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11 ELR 20455 | Environmental Law Reporter | copyright © 1981 | All rights reserved Sierra Club v. CostleNos. 79-1719, -1864, -1867; 80-1187, -1201, -1213, -1338 (D.C. Cir. April 29, 1981)In a lengthy opinion, the D.C. Circuit Court of Appeals rejects a series of procedural and substantive challenges to the new source performance standards (NSPS) for coal-fired power plants adopted by the Environmental Protection Agency (EPA) pursuant to § 112 of the Clean Air Act. The standards require, among other things, that emissions of sulfur from regulated plants not exceed 1.2 lbs./million btu (Mbtu), and that 90 percent of all stack gas sulfur be captured before release. If, however, emissions can be kept below 0.6 lbs./Mbtu, only a 70 percent removal rate is required. The Court first rejects the Sierra Club's contention that EPA lacks authority under § 111 to adopt such a "sliding scale" standard. The text of the Act as well as the legislative history demonstrate that Congress intended EPA to consider and possibly adopt such a standard. Moreover, the selection of the sliding scale standard is shown by the record to be reasonable, as it was properly based on a range of factors including national and regional cost and energy and environmental impacts. EPA did not err in attempting to encourage the flexible use of both western low-sulfur and eastern high-sulfur coals, and its objective of promoting the development of "dry" flue gas desulfurization techniques was both reasonable and fully within its authority under § 111. Although EPA's intent to rely on dry scrubbing as a basis for the standard was not entirely clear until after the close of the comment period on the proposed rule, dry scrubbing was given sufficient attention throughout the course of the proceeding to put the parties on reasonable notice that it might be included in the final standard. Therefore, additional notice and comment was unnecessary. The court also rejects the industry petitioners' claim that the 90 percent reduction requirement was not shown by the record to be achievable. While EPA did not clearly inform the parties that pre-combustion coal washing would be required prior to the promulgation of the final standard, this technique was addressed with sufficient frequency and in adequate detail to put the parties on reasonable notice that it could become part of the basis for the final rule. There was thus no denial of the industry petitioners' right to notice and comment. The technical data, on the basis of which EPA concluded that a 90 percent removal rate is feasible, gives adequate support for the final standard. Even though there is a paucity of evidence showing that the 90 percent level is currently achievable, the Clean Air Act sanctions the adoption of technology-forcing standards. The court also upholds EPA's limit on emissions of particulate matter to .03 lbs./Mbtu. Following the two-prong test enunciated in National Lime Ass'n v. EPA, 10 ELR 20366, the court finds that EPA has not satisfied the test with respect to its finding that the particulate matter limit can be met by the use of electrostatic precipitators. Although the Agency adequately identified the variable conditions affecting precipitator performance, its performance data are not representative of the conditions that prevail in the industry. Nevertheless, EPA has met the two-prong test regarding the use of baghouses to control particulates. The record contains full support for the achievability of the standard by use of baghouses and indicates that EPA considered variable conditions that can be expected to exist. Finally, the court rejects the Environmental Defense Fund's (EDF's) charge that due to ex parte contact between EPA and officials of both the coal industry and other government agencies, including the White House, the 1.2 lbs./Mbtu ceiling on sulfur dioxide emissions was set at too low a level. The court notes that the Act does not prohibit ex parte contacts during rulemaking but instead requires that written communications and transcripts of oral communications be entered in the record. Though nothing in the Act governs the treatment of such communications after the close of the comment period, EPA reasonably decided to include in the record entires covering the contested communications. EDF has failed to show that it was unable to respond adequately to the comments submitted after the close of the comment period. Construing § 307(d)(4)(B)(i) of the Act to require docket summaries of oral communications of substantial relevance, the court upholds the Agency's failure to docket a meeting between EPA and White House officials. Although such meetings can lead to external pressure to modify a proposed rule, the requirement that all rules be factually supported by the record provides adequate guarantees against subversion of the rulemaking process. As to meetings between the Agency and a U.S. senator, petitioners have failed to show that the senator attempt to, much less succeeded in, persuading EPA to base its rule on extraneous considerations. The full text of this opinion is available from ELR (255 pp. $32.50, ELR Order No. C-1244). Counsel for Environmental Petitioners Counsel for Industry Petitioners George C. Freeman, Michael B. Barr Counsel for Respondents Todd M. Joseph Wald, J. [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 11 ELR 20455 | Environmental Law Reporter | copyright © 1981 | All rights reserved |