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National-Southwire Aluminum Co. v. EPA

ELR Citation: 18 ELR 20502
Nos. No. 86-3982, 838 F.2d 835/27 ERC 1281/(6th Cir., 02/01/1988)

The court holds that an aluminum plant that turns off its wet scrubbers thereby becomes a modified stationary source within the meaning of Clean Air Act (CAA) §111(a)(4), subject to the new source performance standards (NSPS) promulgated by the Environmental Protection Agency (EPA) pursuant to CAA §111(b). Petitioner plant owner wished to eliminate its use of wet scrubbers, and therefore sought and obtained a relaxation of Kentucky's §111(d) welfare-related fluorida emission limitation for existing facilities. Although EPA proposed to approve Kentucky's relaxed standard, it determined that petitioner's elimination of its wet scrubbers would Moreover, EPA's regulations specifically provide that any bring the facility under §111(b)'s more stringent NSPS requirements. The court holds that EPA's determination was not arbitrary and capricious. The court first holds that pollution contorl equipment is included in §111(a)(3)'s definition of "stationary source," so that a change in such equipment consitutes a "modification" under §111(a)(4). While the definition does not specifically refer to existing pollution control devices, neither does it exclude such equipment. Moreover, EPA's regulations specifically provide that any change in operation that increases emissions into the atmosphere constitutes a modification.

The court next holds that the removal of the scrubbers would not fall within a regulatory exception to the definition of "modification" for the addition or use of a new pollution control device. That exception is designed to address situations where a source proposes to implement new pollution controls that will result in a major decrease in one pollutant, but may cause a de minimis increase in emissions of another pollutant. The removal of the scrubbers would leave significant levels of gaseous fluoride emissions virtually uncontrolled, and therefore would be contrary to the Act's goal of preventing or minimizing increases in existing levels of pollution. Finally, the court holds that the imposition of the NSPS on petitioner's plant would not be inconsistent with §111's policy of giving states primary responsibility for control of emissions from existing, unmodified sources. Congress clearly intended that enforcement of emission standards for modified sources not be controlled by the states.

The dissent would hold that eliminating the scrubbers would not render petitioner's facility a modified source, and that Kentucky may therefore determine the facility's level of fluoride emissions.

Counsel for Petitioner-Appellant
Albert A. Burchett
P.O. Box 0346, Prestonsburg KY 41653
(606) 886-9481

Counsel for Respondent-Appellee
Kieran F. Kilcullen
Suite 900N, 1800 M St. NW, Washington DC 20036
(202) 296-5700

Before: GUY and BOGGS, Circuit Judges; and WOODS, District Judge.[*]