657 F.2d 298 (D.C. Cir. 1981)
In June 1979 EPA promulgated revised new source performance standards governing emissions of sulfur dioxide and particulate matter from new coal-fired steam electric generating units capable of firing more than 250 million British thermal units per hour.1
The standards limited sulfur dioxide emissions to a maximum of 1.2 pounds per million British thermal units with a variable percentage reduction requirement ranging from 70 to 90 percent depending on the sulfur content of the coal burned.2 They also limited particulate matter emissions to 0.03 pounds per million British thermal units.3
The rulemaking arose from the Clean Air Act Amendments of 1977 which required the Administrator to revise the standards of performance for electric power plants within one year after enactment.4 Prior to the amendments the original 1971 standards had permitted compliance by burning low-sulfur coal without additional controls.5
In 1976 the Sierra Club and Navajo Tribe chapters petitioned the Agency to require a 90 percent reduction in sulfur dioxide emissions.6 This prompted an investigation that was accelerated by the statutory deadline and a district court stipulation requiring proposal in September 1978 and final promulgation within six months thereafter.7
During the rulemaking the Agency conducted extensive regulatory analyses in three phases.8 It employed econometric computer models to forecast national regional and plant-level impacts of alternative standards under assumptions of wet and dry scrubbing technologies.9
The Agency proposed a uniform 85 percent reduction standard in September 1978 held public hearings in December 1978 and received comments through January 1979.10 After the comment period closed the Agency performed additional modeling incorporating dry scrubbing and evaluated late-submitted data on coal reserves and washing.11
The final standards were published in June 1979 following consideration of comments from environmental groups electric utilities coal producers and other interested parties.12 Several parties including the Sierra Club the Electric Utilities the Environmental Defense Fund and the California Air Resources Board petitioned for reconsideration.13 The Agency denied those petitions in February 1980.14
Petitions for review were then filed in the United States Court of Appeals for the District of Columbia Circuit and consolidated for decision.15 The parties challenging the standards included environmental organizations seeking stricter controls and utilities seeking more flexible requirements.16 The Agency defended the balance struck among environmental economic and energy considerations.17
Whether section 111 of the Clean Air Act authorizes EPA to promulgate a variable percentage reduction standard for sulfur dioxide emissions from new coal-fired power plants?18
Section 111 authorizes EPA to set standards reflecting the degree of emission limitation achievable through the best technological system of continuous emission reduction taking into consideration cost energy and nonair quality health and environmental impacts.19 It also permits EPA to distinguish among classes types and sizes within categories of new sources.20
Yes. The statutory language does not impose a uniform percentage reduction and expressly authorizes distinctions among sources.21 The legislative history confirms that EPA may set a range of pollutant reduction reflecting varying fuel characteristics such as sulfur content.22 EPA's variable standard from 70 to 90 percent based on the sulfur content of coal is therefore within its authority under section 111 as the text and conference report expressly contemplate such flexibility.23
EPA has authority under section 111 to promulgate the variable standard.24
Whether EPA's decision to adopt the variable standard was reasonable and supported by the administrative record?25
Yes. EPA's regulatory analysis in three phases showed that the variable standard achieved equivalent or lower national emissions than uniform control while offering cost advantages and promoting dry scrubbing development.28 The econometric model results under both wet and dry assumptions supported the conclusion that variable control best balanced environmental economic and energy considerations without undermining the purposes of the Act.29
EPA's decision to adopt the variable standard was reasonable and supported by the record.30
Whether the rulemaking process provided adequate notice and opportunity for comment on the variable standard and the role of dry scrubbing technology?31
Section 307(d) of the Clean Air Act requires published notice of a rulemaking accompanied by a statement of basis and purpose.32 All documents of central relevance must be entered into the docket with sufficient time for participants to respond.33 The final rule must be a logical outgrowth of the proposals discussed during the comment period.34
Yes. EPA announced at proposal that it might adopt a variable percentage reduction standard and the principal issue of full versus partial control was the focus of extensive public comment.35 The 70 percent floor was within the range of sliding scale options previously analyzed.36 Parties had actual notice of EPA's focus on dry scrubbing before promulgation through docketed documents and correspondence.
The rulemaking process provided adequate notice and opportunity for comment.37
Whether the 90 percent sulfur dioxide removal standard was adequately demonstrated as achievable?38
A standard of performance must reflect the degree of emission limitation achievable through application of the best technological system of continuous emission reduction which the Administrator determines has been adequately demonstrated.39
Yes. EPA demonstrated that a 92 percent long-term median removal efficiency with 0.36 variability is achievable by wet scrubbing on high-sulfur coal with design and operational improvements.40 Coal washing can supply the additional reduction needed to reach 90 percent overall.41 The record supports the achievability conclusion through test data vendor guarantees and projections of future performance.42
The 90 percent sulfur dioxide removal standard was adequately demonstrated as achievable.43
Whether the 0.03 pounds per million British thermal units standard for particulate matter emissions was achievable by electrostatic precipitator or baghouse technology?44
Yes. Although EPA's ESP data raised concerns about representativeness the agency's baghouse data from eight small-scale units and one large-scale installation established that baghouses with an air-to-cloth ratio of 2 ACFM/Ft2 achieve the standard at a pressure drop of less than 5 In. H2O. The modular design of baghouses makes the small-scale data representative of full-scale performance.47
The 0.03 pounds per million British thermal units standard for particulate matter emissions was achievable by baghouse technology.48
Whether the 1.2 pounds per million British thermal units emission ceiling for sulfur dioxide was adopted through lawful procedures?49
Post-comment period communications are lawful if they do not violate the Clean Air Act's procedural requirements or due process. The final rule is not based on information or data not placed in the docket.50
Yes. EPA lawfully docketed post-comment written submissions and summaries of significant meetings.51 The single undocketed intra-Executive meeting involving the President did not supply information or data on which the rule was based.52 Congressional meetings focused on statutory factors and did not introduce extraneous pressures that affected the decision.53
The 1.2 pounds per million British thermal units emission ceiling for sulfur dioxide was adopted through lawful procedures.54