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Alabama Power Co. v. Costle

Citation: 9 ELR 20400
No. No. 78-1006, 606 F.2d 1068/13 ERC 1225/(D.C. Cir., 06/18/1979)

In an expedited per curiam opinion in a number of consolidated cases, the United States Court of Appeals for the District of Columbia Circuit affirms in part and remands in part the Environmental Protection Agency's (EPA's) final regulations implementing various provisions of the Clean Air Act Amendments of 1977 regarding the prevention of significant deterioration (PSD) of air quality in clean air areas. The court overturns, inter alia, the Agency's interpretation of a major emitting facility's "potential to emit" as the measure of the source's uncontrolled emissions rather than its emissions as reduced by air pollution control equipment incorporated into its design. Moreover, the Agency lacked authority to provide a partial exemption, based on cost effectiveness, from the pre-construction review and permit requirements for sources that will emit less than 50 tons per year of any pollutant.

Relying on its earlier decision in ASARCO v. EPA, 8 ELR 20164, the court rules that the definition of the term "source" is controlled by § 111(a)(3) of the Act and that EPA thus improperly expanded the term to include a "combination" of buildings or facilities. The court notes, however, that while a source can comprise only a single facility, EPA has latitude under the Act to define the term "facility" to encompass an entire plant. The regulations properly include sources of "fugitive emissions" but improperly exempt such sources from the required showing that applicable air quality standards or allowable deterioration increments will not be exceeded. EPA must also conduct further legislative rule making on the extent to which such emissions are to be included in the tonnage total for determining whether a facility qualifies as "major." Validating use of the "bubble" concept for plant modifications, the court rules that EPA has no authority to restrict modifications of existing sources where increases in emissions are offset by contemporaneous decreases from other plant components such that there is no net increase in the source's potential to emit any air pollutant. EPA's definition of "modification" must be revised, however, to apply to any modification which results in more than a de minimus increase in emissions.

The court rules further that the pre-construction review requirements of § 165 are applicable to a facility located in a nonattainment area that has a substantial impact on a clean air area in another state but not to such a facility which adversely affects a clean air area within the same state. EPA properly extended the pre-construction review process to encompass pollutants other than sulfur dioxide and particulates. The Agency also did not err in including a visible emission standard within its definition of "best available control technology" (BACT), but erroneously required BACT only for those pollutants emitted in excess of the 100- or 250-ton-per-year threshold. BACT must be required with respect to all pollutants from any source which qualifies as a major emitting facility. The court upholds EPA's modeling provisions and affirms the Agency's omission of a requirement for post-construction monitoring while disapproving the monitoring provisions in several other respects. EPA also incorrectly required that the baseline measure of air quality for all clean air areas be determined as of August 7, 1977. The Act provides that each area will have its baseline individually determined as of the date of the first application for a PSD permit in that area. The court approves EPA's method of allocating emissions from as yet incomplete sources between the baseline concentration and the allowable increments and affirms the regulatory provisions regarding stack height, fuel switching, and phased construction projects. Finally, the court states that it will later issue more detailed opinions which address these points and additional specific matters not discussed in this per curiam opinion.

Counsel for Petitioners
Henry V. Nickel, George C. Freeman, Jr., Michael B. Barr, Andrea S. Bear
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200

Francis M. Shea, James R. Bieke, Richard T. Conway, William R. Galeota, Joseph C. Zengerle
Shea & Gardner
Walker Building, Washington DC 20005
(202) 737-1255

Counsel for Intervenors Sierra Club et al.
Peter J. Herzberg, James H. Cohen, H. Anthony Ruckel, Kristine L. Hall
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Washington DC 20005
(202) 347-1770

Robert C. Rauch
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Respondents
James W. Moorman, Ass't Attorney General; Erica L. Dolgin, Angus Macbeth, Elizabeth Stein, Earl Salo, Sanford Sagalkin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4496

Joan Z. Bernstein, General Counsel; Peter H. Wyckoff, Jeffrey C. Smith, Lydia N. Wegman
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.