Big Rivers Electric Corp. v. EPA: Sixth Circuit Vindicates EPA's Stand on Stack Gas Scrubbers

The Environmental Protection Agency won a signigicant victory in its battle to require stack gas scrubbers as the primary strategy for the control of sulfur oxides under the Clean Air Act¹ with the recent Sixth Circuit decision in Big Rivers Electric Corp. v. EPA.² The court in Big Rivers held that a power company which burns high sulfur fuel must provide for permanent emission controls (i.e., scrubbers) or show that such controls are unavailable. In the court's view, alternate control devices such as tall stacks or switching to low sulfur fuel during air pollution episodes, do not, by themselves, meet the requirements of the statute without such a showing.

Sulfur oxides, one of the six pollutants for which air quality standards were set under the Clean Air Act Amendments of 1970, are generated largely by fossilfuel power plants throughout the nation. There are essentially two methods for dealing with these emissions. The first, and the means preferred by EPA, is removal of sulfur oxides from the gas in the stack before it is released into the atmosphere. This removal is accomplished by mechanical and chemical devices known as stack gas desulfurization systems, or "scrubbers." These devices are relatively novel, and have experienced certain developmental and operational problems, but their performance record has improved significantly over the past year. Scrubbers are also quite expensive. TVA, with one of America's largest generating capabilities, has estimated that annual cost of installing scrubbers on its 12 coal burning plants to be $150 to $200 million as opposed to $17 million for one alternative, intermittent controls.³

The second method of responding to sulfur dioxide pollution problems, and that championed vigorously by the utilities, is a package of strategies for control by dispersion enhancement of emissions, either by use of tall stacks and intermittent emissions limitations, or by switching to low sulfur fuel during air pollution episodes.

In Big Rivers the specific issue addressed by the court was whether the EPA Administrator acted within his authority in disapproving a portion of the Kentucky implementation plan which would have allowed the petitioners to use intermittent controls in lieu of scrubbers, if the state deemed such a control strategy appropriate. Sectionn 110 of the Clean Air Act requires the Administrator to approve a plan if he determines that it includes, inter alia, "emissions limitations." The petitioners, the Tennessee Valley Authority and several other coal-burning utilities operating in Kentucky, argued that intermittent control systems are "emissions limitations" within the meaning of the statute. Their position was that such controls provide flexible emission limitations which restrict the amount of pollutants emitted when atmospheric conditions require it. On their reading of the Clean Air Act, a system which restricts pollutant emissions in any degree is an "emission limitation."

EPA and the intervening Natural Resources Defense Council disagreed, contending that alternate control strategies merely disperse the pollutants emitted from sources without reducing the amounts and therefore do not constitute "emissions limitations" within the meaning of the Act. According to their viewpoint, the statute requires the continuous limitation of the amounts of pollutant emissions which only scrubbers can provide. Tall stacks are allowed, in addition to scrubbers, but not as the exclusive method of pollution control.

In support of these contentions, EPA cited Natural Resources Defense Council v. EPA,⁴ a Fifth Circuit case which held that the Act mandates the use of thechniques for emission reduction, such as scrubbers, and that other measures, such as tall stacks, are permitted only upon a showing that emission reduction techniques are "unavailable or unfeasible." Although portions of this decision were later reversed by the Supreme Court in Train v. Natural Resources Defense Council,⁵ the tall stack ruling was not appealed.

The Sixth Circuit in Big Rivers looked to the Supreme Court's opinion in Train v. Natural Resources Defense Council for assistance in defining "emissions limitations." The high Court called such limitations "regulations of the composition of substances emitted into the ambient air." Finding the key word in this description to be "composition," the Sixth Circuit adopted a dictionary definition of the word as, "'the nature of a [5 ELR 10202] chemical compound or mixture as regards the kinds and amount of its constitutents …'" Under this definition, the court reasoned, a rule or regulation would qualify as an emission limitation only if it regulated the amount of a particular kind of pollutant discharged from a given source.

The court therefore held that no implementation plan satisfies § 110 if it permits sources to continue operating beyond statutory deadlines without the application of systems which control the "kind and amounts" of pollutant emissions. The Administrator thus acted within his authority in disapproving the Kentucky plan on the basis of a determination that it was susceptible of such an interpretation. Failure to require systems controlling the kind and amounts of emissions, i.e., scrubbers, can only be justified by a showing that such true "emissions limitation" devices were unavailable.

The court also emphasized that the petitioners' position was contrary to the statutory policy of preventing significant deterioration of existing air quality.⁶ As critics of tall stacks point out, dispersion techniques do not eliminate the pollution but merely dirty other air further downwind, which is in most instances presently cleaner than standards mandate.

Under the Big Rivers ruling, the next question which the courts of appeals will have to face is whether scrubbers are unavailable or infeasible in particular instances.Such determinations may not be easy to make, however, in view of the basic technology-forcing philosophy of the Clean Air Act and the fact that many utilities have procrastinated on scrubber research and development while attacking the devices in the press and in court.

The Third Circuit recently wrestled with this problem in Duquesne Light Co. v. EPA.⁷ Remanding the case to EPA for the third time because the Administrator failed to consider adequately claims of economic infeasibility regarding a sulfur oxide limitation which would require the use of scrubbers, the court nevertheless agreed that the Act was designed to prod technological progress. The court also noted that the Administrator should not be bound by the industries' recalcitrance in adopting new pollution control techniques, nor should he concentrate solely upon the machinery presently available within the industry. He must instead make reasonable projections of future technological growth. The court found, however, thatt the administrative record in the case did not contain the technical data necessary for a rational determination of whether or not scrubbers were technologically feasible for the generating stations in question.

Both EPA and the utilities can be expected to continue marshalling facts relating to existing scrubber operations as ammunition for these disputes over availability and feasibility. Big Rivers is an important victory for EPA,however, in that it firmly establishes the necessity under the Clean Air Act of ultimately installing scrubbers on coal-burning plants. Whether the devices are ruled unavailable or infeasible in particular cases in the short term does not take away from this basic point.

Big Rivers is also significant because of the geographical locale of the court. The Sixth Circuit encompasses an area with a high concentration of coal-burning plants, and the ruling thus applies to a good proportion of the nation's prime sulfur dioxide polluters.

While the operational record of scrubbers is still far from perfect, it has improved markedly and steadily over the past year. It clearly is only a matter of time before doubts about availability and feasibility will be laid to rest. The utilities are therefore at best fighting a holding action which they will ultimately lose. Under these circumstances, cooperating in research and development efforts would seem a more constructive course to follow than holding out to the last tall stack.

1. See Comment, Tall Stacks versus Scrubbers: $3.5 Million Publicity Compaign Fails to Discredit Emission Reduction Technology, 5 ELR 10009 (Jan. 1975).

2. 5 ELR 20532 (6th Cir. Sep. 4, 1975).

3. "The Big Battle Over Scrubbers," Wall Street J., Feb. 7, 1975, at 6.

4. 489 F.2d 390, 4 ELR 20204 (5th Cir. 1974).

5. 43 U.S.L.W. 4467, 5 ELR 20264 (U.S. Apr. 16, 1975).

6. See Sierra Club v. Ruckelshaus, 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).

7. 5 ELR 20539 (3rd Cir. Aug. 21, 1975).