# Petition for Writ of Certiorari — Appalachian Power Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1739%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 416 U.S. 969 ## Text 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 23 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. 9 - 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— (C) include in every recommendation or report 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 , 3 5 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 7 ¢ 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 6 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 Register® proposed standards of performance for 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. © Such participation is expressly provided for by Section 111 (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 8 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: 10 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). 11 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 12 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). 13 402 (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, 14 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). 15 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,”’ a GOS ODE LE OEE ES POOR IE TOE LO SIO RIE: GPS =e Re > 16 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. 17 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. 1 eek cn ae 18 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. 19 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, 20 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 22 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. 23 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 24 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). 25 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). fa Lares NR NI SP METI E IN. KORE ENP OE ARNT TERD YE ETI ger SOPRA Wa ene REE RT OOM ITP T fe re PRENANT ET e? quer niet 26 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 ©9415 Cong. Ree, 40417, 40418, 40423 (1969). See Portland 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 27 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 28 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 29 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 30 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. 31 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 eo i SFG ATE, ETE RV OR, 0 Beers 32 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. la APPENDIX UNITED STATES COURT OF APPEALS FOR THE DISTRICT COURT OF COLUMBIA CIRCUIT No. 72-1072 Essex CHEMICAL CoRPORATION, ET AL, Petitioners, v. 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 2a 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 4a 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. da 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— (C) inelude in every recommendation or report on proposals 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. ns eT ee ak Lan Beever ner (epee CRISIS 6a 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¢ : 7a 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. 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 Sr NONE REETEGE TN TMNT ME SPL ACY ENE PENCE PRY Jee Preae RMS ? ELMAN PMY TET T IE ME NET rVE eT | LE IR tony PUT PLETE Gren rt Boer rw 42a 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 a DAP RR AF Bs eh UP 1g MLR RE He tta 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 ORE IVD IS “OD UOstpsp Word *L ONLY auTAov'] qosiny se Bwyg “°° SLL OW N (17777 % XOOULN FY Yooo dug ous Qysvy y amo AyY susuny ‘9 “PON MOTE OO MeTT “OT or ioeeeess- ween Cay H tS sdoursagq uorysnquoe,) — O0Ol qusrrp y domo Ay) susuBy “¢ "ECON UOTBRYY OILIOI ATT ‘MWoOL poowmmsunyy rr ELH OW NY °° ** sd0urtucg uorsnqmo,y) — OOT Qytrvy y somo Ay) susuvy “fp "Wis OF popuisdn og pur ‘c “ON UOTTIG Weg VW WV [OM Tt TIGL LOI] N °° °°% do0urtug dorsnquo,) Ocb HONE] “QYSry YY Aamo gd SBsuvy “f ‘FON uot, oO] Trees Qu, 10qtoIa] HY °° Adoursuyqy uorsnqmo,) CTL aUOIMET] Qyusry Y Jomo susuvyy ‘7 PH Vda Suunp Souoroyya wer mw pomwodg +°°°* SOGT saqutatdag H oC dvomitsug uoysnquoy = OFL "TON aaUMAOTY OL) OLWATY UOT) “T PHUIqqnsog QUO OUT] [Vaca FOS ozs go Louotoygo dnyinys popnpoypog = wyosjos masks "Og Joutisay = uy HOLLIS LOMO payedinuy 40 MON ‘Aurpung Vad WON s *(pory-[Voo aru dopureuos) syuytd pory TO *puaotiod FOS Ws pooumsmmay eer Seep ounge mr erseserereren*? me OOF P4OALY POOAL “MO KIOUTTTL “] TUOLPUPIXG) OLPATLPU "g ON hog to LoL AE moore ererestee es op core Cél VOLO] LOMO GL LA Joo[y ULUOFO “Z 29 ON yoru Moe °°" SL6) AsBmaqey Mt SP ret ers ete. eh. OO ep HOLE YS OtSAYY CO.) UOstprp WOysogy “| [woo Sy IGT PSUOTPELPUISUP TUL tog VpPIXG, WUISOUSE YY & Aunang ofp “Os “SOPELIONSY “HOLL 7+ Bins poopumsungy eorrreeereees*? pay u quoudinkeg worse) — OCs JoUpausy Pooy “Oy LOMO VPLAON “1 SUOLPL PEST Suis Oprxodp yyy lun poy qanauysu%os °°"? Eley Suds NY °° ** svourtacg ueusnquo,y CZ [ON votibaoyy “O,) olqQoop WOLD “OL *pBaouiod Wes poyumsuny tt TLE AU eid a tated itd ieee red Lu PPUEPSp yoors “soy Loy go Ady “el HONEY uNY &, Appt “od coocoss Cet DUL-PK H °° soourturg uorsnqiie) — OL “OY OLLpoopyp QW SUE) OLPLAsmnorp "pt “HOLLY “Od teeeates* OF ar BAI PRS ROE CLES ot OS OOF sdipiyg, “OWA Pp ousonbuq: ‘Ey "RON HOUEYS Yood) RB MOpEMA ROR EME REET S ee rae BO TAs Str ek** © eae oce ‘APHOWUPUY LOPE A vassoutay st ‘Oy WORRY Tree PEL LUI u cree e ees 1940.) Yostoroy ell yw) ‘QOTALOS OQ Vuozuy "EL 0a All water from the pond is recycled back to the serubber. Blowdown from cooling towers constitutes makeup water. The sludge oxidizes to sulfate in the pond. Eventually, sul- fate may be removed from the system and taken with the ash to landfills. The limestone system for the new 450-megawatt steam: electric unit at the Lawrence station is essentially the same as the smaller unit. It has been operated only on a limited basis to date. The company plans to operate at 65 percent SOs removal. then upgrade to SO percent or more based on experience with the 125-megawatt unit, With the new syvs- tem sulfate ervstallization will be accomplished in tanks, The company plans to run clarified liquor from the erystal- lizers directly back to the scrubbers. A solids content of (i 10 percent will be maintained in the reevele liquor to prevent scaling in exposed surfaces, Combustion enainer rina pilot studios. Pilot studies con- ducted by the Combustion Engineering Co, on a Tm, equiv. alent stream showed {5 percent SO, removal with continu. ous erystallization and 100) percent: water reevele from erystallizers, The studies form the basis upon whieh CE is guaranteeing that its yew installations will remove at least TO pereent of SOs) > ‘ Battersea scrubber. The principle of alkaline scrubbing has been demonstrated at the Battersen Power Station in England. where a scrubber has been in use since 1952. A multiple stage process is employed. Alkaline river water is used in the first stage and lime-neutralized liquor in subse- quent stages, The steam generator is of 3,500 million B.t.u. rating. Reports indicate that the efficiency of this system exceeds 90 percent when the boiler is fired with 0.8 to 1 pereent sulfur coal. Similar systems are in operation on two 150-muww. oil-fired boilers at the Bankside Power Station in England. Swansea scrubber, Lime scrubbing processes were in- stalled on coul-fired units at the Swansea Power Station i ee) Let dla and the Fulham Power Station in England prior to World War IL. The system at the Fulham Station reportedly op- erated suecessfully until shut down for security reasons early during World War IL. It was not reactivated after the war. The Swansea installation was operated for about 2 years on a coal-fired power boiler [5769] and is not now in service. Unlike the Battersea and Bankside operations, these units utilized a continuous liquid recyele. The sys- tems Were reported to operate at SO. efficiencies of 90 pereent or greater, Baheo lime scrubbing. The two-stage system has been demonstrated at about 9S percent SQz removal over a 6- month period on a T-mw, oil-fired steam generator in Swe- den, The process is now being offered under license in the United States by Research Cottrell, None of the Bahco systems have vet been installed on coal-fired boilers, Never- theless, the two-stage scheme appears to offer definite ad- vantages over single-stage processes in achieving high re- moval efficiencies, Wellman power gas sulfite scrubbing, The sulfite-bisulfite system has been installed on two oil-fired boilers in Japan. The combined capacity is abont 650 million Butea. per hour. Sinee it was put into operation in June 1971; removal efti- ciencies of 95 percent have been reported with exit levels of about 0.2 pounds SOz per million B.t.u. The system has not been operated on a coal-fired boiler, However, since pre- cipitators have been shown to remove particulates down to the same level as oil-fired units, application of the sulfite system to coal-fired boilers should be feasible. A principal difficulty in operating lime based scrubbing systems has been the tendency to form scale on serubber surfaces. Union Electric, TVA, and to a lesser extent Nan- sas Power and Light have reported sealing problems. The experience of Kansas Power and Light and European and Japanese installations show that scaling can be held to a tolerable level. Present designs probably will be revised to eMC EEDA EE RE OLVE A IEP Seats | 2a optimize cost versus sealing. The use of two or more stages would appear desirable for high sulfur coals. In all probability, there will be some scale formation in all closed cirenit lime serubbing systems for SOQ2 ebate- ment. At the Bahco installation as at the Kansas Power and Light installation in the United States, this is mini- mized by keeping the solution pH in the acid region. In addition to this, a Mitsubishi Heavy Industries pilot plant in Japan has employed seed erystals and a delay tank and Was reportedly able to operate for 500 hours without any sien of sealing (i.e. the sealing took place on the seed crys- tals). In addition to operating at an acid pH, the Bahco system employs a wide open serubber that can tolerate appreciable seale deposits. It was reported that the installation of addt- tional spray heads to more thoroughly wash the wetted surfaces at the Bischaff installation in West Germany helped to prevent scale formations. All three installations cited above have reported suecess- ful periods of operation while employing the above-men- tioned techniques. The most successful of these is the Bahco unit which has had no serious operational diffieulties sinee November 1969. These examples show that lime systems ean be operated without unscheduled shutdown due to scale problems. 3. Cost of compliance with steam generator standards, The economic impact of the new source performance stand- ards and requisite pollution control expenditures have been developed for a typical new coal-fired unit of 600-megawatt (MW) capacity. The investment cost for such a plant would be $120 million plus $18 million for sulfur dioxide and par- ticulate control and $1 million for nitrogen oxide control. The $19 million total ean be compared to $3.6 million which would have been expended for particulate control if sulfur dioxide and nitrogen oxide abatement were not required. aoa On an annualized basis the pollntion control costs would be 0.13 eents per kw.-hr. for sulfur dioxide and particulate control plus 0.01 cents per kw.-hr. for nitrogen oxide control. Particulate control alone would cost 0.01 cents per kw.-hr. An average revenue of 1.56 cents per kw.-hr. is assumed. Based on these figures, the cost of pollution control will be about 9 percent of the delivered cost of electricity if all plants operated by the utility in question had to incur a comparable cost. Using a figure of $159 per year as the average residential electric bill, the increased cost of elec- tricity to a resilential customer would be about $1 per month if the total cost of control is passed on to the customer. An indication of the impact of increased electricity cost on industrial consumers may be obtained by examining the relationship of electricity cost to production costs. An upper limit may be approximated by considering the aluminum industry, a large consumer of electrical energy. If the alum- inum industry Were to incur an increase of nine percent in electricity cost, production costs would increase by about 1.4 percent. Although aluminum smelters usually consume hydroelectric power and would not realize pollution control costs increases, nonetheless, the figures show that even for a large consumer the impact of increased electricity cost is fairly small. In general, the estimated electricity cost in- crease will have only a minor impact on production costs. Fach vear the power industry puts into operation about 49 new steam-electric units. On the average, 29 are fired with coal, seven with oil, and 15 with natural gas. Most of the oil-fired units and a few of the coal-fired units may burn low sulfur fuel. The number requiring flue gas desulfurization is estimated to be between 20 and 30 per year. Most of these, 15 to 20, will be located east of the Mississippi River. The foregoing cost projections are based on estimated costs of $30 per installed kilowatt for sulfur dioxide serub- hing systems which will also be capable of controlling coal particulate to the level of the standard. Some power dis- dta tributors have questioned the figure and suggest that the actual cost may be close to $70 per kw. Nevertheless, a re- view of applicable cost estimates for caleium base SO2 serub- bing system shows support for the EPA estimate. The four estimates listed in table IT for new plants range from $18.7 to $25.67 per kw. Three of the plants are large— GSO to 1.000 mw. All five estimates for retrofitting existing plants show greater cost. ranging from $28.6 to S618 per kw. The retrofit estimates tend to cover smaller steam gen- erators, only one of the five being greater than 180 mw. In addition, the retrofit costs tend to reflect unusual cireum- stances which would not be expected at new plants. All are closed cireuit limestone or caleium hydroxide systems ex- cept for the small unit at Key West, Fla. In the closed c¢ir- euit system, all waters are recycled to avoid problems of liquid and solid waste disposal. TaBLe IT COST ESTIMATES FOR EQUIPPING COAL FIRED STEAM-ELECTRIC PLANTS WITH CALCIUM BASE SCRUBBING SYSTEMS (1971 ESTIMATES) Source of estimate Size Capital cust Zurn Industries ......--.+--+--++-+- 37 MW (New). $20.4/kw. (Key West installation). Northern States Power Co. ......--- 2-680 MW (New). $18.7 /kw. Babeock & Wileox .....- meen nies + =a 800 MW (New). $25.07 /kw. (Hypothetical plant in midwest ). $19.20 /kw. Tennessee Valley Authority .......-- 1000 MW (New). $54.5 to WG VT icesusccusueas ens ease eeaaess 550 MW (Retrofit). $61.8 /kw. Louisville Gas & Electric Co. ........ 70 MW (Retrofit). $28.6 /kw. Duquesne Light Co. ......-------+-- 10 MW (Retrofit). $35 /kw. Commonwealth Edison Co. ........-- 175 MW (Retrofit). $49 /kw. Detroit Edison Co. ........-+.2++04: 4-180 MW (Retrofit). $49.6 /kw Projected capital costs for nitrogen control will range from nil to $3.50 per kw. The greatest cost will be incurred from those units which will use combinations of flue gas recireulation and off-stoichiometrie combustion to achieve the standard. Many of these will be gas-fired boilers which doa will not have to expend any capital for sufulr dioxide or particulate control. The least cost will be for corner-fired eoal burning boilers which should be able to meet the stand- ards without any modification, Corner-fired units are sold by only one of the four major U.S. power boiler manufac- turers. The other three firms have experience with nitrogen oxide reduction schemes for gas and oi] burning but it is uneertaia what methods they will employ with coal burning. Consequently, precise costs.are uncertain, but it is expected that the nitrogen oxide standard will stimulate interest in combustion techniques which can achieve the required emis- sion levels at little or no increase in cost. 4. The nitrogen oxide standard for coal-fired steam gen- vrators. The standards set an emission limit of 0.7 pound of nitrogen oxide per million B.t.u. coal-fired steam gen- erators. This is roughly equivalent to a stack gas concen- tration of 550 parts per million for a bituminous-fired op- eration. Several electric utilities and three of the four major boiler manufacturers commented that the technology was not fully demonstrated to achieve the standard. (5770) The coal standard is based principally on nitrogen oxide levels achieved with corner-fired boilers which are manufactured by only one company—Combustion Engineer- ine. This firm has confirmed in writing that it will guarantee to meet the nitrogen oxide standard. Investigations by an EPA contractor showed that other types of boilers could meet the standard under modified burning conditions. In fact. two of the three remaining companies have informed EPA they will guarantee that their new installations will meet the FPA standard of 0.7 pound million B.t.u. on new installations. 5. Particulate standards for kilns in portland cement plants. Particulate emission limits of 0.8 pound per ton of feed to the kiln were proposed for cement kilns. This is roughly equivalent to a stack gas concentration of 0.05 grains per standard cubic foot. 56a The Portland Cement Association, American Mining Con- eress. a local control agency and the major cement pro- dueers commented that the kiln standard was cither too striet or it is not based on adequately demonstrated tech- nology, ic. fabric filters can not be used for all types of cement plants. On the other hand, a comment was received from an equipment manufacturer stating that eqnipment other than fabric filters also can be used to meet the stand- ard and citing supportive data for electrostatic preeipita- tors. In addition, the AMC, a local agency and cement pro- ducers commented that the particulate standards for cement kilns are stricter than those promulgated for power plants and municipal incinerators. Further they objected to the test method to be used to determine compliance. The proposed standard was based principally on partic- ulate levels achieved at a kiln controlled by a fabric filter. Several other kilns controlled by fabric filters had no visible emissions but could not be tested due to the physical lay- out of the equipment. After proposal, but prior to promul- gation 2 second kiln controlled by a fabric filter was tested and found to have particulate emissions in excess of the proposed standard. However, based on the revised partic- ulate test method, the second installation showed particulate emissions to be less than 0.3 pound per ton of kiln feed. The promulgated “standard is roughly equivalent to a stack gas concentration of 0.03 grains per standard cubic foot. The power plant standard is equivalent to 0.06 grains per standard cubie foot at normal excess air rates. The in- einerators standard is 0.08 grains per standard eubie foot corrected to 12 percent carbon dioxide. Uncorrected, at nor- mal conditions of 7.5 percent carbon dioxide it is equivalent to 0.05 grains per standard eubie foot. The difference be- tween the particulate standard for cement plants and those for steam generators and incinerators is attributable to the superior technology available therefor (that is, fabrie filter ria technology has not been applied to coal-fired steam gen- erators or incinerators). In sum, considering the revision of the particulate test method, there are sufficient data to indicate that cement plants equipped with fabric filters and precipitators can meet the standard. 6. Cost of achivving particulate standard for kilns at portland cement plants. A limit of 0.3 pounds per ton of feed to the kiln was proposed. The limit applies to all new wet or dry process cement kilns. ~ Three cement producers commented that a well-controlled plant would cost much more than indicated by EPA, A meeting between American Mining Cengress and EPA re- vealed that that association felt the cost of an uncontrolled cement plant as reported by EPA was low by a factor of 1.5 to 2. However, the association agreed that EPA had accurately estimated the cost of the pollution control equip- ment itself. Accordingly, no change in the standard was war- ranted on account of cost. Indeed, if the industry is correct in asserting that the cost of an uncontrolled plant is higher than that estimated by EPA, that means that the cost of pollution control expressed as a percentage of total cost is less than the 12 percent figure cited in the background document. APTD-0711, which was distributed by EPA at the time the standards were proposed. 7. Sulfur dioxide and acid mist standards for sulfuric acid plants. Sulfur dioxide emission limits of 4+ pounds per ton of acid produced and acid mist emission limits of 0.15 pounds per ton of acid produced were proposed for sulfurie acid plants. Several sulfurie acid manufacturers and the Manufae- turing Chemists Association commented that the proposed SOz standard is unattainable in day-to-day operation at one of the plants tested or that it is unduly restrictive. They 58a asserted that to meet the standard, the plant would have to be ‘designed to 2 pounds per ton”’ to allow for the inevita- ble gradual loss of conversion efficiency during a period of operation, and that units capable of such performance have not been demonstrated in this country. Essentially, the same parties commented that there is published data show- ing that due to the vapor pressure of sulfurie acid, the acid mist standard is not attainable. The proposed standard was based principally on sulfur dioxide levels achieved with dual absorption acid plants and one single absorption plant controlling emissions with a sodium sulfite SOz recovery system. There are only three dual absorption plants in this country, Company emission data at one of the plants tested indicates the plant was meeting the proposed standard for a year of operation when the production rate was less than 600 tons per day. The plant is rated at 700 tons per day. At the second U.S. plant, emissions were about 2 pounds per ton about two months after startup. Discussion with foreign dual absorption plant designers and operators indicates normal operation at 99.8 percent conversion or higher for 99 percent of the time over a period of years. This conversion efficiency is equivalent to approximately 2.5 pounds per ton of acid produced. Complaints from the industry that it cannot meet the acid mist standard appear to be based on experience with other test methods than HMPA’s. Such other methods measure more sulfur trioxide and acid vapor, in addition to acid mist, than does the EPA method. Tests of several plants with the EPA test method have shown acid mist emissions well below the emission limits as set in the standards. 8. Cost of achieving sulfur dioxide standard at sulfuric acid plants. A limit of 4 pounds of sulfur dioxide per ton of acid produced is set by the regulation. The limit applies to all types of new contact acid plants except those operated for control purposes, as at smelters. 9a The sulfuric acid industry has commented that (1) the cost of achieving the proposed sulfur dioxide standard is about three times the EPA estimate, and (2) promulgation of a standard 60 percent less restrictive than proposed by EPA would reduce the control cost 47 percent. In developing the paralle] cost estimates, both the indus- try and EPA assume the dual absorption process will be used to control sulfur burning plants and many spent acid plants. The more costly Wellman-Power Gas sulfite serub- bing system will be used with plants which process the most contaminated spent acid feedstocks where capital in- vestment historically is SO percent greater than sulfur burn- ing plants. The Wellman-Power Gas process would also be used for retrofitting existing plants where appropriate. Both the dual absorption and Wellman-Power Gas processes have been demonstrated on commercial installations. Sev- enty-six dual absorption plants have been constructed or designed since the first in 1964. Only three, however, are located in this country. One sulfite scrubbing process is now in operation in the United States and four more will be put into service in 1972. All are retrofit installations. Two other such serubbers are being operated in Japan. These seven installations consist of three acid plants, two claus sulfur recovery plants, an oil-fired boiler, and a kraft pulp mill boiler. Control costs. EPA engineers have reviewed the industry analysis and find no reason to change their original cost estimate. As summarized in Table III, EPA estimates that the cost of achieving the standard is $1.07 to $1.52 per ton of acid for dual absorption systems and $3.50 per ton for sulfite scrubbing systems. The industry estimate for a sul- fur burning dual absorption plant is $2.31 greater than EPA’s. We believe the industry’s estimate to be excessive for the following reasons. [5771] Ute MvetyRe wee ror! ie hye eee Beane corse yea 60a Tasie III ESTIMATED COSTS OF CONTROLLING SULFUR DIOXIDE FROM CONTACT SULFURIC ACID PLANTS Dual absorption Sodium sultite process scrubbing Industry EPA Industry EPA Sulfur burning plants: Direct Investment (Thousands of $) .-----++++ 2,000 550) Not anticipated Total Added Cost for new sulfur ($/Ton)® ....-eeceeeeecercces 3.33 1.07 burning plants. Spent acid plants: Direct Investment (Thousands Ae Ns ae givelen ono 3,100 900 2 200 2.300 Total Added Cost ($/Ton)®* ...-seseeecesceeeres 4.45 1.32 4.11 3.00 * Total added cost includes depreciation, taxes, 16% return on investment after taxes and other allocated costs. Seventy-two percent of the difference between the Du Pont and EPA estimates is due to direct investment, plant overhead, and operating costs for auxiliary process and storage equipment which Du Pont predicts will be necessary to satisfy the standards. EPA does not believe that such auxiliary equipment will be necessary in prae- tice to meet the standard. Twenty percent of the difference is due to differences in estimates of the cost and consumption of utilities. Elimination of auxiliary equipment referred to above re- duces the consumption rate of both electricity and steam. Fight percent results from the industry’s apportionment of ‘‘other allocated costs*’ (Corporate Administration, Le., sales, research, and development, main office, ete.) in pro- portion to their estimate of the additional investment re- quired for control. Although an accepted procedure for internal cost accounting, this does not represent a true out-of-pocket cost. In sum, the EPA analysis shows that meeting the pro- posed standard with a dual absorption plant requires a substantial investment over an uncontrolled plant but only Ola 30 percent as great as indicated by the industry. More- over, relaxation of the proposed standard by 60 percent (to the level recommended by the industry) would decrease the cost of control in dual absorption plants only 10 to 15 percent. For sulfur burning plants the cost differential would be $0.10 per ton of acid. For spent acid plants, it would be $0.17. f Economic impact of proposed standard, Most sulfuric acid production is captive to large vertically integrated chemical, petroleum, or fertilizer manufacturers. An in- creasing volume of production also results from the re- covery of sulfur dioxide from stack gases or the regene- ration of spent acid instead of its discharge into streams. Depending on the abatement process selected and the plant size, the direct investment for control can range from 14 to 38 percent of the investment in an uncontrolled acid plant. The added cost of air pollution control, coupled with the inherent market disadvantage of the small manufac- turer, may make future construction of plants of less than 500 tons per day economically unattractive except as a sulfur recovery system for another manufacturing process. It is estimated that the average market price will in- crease by $1.07 per ton reflecting the lower end of the cost range. This represents a small increase in the $31 per ton market price and will have little effect on the demand for acid. The increasing production of recovered and regenerated acid. as a result of abatement efforts, will inhibit the erowth of conventional acid production and threaten eventually to displace much of that production. Wroitusm D. RvckeisHats, Administrator. Maren 16, 1972. [FR Doe. 72-4338 Filed 5-20-72; 5 ‘51 am] FEB RR ERIE TNE NOEL, EEN a ai Ah a ld went PIS pe ON AUNTS PTET TI HEISE EN RTs --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1739%3A1. Public record. Not legal advice.