Tall Stacks Versus Scrubbers: $3.5 Million Publicity Campaign Fails to Discredit Emission Reduction Technology

The latest skirmish in the battle for clean air centers around a recently developed device known as the flue gas desulphurization system or "stack gas scrubber." This emission control device utilizes a process by which flue gases are passed through a water suspension, or slurry, of lime or limestone that chemically removes the toxic sulphur oxides from the smoke before it is released into the atmosphere. Since the principal sources of sulphur oxide emissions throughout the nation are coal-fired electric power plants, the scrubbers controversy has focused on whether these plants should be required to install the devices.

This dispute, unlike most other environmental controversies at the federal level, has not been limited to the usual administrative battlegrounds of hearing rooms, public comment within the rule-making process, and litigation. Donald C. Cook, feisty head of the American Electric Power Company, the nation's largest privately owned utility company, added a new twist by mounting a $3.5 million campaign of full page advertisements in major newspapers and national news magazines vigorously attacking both the efficacy of scrubbers and the advisability of requiring their use by coal fired power plants.¹ The ads have been so strident — and sometimes misleading — as to draw strong public protests from both Russell Peterson, Chairman of the Council on Environmental Quality, and John Sawhill, at the time head of the Federal Energy Administration.

Sulphur oxides are one of six specific air pollutants for which EPA was required by the Clean Air Act Amendments of 1970 to set national ambient air standards. These standards were then to be attained and maintained by each state through control measures set forth in its air quality implementation plan and approved by EPA. EPA approval of state implementation plans has thus become the focal point for the scrubber argument, since it is in those plans that scrubbers for coal-fired plants can either be required as the prime method of pollution control or left as an optional device for use in combination with other control measures or not at all, as each particular plant sees fit.

The alternatives to scrubbers include a variety of techniques euphemistically labeled "dispersion enhancement" or "intermittent control technology." These consist respectively of tall stacks, which are designed to spread emissions over a larger area and thereby lower ground level ambient air concentrations, and plant shutdowns or swiltches to low sulphur coal during adverse meteorological conditions, such as temperature inversions. A third alternative, that of burning low sulphur coal, must be discarded as unrealistic for most coal fired plants since such coal is now and will continue to be in short supply, whether or not stripmining of federal coal reserves in the west is ultimately undertaken.

Only one federal circuit court has ruled on the scrubber question. In Natural Resources Defense Council, Inc. v. Environmental Protection Agency,² the Fifth Circuit held that the language and legislative history of the Clean Air Act clearly show emission reduction or limitation to be the preferred method of pollution control under the statute. According to the court, dispersion or intermittent control techniques can therefore only be included in a state implementation plan if it is demonstrated that (1) emission limitation regulations in the plan are sufficient standing alone to attain the national ambient standards, or (2) emission limitation sufficient to meet the standard is unachievable or infeasible, and the state has adopted regulations which will attain the maximum degree of emission limitation achievable.

This decision predictably narrowed the debate over scrubbers even further, down to the single question of whether emission limitation by such devices is achievable and feasible.While EPA has strongly rebutted American Electric Power's apparent contention that scrubbers threaten to end western civilization as we know it, in all fairness to AEP it must be said that the operational record of scrubbers on power plants has been less than perfect. Those in operation have not consistently met the target of 90 percent availability; plants located in metropolitan areas have experienced problems in disposing of the sludge produced by the spent slurry; and the installation and maintenance expenses of scrubbers have increased the costs of generating electricity. But these problems are far from insurmountable, and scrubbers represent, after all, an essentially new technology, which will no doubt require [5 ELR 10010] considerable refinement in order to become optimally effective as a means of pollution control.In fact, the record of scrubbers has significantly improved over the past six months, and some utilities have turned to such devices voluntarily. The number of scrubbers in operation, under construction, or planned by utilities has more than doubled in the past year to almost 100. Indeed the $3.5 million AEP has spent complaining about scrubbers might have measurably facilitated this process of refinement had it been spent instead on scrubber research and development.

EPA's present position is that intermittent and diffusion control systems are acceptable as interim measures, but that emission limitation in the form of scrubbers will be required as the permanent control strategy in all state implementation plans. Although the agency has consistently maintained that scrubbers are a reliable and effective method of sulphur oxide emission reduction, administrative opinion on this point has been mixed. A board of hearing examiners for the Ohio Environmental Protection Agency recently issued a voluminous report which found — much to the delight of Mr. Cook — that scrubbers represented an unreliable technology since no scrubbing operation had yet worked for a year with 90 percent availability on a 100 megawatt or larger generating unit.The Kentucky Public Service Commission, on the other hand, recently reversed itself and agreed to permit the Louisville Gas and Electric Company to install scrubbers on two of its plants, after hearing "significantly more posiltive evidence" on scrubber reliability.

Several federal agencies, most notably the Federal Power Commission, the Federal Energy Administration, and the Office of Management and Budget, have lent behind-the-scenes support to American Electric Power's arguments in favor of tall stacks. The Department of Commerce has gone even further and sent to OMB proposed amendments to the Clean Air Act which would make tall stacks combined with an intermittent control system a legitimate permanent control strategy for sulphur oxides.³ The amendments would also undercut the nondegradation ruling of Sierra Club v. Ruckelshaus,⁴ which ordered EPA not to permit "significant deterioration" of air quality in areas where the air presently exceeds federal standards.

The most recent expression of congressional sentiment on the scrubber issue came in the Energy Supply and Environmental Coordination Act, which was enacted June 22, 1974. In § 119 (c)(2)(B)(ii),⁵ Congress required that in return for a compliance date extension, a coal-fired plant must either contract for a long term supply of low sulphur coal or obtain "continuous emission reduction systems." so as to achieve compliance with the national standards by the extension date. This provision evidences a continued congressional faith in scrubbers which seems to support both the Fifth Circuit's ruling in NRDC v. EPA and EPA's current position regarding the necessity for such equipment as a permanent control strategy.

Appreciation of this fact finally reached the White House. On November 27, 1974, EPA Administrator Russell Train announced that the White House Energy Resources Council, chaired by Secretary of the Interior Rogers Morton, had agreed to side with EPA and required that scrubbers be the permanent sulphur oxide control strategy for coal fired plants.⁶ The agreement, still only in broad outline at this point, would also seek enactment of amendments allowing EPA to extend the timetable for installing such equipment from the present statutory date of 1977 to 1985.

Apparently by coincidence, EPA on the same day adopted final regulations governing the prevention of significant deterioration of air quality in areas where it now exceeds the national standards.As the Fifth Circuit pointed out in NRDC v. EPA, there is a direct connection between the scrubber issue and significant deterioration. If tall stacks are permitted in lieu of scrubbers, sulphur oxide emissions will not be reduced but instead spread over a larger area downwind. As the court observed, once the toxic gas goes out the stack it must come down somewhere, thereby degrading air quality in an area far from the plant where the existing air is presumably purer.The final EPA nondegradation regulations were roundly criticized by many environmentalists as being fatally weak, and there is a nagging suspicion among some that the weak rules were part of a quid pro quo, the other part being the Energy Resources Council's agreement to support EPA's requirement for scrubbers as permanent control systems on coal fired plants.

The agreement that scrubbers will be mandatory equipment on coal-burning plants is a victory for EPA, environmentalists, and clean air, however, regardless of whether some such arrangement was made. The Sierra Club has already challenged the final nondegradation rules as being inconsistent with the district court's original mandate, so their adequacy will be judicially determined in any event. It is regrettable, though, that the timetable for scrubber installation will apparently be set back from 1977 to 1985, since it was in large measure the obstinate refusal of utilities like AEP to develop and refine scrubber technology that made universal installation by the statutory deadline impossible. AEP got nothing for its $3.5 milion except notoriety, and will in the end almost certainly have to spend that amount and more on scrubber research and development anyway. But perhaps Mr. Cook will have learned that heavy-handed advertising campaigns designed to scare the public and Congress into backing down from our ambitious environmental goals simply will not work.

1. For an excellent analysis of this publicity effort, see Kenworthy, "Donald Cook vs. EPA: Wide Open Clash Over Coal and Clean Air," N.Y. Times, Nov. 24, 1974, § F (Business), at 1.

2. 4 ELR 20204 (5th Cir. 1974).

3. N.Y. Times, Dec. 10, 1974, at 31.

4. 2 ELR 20262 (D.D.C. 1972), aff'd, 2 ELR 20656 (D.C. Cir. 1972), aff'd by equally divided court, sub nom. Fri v. Sierra Club, 3 ELR 20684 (U.S. 1973).

5. ELR 41232.

6. Wall Street J., Nov. 29, 1974, at 7.