducted for the Nationa] Center for Air

Pollution Contro] (U.S, Dept. H.E.W.).

Sinee the reeord was remanded in Portland Cement for a

similar reconsideration of the opacity standard, and since the

challenges basically are directed at the test itself rather than

particular standards set thereunder, we do not believe that the

reconsideration will require much more effort on the part of the

EPA than is already required by Portland Cement.

3. Startup, Shutdown, Equipment Malfunction

Petitioners in both No. 72-1072 and No, 72-1079 raise

objections in varying degrees regarding the EPA’s failure

to provide that lesser standards, or no standards at all,

should apply when the stationary source is experiencing

startup, shutdown, or mechanical malfunctions through no

fault of the manufacturer. Petitioners allege that nowhere

in the record has there been a showing that the standards

an be equalled during periods of less than normal opera-

tion, when plant efficiency and consequently pollution emis-

sions vary significantly from the norm. On August 18,

1972, EPA Acting Administrator Fri admitted that ‘‘[a]t

the time of promulgation, it was known that even in the

ease of sources which ordinarily complied with the stand-

ards and which followed proper operating and mainte-

nance procedures, there could on oceasion occur malfune-

tions or other events (process startups and shutdowns)

during which emissions might temporarily exceed the

standards.’’ * 37 Fed. Reg. 17214 (August 25, 1972). Con-

current with that statement regulations were proposed

12 See, c.y., in No. 72-1072, the Comments of Stauffer Chemical

Co., JA. at 76, 81: Manufacturing Chemists Assoe., J.A. at 121,

137: American Cyanamid Co.. J.A. at 267, 268; and in No, 72-

1079, the Comments of Edison Electrie Institute, JoA, at 123, 126;

Michigan Electrie Assoe., J.A. at 140, 144-45; Consolidated Edison

Co. of New York, J.A. at 188, 197. The comments in No. 72-1079

were substantially directed to the time within which initial per-

formance tests were to be conducted. 40 C.F.R, § 60.8 now provides

that the tests must be taken ‘‘{w]ithin 60 days after achieving

the maximum production rate at which the affeeted facility will

be operated, but not later than 180 days after initial startup of

such facility .

3The Acting Administrator specifically stated that ‘*[a]s

promulgated, the standards contained no explicit provision to deal

with such oceurrences,”’ but that ‘‘{s]uch occurrences generally

are dealt with by the exercise of discretion in the Ageney’s en-

forcement activities." 37 Fed. Reg. 17214 (August 25, 1972). See

generally Portland Cement Assoc. v. Ruckelshaus, No. 72-1073 (D.C.

Cir. June 29, 1973), slip op. at 44-47.

ARR LS AIEEE LEE WLIO LITE ED ME EE Ae Oe OE ee

MOLE PASE

10a

providing a framework within which unavoidable excesses

of the standard would normally not be considered viola-

tions of the regulatory guidelines (so long as certain re-

porting requirements are fulfilled). The identical issue was

raised in Portland Cement and the court there found the

challenge persuasive enough to merit a remand. The sig-

nificance of the proposed regulation was fully recognized:

If the EPA adopts, or intends to adopt, this pro-

posed regulation, it may take the attendant flexibility

into account, on remand, as pertinent to the manu-

facturers” objections, even though the new regulation

has been proposed in a proceeding with a different

docket number and caption.

Portland Cement, supra, slip op. at 47. We agree that such

variant provisions appear necessary to preserve the rea-

sonableness of the standards as a whole and that the

record does not support the **never to be exceeded’ stand-

ard currently in foree. Thus, we remand for further con-

sideration of this issue, noting that the proposed regulation

should play an integral role in any reconsideration.

Ill.

The focal point of our analysis of the EPA’s standard

setting must be the statutory statement defining ** standard

of performance.’* Section 111 of the Act, 42 U.S.C. § 1897

e-6(a)(1) (1970), states:

The term ‘‘standard of performance’’ means a

standard for emissions of air pollutants which reflects

the degree of emission limitation achievable through

the application of the best system of emission reduc-

tio which (taking into account the cost of achieving

such reduction) the Administrator determines has been

adequately demonstrated.

It is the system which must be adequately demonstrated

and the standard which must be achievable. This does not

lla

require that a sulfuric acid plant be currently in operation

which can at all times and under all circumstances meet

the standards; nor, however, does it allow the EPA to set

the standards solely on the basis of its subjective under-

standing of the problem or ‘terystal ball inquiry.”’ See

Portland Cement, supra, slip op. at 29-31. An adequately

demonstrated system is one which has been shown to be

reasonably reliable, reasonably efficient, and which can

reasonably be expected to serve the interests of pollution

control without becoming exorbitantly costly in an eco-

nomic or environmental way. An achievable standard is

one which is within the realm of the adequately demon-

strated system's efficiency and which, while not at a level

that is purely theoretical or experimental, need not neces-

sarily be routinely achieved within the industry prior to

its adoption.”

In subjecting the Administrator’s actions to judicial

review we apply a test of reasonableness, wherein we are

‘*not empowered to substitute [our] judgment for that of

the agency’ but must consider whether ‘*the decision was

based on a consideration of the relevant factors and

whether there has been a clear error of judgment.’’ Cifi-

zens to Preserve Overton Park v. Volpe, supra, 401 U.S.

at 416. The judgement of the Administrator is to be weighed

against his statutory function and limitations, the record

searched to determine if indeed his decisions and reasons

therefore are themselves reasoned, and at that point our

function terminates. Our ‘‘expertise’’ is not in setting

% The legislative history of $111 of the Clean Air <Aet, as

amended, 49 U.S.C, § 1857e-6 (1970), reveals that Congress was

most concerned that new plants—new sources of pollution—would

have to be controlled to the greatest degree practicable if the na-

tional goal of a cleaner environment was to be achieved. See 8.

Rep. No. 1196, 91st Cong., 2d Sess. 16 (1970); Summary of the

Provisions of Conference Agreement on the Clean Air Act Amend-

ments of 1970, 116 Cong. Ree, 42354, 42385 (1970). The Confer-

ence Committee eonsidered S. 4555, 91st Cong.. 2d Sess. § 113

(1970) and H.R. 17255, 91st Cong., 2d Sess. § 112 (1970).

Irs <

Dot TES ELAN

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a a he eel fel le Ba

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lla

standards for emission control but in determining if the

standards as set are the result of reasoned decision-making.

Yet, even this limited function requires that we foray into

the technical world to the extent necessary to ascertain if

the Administrator's decision is reasoned. While we must

bow to the acknowledged expertise of the Administrator

in matters technical we should not automatically succumb

thereto, overwhelmed as it were by the utter *‘scientificity”’

of the expedition.

A vast majority (97 per cent) of sulfuric acid plants in

the United States produce sulfuric acid by means of a

‘*eontact’’ process, involving these three steps:

(1) Elemental sulfur or other sulfur-bearing raw

material is burned to obtain sulfur dioxide gas

[SO(2)];

(2) Sulfur dioxide gas is converted into sulfur tri-

oxide [SO(3)], upon contact with a catalyst, generally

vanadium pentoxide;

(3) Sulfur trioxide gas is then absorbed in sulfuric

acid [H(2)SO(4)], through combination with the water

in a 98 to 99 percent sulfuric acid solution with which

it is circulated in an absorption tower.

Any unconverted sulfur dioxide gas passes through de-

mister equipment (to eliminate acid mist, basically sulfuric

acid mist formed by the combination of sulfur trioxide and

water vapor), and escapes out the stack into the atmos-

phere. The regulations permit sulfur dioxide emissions up

to a level of 4.0 Ibs. per ton of sulfuric acid produced, and

acid mist emissions up to 0.15 Ib. per ton of sulfuric acid

produced, as measured by methods approved in the regula-

tions. See 40 C.F-.R. {4 60.82, 60.83. Generally those plants

burning an elemental sulfur feedstock—about 68 per cent

of all sulfurie acid plants in the United States are subject

to greater quality control, higher efficiency, and consequent-

ly experience less emission problems than those burning

l3a

only sulfur-bearing raw materials.‘ The latter, known

variously as ‘‘reeyele,’? **spent acid,’’ and ‘‘wet gas”’

plants, serve an important environmental function, how-

ever, for among the raw materials used for feedstocks are

wastes from petroleum refineries and other chemical pro-

= 16

cesses.

There are two types of sulfuric acid plants in general

use today, ‘‘single’’ and ‘‘dual’’ absorption. The term

**single’’ and ‘‘dual’’ refer to whether the plant uses one

or two stages in steps #2 and =3 of the contact process.

Dual absorption plants pass the sulfur dioxide gas which

remains after a first conversion attempt through a second

catalytic converter and absorption tower, thus generating

a hizher conversion efficiency and minimizing the ultimate

vas emissions into the atmosphere. The dual absorption

system is relatively new, and although it has been used

extensively in Europe it has only recently emerged in the

United States as a viable method of sulfuric acid produc-

tion. At the time of EPA testing in preparation for the

standards only one dual absorption plant was in operation

25 See Comments of Manufacturing Chemists Assoc. in No. 72-

1072, J.A. at 121, 154:

[Reeyele plants] of necessity operate on a weaker feed gas

of lower oxygen content. for a larger or smaller portion of

the oxygen of the combustion air has been consumed by the

earbon and hydrogen contents of the sulfur source.

The lower sulfur dioxide and oxygen concentrations of the

feed gas both make it more difficult to achieve a high

degree of conversion of SO(2) to SO(3) in the catalyst hed

and require that larger volumes of gas be processed to manu-

facture a given quantity of sulfuric acid.

% As noted, approximately 6 per cent of the contact process

sulfurie acid in the United States is produced from elemental

sulfur, with the remaining acid produced from spent alkylation

acid and acid sludge from petroleum refineries (1814 per cent):

tail gas from smelters (9 per cent); iron pyrites (412 per cent);

and hydrogen sulfide. See Control of Air Pollution from Sulfurie

Acid Plants (Rough Draft) (EPA, Durham. North Carolina.

August, 1971) [Control Document], J.A. in No, 72-1072 at 296,

301.

bites)

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in the United States, an elemental sulfur burning plant

owned by the American Cyanamid Company.”

The EPA standards are applied to all types of contact

process sulfurie acid plants, whether single or dual absorp-

tion and whether designed for use with elemental or re-

eyele feedstock."* The standards are based on information

and data derived from (1) inspections and stack tests of

existing facilities; (2) consultations with operators, design-

ers, and state and loeal control officials; and (3) review

of available literature on the subject. The EPA must rely

upon the dual-absorption system as the adequately demon-

strated system which will meet the standards for new

elemental sulfur burning plants, and on a sodium sulfite-

bisulfite serubbing system as the adequately demonstrated

17 See Comment of Ameriean Cyanamid Co. in No. 72-1072, J.A.

at 267: Control Document, supra note 16, J.A. at 325; Background

Information for Proposed New-Source Performance Standards

{Background Information Document], 4--\. in No. 72-1072 at 48,

57. The Supplemental Statement filed by the EPA on Mareh 21.

1972. 37 Fed. Reg. 5770, indicates that as of March, 1972. there

were three dual-absorption plants in operation in the United

States, only a small percentage of the 76 designed or constructed

throughout the world. One sulfite serubbing process, the Olin

Chemicals plant at Paulsboro, New Jersey, was in operation and

tested by the EPA prior to the promulgation of the standards.

See Comments of Olin Chemicals in No, 72-1072, J.A. at 242, and

Background Infurmation- Document, supra, J.A, at 95. Four addi-

tional scrubbing systems were scheduled for activation in 1972.

18 40 C.F.R. § 60.81 provides that the standards shall apply to:

‘““fAJny facility producing sulfuric acid by the contact process

by burning elemental sulfur, alkylation acid, hydrogen sulfide,

organie sulfides and mereaptans, or acid sludge, but does not

[apply to] facilities where conversion to sulfurie acid is utilized

primarily as a means of preventing emissions to the atmosphere

of sulfur dioxide or other sulfur compounds.

The exempted facilities are generally metallurgical plants that use

acid plants for sulfur dioxide contro! purposes. Nce paragraph 15

of the EPA's statement accompanying publication of the final

reaulations, 36 Fed. Reg. 24876 (December 23, 1971) and Comment

of the American Mining Congress in No, 72-1072, J.A. at 168, 172.

lda

system which will meet the standards for the new reeycle

and modified existing plants which become subject to the

standards.’’ The acid mist standard is based on a system

of ‘high-efficiency acid-mist eliminators, including both

fiber demisters and wire and tube electrostatic precipi-

tators.*’ *°

1. Elemental Sulfur Feedstock—Sulfur Dioxide Standards

Petitioners do not object to the EPA‘s selection of dual

absorption as the ‘‘best system of emission reduction”

which has been ‘tadeyuately demonstrated’* for use in

elemental sulfur burning plants. They state in their Reply

Brief: *

Petitioners . . . object to EPA‘s implications that

industry is unwilling to utilize the best control tech-

nologies. Industry is agreeable to using dual absorp-

tion technology, which EPA finds best for the 80°

of the industry that uses elemental sulfur feedstocks.

It is the designation of 4.0 Ibs. of sulfur dioxide per ton

of sulfuric acid produced as the ‘‘limitation achievable”

through use of the dual absorption system that strikes the

discordant note. Petitioners assert that the standard is

unrealistically high, not based on the evidence in the record,

29 Although in the Supplemental Statement published on March

21. 1973. 37 Fed. Reg. 5770, the EPA indicated that the dual

absorption process would be used to control sulfur burning plants

and ‘many spent acid plants,’ there is nothing in the record to

indicate any basis for the conelusion that the dual absorption pro-

cess ean perform efficiently in a reeyele, or spent acid. plant. As

such, dual absorption simply has not been “‘adequately demon-

strated’’ within the meaning of § 111(a)(1) of the Clean Air Act,

as amended, 42 U.S.C. § 1857e-6(a)(1) (1970), for use with other

than elemental sulfur feedstock plants.

2° Background Information Document, supra note 17, J.A, at d8.

%1 Reply Brief for Petitioners in No. 72-1072 at 23 n.!.

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and hence arbitrary and unreasonable. The bulk of the

comments received by the EPA from interested parties—

generally industrial companies subject to the controls—

suggest a standard of 6.5 lbs. ton as a more reasonable

alternative.

The EPA bases the 4.0 Ibs. ton standard in three sepa-

rate sources of information: (1) EP.4 supervised tests at

the Warners Plant of the American Cyanamid Co. on

February 17 and 18, 1971; (2) Available technical litera-

ture providing information on several of the European

dual absorption plants; (3) American Cyanamid’s own

supervised tests at the Warners Plant.”

The results of the EPA supervised tests are impressive.

Three independent test runs measured sulfur dioxide emis-

sions of less than 2.0 Ibs. ten. Yet for purposes of our

review the relevancy of the test results is at best minimal,

for as petitioners correctly point out the test data clearly

indicate that during the tests acid production in the plant

was only at approximately 52% of capacity. Since the

regulations specifically provide that performance tests

‘sshall be conducted while the affected facility is operating

at or above the maximum acid production rate at which

such facility will be operated,’’ 40 C.F.R. § 60.85(b), and

as nothing appears in the record to indicate any direct pro-

portional relationship between emissions and plant pro-

22 See Background Information Document, supra note 17, J.A.

at 37: Summaries of Test Data, J.A. at 66-69: Control Document,

supra note 16, J.A. at 395.327, 355 n. 10; Supplemental] State-

ment in Connection with Final Promulgation, 37 Fed. Reg. 5770

(March 21, 1972). The Administrator also purported to rely upon

diseussions with dual absorption plant designers and operators.

and state and local officials. Since nothing appears in the record

concerning such discussions it is difficult for this court to assess

them as a basis for the standards promulgated. Nee Background

Information Document. supra, J.A. at 56, and Supplemental State-

ment in Connection with Final Promulgation, 37 Fed. Reg. 5770

(Mareh 21, 1972).

l7a

duction levels,?* we are hard pressed to find much support

for the EPA standards on the basis of these test results.

A similar vice affects the relevancy of the literature re-

garding tue European plants, for while purporting to show

impressive emission controls—three of the plants reported-

ly average emissions of less than 3.0 Ibs. ton—no data are

provided indicating at what percentage capacity the vari-

ous plants were operating when these results were ob-

tained.**

Filed with the comments of the American Cyanamid

Co. were summaries of many of the company’s own tests

of its Warners Plant’ including the test data which

prompted the EPA to state in the Background Information

for Proposed New-Source Performance Standards [Back-

ground Document], J.A. at 57:

Testing by the operator showed full-load SO(2) emis-

sions to be consistently less than 4.0 pounds of SO(2)

per ton of acid, with emissions below 3.0 pounds per

ton much of the time.

While the test results hardly support the EPA’s allegation

of full-load emissions ‘*consistently less’? than 4.0 lbs. ‘ton,

they do suffice to convince us of the reasoned decision-

making of the Administrator. The Warners Plant is de-

signed for a conversion efficiency (percentage of SO(2)

conversion to SO(3)) of 99.5, which amounts to a design

expectancy of sulfure dioxide emissions in the 6.5 Ibs. ton

range.’ The test results, however, both as reported by the

EPA and as clarified and expanded in American Cyana-

23 The raw test data submitted by American Cyanamid Co. would

seem to indicate the possibility of a roughly proportional relation-

ship between the two. See Comment of American Cyanamid Co.

in No, 72-1072, J.A. at 267.

24 Nee Control Document, supra note 16, J.A. at 326.

25 See Comment of American Cyanamid Co. in No, 72-1072, J.A.

at 267-70.

26 Nee Brief for Petitioners in No. 72-1072 at 22.

ACN Aree

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18a

mid’s data, show that on three occasions when production

was at or near full capacity emission levels of only 2.7,

3.5, and 4.0 Ibs. ton were recorded. In fact, the average

of the nineteen readings taken when the plant was near

full capacity is approximately 4.6 lbs. ton. In sum, the

proposed standard was exceeded on two occasions, equalled

on another, and nearly equalled on the average of nineteen

different readings. Keeping in mind Congress’ intent that

new plants be controlled to the ‘‘maximum practicable

degree,’ ** we find that the 4.0 lbs. ton standard based

on a dual absorption system for new elemental sulfur burn-

ing plants is the result of the exercise of reasoned dis-

cretion by the Administrator and cannot be upset by this

court.

The petitioners additionally challenge what they feel to

be an inadequate consideration of economic eosts in the

selection of the 4.0 Ibs. ton standard. Essentially what they

seek is a cost-benefit analysis comparing their desired 6.5

Ibs. ton standard with the standard ultimately adopted.**

Again, we affirmatively defer to the Portland Cement de-

cision, supra, slip op. at 22-23:

However desirable in the abstract, such a requirement

would conflict with the specific time constraints im-

posed on the Administrator. The difficulty, if not im-

possibility, of quantifying the benefit to ambient air

conditions, further militates against the imposition of

such an imperative on the agency. Such studies should

be considered by the Administrator, if adduced in

comments, but we do not inject them as a necessary

condition of action. (Footnote omitted.)

27 Summary of the Provisions of Conference Agreement on the

Clean Air Amendments of 1970, 116 Cong, Rec. 42584, 42555

(1970).

23 Sec, ¢.g., Comments on Stauffer Chemical Co. in No. 72-1072,

J.A. at 73. 77, 81-82: Comments of Allied Chemical Corp. in No.

79.1072. J.A. at 240-41; Brief for Petitioners in No. 72-1072 at

61-65.

19a

The record amply supports the EPA’s contention that it

has taken economic costs into account in selecting the best

system, whether that system be dual absorption, the sodium

sulfite-bisulfite scrubber, or acid mist controls.*’ It is not

unlikely that industry and the EPA will disagree on the

economic costs of these various control techniques. We

have no desire or special ability to settle such a dispute,

but we do find that the Administrator has considered eco-

nomie costs as required by £111 of the Act, 42 U.S.C.

reasoned,

2. Recycle Plants—Sulfur Dioxide Standard

In contrast to the petitioners’ position concerning ele-

mental sulfur feedstock plants and the dual absorption

system, their challenge regarding recycle plants is directed

more to the sodium sulfite-bisulfite scrubber as the ‘best

system . . . adequately demonstrated*’ than to whether

the 4.0 lbs. ton standard is ‘‘achievable** thereunder.

The standard as applied to reeycle plants must be ana-

lyzed through the utilization of a sodium sulfite-bisulfite

scrubbing system, for there exists no data in the record

supporting the proposition that any other system, dual

2° Sec Background Information Document, supra note 17, J.A.

at 60-61; Control Doeument. supra note 16, J.A. at 545-55; Sup-

plemental Statement in Connection with Final Promulgation, 37

Fed. Reg. 5770-71 (Mareh 21, 1972).

"None of the procedural abuses present in Portland Cement

Assoc. v. Ruckeishaus, No. 72-1073 (D.C, Cir. June 29, 1973), are

alleged in this ease or appear evident from the record. The com-

ments filed with the EPA prior to promulgation of final standards

show an awareness on the part of all parties involved of the test

data and literature upen which the proposed regulations were

based. No challenge was directed at the aceuracy of the test results.

Nce Comments of Manufacturing Chemists Assoe. in No, 72-1072,

J.A. at 136: ‘‘Three tests were run by EPA and the company

‘American Cyanamid]} has acknowledged that the results of these

tests are accurate within reasonable analytiea] limits.”’

"ee NEE ON ARRON Ma

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WAP EM IONS

20a

absorption or otherwise, has been adequately demonstrated

for use in such plants.** A scrubbing system is separate

from the acid producing process and differs from dual

absorption in that it achieves emission reduction not by

directly recycling unconverted sulfur dioxide gas back into

the system, but by extracting the sulfur dioxide gas out

of the exit gas stream through exposure to a sodium sulfite

solution. This produces sodium bisulfite which upon heating

yields sulfur dioxide gas (then fed back into the acid

producing system) and sodium sulfite (then returned to

combine again with sulfur dioxide in the exit gas stream).

In order to retain high efficiency levels in the scrubbing

system it is necessary to continuously add new solution

and to drain off part of the old solution as ‘‘purge.”* *

The purge is collected in significant amounts, up to 52 Ibs.

ton of acid produced, and thus presents noteworthy dis-

posal problems.”

Despite petitioners’ protestations concerning the *‘ideal’*’

conditions under which the EPA conducted its tests, we

find adequate support for the conclusion that the standard

is achievable in the results of tests conducted at the Olin

Chemicals Co. plant in Paulsboro, New Jersey. The tests

were conducted under EPA supervision on March 26 and

27, 1971, when the Paulsboro plant was the only active

recycle plant in the Enited States equipped with a sodium

sulfite-bisulfite serubber.* The results are impressive, re-

31 See note 19 supra.

22 Some of the sulfite and bisulfite becomes sulfate, which if

allowed to collect will reduce and/or destroy the efficiency of the

scrubber system.

23, Sce Comments of E. I. duPont de Nemours & Co, in No.

72-1072, J.A. at 260.

24 See Background Information Document, supra note 17, J.A.

at 57-D8: Control Document, supra note 16, J.A. at 328-31; and

Supplement Statement in Connection with Fina] Promulgation, 37

Fed. Reg. 5770 (Mareh 21, 1972) : ‘‘One sulfite serubbing process

is now in operation in the United States and four more will be

<LI SL EEN TE =

2la

flecting sulfur dioxide emission levels of 2.59 and 2.85 lbs./

ton, well below the standard. Equally important, however,

is the fact that the tests were conducted when the plant

was operating at or near full capacity.

As we have earlier noted, {111 of the Act, 42 U.S.C.

§ 1857¢e-6(a)(1) (1970), requires that when the Adminis-

trator makes his ‘*best system’’ and ‘‘achievable limita-

tion’? determination that he ‘‘take into account counter-

productive environmental effects.’’*° We cannot conclude

on the basis of the record before us that the Administrator

met this obligation in promulgating a standard to be ap-

plied to reeycle acid plants. The record evidence indicates

that the standard is achievable only through use of a

sodium sulfite-bisulfite scrubber, yet no consideration of

the significant land or water pollution potential resulting

from disposal of the 52 Ibs. ton liquid purge byproduct is

apparent. A 700 ton day sulfuric acid plant operating at

capacity will produce nearly twenty tons of the purge waste

in only one day of operation, and while the serubber will

effectively cut air emissions from a 50 to 100 Ibs. ton level

its ‘‘eounter-productive environmental effects’? cannot be

ignored.” Judge Leventhal’s statement in Portland Cement,

supra, slip op. at 19 n. 42, that ‘‘we cannot imagine that

Congress intended that ‘best’ could apply to a system

which did more damage to water than it prevented to air,’’

seems particularly apropos.

put into service in 1972. All are retrofit installations.*’ Similar to

the comments regarding the EPA test results obtained in the dual

absorption Warners Plant, see note 30 supra, the Comments of the

Manufacturing Chemists Assoc. in No. 72-1072, J.A. at 136 state:

‘*Data presented in ‘Control of Air Pollution from Sulfurie Acid

Plants’ which relate to the Olin Corporation's sulfite-bisulfite

system are correctly stated.”’

35 See text at note 7 supra, and note 7 supra.

*6 Most plants operate at least at 94 per cent efficieney which

results in emissions generally in the 50 to 100 Ihs./ton range. See

Control Document, supra note 16, J.A. at 315.

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22a

We realize that the only apparent alternative to the

scrubbing system is no control at all.** Since recycle plants

amount to only about twenty percent of the country’s

sulfurie acid plants, and since collectively the sulfuric acid

plants in this country account for only about two per cent

of the sulfur dioxide emission, such an alternative (at least

in selected instances) might prove best for the environ-

ment as a whole.** We have no way of knowing; it is

something the EPA is uniquely suited to determine. We

do know, however, that the feeble statements in the Back-

ground Document that ‘‘{mJethods for disposing of these

products will have to be considered by plant operators,”’

and ‘process designers are investigating several means of

handling these wastes,”’ are poor substitutes for the rea-

soned consideration of this problem that is required.” The

record is thus remanded to the Administrator for further

consideration and explanation of the adverse environmental

effects of requiring a 4.0 lbs. ton standard for recycle acid

plants.*°

7 See note 19 supra. The EPA Control Document, supra note

16, J.A. at 332-35, discusses scrubber systems other than the sodium

sulfite-bisulfite type, but also states, J.A. at 328:

To date only the sodium sulfite-bisulfite process has been

demonstrated to be eapable of meeting the SO(2) limit when

taking cost into consideration. Others such as ammonia serub-

bing can meet the standard but costs are highly dependent

on the marketability of by-products for which there may be

little demand.

Petitioners suggest that the EPA set the standard for reeyele

plants at 10 Ibs./ton and base it upon use of a dual absorption

system. There is no evidence in the record to support such an

alternative.

38 See Control Document, supra note 16, J.A. at 300, and Com-

ments of Manufacturing Chemists Assoe. in No, 72-1072, J.A. at

134.

°° Background Information Document, supra note 17, J.A. at 58.

4° We do not intimate what should be done or necessarily that

the current standard will have to be changed, but only that the

record does not demonstrate adequate consideration of the issue.

23a

3. Acid Mist Emissions

Our review of the record leads us to conclude that ample

evidence exists, in terms of both technical literature and

results of EPA conducted tests, to satisfy us of the rea-

soned nature of the EPA’s acid mist standard.’ The

standard, 0.15 Ib. of sulfuric acid mist per ton of acid

produced, is deemed achievable through the use of either

electrostatic or fiber precipitator systems, both of which

are certainly adequately demonstrated.”* Petitioners’ ob-

jections regarding the result oriented definition of acid mist

(i.e., whatever the prescribed method for testing detects,

us opposed to the ‘‘accepted definition’? of ‘‘liquid par-

ticulate matter exclusive of gas’’) is considered, but we

cannot say that the Administrator was arbitrary in promul-

gating such a definition.*

IV.

Reviewing the coal-fired steam generator standards

promulgated for particulate matter, sulfur dioxide, and

nitrogen oxides, see 40 C.F.R. § 60.40 et seq., and subject-

ing them to the various tests and scopes of inquiry dis-

cussed above, we find that with but one exception the

record evidence supports the conclusion that they are the

41. See Background Information Document, supra note 17, J.-A.

at 58-60; Control Document, supra note 16, J.A. at 336-342, and

literature sources noted therein.

42 The demister systems are both commonly employed in industry,

with fiber demisters the more popular of the two. See Background

Information Document, supra note 17, J.A. at 58; Control Docu-

ment, supra note 16, J.A. at 337.

43 For summaries of the petitioners’ complaints regarding the

definition, see Comments of Manufacturing Chemists Assoc. in

No. 72-1072, J.A. at 139-40, and Chemical Construction Corp., J.A.

at 359-60. In the Supplemental Statement in Connection with Final

Promulgation the EPA noted, 37 Fed. Reg. 5770 (Mareh 21, 1972) :

‘Complaints from the industry that it cannot meet the acid mist

standard appear to be based on experience with other test methods

than EPA’s.’’

Wt LSM ORD SEIT AEN IT TM: BS SORTER ee eck a |

24a

result of reasoned decision-making."* The evidence, inelud-

ing tests of prototype and full-scale control systems, con-

siderations of available fuel supplies, literature sources,

and documentation of manufacturer guarantees and expec-

tations. convinces us that the systems proposed are

adequately demonstrated, that cost has been taken into

consideration, and that the emission standards are achiev-

able.” See 42 U.S.C. § 1857e-6(a)(1) (1970). Although in

the instance of the sulfur dioxide standards and the lime

slurry scrubbing system the EPA tests give results indi-

eating that a presently installed unit approaches rather

than achieves the 1.2 Ibs. million B.t.u. heat input stand-

ard. when the results are considered in con junction with

the prototype testing data and the predictions and guaran-

tees of domestic equipment manufacturers for plants

under construction,” we cannot say that the standard

‘The standard for particulate matter, defined in 40 C.F.R.

§ 60.41(¢) as “‘any finely divided liquid or solid material, other

than unecombined water. as measured by Method 5,”” is set at 0.10

Ib. per million B.t.u. heat input; the standard for sulfur dioxide

is set at 1.2 Ibs./million; the standard for nitrogen oxides is set

at 0.7 Ibs./million. The standards contemplate the use of and vary

according to the type of fuel used, either solid, liquid, or gaseous.

Only the standards for solid fossil fuel are challenged in No.

72-1079.

* See Background Information for Proposed New-Source Per-

formance Standards [Background Information Document], J.A.

in No. 72-1079 at 22-42: Summaries of Test Data [Test Data},

JA. in No, 72-1079 at 43-68: Supplemental Statement in Connec-

tion with Final Promulgation, 37 Fed. Reg. 5767-5770 (Mareh

21, 1972).

at 35: Test Data. supra note 4, J.A. at 58, 62.

47 See Background Information Document, supra note 45, J.A.

at 35; Supplemental Statement in Connection with Final Promul-

gation, 37 Fed. Reg. 5768, table #1 (March 21, 1972). which

shows that companies such as Monsanto, Zurn, Babeock & Wilcox,

are guaranteeing better than SO percent sulfur dioxide removal

represents ‘‘a clear error of judgment.’’ See Citizens to

Preserve Overton Park vy. Volpe, supra, 401 U.S. at 416.

A lime slurry scrubbing system is the anticipated **best

system’’ for use in coal-fired steam generators which burn

coal of such a high sulfur content that separate control

mechanisms are necessary to meet the standard.* This

scrubbing system, like the sodium sulfite-bisulfite system

used in sulfuric avid plants, produces significant quan-

tities of sludge byproduct which present substantial dis-

posal problems. The counter productive environmental

effects of the system were noted in comments to the

EPA,* but the Administrator's consideration of the issue,

at least as it appears on the record, is insufficient. The

only statement in the Background Information for Pro-

posed New-Source Performance Standards concerning such

is merely an admission of the problem:

Lime-serubbing systems are essentially throwaway

processes that produce significant quantities of solid

waste. For a 3.0-percent-sulfur coal, the additional

wastes are roughly equal to the ash generated from

burning coal.”

Consequently, the record is remanded for further con-

sideration and explanation by the Administrator of the

on plants now under construction and using a lime scrubbing

process. **Generally, the standard of 1.2... can be met by the

removal of 70-75 percent of the sulfur dioxide formed in the burn-

ing of coal of average sulfur content (i.e., 2.S—3 percent).”’ Jd.

*§ See Background Inforimation Document, supra note 45, J.A.

at 34. It is possible through the burning of generally unevailable

low sulfur content coal to meet the sulfur dioxide emission stand-

ards without the assistance of any contro] mechanism. Jd. at 29.

*°Sce Comments of Edison Electric Institute in No. 72-1079,

J.A. at 130: Comments of Babeock & Wileox Co. in No. 72-1079,

J.A. at 171.

°° Background Information Document, supra note 45, J.A. at 35.

| eee HE Ang DOWER TALI PET YEMEN NYP RUM SOLVENTS BRO TMNT A MEME DELON FOREN EI OTH LI ANAS RGD

26a

adverse environmental effects of requiring a 1.2 lbs. ‘million

standard for those coal-fired steam generator plants which

must use a lime slurry scrubbing system as the only

means of achieving the standard.*

Accordingly, the record in No. 72-1072 and No. 72-1079

is remanded to the Administrator of the Environmental

Protection Agency for further proceedings not inconsistent

with this opinion.

So Ordered.

51 We want to reiterate. see note 40 supra, that we express no

view as to what the standards ultimately should be with regard to

such plants. Perhaps some flexible standard should be adopted

which recognizes that the lime slurry serubber system should be

used only where necessary to meet the EPA’s primary ambient air

standards, or perhaps in balance the counter productive effects

of the system are outweighed by the need for cleaner air. We

only want to be sure in view of the significant problem posed in

the record that the Administrator has acted reasonably in promul-

gating the standard.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1973

No. 72-1079

APPALACHIAN Power Company

Ixnpiaxna & Micuican Exvectric Company

Kentucky Power Company

Oxnio Power Company,

Petitioners

Vv.

ENVIRONMENTAL Protection AGENCY,

Respondent

Before: Wright and Tamm, Circuit Judges; Davies,*

Senior United States District Judge for the District of

North Dakota.

ORDER

(filed Oct. 3, 1973)

On consideration of petitioners’ petition for rehearing,

it is

OrveEreED by the court that petitioners’ aforesaid petition

is denied.

Per Curiam

For the Court:

‘s/ Hugh E. Kline

Hveu E. Kure

Clerk

* Sitting by designation pursuant to Title 28 U.S. Code Section

294(d).

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Pertinent Provisions of the Clean Air Act, as amended, 42 U.S.C.

§§ 1857 et seq. (1970):

§ 1857. Congressional findings: purposes of subchapter.

(a) The Congress finds—

(1) that the predominant part of the Nation’s population

is located in its rapidly expanding metropolitan and other

urban areas, which generally cross the boundary lines of

local jurisdictions and often extend into two or more States:

(2) that the growth in the amount and complexity of air

pollution brought about by urbanization, industrial develop-

ment, and the increasing use of motor vehicles, has resulted

in mounting dangers to the public health and welfare, in-

cluding injury to agricultural crops and livestock, damage

to and the deterioration of property, and hazards to air and

ground transportation ;

(3) that the prevention and control of air pollution at its

source is the primary responsibility of States and local gov-

ernments; and

(4) that Federal financial assistance and leadership is

essential for the development of cooperative Federal, State,

regional, and local programs to prevent and control air

pollution.

(b) The purposes of this subchapter are—

(1) to protect and enhance the quality of the Nation’s

air resources so as to promote the public health and welfare

and the productive capacity of its population ;

(2) to initiate and accelerate a national research and de-

velopment program to achieve the prevention and control of

air pollution;

(3) to provide technical and financial assistance to State

and local governments in connection with the development

and execution of their air pollution prevention and control

programs; and

24a

(4) to encourage and assist the development and opera-

tion of regional air pollution control programs.

§ 1857c-6. Standards of performance for new stationary sources.

(a) Definitions.

For purposes of this section:

(1) The term ‘*standard of performance’’ means a stand-

ard for emissions of air pollutants which reflects the degree

of emission limitation achievable through the application

of the best system of emission reduction which (taking into

account the cost of achieving such reduction) the Admin-

istrator determines has been adequately demonstrated.

(2) The term ‘*new source’? means any stationary source,

the construction or modification of which is commenced after

the publication of regulations (or, if earlier, proposed reg-

ulations) prescribing a standard of performance under this

section which will be applicable to such source.

(3) The term “stationary source’? means any building,

structure, facility, or installation which emits or may emit

any air pollutant.

(4) The term ‘‘modification’’ means any physical change

in, or change in the method of operation of, a stationary

source which increases the amount of any air pollutant

emitted by such source or which results in the emission of

any air pollutant not previously emitted.

(5) The term ‘‘owner or operator’* means any person

who owns, leases, operates, controls, or supervises a sta-

tionary source.

(6) The term ‘‘existine source’

source other than a new source.

means any stationary

(b) Publication and revision by Administrator of list of

‘ategories of stationary sourees; inclusion of category in

list; proposal of regulations by Administrator establishing

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standards for new sourees within category; promulgation

and revision of standards: differentiation within categories

of new sources; issuance of information on pollution control

techniques: applicability to new sources owned or operated

by United States.

(1)(.A) The Administrator shall, within 90 days after De-

eember 31, 1970, publish (and from time to time thereafter

shall revise) a list of categories of stationary sources. He

shall include a category of sources in such list if he deter-

mines it may contribute significantly to air pollution which

‘auses or contributes to the endangerment of public health

or welfare.

(B) Within 120 days after the inclusion of a category of

stationary sources in a list under subparagraph (A), the

Administrator shall propose regulations, establishing Fed-

eral standards of performance for new sources within such

category. The Administrator shall afford interested persons

an opportunity for written comment on such proposed reg-

ulations. After considering such comments, he shall promul-

gate, within 90 days after such publication, such standards

with such modifications as he deems appropriate. The Ad-

ministrator may, from to time, revise such standards fol-

lowing the procedure required by this subsection for prom-

ulgation of such standards. Standards of performance or

revisions thereof shall become effective upon promulgation.

(2) The Administrator may distinguish among classes,

types and sizes within categories of new sources for the

purpose of establishing such standards.

(3) The Administrator shall, from time to time, issue

information on pollution control techniques for categories

of new sourees and air pollutants subject to the provisions

of this section.

(4) The provisions of this section shall apply to any new

source owned or operated by the United States.

ola

(¢) Implementation and enforcement by State; pro-

cedure: delegation of authority of Administrator to State:

enforcement power of Administrator unaffected.

(1) Fach State may develop and submit to the Admin-

istrator a procedure for implementing and enforcing stand-

ards of performance for new sources located in such State.

If the Administrator finds the State procedure is adequate,

he shall delegate to such State any authority he has under

this chapter to implement and enforce such standards (ex-

cept With respect to new sources owned or operated by the

United States).

(2) Nothing in this subsection shall prohibit the Admin-

istrator from enforcing any applicable standard of per-

formance under this section.

(d) Emission standards for any existing source for any

air pollutant; submission of State plan to Administrator

establishing, implementing and enforeing standards: author-

ity of Administrator to prescribe State plan: authority of

Administrator to enforce State plan: procedure.

(1) The Administrator shall preseribe regulations which

shall establish a procedure similar to that provided by see-

tion 1857¢-5 of this title under which each State shall submit

to the Administrator a plan which (.\) establishes emission

standards for any existing source for any air pollutant (i)

for which air quality criteria have not been issued or which

is not included on a list published under section 1857¢-3(a)

or 1857¢-7(b)(1)(A) of this title but (ii) to which a stand-

ard of performance under subsection (b) of this section

would apply if such existing source were a new source, and

(B) provides for the implementation and enforcement of

such emission standards.

(2) The Administrator shall have the same authoritv—

(A) to prescribe a plan for a State in cases where the

State fails to submit a satisfactory plan as he would have

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under section 1857¢-5(c) of this title in the case of failure to

submit an implementation plan, and

(B) to enforce the provisions of such plan in cases where

the State fails to enforce them as he would have under

sections 1857e-8 and 1857c-9 of this title with respect to an

implementation plan.

(e) Prohibited acts.

After the effective date of standards of performance

promulgated under this section, it shall be unlawful for

any owner or operator of any new source to operate such

source in violation of any standard of performance appli-

cable to such source.

§ 1857h-5. Administrative proceedings and judicial review.

(a)(1) In connection with any determination under sec-

tion 1857¢-5(f) or section 1857f-1(b) (5) of this title, or for

purposes of obtaining information under section 1857f-1(b)

(4) or 1857f-1(c)(4) of this title, the Administrator may

issue subpenas for the attendance and testimony of wit-

nesses and the production of relevant papers, books, and

documents, and he may administer oaths. Except for emis-

sion data, upon a showing satisfactory to the Administrator

by such owner or operator that such papers, books, doeu-

ments, or information or particular part thereof, if made

public, would divulge trade secrets or secret processes of

such owner or operator, the Administrator shall consider

such record, report. or information or particular portion

thereof confidential in accordance with the purposes of sec-

tion 1905 of Title 18, except that such paper, book, docu-

ment, or information may be disclosed to other officers, em-

ployees, or authorized representatives of the United States

concerned with carrying out this chapter, to persons carry-

ing out the National Academy of Sciences’ study and investi-

gation provided for in section 1857f-1(c) of this title, or

when relevant in any proceeding under this chapter. Wit-

nesses summoned shall be paid the same fees and mileage

33a

that are paid witnesses in the courts of the United States.

In case of contumacy or refusal to obey a subpena served

upon any person under this subparagraph, the district court

of the United States for any district in which such person

is found or resides or transacts business, upon application

by the United States and after notice to such person, shall

have jurisdiction to issue an order requiring such person

to appear and give testimony before the Administrator to

appear and produce papers, books, and documents before the

Administrator, or both, and any failure to obey such order

of the court may be punished by such court as a contempt

thereof.

(b)(1) A petition for review of action of the Administra-

tor in promulgating any national primary or secondary

ambient air quality standard, any emission standard under

section 1857-7 of this title, any standard of performance

under section 1857¢-6 of this title, any standard under sec-

tion 1857f-1 of this title (other than a standard required

to be prescribed under section 1857f-1(b)(1) of this title),

any determination under section 1857f-1(b) (5) of this title,

any control or prohibition under section 1857f-6e of this

title or any standard under section 1857f-9 of this title may

he filed only in the United States Court of Appeals for the

District of Columbia. A petition for review of the Admin-

istrator’s action in approving or promulgating any imple-

mentation plan under section 1857c-5 of this title or section

1857¢-6(d) of this title. may be filed only in the United States

Court of Appeals for the appropriate cireuit. Any such pe-

tition shall be filed within 30 days from the date of such

promulgation or approval, or after such date if such peti-

tion is based solely on grounds arising after such 30th day.

(2) Action of the Administrator with respeet to which

review could have been obtained under paragraph (1)

shall not be subject to judicial review in civil or criminal

proceedings for enforcement.

of a determination under this chapter required to be made

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on the record after notice and opportunity for hearing, if

any party applies to the court for leave to adduce additional

evidence, and shows to the satisfaction of the court that such

additional evidence is material and that there were reason-

able grounds for the failure to adduce such evidence in the

proceeding before the Administrator, the court may order

such additional evidence (and evidence in rebuttal thereof)

to be taken before the Administrator, in such manner and

upon such terms and conditions as to the court may deem

proper. The Administrator may modify his findings as to

the facts, or make new findings, by reason of the additional

evidence so taken and he shall file such modified or new

findings, and his recommendation, if any, for the modifiea-

tion or setting aside of his original determination, with the

return of such additional evidence.

Pertinent Provisions of the National Environmental Policy Act,

42 U.S.C. §§ 4321, 4331-4335 (1979):

§ 4321. Congressional declaration of purpose.

The purposes of this chapter are: To declare a national

policy which will encourage productive and enjoyable har-

mony between man and his environment; to promote efforts

which will prevent or eliminate damage to the environment

and biosphere and stimulate the health and welfare of man;

to enrich the understanding of the ecological systems and

natural resources important to the Nation; and to establish

a Council on Environmental Quality.

§ 4331. Congressional declaration of national environmental policy.

(a) The Congress, recognizing the profound impact of

man’s activity on the interrelations of all components of the

natural environment, particularly the profound influences

of population growth, high-density urbanization, industrial

expansion, resource exploitation, and new and expanding

technological advances and recognizing further the critical

importance of restoring and maintaining environmental

quality to the overall welfare and development of man,

declares that it is the continuing policy of the Federal Gov-

ernment, in cooperation with State and local governments,

and other concerned publie and private organizations, to

use all practicable means and measures, including financial

and technical assistance, in a manner calenlated to foster

and promote the general welfare, to create and maintain

conditions under which man and nature cin exist in pre-

ductive harmony, and fullfill the social, economic, and other

requirements of present and future generations of Ameri-

eans,

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal

Government to use all practicable means, consistent with

other essential considerations ef national policy, to improve

and coordinate Federal plans, functions, programs, and

resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation as

trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive,

and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the en-

vironment without degradation, risk to health or safety, or

other undesirable and unintended consequences:

(4) preserve important historic, cultural, and natural as-

pects of our national heritage, and maintain, wherever pos-

sible, an environment which supports diversity and variety

of individual choice;

(5) achieve a balance between population and resource

use Which will permit high standards of living and a wide

sharing of life’s amenities: and

(6) enhance the quality of renewable resources and ap-

proach the maximum attainable reeyveling of depletable re-

sourees,

(¢) The Congress recognizes that each person should

enjoy a healthful environment and that each person has a

responsibility to contribute to the preservation and enhance-

ment of the environment,

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36a

§ 4332. Cooperation of agencies; reports; availability of information:

recommendations; international and national coordination of

efforts.

The Congress authorizes and directs that, to the fullest

extent possible: (1) the policies, regulations, and public

laws of the United States shall be interpreted and admin-

istered in accordance with the policies set forth in this ehap-

ter, and (2) all agencies of the Federal Government shall—

(.\) utilize a systematic, interdisciplinary approach

which will insure the integrated use of the natural and

social sciences and the environmental design arts in

planning and in decisionmaking which may have an im-

pact on man’s environment;

(B) identity and develop methods and procedures, in

consultation with the Council on Environmental Qual-

ity established by subchapter IT of this chapter, which

will insure that presently unquantified environmental

amenities and values may be given appropriate consid-

eration in decisionmaking along with economic and

technieal considerations ;

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the énvironmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man's environment and the maintenance

and enhancement of long-term produetivity, and

(v) any irreversible and irretrievable commit-

ments of resources Which would be involved in the

proposed action should it be implemented.

ova

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the com-

ments of any Federal agency which has jurisdiction by

law or special expertise with respect to any environ-

mental impact involved, Copies of such statement and

the comments and views of the appropriate Federal,

State, and loeal agencies, which are authorized to de-

velop and enforce environmental standards, shall be

made available to the President, the Council on En-

vironmental Quality and to the public as provided by

section 552 of Title 5, and shall accompany the proposal

through the existing agency review processes ;

(D) study, develop, and describe appropriate altern-

atives to recommended courses of action in any pro-

posal which involves unresolved conflicts concerning

alternative uses of available resources ;

(Eh) recognize the worldwide and long-range charac-

ter of environmental problems and, where consistent

with the foreign policy of the United States, lend ap-

propriate support to initiatives, resolutions, and pro-

vrams designed to maximize international cooperation

in anticipating and preventing a decline in the quality

of mankind's world environment:

(F) make available to States, counties, municipali-

ties, Institutions, and individuals, advice and informa-

tion useful in restoring, maintaining, and enhaneing the

quality of the environment ;

(G) initiate and utilize ecological information in the

planning and development of resource-oriented pre)-

ects: and

(IL) assist the Council on Environmental Quality es-

tablished by subchapter IT of this chapter.

en |

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§ 4333. Conformity of administrative procedures to national environ-

mental policy.

All agencies of the Federal Government shall review their

present statutory authority, administrative regulations, and

current policies and procedures for the purpose of determin-

38a

ing whether there are any deficiencies or inconsistencies

therein which prohibit full compliance with the purposes

and provisions of this chapter and shal] propose to the Pres-

ident not later than July 1, 1971, such measures 2s may be

necessary to bring their authority and policies into eonform-

ity with the intent, purposes, and procedures set forth in

this chapter.

£ 4334. Other statutory obligations of agencies.

Nothing in section 4332 or 4333 of this title shall in any

way affect the specific statutory obligations of any Federal

agency (1) to comply with criteria or standards of environ-

mental quality, (2) te coor linate or consult with any other

Federal or State ageney, or (3) to act. or refrain from act-

ing contingent upen the recommendations or certiiication of

any other Federal or State agency.

§ 4335. Efforts supplemental to existing authorizations.

The policies and goals set forth in this chapter are sup-

plementary to those set forth in existing authorizations of

Federal agencies.

Title 40—Protection of Environment

Chapter I—Environmental Protection \geney

SUBCHAPTER C—aAlIR PROGRAMS

PART 60—STANDARDS OF PERFORMANCE FOR

NEW STATIONARY SOURCES [36 Fed. Reg. 24876-

77 (December 23, 1971)]

(m August 17, 1971 (36 FLR. 15704) pursuant to section

111 of the Clean Air Act, as amended, the Administrator

proposed standards of performance for steam generators,

portland cement plants, incinerators, nitrie acid plants, and

sulfurie acid plants. The proposed standards, applieable to

sources the construction or modification of which was initi-

ated after August 17, 1971, ineluded emission limits for one

or more of four pollutants (particulate matter, sulfur di-

oxide, nitrogen oxides, and sulfurie acid mist) for each

source category. The proposal included requirements for

ee :

39a

performance testing, stack gas monitoring, record keeping

and reporting, and procedures by which EPA will provide

preconstruction review and determine the applicability of

the standards to specific sources.

Interested parties were afforded an opportunity to par-

ticipate in the rule making by submitting comments. A total

of more than 20) interested parties, including Federal,

State, and local agencies, citizens groups, and commercial

and industrial organizations submitted comments. Follow-

ing a review of the proposed regulations and consideration

of the comments, the regulations, including the appendix,

have been revised and are being promulgated today. The

principal revisions are described below :

1. Particulate matter performance testing procedures

have been revised to eliminate the requirement for im-

pingers in the sampling train. Compliance will be based only

on material collected in the dry filter and the probe preced-

ing the filter. Emission limits have been adjusted as appro-

priate to refleet the change in test methods. The adjusted

standards require the same degree of particulate contro!

as the originally proposed standards.

2. Provisions have been adCed whereby alternative test

methods can be used to determine compliance. Any person

who proposes the use of an alternative method will be

obliged to provide evidence that the alternative method is

equivalent to the reference method.

3. The definition of modification, as it pertains to in-

creases in production rate and changes of fuels. has been

clarified. Increases in production rates up to design capacity

will not be considered a modification nor will fuel switches

if the equipment was originally designed to accommodate

such fuels. These provisions will eliminate inequities where

equipment had been put into partial operation prior to the

proposal of the standards.

4. The definition of a new source was clarified to include

construction which is completed within an organization as

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40a

well as the more common situations where the facility is

designed and constructed by a contractor.

>. The provisions regarding requests for EPA plan re-

view and determination of construetion or modification have

been modifie] to emphasize that the submittal of such re-

quests and attendant information is purely voluntary. Sub-

mittal of such a request will not bind the operator to supply

further information: however, lack of sufficient information

may prevent the Administrator frem rendering an opinion.

Further provisions have been added to the effect that infor-

mation submitted voluntarily for such plan review or de-

termination of applicability will be considered confidential,

if the owner or operator requests such confidentiality.

6. Requirements for netifving the \dministrator prior to

commencing construction have been deleted. As proposed,

the provision would have required notification prior to the

signing of a contract for construction of a new souree.

Owners and operators still will be required to notify the

Administrator 30 days prior to initial operation and to con-

firm the action within 15 days after startup.

7. Revisions were incorporated to permit compliance test-

ing to be deferred up to 60 days after achieving the maxi-

mum production rate but no longer than 180 days after

initial startup. The proposed regulation could have required

testing within 60 days after startup but defined startup as

the begining of routine operation. (Owners or operators will

be required to notify the Administrator at least 10 days

prior to compliance testing so that an EPA observer can

be on hand. Procedures have been modified so that the equip-

ment will have to be operated at maximum expected pro-

duction rate, rather than rated capacity, during compliance

tests.

8. The criteria for evaluating performance testing re-

sults have been simplified to eliminate the requirement that

all values be within 35 percent of the average. Compliance

tla

will be based on the average of three repetitions conducted

in the specified manner.

%. Provisions were added to require owners or operators

of affected facilities to maintain records of compliance

tests, monitoring equipment, pertinent analyses, feed rates,

production rates, ete. for 2 years and to make such informa-

tion available on request to the Administrator. Owners

or operators will be required to summarize the recorded data

daily and to convert recorded data into the applicable units

of the standard.

10. Modifications were made to the visible omission stand-

ards for steam generators, cement plants, nitrie acid plants,

and sulfurie acid plants. The Ringelmann standards have

been deleted; all limits will be hased on opacity. In every

ease, the equivalent opacity will be at least as stringent as

the proposed Ringelmann number. In addition, require-

ments have been altered for three of the source entegories

so that allowable emissions will be less than 10 percent

opacity rather than 5 yercent or less opacity. There were

many comments that observers could not accurately eval-

uate emissions of 5 percent opacity. In addition, drafting

errors in the proposed visible emission limits for cement

kilns and steam generators were corrected. Steam gener-

ators will be limited to visible emissions not greater than

20 percent opacity and cement kilns to not greater than 10

percent opacity.

11. Specifications for monitoring devices were clarified,

and directives for calibration were included. The instru-

ments are to be calibrated at least onee a day, or more often

if specified by the manufacturer. Additional guidance on

the selection and use of such instruments will be provided

at a later date.

12. The requirement for sulfur dioxide monitoring at

steam generators was deleted for those sources which will

achieve the standard by burning low-sulfur fuel, provided

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that fuel analysis is conducted and recorded daily. Amer-

iean Society for Testing and Materials sampling techniques

are specified for coal and fuel oil.

13. Provisions were added to the steam generator stand-

ards to cover those instances where mixed fuels are burned.

Allowable emissions will he determined by prorating the

heat input of each fuel, however, in the case of sulfur di-

oxide, the provisions allow operators the option of burning

low-sulfur fuels (probably natural gas) as a means of ecom-

pliance.

14. Steam generators fired with lignite have been ex-

empted from the nitrogen oxides limit. The revision was

made in view of the lack of information on some types of

lignite burning. When more information is developed, nitro-

gen oxides standards may be extended to lignite fired steam

generators.

15. A provision was added to make it explicit that the

sulfuric acid plant standards will not apply to scavenger

acid plants. As stated in the background document, \PTD

0711, which was issued at the time the proposed standards

were published, the standards were not meant to apply to

such operations, e.g.. where sulfurie acid plants are used

primarily to control sulfur dioxide or other sulfur com-

pounds which would otherwise be vented into the atmos-

phere. ‘

16. The regulation has been revised to previde that all

materials submitted pursuant to these regulations will be

directed to EPA’s Office of General Enforcement.

17. Several other technical changes have also been made.

States and interested parties are urged to make a careful

reading of these regulations.

As required by section 111 of the Act, the standards of

performance promulgated herein ** reflect the degree of emis-

sion reduction which (taking into account the cost of achiev-

43a

ing such reduction) the Administrator determines has been

adequately demonstrated’*. The standards of performance

are based on stationary source testing conducted by the

Environmental Protection Agency and or contractors and on

data derived from various other sources, including the avail-

able technical literature. In the comments on the proposed

standards, many questions were raised as to costs and

[24877] demonstrated capability of control systems to meet

the standards. These comments have been evaluated and

investigated, and it is the Administrator’s judgment that

emission control systems capable of meeting the standards

have been adequately demonstrated and that the standards

promulgated herein are achievable at reasonable costs.

The regulations establishing standards of performance

for steam generators, incinerators, cement plants, nitric

acid plants, and sulfurie acid plants are hereby promulgated

effective on publication and apply to sources, the construe-

tion or modification of which was commenced after August

17, 1971.

Dated: December 16, 1971.

Winuiaw D. RueKkersnats,

Administrator,

Environmental Protection Agency.

Standards of Performance for New Stationary Sources

Supplemental Statement in Connection with Final

Promulgation [37 Fed. Reg. 5767-71 (March 21, 1972) ]

I. EPA published Standards of Performance for New

Stationary Sources in final form, prefaced by a ‘*concise

general statement of their basis and purpose’? as required

by section 4(¢) of the Administrative Procedure Act, 5

ULS.C. 553(¢), on December 25, 1971. 36 F.R. 24876. Peti-

tions for review of certain of these standards were filed

on January 21 and 24 by the Essex Chemical Corp. et al.,

the Portland Cement Association, and the Appalachian

DAP RR AF Bs eh UP

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Power Co. et al. (U.S. Court of Appeals for the District

of Columbia, Nos. 72-1072, 72-1073, and 72-1079).

On February 18, 1972. almost 2 months after EPA pub-

lished the New Stationary Source Standards, the U.S. Court

of Appeals for the District of Columbia Cirenit handed

down its decision in ** Kennecott Copper Corp. v. Environ-

mental Protection Agency’? (C.A.D.C. No. 71-1419), which

concerned a national secondary ambient air quality stand-

ard promulgated by EPA pursuant to section 109(b) of

the Clean Air Amendments of 1970, 42 U.S.C. 1857C-4(b).

The court there held that although the ‘‘concise general

statement”? prefacing the standard involved satisfied the

requirements of section 4(¢) of the Administrative Proee-

dure Act. it would nonetheless remand the cause to the

Administrator for a more specific explanation of how he

had arrived at the standard.

In light of the decision in ‘*Kennecott Copper,’’ and in

the interest of a speedy judicial determination of the validity

of the Standards of Performance for New Stationary

Sources, we have prepared this statement of the basis of

the Administrator’s decision to promulgate the standards

to supplement that appearing as the preface to the final

standards as published in December 1971. Although if the

point were raised it might ultimately be determined that

this statement was not necessary to satisfy the doctrine ex-

pressed by the **Kennecott Copper” opinion, FPA con-

siders it fundamental to the national policy embodied in the

Clean Air Amendments of 1970 to expedite all steps of

promulgation and enforcement of standards and implemen-

tation plans to bring about clean air. The speedy eradica-

tion of any uncertainty as to the validity of the standards

for new stationary sources is an important part of this

process. Accordingly, considering the particular sequence

of events and pressures of time involved here, we think it

most appropriate to inelude this supplementary statement

in the record now. thereby ensuring the rapid conelusion

of judicial review of the validity of the standards.

PNET ty Lit OE ED PEED

45a

Il. 1. The Particulate Test Method, Particulate emission

limits were proposed for steam generators, incinerators,

and cement plants, based on measurements made with the

full EPA sampling train, which includes a dry filter as well

as impingers, which contain water and act as condensers

and serubbers. In the impingers the gases are cooled to

about 70° F. vefore metering.

Say MR ARTO, 28

There were objections to the use of impingers in the

EPA sampling train, with suggestions that the particulate

standards be hase either on the **front half*’ (probe and

filter) of the EPA sampling train or on the American So-

ciety of Mechanical Engineers test procedure. Both of these

methods measure only those materials that are solids or

liquids at 250° F. and greater temperatures.

elite Ee a

Ii is the opinion of FPA engineers that particulate stand-

ards based either on the front half or the full EPA sampling

train will require the same degree of control if appropriate

limits are applied. Analyses by EPA show that the ma-

terial collected in the impingers of the sampling train is

usually althongh not in every case a consistent fraction of

the total partienlate loading. Nevertheless, there is some

question that all of the material collected in the impingers

would truly form particulates in the atmosphere under

normal dispersion conditions. For instance, gaseons sulfur

dioxide may he oxidized to a partienlate form—sulfur tri-

oxide and sulfurie acid—in the sampling train. Mueh of

the material found in the impingers is sulfurie acid and

sulfates. There has been only limited sampling with the full

EPA train such that the ocensional anomalies exnnot be

explained fully at this time. In any ease, the front half of

the EPA train is considered a more acceptable means of

measuring filterable particulates than the ASME method

in that a more efficient filter is required and the filter has

far less mass than the principal ASME filter in relation to

the sample collected. The latter position was reinforced by

a recommendation of the Air Pollution Control Association.

Accordingly, we determined that, for the three affected

46a

souree categories, steam generators, incinerators, and ce-

ment plants, particulate standards should be based on the

front half of the EPA sampling train with mass emission

limits adjusted as follows:

Originally

proposed Reeommended

particulate particulate

standards, standards revised

full EPA sample method

train (front half only)

Steam Generators—

pounds per million Btu heat input ...... 0.20 0.10

Incinerators—grains per standard

cubie foot at 12 percent CO, ........... 0.10 0.08

Cement Kilns—

pounds per ton feed ......--62-60.-+-s- 0.30 0.30

Cement Coolers—

pounds per toon feed ...........--0s+--- O10 O10

The adjusted standards are based on EPA sampling results

and are design} to provies the same degree of control as

the originally proposed standards. In the case of steam

generators, the installations which were found to be best

controlled showed reasonably large coneentrations (about

50 pereent) of materials in the impingers. The five incinera-

tor [5768] tests which showed compliance with the orig-

inally proposed standard all indicated impinger catches of

20 to 30 percent. AH five of these tesis indicate compliance

with the original and the revised standard.

In the case of cement plants, holding to the same allow-

able emission rate while changing the sampling method re-

sults in a slight relaxation of the standard. This permits

an electrostatic precipitator as well as a fabric filter to meet

the emission standard,

2. The Sulfur Dioxide Standard for Steam Generators

of 1.2 Pounds Per Million B.T.U. Heat Input. The Admin-

istrator took into account the following facts in determining

that there has been adequate demonstration of the achieva-

bility of the standard.

4ia

There are at present three SOz removal systems in opera-

tion at U.S. power stations. Moreover, a total of 15 electric

power companies have contracted for the construction of

seventesn additional units, most of which will become op-

erational in the next 2 years. Most of these employ lime or

limestone serubbine. but magnesium oxide and sodium hy-

droxide scrubbing and catalytic oxidation also will be used.

In addition, seven units will be equipped with water serub-

bers for fly ash collection in the anticipation that they may

be converted to SQ. removal in the future. Eight different

firms are designing the installations. One of the installa-

tions, a sodium hydroxide scrubber, is guaranteed by the

designer to achieve 90 percent or better SOQz removal. Four

others are guaranteed et SO percent or better. Table T sum-

morizes information about these installations. Generally, the

standard of 1.2 pounds of sulfur dioxide per million B.t.u.

input can be met by the removal of 70-75 percent of the

sulfur dioxide formed in the burning of coal of average

sulfur centent (i.e. 28-5 percent).

A 1W23-anegawatt unit now operated by the Kansas Power

epd Light Co. at Lawrence, Kans.. was put into operation

December 1968, Several problems were experienced orig-

inally on Lappreciable revisions have been made to improve

the system. The most successful operation of the scrubber

has occurred during 1971.

In <ometvespects the plant is atypical in that it is not

required to burn coal continually, Natural gas is available

much of the time, and the station also has a supply of fuel

oil that ean be burned in emergencies when natural gas is

not available. Kansas Power and Light has used this flex-

ibility to advantage in the operation of the scrubber. It fre-

quently switches the unit from coal te natural gas, bypassing

the serubber, so that they can inspect the internals for pos-

sible malfunction. The generating unit was seldom operated

longer than 4+ weeks on coal firing without making such in-

spections. In most instances, little or no maintenance was

required during the outage, and the company then merely

inspected the scrubber.

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