Amicus Curiae Brief — Appalachian Power Co. v. Environmental Protection Agency

is. S&S

No. 73-1038

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

AppatacHiaN Power Company.

Ixpiana & Micuigan Exvecrnic Co.,

KENTUCKY Powe CoMPANY.

Onio Power Company,

Petitioners.

Vv.

ISNVIRON MENTAL PROTECTION AGENCY,

Re sponde nt.

Os Wrir or CERTIORARI TO THE UNITED STATES CoUr? oF

AprEALS FOR THE District or CoLuMBIA CIRCUIT

Cameron F. MacRae

LeBoevr, Lams, Lerpy & MacRae

One Chase Manhattan Plaza

New York, New York 10005

Attorney for

Edison Electric Institute

February 1, 1974

se.

od

TABLE OF CONTENTS

Interest of Amicus Curiae ...................

Reasons for Granting a Writ of Certiorari -................-.

I. The Decision Below is Inconsistent with the

Policy of the Clean Air Act and does not Evi-

dence the Quality of Review Contemplated by this

Court’s Decision in Overton Park

II. The Relationship Between the Regulatory Activi-

ties of EPA and the National Environmental

Policy Act of 1969 Should be Clarified as Should

the Obligations of EPA Under the Clean Air Act

of 1970

Te

TABLE OF AUTHORITIES

Cases:

Anaconda Company v. Ruckelshaus, 352 F.Supp.

697 (D.Colo. 1972), rev'd, Anaconda Company Vv.

Ruckelshaus, 482 F.2d 1301 (10th Cir. 1973) -.......

Appalachian Power Co. v. Environmental Pro.

Agcy., 477 F.2d 495 (4th Cir. 1973)

Buckeye Power, Inc. v. Environmental Protection

Agcy., 481 F.2d 162 (6th Cir. 1973)

Calvert Cliffs’ Coordinating Committee v. Atomic

Energy Commission, 449 F.2d 1109 (D.C. Cir.

1971)

Citizens to Preserve Overton Park Inc. v. Volpe,

401 U.S. 402 (1971)

Cohen v. Price Commission, 337 F.Supp. 1236

(S.D.N.Y. 1972)

Duquesne Light Co. v. Environmental Protection

Agcy., 481 F.2d (3d Cir. 1973) ae

i

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ERNE PLETE LEARN TD LG OE MED IES Se |

Tere draY Tee) Wath ue di flaca ol chi odd aaa

Berean weer mr

ii

PAGE

Environmental Defense Fund et al. v. E.P.A., 6

E.R.C. 1112 (D.C. Cir. Nos. 72-1548 e¢ al., Dee.

13, 1973) a ee coil 12, 13

Environmental Defense Fund v. Hardin, 325 F.Supp.

1401 (D.D.C. 1971) ---------cc--eceeececeessec te

Essex Chemical Corporation et al. v. Ruckelshaus,

486 F.2d 427 (D.C. Cir. 1973) ne : 3

Getty Oil Company (Eastern Operations) v. Ruckel-

shaus, 342 F.Supp. 1006 (D. Del. 1972), rev'd,

Getty Oil (Eastern Operations) v. Ruckelshaus,

467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S.

1125 (1973) -..--.---.----n--onseccsenseecseneeenssnnscnsscnsensssnnsenseenssees 12

Gibson v. Ruckelshaus, 1 E.L.R. 20337 (Civ.Ac. No.

5255. E.D.Tex., Mar. 1, 1971), rev'd, City of Luf-

kin, Texas v. Gibson, 447 F.2d 492 (5th Cir.1971) 12

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

cert. denied, 409 U.S. 849 (1972) -...---------------- 8

International Harvester Company v. Ruckelshaus,

478 F.2d 615 (D.C. Cir. 1973) ....-------------- 12, 13, 14

Kalur v. Resor, 335 F.Supp. 1 (D.D.C. 1971) -....------ 11

Portland Cement v. Ruckelshaus, 486 F.2d 375 (D.C.

Cir. 1973) .-...-.------c-e---nenceeeeeseneeneeenenensnsnsesesnsosnesnees 12, 15, 14

Scenic Hudson Preservation Conference v. Federal

Power Commission, 354 F.2d 608 (2d Cir. 1965) 8

Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.

1972), aff'd, without opinion, 4 E.R.C. 1815 (D.C.

Cir. 1972), aff'd, Fri v. Sierra Club, 412 U.S. 541

(1973) nneveanennvonennvenconvvennwveseevsenemevecenncvesennneneenasssoncereees 4

Sierra Club v. Sargent, 2 E.L.R. 20131 (Civil No.

249-71 C2, W.D. Wash. Mar. 16, |: SERS 12

Statutory Provisions:

Clean Air Act, As Amended

42 U.S.C. §1857¢-5(a) (2) (1970) seeeeeeneeeeneeeeeee 6

42. U.S.C. §1857¢-6 (Supp.II, 1970)... 2

PAGE

42 U.S.C. §1857¢-6(a) (1) (1970) -..- se 8

42 U.S.C. §1857e-6(a) (2) (1970) «2-2. ; 4

42 U.S.C. §1857¢e-6(b) (Supp.II, 1970) -....-..--.--------- 8

42 U.S.C. §1857e-8(b) (Supp.II, 1970) .........------- 3, 11

42 U.S.C. §1857e-8(e) (Supp.II, 1970) -...-.-.--------- 3

42 U.S.C. §1857e-8(e) (1) (Supp.II, 1970) ........-..--- 11

42 U.S.C. §1857h-2 (1970) 3, 11

42 U.S.C. §1857h-2(b) (1970) 11

Emergency Petroleum Allocation Act of 1973

Pub.L.No. 93-159, 87 Stat. 627, 628 (Nov. 27, 1973) 4

Federal Water Pollution Control Act of 1972,

33 U.S.C. $1151

et seq. 4,13

33 U.S.C. §1371(e) (Supp.II, 1970) .........-------------- 13

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

$4321

et seq. (1970) oe 11

42 U.S.C. §4332(C) (1970) 7

Regulations:

40 C.F.R. $50.4 (1973) 2

40 C.F.R. $51.18 (1973) 2

40 C.F.R. $60.43 (1973) 2

40 C.F.R. §1500.4 (1973) 13

36 Fed. Reg. 7725 (1971) (CEQ NEPA Guidelines) 13

38 Fed. Reg. 10856 (1973) (Proposed CEQ NEPA

Guidelines) 13

38 Fed. Reg. 20550 (1973) (CEQ NEPA Guidelines) 13

38 Fed. Reg. 32577 (1973) (EPO Reg. 2—Priorities

For Use of Certain Low Sulfur Petroleum Pro-

ducts) id 5

ERIM ARE MARAT BIR IN POPC COL

WRI LPR

PERI

AT OANA PAE, OR r OREO OW I ANIL

Pot aah ale a cake ot ee

iv

Legislative Material: PAGE

NEPA Legislative History

115 Cong. Rec. 40417 (1969) -...------------------ 13

115 Cong. Rec. 40422 (1969) -....--------------- 13

H. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970) -... 9

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) -... 9

Joint Hearings Before the Senate Committees on

Public Works and Interior and Insular Affairs on

the National Environmental Policy ct, 92d

Cong., 2d Sess. (1972)... 13

Miscellaneous:

Appendix to Petitioner’s Brief in the U.S. Court of

Appeals for the District of Columbia Circuit .... 9,10

Appendix to Petitioner’s Petition in the Supreme

Court of the United States ...........------------------------- 2

DHEW, Paper on the Environmental Protection

Agency’s Proposed Rule-making on Prevention of

Significant Air Quality Deterioration (Oct. 1973) 15

ELECTRICAL WEEK, November 19, 1973 .........--- 3

ELECTRICAL WEEK, December 10, 1978 .........-.. 3

. EPA, National Public Hearings on Power Plant

Compliance with Sulfur Oxide Air Pollution

Regulations: Report of the Hearing Panel (Jan.

1974) 5, 6, 7, 11, 15

Fourth Annual Report of the Council on Environ-

mental Quality (1973) -.....-------------------- 9

FPC, the Potential for Conversion of Oil-Fired and

Gas-Fired Electric Generating Units to Use of

Coal, (FPC Form No. 36) (Nov. 6, ne 3

FPC, 1970 National Power Survey (1971)

Petitioner’s Brief in the U.S. Court of Appeals for

the District of Columbia Circuit

~ Ses aN eet

Vv

Petition for Rehearing and Suggestion for Rehear-

ing In Bane in the Court of Appeals for the Dis-

trict of Columbia Circuit .......----------------------> ee

Second Annual Report of the Council on Environ-

mental Quality (1971). --.----------------eesere

SOCTAP, Projected Utilization of Stack Gas Clean-

ing Systems by Steam-Electrie Plants, Publica-

tion No. APTD-1569 (Apr. 1973) -...----------------

Statement of W. Donham Crawford Before the Sub-

committee on Public Health and Environment,

House of Representatives Interstate and Foreign

Commerce Committee (Sept. 20, | Rasa

Statement of W. Donham Crawford Before the

Environmental Protection Agency Stationary

Source Enforcement Proceedings (Oct. 23, 1975)

Statement of W. Donham Crawford Before the U.S.

Senate Committee on Interior and Insular Affairs

(Nov. 8, 1973) aac cadena

Statement of A. V. Slack Before the Environmental

Protection Agency Stationary Source Enforce-

ment Proceedings (1973) -...-----------------cr

PAGE

o>

a Pe olel tk tt

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1038

——$—$—<—<—t a

APPALACHIAN Power CoMPANY,

Inpiana & Micuican Evectric Co.,

Kentucky Power CoMPANY,

Oxu10 Power CoMPANY,

Petitioners,

Vv.

ExviroNMENTAL PROTECTION AGENCY,

Respondent.

Ox Wert or CERTIORARI TO THE UNITED STATES CouRT OF

APPEALS FOR THE District oF CoLuMBia CIRCUIT

—_—Ee

BRIEF AMICUS CURIAE IN BEHALF OF

EDISON ELECTRIC INSTITUTE

In accordance with this Court’s Rule 42, Edison Electric

Institute has received the written consent of counsel for

the government and counsel for the petitioners to file this

brief amicus. Copies of the consents have been filed with

the Clerk of the Court.

Interest of Amicus Curiae

Edison Electric Institute (‘EEI”) is the principal

national association of electric utility companies, having as

LEO MN MANION:

2 I ROME LLG CLV EL OTE, PY IML ALTERS TH RR, III) PO IT

erature: PSR NORAD ELLE NT BEML ILIL OLIN ALL PBT LIE NFL IAN LA ION NY

2

members 193 operating companies which supply electricity

to 77 percent of all the electric service customers in the

United States.

Edison Electric Institute is committed to protecting the

nation’s air quality, particularly with regard to the effect

of generating plant emissions on the publie health. It is

much concerned that the decisions below do not permit the

industry to implement an existing available technology

(that is, tall stack technology) and will seriously compro-

mise the ability of the electrie utility industry and the

nation to achieve compliance in the shortest possible time

with primary and secondary air quality standards! adopted

heretofore by the Administrator of the Environmental Pro-

tection Ageney (“EPA”). With but a single exception,’

the ruling below? upholds the lawfulness of a decision of

EPA, pursuant to Section 111 of the Clean Air Act of 1970,*

promulgating performance standards’ predicated upon the

use of stack gas desulfurization equipment for new or modi-

fied fossil fuel fired steam generating units of commercial

size.

Edison Electrie Institute is particularly concerned

because it believes that adoption of the performance stand-

ards by EPA will jeopardize unnecessarily the capability

of the electric utility industry to construct® and thereafter

1. 40 C.F.R. §50.4 (1973).

2 The court below remanded the matter to EPA for further

proceedings on the environmental problems of disposing of the sludge

by-product of lime slurry scrubbing systems.

3. Essex Chemical Corporation et al. 7. Ruckelshaus, 486 F.2d

427 (D.C. Cir. 1973). The opinion of the Court of Appeals is

reprinted in the Appendix of Petitioner’s Petition, at App. 1a-26a.

4. 42 U.S.C. $1857c-6 (Supp. II, 1970). Hereinafter the “Clean

Air Act of 1970” will be referred to as merely the “Clean Air Act”.

5. 40 C.F.R. $60.43 (1973).

6. Construction of new sources and modification of existing

sources are subject to review pursuant to 40 C.F.R. $51.18 (1973).

3

operate’ additional generating facilities which must be com-

pleted if the electric utility industry is to be in a position

to supply the nation with its energy needs. The Federal

Power Commission estimates that present generating plant

capability will have to be doubled in this decade and almost

doubled again in the 1980’s.6. A very substantial portion of

that capacity will be conventional steam electric generating

capability.

Edison Electric Institute estimates that approximately

119 million kilowatts of fossil fuel fired steam electric

generating capability will be added during the six year

period 1973-1978; much of which will be required to comply

with the performance standards adopted by EPA pursuant

to Section 111 of the Clean Air Act. Additionally, in order

to respond to present and anticipated shortages of low sul-

fur residual fuel oil, many existing plants, perhaps as many

as 84 plants with a total generating capability of 24 million

kilowatts,’ may need to be converted to burn coal. It is

entirely probable that such conversions may entail a “modi-

7. Operation of a fossil fuel fired electric generator outside the

EPA performance standards subjects the violator to the risk of: (1)

injunctive action by EPA; (2) a fine of $25,000 per day of violation

or imprisonment for up to one year, or both; and (3) civil suit by

any citizen. 42 U.S.C. §§$1857ce-8(b), (c) (Supp. HH, 1970) and

1857h-2 (1970).

8. FPC, 1970 National Power Survey, pt. I, at I-1-17 (1971).

9. The White House and various regulatory agencies have identi-

fied a substantial number of plants which may be reconverted to coal.

ELECTRICAL WEEK, November 19, 1973, at 8. Additionally,

William E. Simon recently dispatched a telegram to 19 East Coast

utilities urging rapid conversion of 26 power plants from oil to coal

as “imperative and in the national interest.” ELECTRICAL

WEEK, December 10, 1973, at 1. See also, FPC, The Potential for

Conversion of Oil-Fired and Gas-Fired Electric Generating Units to

he | A (FPC Form No. 36), Bureau of Power, Revised (Nov.

; ).

SOT eS ae

ee oe le a

eves CRO ®

+

fication’”® of such plants if long-term conversions to coal

must be made, with a concomitant legal obligation to put

such plants in compliance with the performance standards

adopted by EPA pursuant to Section 111 of the Clean Air

Act.

The electric utility industry is already beset with many

complex financial and environmental" problems. The per-

formance standards for new fossil fuel fired steam genera-

tors adopted by EPA are certain to complicate even more

and perhaps jeopardize the capacity of the electric utility

industry to respond in the short term to the “energy crisis”

(which to date has been characterized by very substantial

shortages” of residual fuel oil and skyrocketing fuel costs)

and in the long term to bring on line badly needed addi-

tional generating capability.

10. Performance standards apply to a “stationary source, the

construction or modification of which is commenced after the publi-

cation of regulations . . . which will be applicable to such source.”

Clean Air Act, Section 111(a) 2, 42 U.S.C. $1857c-6(a) (2) (1970).

11. See for example, Sierra Club ¢. Ruckelshaus, 344 F.Supp.

253 (D.D.C. 1972), aff'd, without opinion, 4 E.R.C. 1815 (D.C. Cir.

1972), aff'd, Fri. v. Sierra Club, 412 U.S. 541 (1973); and see, the

Federal Water Pollution Control Act of 1972, 33 U.S.C. $1151 et

seq., Pub.L.92-500, 86 Stat. 816 (Oct. 18, 1972).

12. The Emergency Petroleum Allocation Act of 1973, Pub.L.No.

93-159, 87 Stat. 627, 628 (Nov. 27, 1973) sets forth the Con-

gressional findings with regard to the shortage of residual fuel oil.

Congress determined that, “(1) shortages of crude oil, residual fuel

oil, and refined petroleum products caused by inadequate domestic

production, environmental constraints, and the unavailability of

imports sufficient to satisfy domestic demand, now exist or are

imminent; (2) such shortages have created or will create severe

economic dislocations and hardships, including loss of jobs, closing

of factories and businesses, reduction of crop plantings and harvest-

ing, and curtailment of vital public services, including the trans-

portation of food and other essential goods; and (3) such hardships

and dislocations jeopardize the normal flow of commerce and con-

stitute a national energy crisis which is a threat to the public health,

safety, and welfare and can be averted or minimized most efficiently

and effectively through prompt action by the Executive branch of

Government.”

Set EE A EE UN Cibo

5

The alternatives through which the electric utility indus-

try may do its part to assist in achieving the national

primary and secondary air quality standards adopted by

EPA are few in number. In the long term the remaining

hydro-electric sites may be developed but, as is well known,

most such sites have been developed. Construction of

many additional nuclear plants offers a real solution to cur-

rent air quality problems, but the nation’s escalating energy

demands are so great that additional nuclear facilities can-

not be considered as the sole future source of electric

energy even in the distant future. Accordingly, much of

the capacity for energy production will have to depend

upon available fossil fuels.

With respect to power plants utilizing fossil fuels, there

are but four possible methods available to achieve compli-

anee with primary and secondary air quality standards

heretofore adopted by EPA. Of these, only three methods

presently can be applied to new and modified plants to

secure compliance with the EPA Section 111 performance

standards.

1. Many existing power plants can utilize fossil fuels

with low sulfur content. Although this approach appears

possible in some applications, it is not available for all

plants, because of the scarcity of low sulfur fuel oil and

coal, and because of the specific prohibition from converting

to such fuels by Federal regulation.”

13. EPA, National Public Hearing on Power Plant Compliance

with Sulfur Oxide Air Pollution Regulations: Report of The Hear-

ing Panel (Jan. 1974) (hereinafter cited as, Report of The EPA

Hearing Panel). The Report notes that “supplies of low sulfur

fuels are limited and will not be sufficient to permit all noncomplying

power plants to meet emission requirements,” at 1. <d/so see, 38 Fed.

Reg. 32577 (Nov. 27, 1973) which sets forth Federal regulations

which limit sources from converting to low sulfur fuel.

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6

2. Electric utilities can construct very tall stacks which

disperse emissions with the result that ambient air quality

standards could be met at many existing as well as new and

modified plants** within the time schedules established by

Congress in Section 110(a)(2) of the Clean Air Act.

»

5. It is hoped that systems can he developed to remove

sulfur from available fuels, but such technology does not

presently exist in the case of coal and, in the case of oil, it

cannot be applied in sufficient amounts to refineries in the

near term. As a result, most people are convinced that this

approach cannot be counted on until the 1980’s.**

4. Finally, systems may be developed to remove sulfur

oxides from stack gases but such systems do not yet exist

for commercial applications, despite expenditures by the

electric utility industry of more than 300 million dollars on

research.” In any event, it cannot be applied to existing

coal plants impacting on primary standards, or to new coal

fuel plants because of vendor capacity constraints within

14. See, Prepared Statement of W. Donham Crawford, Presi-

dent, Edison Electric Institute, Before the Environmental Protec-

tion Agency Stationary Source Enforcement Proceedings, at 4, 6, 7

(Oct. 23, 1973); and see, Prepared Statement of A. V. Slack, Ten-

nessee Valley Authority, Before the Environmental Protection

Agency Stationary Source Enforcement Proceedings (1973).

15. 42 U.S.C. §1857c-5(a)(2) (1970).

16. See, Prepared Statement of W. Donham Crawford, Presi-

dent, Edison Electric Institute, Before the Subcommittee on Public

Health and Environment, House of Representatives Interstate and

Foreign Commerce Committee, at 7 (Sept. 20, 1973); also see,

Report of The EPA Hearing Panel, at 3 (n. 14, supra).

17. See, Prepared Statement of W. Donham Crawford, supra, n.

16. «Also see, Prepared Statement of W. Donham Crawford, Presi-

dent, Edison Electric Institute, Before the Environmental Protec-

ag tad Stationary Source Enforcement Proceeding, at 5 (Oct.

, 1973).

the time schedules contemplated by Section 110 or 111 of

the Clean Air Act.'s

Reasons for Granting a Writ of Certiorari

Edison Electric Institute believes that a Writ of Cer-

tiorari should be granted because (1) the decision below

does not reflect the type of thorough, probing, in-depth

review of EPA’s action in promulgating performance

standards for fossil fue! steam generators contemplated by

this Court’s decision in Citizens to Preserve Overton Park

Ine. v. Volpe;'? and (2) the obligation of EPA to comply

with Section 102(2) of the National Environmental Policy

Act of 1969°° should be clarified as should the reviewability

of decisions made by EPA which so substantially affect the

environment, the economy and the capacity of the electric

utility industry to continue to supply energy in the years

to come.

18. Sulfur Oxide Control Technology Assessment Panel

(SOCTAP), Projected Utilization of Stack Gas Cleaning Systems

by Steam-Electric Plants: Final Report to the Federal Interagency ;

Committee, U.S.E.P.A., Research Triangle Park, N.C., Publication :

No. APTD-1569 (Apr. 1973); and Report of The EPA Hearing ~

Panel, at 67 (n. 14, supra). The latter Report notes that flue gas |

removal equipment will be available for power plant use in amounts |

that permit its use by 1978 only in new coal fired plants and existing

coal fired plants impacting upon primary air quality standards. ‘

Equipment will not be available for oil fired plants and other large

industrial boilers or to implement time schedules contained in some

state implementation plans, at 68.

19. 401 U.S. 402 (1971).

20. 42 U.S.C. §4332(C) (1970).

THEOL Gee ee ES

Cha Nee

Qosvrerscren PERT AON “bees pA et

The Decision Below is Inconsistent with the Policy of

the Clean Air Act and does not Evidence the Quality

of Review Contemplated by this Court’s Decision in

Overton Park.

The facts upon which EPA based the performance

standards for fossil fuel fired steam generators cannot

withstand the type of comprehensive review contemplated

by the Citizens to Preserve Overton Park Inc. v. Volpe

decision,”' or the standards of review commonly applied to

the authorizing functions of other agencies.-> Section 111

of the Clean Air Act directs EPA to promulgate a standard

of performance for categories of stationary sources*? which

reflect “the degree of limitation achievable through the

application of the best system of emission reduction which

(taking into account the cost of achieving such reduction)

the Administrator determines has been adequately demon-

strated.”**

Both the Senate and the House agreed, when the Air

Quality Act of 1970 was before them, that EPA must base

any performance standard on a finding that an affected

industry had demonstrated capability to achieve the speci-

fied degree of emission control. In this connection, the

Senate Report notes that “the Administrator should exam-

21. 401 U.S. 402, 415-416 (1971).

22. See generally, Greene County v. FPC, 455 F.2d 412 (2d

Cir. 1972), cert. dented, 409 U.S. 849 (1972); Calvert Cliffs’ Coordi-

nating Committee 7. Atomic Energy Commission, 449 F.2d 1109

(D.C. Cir. 1971); and Scenic Hudson Preservation Conference v.

Federal Power Commission, 354 F.2d 608 (2d Cir. 1965).

23. 42 U.S.C. §1857c-6(b) (Supp. II, 1970).

24. 42 U.S.C. §1857c-6(a)(1) (1970).

PD RS eS ~ So erate

ine the degree of emission control which has been or can be

achieved through the application of technology which is

available or normally can be made available.”* Similarly,

the House Report notes that “in order to be considered

‘available’ the technology may not be one which constitutes

a purely theoretical or experimental means of preventing

air pollution.””°

The Environmental Protection Agency's conclusion that

SO. stack gas removal systems have been “adequately

demonstrated” is not concurred in by either the Federal

Power Commission” or the President’s Council on Environ-

mental Quality? and cannot meet the standards prescribed

by Congress. As EEI has taken great effort to explain,

the fact is that SO. removal systems did not in 1971-° and

do not today** have the demonstrated capability of achiev-

ing the new source performance standards for fossil fuel

fired steam generators.

In light of the legislative history of the Clean Air Act,

the information upon which EPA relied cannot support any

other conclusion. The EPA’s own test results made prior

to promulgation of the standard indicate that only a single

unit approached (rather than achieved) the 1.2 Ibs. /million

25. S. Rep. No. 91-1196, 91st Cong., 2d Sess., at 16, 17 (1970).

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

27. Appendix to Petitioner’s Brief in the U.S. Court of Appeals

for the District of Columbia Circuit, at 71, 74.

28. The Second Annual Report of the Council on Environmental

Quality, at 81 (1971). See also, The Fourth Annual Report of the

Council on Environmental Quality, at 162 (1973).

29. Appendix to Petitioner’s Brief in the U.S. Court of Appeals

for the District of Columbia Circuit, at 129, 130.

30. Sez, Prepared Statement of W. Donham Crawford, Presi-

dent, Edison Electric Institute, Before the U.S. Senate Committee

on Interior and Insular Affairs, at 4 (Nov. 8, 1973).

SRE Pe way Ye

LON PME CER HED RON PARTE RROr IT Te Ge

PLA REY VY

Prerroer IRUREDATR NBER ERELITERS,

10

Btu standard.” Such evidence when supplemented by brief

references without date to results achieved on prototype

units or in pilot studies cannot be held to support a finding

that SO, stack gas removal technology is “adequately

demonstrated”.*? Similarly, reference to the desire of EPA

to provide the electric utility industry with “normal ineen-

tives” to “advance” SO, removal technology, however well-

intentioned such “incentives” may be, hardly justifies a

conclusion that any technology was, in fact, “adequately

demonstrated” in 1971. .

Nor is EPA’s justification for the availability of stack

gas removal technology promoted by references to the

guarantees offered by one or more suppliers of SO, removal

systems. Two such guarantees relate to systems other than

the one upon which EPA based its performance standard

and a third guarantee must be read in light of the manu-

facturer’s caveat that his system was not commercially

proven, had a low scrubbing efficiency “and would be far

short of the emission limits for the higher sulfur fuels com-

monly burned in large steam generators.”*

Moreover, in light of the enforcement provisions of the

Clean Air Act, the oppressive implications of EPA’s

restrictive Section 111 performance standards upon the

capability of the electric utility industry to supply the

nation’s expanding energy demands become very clear. The

failure of an electric utility to operate within such stand-

ards on every oceasion would risk the possibility of injunc-

31. Petitioner’s Brief in the U.S. Court of Appeals for the Dis-

of Columbia Circuit, at 49; and Appendix to Petitioner’s Brief,

at 53.

32. Id., at 48 and 53, respectively.

33. Petition for Rehearing and Suggestion for Rehearing In

Banc in the Court of Appeals for the District of Columbia Circuit, at

11; and Appendix to Petitioner’s Brief in the U.S. Court of Appeals

for the District of Columbia Circuit, at 171.

ll

tive action by EPA pursuant to Section 113(a)(3) of the

Clean Air Act,** a fine of $25,000 per day of violation or

imprisonment for up to one year, or both, pursuant to Sec-

tion 113(¢e)(1)(C),*° and civil suit by any citizen pursuant

to Section 304(a)(1).26 Any assumption that EPA would

or could? refrain from prosecuting utilities that have

installed expensive** but unproven SO, removal equipment

is unfounded and offers the electric utility operator or the

nation cold comfort indeed.

The Relationship Between the Regulatory Activities

of EPA and the National Environmental Policy Act of

1969 Should be Clarified as Should the Obligations of

EPA Under the Clean Air Act of 1970

The NEPA/EPA issue (that is, whether or not EPA

must comply with the statutory dictates of the National

Environmental Policy Act of 1969)*? is presented boldly

in this ease.*° If the decision below and others of a similar

34. 42 U.S.C. $1857c-8(b) (Supp. II, 1970).

35. 42 U.S.C. §1857c-8(c)(1) (Supp. II, 1970).

36. 42 U.S.C. §1857h-2 (1970).

37. In any event, pursuant to Section 304(b), 42 U.S.C. §1857h-

2(b) ¢ 1970), if the EPA has not commenced or is not diligently

prosecuting an action 60 days after a notice of violation by a citizen/

plaintiff, the citizen may commence a civil action on his own behalf.

38. Report of The EPA Hearing Panel, at 55, 56 (n. 14, supra).

39. 42 U.S.C. §4321 et seg., Pub.L.91-190, 83 Stat. 852 (1970).

40. It appears that lower courts have had considerable difficulty

in resolving the issue of the applicability of NEPA. For example,

compare: Kalur v. Resor, 335 F.Supp. 1, 15 (D.D.C. 1971) (the

Court holding that NEPA applies to all Federal agencies including

the Army Corps of Engineers when administering the Rivers and

LPN IDLO EL EH EAL IROL REL YIM ET ATHY FRNA

POT VIAY REE

eer" Matera ee

12

nature are permitted to stand, EPA will be the only Fed-

eral agency exempted by judicial decree and not by Con-

Harbors Act of 1899); Cohen v. Price Commission, 337 F.Supp.

1236, 1241 (S.D.N.Y. 1972) (the Court deciding that NEPA does

not apply to the Price Commission in administering the Economic

Stabilization Act); Environmental Defense Fund v. Hardin, 325

F.Supp. 1401, 1407 (D.D.C. 1971) (the Court concluding that

NEPA applies to the Department of Agriculture in administering

the Federal Insecticide, Fungicide, and Rodenticide Act); Environ-

mental Defense Fund et al. v. E.P.A., 6 E.R.C. 1112 (D.C. Cir. Nos.

72-1548 et al., Dec. 13, 1973) (the Court ruling that EPA was

exempt from NEPA when administering the Federal Insecticide,

Fungicide, and Rodenticide Act); Sierra Club v. Sargent, 2 E.L.R.

20131 (Civil No. 249-71 C2, W.D. Wash. Mar. 16, 1972) (the

Court holding that NEPA applied to the Army Corps of Engineers

in administering the Rivers and Harbors Act of 1899); Getty Oil

Company (Eastern Operations) v. Ruckelshaus, 342 F.Supp. 1006,

1020-1021 (D. Del. 1972) (the Court ruling that NEPA applies to

EPA in administering the Clean Air Act); Getty Oil (Eastern

Operations) v. Ruckelshaus, 467 F.2d 349, 359 (3d Cir. 1972), cert.

denied, 409 U.S. 1125 (1973) (the Court overruling Getty Oil, supra,

and finding that NEPA did not apply to EPA when administering

the Clean Air Act); Gibson v. Ruckelshaus, 1 E.L.R. 20337, 20338

(Civ. Ac. No. 5255, E.D. Tex., Mar. 1, 1971) (the Court deciding

that NEPA applied to EPA in administering the Water Pollution

Control Act); Ccy of Lufkin, Texas v. Gibson, 447 F.2d 492 (5th

Cir. 1971) (the Court overruling Gibson, supra, on other grounds);

Anaconda Company v. Ruckelshaus, 352 F.Supp. 697 (D.Colo. 1972)

(the Court concluding that NEPA applied to EPA when administer-

ing the Clean Air Act); Anaconda Company v. Ruckelshaus, 482 F.2d

1301 (10th Cir. 1973) (the Court reversing Anaconda, supra, and

finding that NEPA does not apply to EPA in administering the

Clean Air Act); International Harvester Company v. Ruckelshaus,

478 F.2d 615, 650 (D.C. Cir. 1973) (the Court stating, in effect,

that NEPA does not apply to EPA in administering the Clean Air

Act); Appalachian Power Co. v. Environmental Pro. Agcy., 477

F.2d 495, 508 (4th Cir. 1973) (the Court stating that NEPA does

not apply to EPA in administering the Clean Air Act); Portland

Cement v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) (the Court

holding that NEPA does not apply to EPA when administering the

Clean Air Act); Duquesne Light Co. v. Environmental Protection

Agcy., 481 F.2d 1, 9 (3d Cir. 1973) (the Court noting that NEPA

does not apply to EPA in administering the Clean Air Act); and

Buckeye Power, Inc. v. Environmental Protection Agcy., 481 F.2d

162, 174 (6th Cir. 1973) (the Court holding that NEPA does not

apply to EPA in administering the Clean Air Act).

0 St ies Te le PES oP Ao ae ell

13

gress from compliance with NEPA.‘' Whatever may be

the language and the legislative history of the Federal

Water Pollution Control Act of 1972,‘? the legislative his-

tory upon which EPA relies is far too slim,*? EEI submits,

41. International Harvester Co. v. Ruckelshaus, 478 F.2d 615

(D.C. Cir. 1973); Portland Cement Association v. Ruckelshaus, 486

F.2d 375 (D.C. Cir. 1973); Environmental Defense Fund et al. v.

E.P.A., 6 E.R.C. 1112 (D.C. Cir. Nos. 72-1548 et al., Dec. 13, 1973).

42. 33 U.S.C. $1151 et seq., Pub.L.92-500, 86 Stat. 816 (Oct. 18,

1972). Pursuant to Section 511(c), 33 U.S.C. §1371(c) (Supp. II,

1970), Congress expressly exempted EPA from NEPA require-

ments for carefully specified portions of the Act: “(c)(1) Except

for the provision of Federal financial assistance for the purpose of

assisting the construction of publicly owned treatment works as

authorized by section 201 of this Act, and the issuance of a permit

under section 402 of this Act for the discharge of any pollutant by a

new source as defined in section 306 of this Act, 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 (83 Stat. 852); and (2) nothing in the National

Environmental Policy Act of 1969 (83 Stat. 852) shall be deemed

to— (A) authorize any Federal agency authorized to license or per-

mit the conduct of any activity which may result in the discharge of

a pollutant into the navigable waters to review any effluent limitation

or other requirement established pursuant to this Act or the adequacy

of any certification under section 401 of this Act; or (B) authorize

any such agency to impose, as a condition precedent to the issuance

of any license or permit, any effluent limitation other than any such

limitation established pursuant to this Act.”

43. Compare, Statements of Senators Jackson and Muskie, 115

Cong. Rec. 40417, 40418 and 40423 (1969) with Statement of Sena-

tor Allott, 115 Cong. Rec. 40422 (1969). See also, Statement of

Administrator Ruckelshaus during the NEPA Oversight Hearings:

Joint Hearings Before the Senate Committees on Public Works and

Interior and Insular Affairs on the National Environmental Policy

Act, 92d Cong., 2d Sess., at 564 (1972). Note that, The Council

on Environmental Quality (“CEQ”) initially issued regulations

which stated that EPA should not have to prepare impact statements

for “environmental protection regulatory activities,” 36 Fed. Reg.

7725 (Apr. 23, 1971). However, recently the CEQ has revoked this

interpretation in its revised NEPA Guidelines. 40 C.F.R. § 1500.4,

38 Fed. Reg. 20550 (Aug. 1, 1973); for an explanation of the revo-

cation, see 38 Fed. Reg. 10856, 10865 (May 2, 1973).

CEE) wrerere

TOTAL NOG SE

Besson nee oeeomy trom oye rammpeeninmstpReMaR NEE ete ys cet

14

to base an exemption from compliance with the express lan-

guage of Section 102(C) of NEPA.

Nevertheless, should it be thought that the National

Environmental Policy Act does not apply, then the Clean

Air Act as a whole and, in particular, Section 111 when

properly construed, requires EPA in the performance of

its regulatory obligations under that Act to prepare, as

has sometimes been held, “the functional equivalent of a

NEPA Impact Statement” and requires the courts to test

such actions in light of that responsibility.** Edison Elec-

tric Institute submits in short that EPA cannot free itself

from the obligations of NEPA and, as well, the obligations

to make an analysis which is the functional equivalent of a

NEPA analysis pursuant to the Clean Air Act.

Moreover, EEI believes that such analysis is particularly

important in light of existing technology which may be

implemented now and which promises substantial progress

toward achieving ambient air quality standards in timely

fashion. What should have been done by EPA was to

develop a uniform plan (consistent with the over-all policy

of the Clean Air Act to eliminate hazards to public health

attributable to air pollution within three years of the adop-

tion of a state implementation plan) which: (1) allocates

the short supply of low sulfur fuels to some plants, where

land restrictions, plant age, and population density preclude

use of other methods; (2) permits other plants to solve

the primary and secondary air quality standard problems

presently and often forever with high stack technology;

and (3) perhaps obligates some plants, where no other

solution is available, to use stack gas removal systems when

such systems have, in fact, been “adequately demonstrated”.

44. International Harvester Co. v. Ruckelshaus, 478 F.2d 615

(D.C. Cir. 1973); Portland Cement Association v. Ruckelshaus, 486

F.2d 375 (D.C. Cir. 1973).

BA as Tae SR nee ea ee a

15

At such time, because the use of tall stack technology is

much less expensive than the use of scrubber systems,* it

may be appropriate consistent with Section 111 of the Clean

Air Act to consider cost.*° These costs are estimated to be

$400 in annual environmental incremental costs per family

each vear after 1980.*

CONCLUSION

For the reasons stated the Petition for Certiorari should

be granted.

Respectfully submitted,

Cameron F. MacRae

LeBoeuf, Lamb, Leiby & MacRae

One Chase Manhattan Plaza

New York, New York 10005

Attorney for

Edison Electric Institute

Of Counsel

James H. Duranp

February 1, 1974

45. Report of the EPA Hearing Panel, at 55, 56 (n. 14, supra).

46. Id. For example, it is estimated that the scrubbing of 90,000

megawatts of generation needed by 1980 to meet primary standards

amounts to an investment of about $5.4 billion. Additionally, the

costs of installing and operating flue gas desulfurization systems will

ultimately result in increased costs to the consumer. In this connec-

tion, it is estimated that consumer rates on some utility systems

could increase by as much as 15-20 percent annually.

47. Department of Health, Education and Welfare, Staff Paper

Prepared As Background For Official DHEW Comments On The

Environmental Protection Agency’s Proposed Rulemaking On Pre-

vention Of Significant Air Quality Deterioration, at 17 (Oct. 1973).