ELR Citation: ELR 21001
No(s). s. 82-1384 et al (D.C. Cir. Oct 11, 1983)

The court rules that portions of Environmental Protection Agency (EPA) regulations governing the use of tall smokestacks are inconsistent with §123 of the Clean Air Act. The rules address the maximum stack height for which a source will be given credit in calculating emission limitations required to comply with air quality standards in the vicinity. The rules prescribe three methods that identify the height necessary to avoid excessive concentrations of pollutants resulting from "downwash" and similar phenomena in which upwind structures or hills create wind currents that drive the concentrated plume of air pollution down to ground level. The three tests are: (1) a de minimis level of 65 meters; (2) two formulas, one for pre-1979 stacks and a tighter one for newer stacks, which relate stack height to the height and width of upwind obstacles; and (3) a physical demonstration that a taller stack is necessary to avoid excessive concentrations or pollutants. The court rules that EPA's definition of "nearby" to extend one-half mile from the stack is consistent with the language and legislative history of §123. However, EPA erred in allowing demonstrations in support of stack height increases where there was no nearby upwind obstacle. The legislative history and policy support the demonstration test, but the statute reasonably and unequivocally includes the "nearby" limit in that test. The court next rules that EPA's definition of "excessive contentrations" of pollution as 40 percent more than would occur absent plume downwash is inconsistent with the congressional intent. It remands that portion of the regulations for reformulation considering both the engineering practices embodied in the 40 percent rule and public health protection.

The court affirms as supported by substantial evidence EPA's refusal to include natural "plume rise" above the top of the stack in calculating effective stack height. However, the court reverses the portion of the regulations relaxing emission and stack height limitations for sources in hilly terrain whole plumes "impact" on downwind slopes. Section 123 allows stack height increases over normal engineering practice only where "downwash" or other specified conditions resulting from obstacles upwind of the stack cause excessive downwind concentrations. These exceptions from the basic prohibition on tall stacks do not include downwind impaction and must be construed narrowly, even though the result will be stricter emission limits for sources in mountainous areas than for similar facilities on the plains.

The court rules that §123 grants the Administrator discretion whether to require demonstrations to justify stack heights at formula maxima in circumstances suggesting that the maxima overestimate the height needed to avoid excessive concentrations. However, the court holds that the Agency's rationale for allowing all sources to use maximum formula height is inadequate and remands this portion of the regulations. The court finds that EPA acted within its discretion in defining "stack" to exclude "flares" used to burn combustible waste gases produced in some industrial processes.

The court rules that EPA's narrow definition of "dispersion techniques," which are denied emission control credit under §123, is inconsistent with the statute and not adequately justified on grounds of administrative necessity. It remands the provision for inclusion of all dispersion techniques whose exemption does not satisfy the very limited conditions under which the courts allow agencies to ignore clear statutory mandates. The court affirms EPA's definition of "in existence" in the grandfather clause authorized by §123(a) to include stacks for which the source had at least entered into a binding construction contract by December 31, 1970. EPA's rule is reasonable and consistent with Congress' intent to make the grandfather provision equitable. However, the court rules that EPA erred in failing to explain why it deleted a proposed provision barring companies that tie new sources into grandfathered tall stacks from getting credit for the extra stack height. It remands the provision for explanation.

The court rules that EPA violated the intent of Congress by exempting sources that built tall stacks between 1970 and 1979 solely to get dispersion credits from the stringent 1979 formula. EPA must rewrite the provision to apply the 1979 rule retroactively to all post-1970 stacks not built in reliance on the 1971 formula.

The court overturns the provision in the regulations allowing the states 22 months to revise their implementation plans in a two-stage process establishing first stack height rules and then emission limits. The scheme established by Congress does not allow room for separate state stack height rules and EPA failed to demonstrate that states could not establish the required emission limits for tall stack sources within the nine-month limit set by §406(d)(2) of the Act. Finally, the court sets a six-month deadline for EPA to repromulgate the stack height rules in accordance with this opinion.

Counsel for Petitioners
Richard E. Ayres
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Howard I. Fox
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Suite 600, of Washington DC 20005
(202) 347-1770

Counsel for Respondents
Catherine A. Cotter, Barry S. Neuman
Land and natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5260

Christina Kaneen, Charles S. Carter
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Henry V. Nickel, F. William Brownell, Michele Pollak
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1500

Albert V.J. Prather, Kurt E. Blase
Prather, Seeger, Doolittle & Farmer
1101 16th St. NW, Washington DC 20036
(202) 296-0500

Before EDWARDS, Circuit Judge, McGOWAN and MacKINNON, Senior Circuit Judges.