ELR Citation: ELR 20732
No(s). 72-1072 (D.C. Cir. Sep 10, 1973)

The Administrator of EPA need not file an environmental impact statement when determining standards of performance for emission control in sulfuric acid plants and coal-fired steam generaltors under §111 of the Clean Air Act, since properly construed the section requires the functional equivalent of a NEPA impact statement. The court refuses to decide whether EPA is completely exempt from the impact statement requirements of NEPA, and notes that regarding challenges to the standards of performance, the court's function is to determine if the Administrator's decision was a reasoned exercise of discretion. Upon examination the court finds that as to the bulk of the standards, the Administrator acted properly and did not abuse his discretion; certain aspects of the standards, however, are found deficient and remanded for further proceedings.

The Administrator's designation of dual absorption as the best system demonstrated for emission control in elemental sulfur feedstock sulfuric acid plants is ruled reasonable, as is the emission standard itself, which the court finds supported by data showing one plant consistently meeting the standard while operating at full capacity. A cost benefit analysis is not a necessary condition for the decision since the Administrator has considered economic costs under §111. The designation of the sodium sulfite-bisulfite scrubber as the best system for control in recycle sulfuric acid plants is remanded, since the Administrator did not take adequate account of the counter-productive environmental effects of the large amounts of sludge by-product in accordance with the mandate of §111. The court notes that the alternative of no control at all may cause less environmental harm. Although the capacity standard for acid mist discharge is remanded as too subjective, the quantitative mist discharge standard is upheld as achievable and a proper exercise of discretion.

The standards for coal-fired steam generators are ruled reasoned decision-making with one exception. The designation of the lime-slurry system as the best system for high sulfur coal burning generators is remanded, again because of inadequate consideration of the counter-productive environmental effects of significant quantities of sludge byproduct. The court also rules that provision in the standards for variances during startup, shutdown, and mechanical malfunctions appears necessary to preserve their reasonableness as a whole, and it remands for further consideration of this issue.

Counsel for Petitioners
Robert C. Barnard
Kenneth L. Rachman, Jr.
Donald L. Morgan
Douglas E. Kliever
Edward Maguire
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Avenue, NW
Washington, DC 20036

H. Edward Dunkelberger, Jr.
Theodore L. Garrett
Covington & Burling
888 16th Street, NW
Washington, DC 20006

Counsel for Respondents
Kent Frizzell Asst. Attorney General
James R. Walpole
Thomas C. Lee
Edmund B. Clark
Martin Green
Department of Justice
Washington, DC 20530

Counsel for Amicus Curiae Long Island Lighting Company and National Asphalt Pavement Association
Turner T. Smith, Jr.
Box 1535
Richmond, VA 23212