TABLE OF CONTENTS Page I. INTRODUCTION ............................................. 312 A. The Challenged Standards .............................. 312 B. The Parties ........................................... 312 C. Background ............................................ 313 D. Procedural History .................................... 314 II. THE VARIABLE PERCENTAGE REDUCTION OPTION ................. 316 A. EPA's Authority Under Section 111 to Issue a Variable Standard ................................... 318 1. The Statutory Language ............................. 318 2. The Legislative History ............................ 319 B. The Reasonableness of EPA's Decision to Issue a Variable Standard ............................. 322 1. Technical Background ............................... 323 2. EPA's Explanation for the Variable Standard ........................................... 325 (a) The Factors Considered by EPA .................. 325 (b) EPA's Regulatory Analysis ...................... 326 (c) EPA's Stated Rationale for the Variable Standard ....................................... 327 3. An Examination of EPA's Rationale for the Variable Standard .............................. 328 (a) The Legitimacy of EPA's Regulatory Analysis ....................................... 329 (1) EPA's Authority to Analyze Long Term National and Regional Impacts .................................... 329 (2) The Reliability of EPA's Econometric Computer Model ............................. 332 (b) The Reasonableness of EPA's Conclusions ........ 336 (1) The Reasonableness of EPA's Conclusion that Variable Control Reflects a Better Balance of the Section 111 Factors Than Uniform Control ............................ 336
(2) The Reasonableness of EPA's Conclusion that Variable Control Promotes the Policies of the Act .................................... 338 C. The Dry Scrubbing Controversy ......................... 340 1. The Role of Dry Scrubbing Technology in EPA's Rationale for the Variable Standard ........................................... 340 2. The Legitimacy of Considering Emerging Technology in Setting Section 111 Standards .......................................... 346 3. The Adequacy of the Record for Dry Scrubbing's Role in EPA's Rationale ................ 347 D. The Adequacy of Notice and the Opportunity to Comment on the Rationale for the Variable Standard .............................................. 352 III. THE 90 PERCENT REMOVAL STANDARD .......................... 356 A. Notice As to the Basis of the 90 Percent Standard .............................................. 356 1. The Basis of the Final Standard .................... 356 2. Notice that the Basis of the Standard Had Changed Since Proposal ......................... 358 B. The Achievability of the 90 Percent Standard .......... 360 1. The Support For EPA's Conclusions About FGD Performance .............................. 360 (a) The Achievability of 92 Percent Long Term Removal Efficiency ................... 361 (b) The Reasonableness of EPA's Assumption About FGD Variability .......................... 364 2. The Support for EPA's Conclusion that the 90 Percent Standard Was Achievable by the Use of Coal Washing in Conjunction with Scrubbing ......................... 367 (a) Description of the Coal Washing Process ........................................ 368 (b) The Percentage Reduction Achievable by Washing High Sulfur Coal .................... 369
IV. THE STANDARD FOR EMISSION OF PARTICULATE MATTER ................................................... 374 A. Technical Background .................................. 374 1. ESP Control Technology ............................. 374 2. Baghouse Control Technology ........................ 375 B. The Evolution of the Particulate Standard ............. 376 C. The Achievability of the Standard ..................... 377 1. EPA's ESP Data ..................................... 377 2. EPA's Baghouse Data ................................ 380 V. THE 1.2 LBS./MBTU EMISSION CEILING ....................... 384 A. EPA's Rationale for the Emission Ceiling .............. 384 B. EDF's Procedural Attack ............................... 386 1. Late Comments ...................................... 387 2. Meetings ........................................... 387 C. Standard for Judicial Review of EPA Procedures ........ 391 D. Statutory Provisions Concerning Procedure ............. 392 E. Validity of EPA's Procedures During the the Post-Comment Period ............................... 396 1. Written Comments Submitted During the Post-Comment Period ............................ 397 2. Meetings Held with Individuals Outside EPA ................................................ 400 (a) Intra-Executive Branch Meetings ................ 404 (b) Meetings Involving Alleged Congressional Pressure ....................................... 408 VI. CONCLUSION ............................................... 410 APPENDIX ...................................................... 411
Opinion for the Court filed by Circuit Judge WALD.
Circuit Judge ROBB concurs in the result.
WALD, Circuit Judge:
This case concerns the extent to which new coal-fired steam generators that produce electricity must control their emissions of sulfur dioxide and particulate matter into the air. In June of 1979 EPA revised the regulations called "new source performance standards" ("NSPS" or "standards") governing emission control by coal burning power plants. On this appeal we consider challenges to the revised NSPS brought by environmental groups which contend that the standards are too lax and
A. The Challenged Standards
The Clean Air Act provides for direct federal regulation of emissions from new stationary sources of air pollution by authorizing EPA to set performance standards for significant sources of air pollution which may be reasonably anticipated to endanger public health or welfare.
B. The Parties
Petitioners in this case are Sierra Club and the State of California Air Resources Board ("CARB"), which oppose the variable 70 to 90 percent reduction requirement of the NSPS; Appalachian Power Co. ("APCO"), et al., a group comprised of APCO, the Edison Electric Institute, the National Rural Electric Cooperative Association, and 86 individual utilities ("Electric Utilities"), which challenge both the maximum 90 percent reduction requirement and the 0.03 lbs./MBtu limit on emissions of particulate matter; and, the Environmental Defense Fund ("EDF"), which challenges the 1.2 lbs./MBtu ceiling imposed by the NSPS.
Respondents are the United States Environmental Protection Agency ("EPA") and its Administrator, Douglas M. Costle.
The importance of the challenged standards arises not only from the magnitude of the environmental and health interests involved, but also from the critical implications the new pollution controls have for the economy — at the local and national levels. Further heightening the significance of this controversy is the crucial role coal burning power plants are expected to play in our nation's effort to cope with the problems associated with energy scarcity.
Coal is the dominant fuel used for generating electricity in the United States.
EPA's revised NSPS are designed to curtail these emissions. EPA predicts that the new standards would reduce national sulfur dioxide emissions from new plants by 50 percent and national particulate matter emissions by 70 percent by 1995.
While the volume and technical complexity of the material necessary for our review is daunting,
D. Procedural History
In 1970 Congress for the first time authorized the federal government to set performance standards limiting emissions from newly built or modified sources of air pollution.
In 1976 the Sierra Club and the Oljato and Red Mesa Chapters of the Navajo Tribe petitioned EPA to revise the NSPS so as to require a 90 percent reduction in sulfur dioxide emissions.
While EPA's decision was pending the Clean Air Act Amendments of 1977 were signed into law. Section 111 of the amendments, discussed more fully below, required EPA to revise the standards of performance for electric power plants within one year after the August 1977 enactment date.
Several parties petitioned EPA for reconsideration of the revised NSPS. In February of 1980 EPA denied all the petitions for reconsideration.
The present appeal followed. Petitions for review of the NSPS were filed in this court by the Electric Utilities (No. 79-1719), Sierra Club (No. 79-1565), EDF (No. 79-1874), and CARB (No. 79-1867). In addition, petitions to review EPA's denial of the requests for reconsideration of the final NSPS were filed by the Electric Utilities (No. 80-1187), Sierra Club (No. 80-1201), EDF (No. 80-1213), and CARB (No. 80-1338). All of these cases have been consolidated.
II. THE VARIABLE PERCENTAGE REDUCTION OPTION
We have already noted that the final NSPS adopted by EPA include an optional variable percentage reduction standard. Under this optional standard a utility plant can permissibly reduce its sulfur dioxide emissions by less than 90 percent of potential uncontrolled emissions if the amount of sulfur dioxide emitted following the use of pollution control technology is less than 0.60 lbs./MBtu.
Sierra Club contests EPA's authority under section 111 of the Act to vary from a uniform national percentage reduction standard ("uniform standard" or "full control")
A. EPA's Authority Under Section 111 to Issue A Variable Standard
Sierra Club's challenge to variable control raises the fundamental issue of whether EPA violated section 111 of the Clean Air Act by establishing a sliding scale for the reduction of sulfur dioxide emissions based on the sulfur content of coal burned in new utility plants. We find that section 111 of the Act authorizes such a variable standard.
1. The Statutory Language
To evaluate the competing interpretations of section 111 we turn first to its text.
The absence of any express mandate in this language to adhere to a single percentage reduction standard critically undercuts Sierra Club's arguments that EPA could not vary the standard below the level which is technologically feasible.
In fact, EPA is expressly authorized by section 111 to "distinguish among classes, types and sizes within categories of new sources for the purpose of establishing ... standards."
Other provisions of section 111 also belie the notion that EPA lacks discretion to vary the percentage reduction requirement according to the sulfur content of coal. For example, section 111(a) explicitly instructs EPA to balance multiple concerns when promulgating a NSPS:
(Emphasis supplied.) Having given EPA this mandate, Congress surely could not have meant to bind the agency to issuance of a uniform standard even though the agency's balancing of cost, energy, and nonair quality health and environmental factors indicated that the percentage standard should vary according to the sulfur content of coal.
Furthermore, reading section 111 to permit a variable standard based on the sulfur content of coal comports with common sense which suggests that the amount of sulfur in coal is the most relevant factor in designing standards to reduce emissions of sulfur in the gaseous wastes of coal combustion. Quite obviously, the "best technological system," considering cost, energy, and nonair health and environmental factors may well vary depending on the sulfur content of the coal that is burned.
2. The Legislative History
Sierra Club relies on portions of the legislative history of the 1977 Amendments to the Clean Air Act to demonstrate that, no matter how logical it may seem to permit the percentage reduction standard to vary according to the sulfur content of coal burned by utilities, Congress nevertheless meant to forbid such variable control levels. But the statements in the legislative history Sierra Club cites to us, even assuming that they are entitled to substantial weight in the face of a relatively clear text, do not adequately support Sierra Club's interpretation of the Act.
We note initially that a specific percentage reduction requirement was added to the text of section 111 only by the Conference Committee after the bills had passed both Houses of Congress.
(Emphasis supplied.) Subsequently, during the House consideration of the Report the
(Emphasis supplied.) Similarly, Senate consideration of the Report included a Clarifying Statement by Senator Muskie that recognized a variable range of percentage reduction was permissible:
Even in the face of this legislative history, however, Sierra Club contends that "it is crystal clear that sulfur content of coal was not to be one of the `varying fuel characteristics' which would justify a departure from a uniform standard."
(Emphasis supplied.) When read in context, however, it is clear that Senator Domenici was arguing that the Senate should not acquiesce in Conference to any demand for a uniform percentage reduction applied to all coals which he believed was implied in the House bill. Sierra Club's reliance on this statement is misplaced because the statement was made before the Conference Committee met at a time when neither the House nor the Senate bill contained any express provision for a percentage reduction. In fact, Senator Domenici's views opposing a uniform standard based on sulfur content can be viewed as a motivating factor in the Conference Committee's adoption of a more flexible standard in the final bill that allowed such a variation.
Sierra Club also argues that even if section 111 permits the standard to vary depending on the sulfur content of coal, its language was designed to permit a nonuniform standard only in the limited circumstance where a "best technological system" could not achieve the national percentage on certain types of coal. That is, EPA could vary the standard only to reflect the different maximum feasible percentage reductions achievable for different sulfur content coals. Under this view EPA could not relax the standard when a higher percentage reduction is technologically feasible. Thus, in this case because it is not disputed that wet scrubbing could achieve 90 percent reduction on low sulfur coal, EPA has no authority to vary the standard below the 90 percent level.
We do not believe that this interpretation of section 111 is warranted by a fair reading of the Act or the underlying legislative history. The text gives EPA broad discretion to weigh different factors in setting the standard. The legislative history indicates that EPA should be "exceedingly cautious" in allowing the standard to vary, but nevertheless, recognizes that such a determination is within the range of EPA's discretion.
In addition to its arguments about the proper interpretation of section 111, Sierra
We find, in sum, that EPA has the authority under section 111 of the Act to promulgate the variable standard and now turn to a consideration of whether EPA's decision to adopt the variable standard was reasonable and supported by the record.
B. The Reasonableness of EPA's Decision to Issue a Variable Standard
In reviewing the merits of EPA's variable standard, our function is to ensure
1. Technical Background
The controversy over EPA's justification for variable control centers on two processes for flue gas desulfurization ("FGD" or "scrubbing") referred to by the parties as wet scrubbing and dry scrubbing.
The type of wet scrubbing process relied on by EPA during this rulemaking was a "properly designed, installed, operated and maintained" lime or limestone FGD system.
Dry scrubbing is a newer and relatively less established technological alternative to wet lime/limestone scrubbing systems.
2. EPA's Explanation for the Variable Standard
(a) The Factors Considered By EPA
While the parties dispute the proper analytic method for balancing the relevant factors, they agree, with one exception, on the factors themselves which are relevant to EPA's decision to issue the variable standard. These factors are enumerated in section 111 of the Act and in the legislative history.
Section 111(a)(1), as revised in 1977, requires EPA to weigh cost, energy, and nonair quality health and environmental factors in setting a percentage reduction standard achievable by the best technological system of continuous emission reduction.
Sierra Club objects that EPA also took account of the impact of alternative standards on future national levels of sulfur dioxide emissions. Paradoxically, Sierra Club argues that "EPA may not consider total air emissions in deciding on a proper NSPS."
We find this position untenable given that one of the agreed upon legislative
(b) EPA's Regulatory Analysis
EPA performed a regulatory analysis in three phases to evaluate alternative standards. Phase one of the analysis began before EPA published its proposed standards. Prior to framing alternative standards for consideration, EPA evaluated different control technologies in terms of performance, costs, energy requirements and environmental impacts. EPA also performed a preliminary study of these factors at the national, regional and plantsite levels and toward this end employed econometric computer models to forecast the nature of the utility industry in future years. The initial modeling effort was completed in April 1978 and revised in August 1978.
After this preliminary analysis EPA proposed a uniform 85 percent reduction standard while reserving judgment on whether the uniform percentage reduction standard was preferable to several alternative standards. EPA announced that the final decision would await additional analysis and public comment on the proposal.
The regulatory analysis entered phase two following the September 1978 proposal. EPA conducted additional analyses of the impacts of alternative sulfur dioxide standards. The impacts analyzed included total air emissions, utility investment in new plant and pollution equipment, consumer costs, energy production and consumption, coal use, utility consumption of oil and natural gas, and the amount of western low sulfur coal shipped East.
Phase three of EPA's regulatory analysis occurred after the public hearing and after the close of the formal comment period on the proposed NSPS. This third stage featured for the first time EPA's formal consideration through its computer model of the impacts of dry scrubbing technology, a subject which will be discussed at length below.
(c) EPA's Stated Rationale for the Variable Standard
EPA's explanation for the adoption of the variable standard is contained in a long preamble accompanying the publication of the final NSPS.
By substantially reducing SO
Sierra Club insists that EPA's conclusions about dry scrubbing technology are in effect the "cornerstone" of the variable standard. Therefore, Sierra Club argues, the standard must be judged solely on the basis of the validity of EPA's so-called dry scrubbing rationale. We do not agree and believe that it is appropriate to focus on the statutory, substantive, and procedural issues surrounding the dry scrubbing controversy in a later section of this opinion. For now we address Sierra Club's challenges to the standard which are independent of the questions raised about the role of dry scrubbing in the outcome of the final rule.
3. An Examination of EPA's Rationale for the Variable Standard
Sierra Club challenges both EPA's findings about the relative national and regional impacts of alternative standards and the conclusions the agency drew from these findings. First, Sierra Club raises a number of overlapping arguments in support of its view that the findings themselves are methodologically defective. Sierra Club's position, as we understand it, is that the findings cannot amount to substantial evidence because the agency's regulatory analysis
(a) The Legitimacy of EPA's Regulatory Analysis
(1) EPA's Authority to Analyze Long Term National and Regional Impacts
Sierra Club argues that section 111 only allows EPA to weigh the cost, energy, and nonair quality health and environmental impacts specified in the statute in order to identify the "best technology." Once that technology is selected, according to Sierra Club, the standard must be set at whatever level is "achievable" by such technology, i. e., the maximum technologically feasible level of control. In this case, since EPA designated wet scrubbing as the technology of choice, the standard must be set at the maximum control level achievable by wet scrubbing. Sierra Club maintains that the kind of macrobalancing EPA has performed has already been done by Congress, and that Congress decided, as reflected in the language of section 111, to require the fullest degree of control that is achievable by the "best technological system" — in this case, a uniform reduction standard of at least 90 percent. The only comparison of aggregate impacts by EPA which Sierra Club believes would have been legitimate under section 111 is a comparison between the impacts of full scrubbing low sulfur coal and the impacts of full scrubbing high sulfur coal. Since there is no doubt that wet scrubbing low sulfur coal is more economical, uses less energy and has fewer other detrimental consequences than wet scrubbing high sulfur coal, Sierra Club argues that this comparison, if anything, demonstrates that the percentage reduction standard should be higher for low sulfur coal than for high sulfur coal. Sierra Club also objects that EPA improperly projected long range future impacts of alternative standards and "insists that the only factors which may be considered by EPA are the technological, economic, environmental, and energy impacts of presently existing technology."
We reject Sierra Club's restrictive reading of the balancing exercise mandated by section 111 as too narrow to accomplish the purposes of the Act. This is so for several reasons.
1. Sierra Club's interpretation of section 111 is internally inconsistent. Sierra Club would permit EPA to consider the enumerated statutory factors only for the purpose of defining the best technology. This exercise, however, would necessarily involve evaluating the cost, energy, and environmental impacts of different technological systems — not in the abstract — but at some given level of operation. Thus, even the limited determination that Sierra Club would allow EPA to make would logically involve determining at what level a particular control system was "best" in terms of cost, environment, and energy. And so Sierra Club's argument that section 111 requires the standard to be set at 90 percent or higher in the case of wet scrubbing (if technologically achievable) would not follow if wet scrubbing at 85 percent removal efficiency was the "best" in terms of the statutory factors. In short, there is simply no way to set the standard at the level of maximum technological feasibility while simultaneously responding to the cost, energy, and environmental concerns that Congress wrote upon the face of the statute.
The extraordinary clumsiness of the phrasing of this section does not ease our task of interpretation. Nevertheless, we believe it is clear that this language is far different from the words Congress would have chosen to mandate that EPA set standards at the maximum degree of pollution control technologically achievable. Parsed, section 111 most reasonably seems to require that EPA identify the emission levels that are "achievable" with "adequately demonstrated technology." After EPA makes this determination, it must exercise its discretion to choose an achievable emission level which represents the best balance of economic, environmental, and energy considerations. It follows that to exercise this discretion EPA must examine the effects of technology on the grand scale in order to decide which level of control is best. For example, an efficient water intensive technology capable of 95 percent removal efficiency might be "best" in the East where water is plentiful, but environmentally disastrous in the water-scarce West where a different technology, capable of only 80 percent reduction efficiency might be "best." We cannot believe that Congress meant for EPA to ignore such future aggregate impacts of alternative standards. The standard is, after all, a national standard with long-term effects.
It seems likely that if Congress meant to require a monolithic standard and to curtail EPA's discretion to weigh various policy considerations it would have explicitly said so in section 111, as it did in other parts of the statute. For instance, in prescribing standards for areas that have not succeeded in meeting national ambient air quality standards ("nonattainment areas") Congress required that the standard be the "lowest achievable emission rate," and stressed that cost factors, while still cognizable, were not to play as important a role as they do in selecting the "best" system under section 111.
Largely as a result of Portland Cement, the "cost" considerations of former section 111 were specifically supplemented by Congress in the 1977 Amendments to cover considerations of nonair quality health and environmental impacts and energy requirements. In so doing, Congress made no attempt to cut back on EPA's ability to apply the new terms broadly nor did Congress reduce the range of discretion that had been read previously into the "cost" factor.
4. The legislative history clearly supports our reading of amended section 111 as authorizing EPA to balance long term national and regional impacts of alternative standards. The Conferees defined the best technology in terms of "long-term growth," "long-term cost savings," effects on the "coal market," including prices and utilization of coal reserves, and "incentives for improved technology."
5. Broad analysis of alternative standards promotes the several purposes of the Act articulated in the legislative history which Sierra Club recognizes are relevant to the decision to adopt the variable standard. In stating those purposes, Congress indicated that it wanted assurances from EPA that the new standards would not exacerbate existing problems, e. g., produce adverse effects on the coal market, impediments to long term growth, and inhibition of technological innovation. Congress could not have expected such complex interconnecting goals to be satisfied or even approximated without affording EPA a great deal of elbow room to react to and plan for changing events. If EPA was to do as Sierra Club suggests, and set the standard according to the single factor of technological achievability then EPA could not even
6. Finally, it is sensible for EPA to assess the likely impacts of the NSPS in 1995 as opposed to an earlier time. Since the standard is only applicable to "new sources" the standard will not have a measurable effect until there are a significant number of new plants in operation. EPA found that this will not occur until 1995 and explained:
For all of these reasons we conclude that EPA was justified in relying on long term analysis of national and regional cost, environmental, and energy impacts of alternative percentage reduction standards in order to select the "best technological system" upon which to base the NSPS.
(2) The Reliability of EPA's Econometric Computer Model
We are more sympathetic to Sierra Club's complaint about the reliability of EPA's econometric model. Such models, despite their complex design and aura of scientific validity, are at best imperfect and subject to manipulation as EPA forthrightly recognizes.
Still we cannot agree with Sierra Club that it was improper for EPA to employ an econometric computer model, or hold as a matter of law that EPA erred by relying on the model to forecast the future impacts of alternative standards fifteen years hence.
Realistically, computer modeling is a useful and often essential tool for performing the Herculean labors Congress imposed on EPA in the Clean Air Act. In addition to the competing objectives that EPA must satisfy under section 111, the Act explicitly requires EPA to prepare an Economic Impact Statement before promulgating NSPS.
Even absent such statutory requirements, we would deem it reasonable to use computer modeling, and to design the model to consider not just "present day" factors, but the consequences over time of the proposed agency action. In American Public Gas Ass'n v. FPC, a challenge was raised that the results of economic modeling, similar to that used here, did not rise to the level of "substantial evidence" necessary to support the agency's findings and conclusions.
In this case, the utility model itself and its key assumptions were discussed in the proposed rule and background documents.
Sierra Club has not only challenged the use of the model itself, but has also questioned here, as it has throughout the rulemaking, some of the specific assumptions built into the model. In some instances EPA actually adjusted the model to account for Sierra Club's objections and demonstrated that the outcome of the final rule would not have changed. EPA did this, for example, by responding to Sierra Club's recommendations for changes in estimated oil prices and nuclear capacity. EPA's findings and conclusions after adopting Sierra Club's assumptions for future oil prices and nuclear capacity are detailed below.
The crucial assumption leading to these findings is that utilities are "cost minimizers."
(b) The Reasonableness of EPA's Conclusions
(1) The Reasonableness of EPA's Conclusion That Variable Control Reflects a Better Balance of the Section 111 Factors Than Uniform Control
According to EPA, the variable standard strikes the proper balance between environmental, economic, and energy considerations, whether or not wet scrubbing or dry scrubbing technology is used. We agree because the findings of EPA's regulatory analysis made under the assumption that wet scrubbing technology would be utilized, listed in Tables 2 through 5 from the preamble to the final rule (shown as Figures 5 through 8 in the appendix to this opinion), show clear advantages for adoption of the variable control option over the full control option favored by Sierra Club — apart from any considerations as to the use or savings emanating from the emergent dry scrubbing technology.
Table 2 details EPA's projections for the national levels of sulfur dioxide emissions in 1995. The expected total national emissions for wet scrubbing under both variable control and full control are the same — approximately 20.6 million tons. However, Table 2 reveals that variable control achieves this level of emission with greater utility plant capacity burning more coal, while at the same time generating less sludge. The total projected capacity of plants burning coal in 1995 is 533 GW for the variable control option and 521 GW for the full control option. Wet scrubbing at levels permitted by variable control will result in only 50 million tons of sludge while full control is predicted to generate 55 million tons.
Table 3 details projections of 1995 regional sulfur dioxide emissions. A comparison of the figures listed in Table 3 for wet scrubbing at the variable control and full control levels indicates that there are trade-offs of the different regional impacts of the two standards. The figures show that the East is better off under variable control while the West is better off under full control. With variable control the East will have 300,000 tons less emissions than under full control, but variable control will allow 200,000 tons more emissions in the West than would be experienced with full control in the West. The other two regions — the Midwest and West South Central — can expect roughly the same levels of emissions under either level of control.
Table 4 illustrates the effect of the proposed standards on 1995 coal production, western coal shipped East, and oil consumption by utilities. With regard to these energy impacts the comparative performance of
Table 5 shows the expected economic impacts in 1995. Since, as has been noted, the model estimates greater plant capacity under variable control than under full control, the cost of this extra capacity makes the cumulative utility capital expenditures 6 billion dollars higher under variable control than under full control.
Capital expenditures are, however, only part of the overall cost under alternative standards. Annualized cost, for example, includes capital charges, fuel costs, and operation and maintenance costs associated with utility equipment — including pollution control equipment. Table 5 lists annualized cost under different standards as increments over the cost which could be expected under the former standard. EPA projects that despite the greater capital costs, the annual cost of variable control will be half a billion dollars less than the annual cost of full control. In other words, variable control is expected to cost 3.6 billion dollars a year more than the former standard, while full control will cost 4.1 billion dollars a year more than the former standard.
Table 5's figures also demonstrate that variable control is more cost effective than full control. One measure of cost effectiveness is the incremental cost per ton of sulfur dioxide removal. The stated figures for the incremental cost per ton of sulfur dioxide removal are obtained by dividing the expected increase in annual cost by the expected decrease in emissions, as compared to the projected cost and emissions for the former standard. Since both variable control and full control should reduce emissions by 3.1 million tons, variable control is more cost effective than full control because the increased annual cost of variable control is 3.6 billion dollars while the increased annual cost of full control is 4.1 billion dollars, or half a billion dollars more. The incremental cost of sulfur dioxide removal, which is the ratio of the cost figures over the 3.1 million tons of increased emission reduction, is 1,161 dollars/ton for variable control and 1,323 dollars/ton for full control.
Finally, EPA's analysis of wet scrubbing predicted that consumers would incur both lower direct costs (in the form of monthly residential energy bills) and lower indirect costs (reflecting price increases due to higher energy costs) under variable control as opposed to full control.
Results of subsequent selective modeling conducted after the publication of the final NSPS during the pendency of the petitions for reconsideration do not contradict the earlier results discussed above (the results are listed in tables shown as Figures 9 through 11 in the appendix to this opinion). Sierra Club's petition for reconsideration criticized EPA's econometric model because the assumed future oil prices were too low and the assumed growth rate of nuclear power plants was too high. To evaluate the petition EPA reran the computer model, performing what the agency called two "sensitivity tests." These sensitivity tests first assumed higher oil prices and then assumed both higher oil prices and a lower nuclear growth rate, while holding the other modeling assumptions constant. Sierra Club claims "that when EPA ran the model ... with more realistic assumptions concerning oil prices and nuclear power growth, full control showed lower total
For these reasons we do not believe that the post-promulgation modeling analysis provides convincing evidence that full control is preferable to variable control.
In sum, the results of EPA's econometric modeling which forecast substantial benefits to be obtained by adopting the variable standard, provide adequate support for EPA's decision to select that course on the basis of the environmental, energy, and cost factors specified in section 111.
(2) The Reasonableness of EPA's Conclusion That Variable Control Promotes the Policies of the Act
The results of EPA's regulatory analysis also persuade us that the variable standard does indeed advance policies of the Act other than those specifically incorporated in section 111.
First, variable control is not — as Sierra Club alleges — inconsistent with the purposes underlying the Act's programs for the prevention of significant deterioration of air quality, and the provisions for eliminating the impairment of visibility in certain designated areas.
Second, the findings also support EPA's determination that variable control serves what the parties agree are the relevant purposes of section 111, which the legislative history says must be accommodated whenever EPA chooses to vary the percentage reduction standard. For example, the competitive advantage previously enjoyed by some states under former standards will be eased, since all new coal-fired sources are subject to the same emissions ceiling and all must apply some level of continuous emission reduction technology to control sulfur dioxide emissions. Consequently the standards assist in eliminating the advantage of using only low sulfur coal throughout the country or of relocating to areas where scrubbing was not previously required because low sulfur coal was available locally. The advantage of the lower percentage reduction requirement available to plants burning low sulfur coal is offset to a degree by countervailing considerations, such as the costs of mining, transportation, and relocation, competition for supply, and state regulations.
Other purposes of section 111 also appear to be well served. One highlighted in the Conference Committee Report was "maximizing the use of locally available fuels."
The combination of stringency and flexibility afforded by variable control satisfies still another stated purpose of section 111: freeing low sulfur coal for use in existing plants where it is harder to control emissions and where low sulfur fuel is needed to achieve compliance. The expected increase in the production of all types of coal, by itself, would probably provide sufficient supplies of low sulfur coal to existing "dirty" plants. Under variable control, however, these older plants should be retired at a more rapid rate than under full control. Thus, as low sulfur coal supplies grow, the demand from older plants should decline. Variable control should also reduce the number of long distance shipments of low sulfur coal to newer plants since some scrubbing will be required whatever kind of coal is used. It will become just as economical for some utilities, like the midwestern plants noted above, to burn higher sulfur content local coal, rather than to consume more distant low sulfur coal.
Overall, we must conclude that EPA's rationale for the variable standard — completely apart from dry scrubbing — is supported by the agency's findings, and that the agency's rationale demonstrates that the variable standard satisfies both the language of section 111 and the policies enumerated in its legislative history.
C. The Dry Scrubbing Controversy
Notwithstanding the reasons proffered by EPA for adopting the variable standard under the assumption that utilities would use wet scrubbing technology, Sierra Club argues that EPA's findings and conclusions about the emergent dry scrubbing technology are actually the cornerstone of the agency's rationale for the variable standard. For this reason, Sierra Club maintains, the variable standard must be set aside because: (1) EPA is not authorized by section 111 to consider the impact of the NSPS on the development of a new technology like dry scrubbing and (2) EPA's determinations about the efficiency of dry scrubbing technology, and the means of encouraging its development, are not supported by the record.
We address these arguments because EPA's published rationale for the variable standard attests to the important role dry scrubbing technology played in the evolution of the rule. As we have shown, EPA's justification for the rule in terms of statutory criteria does not depend on dry scrubbing technology. However, the agency's explanation of the evolution of the standard indicates that the impetus for EPA's examination of the 70 to 90 percent control option in the post-comment period phase three analysis stemmed from the agency's desire to reexamine the potential of dry scrubbing.
1. The Role of Dry Scrubbing Technology in EPA's Rationale for the Variable Standard
In the preamble accompanying the proposed NSPS, EPA referred only in passing to dry scrubbing. Dry scrubbing was
Dry scrubbing was first incorporated into EPA's regulatory analysis in phase three — conducted after the close of the comment period. In the preamble to the final rule EPA explained that phase three modeling introduced:
The results of the phase three analysis showed that variable control was preferable to uniform control under the wet scrubbing assumption, and to an even greater extent under the dry scrubbing assumption.
These findings of the phase three regulatory analysis were published in June 1979 when the final rule was announced. The preamble to the final rule, in contrast to the agency's statement at the time of the proposal and after phase two, is replete with references to both wet scrubbing and dry scrubbing. The preamble reveals that both pollution control technologies played a role
EPA's rationale for the final NSPS notes that the critical issue of variable control "was made more complex by the emergence of dry SO
EPA's rationale continued:
Sierra Club insists that this statement amounts to a concession that the agency's justification for variable control hinges on dry scrubbing and urges the following interpretation of the above-quoted language:
We do not believe, however, that a fair reading of the passage supports Sierra Club's interpretation. Rather the language indicates only that the incidental benefits of variable control, at the micro or plant level
Our own reading of EPA's rationale convinces us that although dry scrubbing is not relied on as the exclusive or even primary justification for the variable standard, the agency's consideration of dry
2. The Legitimacy of Considering Emerging Technology in Setting Section 111 Standards
Sierra Club strongly argues that EPA had no business worrying about emerging technology because section 111 does not explicitly include "technological innovation" as one of the factors EPA is to balance along with considerations of cost, energy and nonair health and environmental impacts. In fact, Sierra Club argues, Congress enacted a separate and exclusive provision, section 111(j),
We do not believe that EPA is precluded from encouraging technological innovation through the NSPS either because section 111(a) prohibits the agency from doing so or because section 111(j) is meant to be the exclusive statutory mechanism for promoting new methods of pollution control.
Our interpretation of section 111(a) is that the mandated balancing of cost, energy, and nonair quality health and environmental factors embraces consideration of technological innovation as part of that balance. The statutory factors which EPA must weigh are broadly defined and include within their ambit subfactors such as technological innovation.
We have no reason to believe Congress meant to foreclose in section 111(a) any consideration by EPA of the stimulation of technologies that promise significant cost, energy, nonair health and environmental benefits. Our view is consistent with legislative history, which reveals Congress' concerns that the NSPS should not stymie technological innovation.
According to our reading, section 111(j) supplements rather than restricts EPA's discretion under section 111(a) to encourage innovative technology. Section 111(j) specifies the circumstances in which EPA may grant waivers from NSPS to individual plants using innovative technology which has not been adequately demonstrated and which will inter alia:
In our view, a symbiotic rather than mutually exclusive relationship exists between the NSPS of section 111(a) and the technology waivers of section 111(j). Section 111(j) waivers are limited to individual plant situations where the technology is capable of eventually achieving a level of emissions reduction which is equal to or greater than that specified in the section 111(a) NSPS. Thus, the ability to grant section 111(j) waivers would be unduly restricted or entirely foreclosed if the NSPS were set too high. If Congress intended any substantial use of 111(j) waivers, as we presume that it did, it is only plausible that Congress also meant for emerging technologies to be given consideration when EPA promulgated NSPS.
The Act does not state that section 111(j) is the exclusive provision for dealing with technological innovation. Elsewhere in the Act, however, Congress has explicitly indicated when EPA's discretion to work toward a particular end is limited to the confines of a specific provision.
In short, we can find no statutory bar to EPA's consideration of how various NSPS options will affect the development of new technologies which have economic, energy, and environmental implications of their own.
3. The Adequacy of the Record for Dry Scrubbing's Role in EPA's Rationale
EPA has explained that its evaluation of the technical capabilities and commercial attractiveness of dry scrubbers precipitated the decision to test the 70 percent floor option, and its desire to encourage the development of dry scrubbing reinforced the
We note that the nature of our inquiry here is different from that required had EPA relied on dry scrubbing as adequately demonstrated technology and found that the variable standard was the best level of control — in light of the relevant considerations — achievable by dry scrubbing. Here the variable standard was chosen as the best level of control achievable by wet scrubbing, admittedly an adequately demonstrated technology.
We also do not confront the situation where EPA has set a standard at a particular level believed necessary to promote a new technology, even though the agency's regulatory analysis demonstrated that another level of control was optimal, after considering all relevant factors apart from the new technology. In such a case our close scrutiny of the factual basis for the standard would involve a balance: we would have to weigh the magnitude of the standard's departure from the level of control otherwise indicated by the agency's regulatory analysis against the weight of the support in the record that substantial benefits would eventually accrue from adjusting the standard on the basis of the new technology. The greater the imprint of the new technology on the final rule, the more demanding our review of the evidence about the potential benefits and capabilities of new technology. By the very nature of its newness, it would be inevitably harder for EPA to acquire as precise and complete information about the emerging technology as would be available in the case of older, more established technologies. Thus the difficulty of justifying a standard that diverges from a level determined by weighing cost, energy, and environmental effects of the best presently demonstrated technology, solely to account for new technology, should provide built-in safeguards against overuse of such a justification and prevent circumvention of the primary statutory goals.
The present situation does not present such a risk because the control level EPA believed was necessary to promote dry scrubbing was found to be optimal even aside from dry scrubbing considerations. This circumstance obviates the need to determine whether EPA's conclusions about dry scrubbing can be relied upon as an independent basis for the variable standard. We do require, however, that the record substantiate the reasonableness of EPA's preliminary step of turning to a standard with a 70 percent floor for the purpose of comparing its potential impacts with other control options, and basing its subsequent adoption of that 70 percent standard, even partially, on the prospects of encouraging development of dry scrubbing.
Sierra Club's quarrel in this regard is not with EPA's judgment that 70 percent removal on low sulfur coal is technologically and economically feasible for dry scrubbers. On the contrary, as Sierra Club argues in advocating a higher standard, the record contains considerable evidence which indicates that dry scrubbing can achieve significantly better than the 70 percent floor adopted by EPA.
Sierra Club does object, however, to EPA's conclusion that the 70 percent standard is necessary to encourage utilities to use dry scrubbers. Much of the record evidence concerning whether it is appropriate to set the minimum standard at 70 percent in order to promote the development of dry scrubbing technology revolves around the assertion that dry scrubbing low alkaline coal is more expensive than dry scrubbing high alkaline coal because of "uncertainty in the stoichiometric ratio" required to achieve a 70 percent reduction for nonalkaline coals.
Sierra Club's response is that the "alkaline" issue is a red herring.
There is, however, other evidence in the record concerning EPA's prediction that utilities will refrain from dry scrubbing if
In sum, the support in the record for selecting 70 percent as the magic percentage for encouragement of dry scrubbing is less than overwhelming. However, three things do stand out on the record. First, dry scrubbing has significant potential as a cheaper, energy conserving, and environmentally sound alternative to wet scrubbing. Second, despite the considerable potential advantages of dry scrubbing systems over wet scrubbing systems, dry scrubbing is not yet a proven or "adequately demonstrated" technology and its future is uncertain. Third, all of the testing of dry scrubbing performance has been done on high alkaline coal, while low alkaline coal makes up 50 percent of national coal reserves and 90 percent of the low sulfur coal reserves in the West.
On the basis of this evidence we find it was reasonable for EPA to seek to encourage dry scrubbing and to be concerned with the effect of the NSPS on the future of the new technology. Furthermore, on the basis of the entire record it was not unreasonable for EPA to believe that the leeway afforded by the variable standard from the requirements of the stricter 90 percent reduction requirements would promote dry scrubbing. Given the state of this record we would have been reluctant to uphold EPA's discretion to vary the standard solely on the basis of dry scrubbing, but we are satisfied that it was legitimate for EPA to find that variable control with a 70 percent floor was an option
To put our conclusion upholding the 70 percent standard in further perspective: the 70 percent minimum level of emission control is permissible only when the overall emission level is reduced from 1.2 lbs./MBtu to .60 lbs./MBtu. Therefore, it cannot be contended that the new NSPS are more lax than the former NSPS, but only that when a plant halves its total emissions, then the percentage reduction standard does not independently require a uniformly high percentage reduction at all times — regardless of the sulfur content of the coal burned or other policy considerations such as fostering the availability of cheaper, cleaner, energy saving technologies.
We now complete our review of the variable standard by considering whether the substantively acceptable standard was procedurally defective.
D. The Adequacy of Notice and the Opportunity to Comment on the Rationale for the Variable Standard
Sierra Club complains that EPA's focus on dry scrubbing and the determinative phase three regulatory analysis came only after the public comment period closed in January 1979; hence, interested parties in the rulemaking were not informed of these developments in time to make meaningful comments before the final rule issued in June 1979. Sierra Club argued in its petition for reconsideration that a new proposal should have been resubmitted for public comment at the point that EPA seriously began to consider the variable standard ultimately adopted.
The procedural requirements for notice and comment applicable to this case are specified in section 307(d) of the Act,
EPA, of course, denies the existence of any procedural irregularity in the promulgation of the variable standard. When the agency denied Sierra Club's petition for reconsideration it stated that the notion that "the phase 3 analysis was a new venture" was "false."
While we find that Sierra Club's criticism of the procedural history of the variable standard is not unwarranted, we conclude that there was sufficient notice and comment on matters which are "of central relevance" to support EPA's rationale for the variable standard. It is indeed true that the 70 percent level of control did not surface as a serious contender until after the final bell sounded in the public arena, and many of the supporting documents related to dry scrubbing were inserted into the record in a last round flurry of agency activity. Yet it is important to evaluate EPA's ultimate selection of 70 percent as the floor for the standard in the context of the agency's decision to adopt some form of non-uniform sliding scale standard. There can be no doubt that the latter decision benefited from ample notice and comment. EPA stated at the time of the proposal that it might adopt a variable percentage reduction standard as opposed to the proposed 85 percent uniform standard, and emphasized that "[t]he principal issue associated with this proposal is whether electric steam generating units firing low-sulfur content coal should be required to achieve the same percentage reduction in potential SO
(Emphasis supplied.) Throughout the rulemaking period from December 1977
The record also shows that the phase three analysis with a 70 percent minimum floor was a continuation of the type of regulatory analysis performed during phases one and two. Aside from adjustments in the model to account for the assumption that utilities would use dry scrubbers, there were no radical changes in the econometric model that tested the likely impacts of the 70 to 90 percent control option. The analytical format that EPA relied on in phase three was subject to broad review in phases one and two by both the public participants in the rulemaking and by the joint interagency working group.
The subject of dry scrubbing and the question of how the NSPS would affect emerging technology were not introduced for the first time in phase three. On the contrary, there was a discussion of these matters in December 1977 — well before EPA even proposed the NSPS — at a public hearing held by the National Air Pollution Control Techniques Advisory Committee (NAPCTAC).
The record further shows that the parties had actual notice before the final rule was published in June 1979 of EPA's focus on the 70 to 90 percent variable standard and of its heightened interest in dry scrubbing.
Beginning in early 1979 and continuing until the publication of the final rule, EPA prepared and entered on the record several documents concerning dry scrubbing. These documents included EPA's economic comparison of dry scrubbing with wet scrubbing,
Viewing this record as a whole, we conclude that a variable sliding scale percentage reduction requirement was generally understood to be a serious possibility from the start of the rulemaking and that the issue of whether the standard should accommodate emerging technologies was raised by public comments. We also find that there was information on the potential of dry scrubbers in the record from the beginning of the rulemaking, although this was generously supplemented at the last stages of the proceeding.
Nonetheless, since the record contains the alternative "wet scrubbing" justification for the variable standard, and since the parties knew about EPA's growing interest in dry scrubbing, we cannot say that the failure to provide for more time to comment on the late entries into the dry scrubbing controversy is "so serious and related to matters of central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made."
This rulemaking was by no means a neat and tidy proceeding, and it might well have been the wiser course if EPA had chosen to publish a new proposal for another round of comment,
III. THE 90 PERCENT REMOVAL STANDARD
The Electric Utilities attack the NSPS insofar as they require a 90 percent reduction in the potential sulfur dioxide emissions from the combustion of high sulfur coal (at least 6 lbs./MBtu) measured on a thirty day rolling average.
A. Notice as to the Basis of the 90 Percent Standard
The Electric Utilities argue that both the proposed and the final NSPS were based on the level of emission reduction achievable by the application of FGD technology alone. Then, when the Electric Utilities showed in their petition for reconsideration that the 90 percent standard was not achievable by scrubbing alone, they say EPA, in denying the petition, impermissibly redefined the basis for the standard to include a combination of coal washing and scrubbing. Alternatively, the Electric Utilities maintain that even if the final rule was based on combined technology, EPA violated the procedural provisions of the Act which require that the promulgated rule must be accompanied by an explanation of any major changes in the final rule from the proposed rule.
1. The Basis of the Final Standard
EPA steadfastly insists that the final standard was clearly based on the performance of scrubbing in conjunction with precombustion technologies like coal washing and admits that "[i]f the standard were based solely on FGD, it would probably not be achievable."
It is undisputed that the proposed percentage reduction standard — a uniform 85 percent removal requirement measured on a 24 hour period — was based on the capability of "well designed, maintained and operated flue gas desulfurization systems" alone.
In the preamble to the final rule, the technological basis for the 90 percent standard was less explicit:
At one point in the same preamble EPA conceded that for some high sulfur coals, the standard could only be achieved by combining scrubbing and coal washing:
But later in the same preamble EPA states:
The preamble also contains a discussion of the potential of physical coal cleaning. EPA stated that while it did not consider coal washing alone to be adequately demonstrated to achieve the standard, coal washing offered the following benefits when used in conjunction with FGD:
We believe that these passages, when read together, can be construed reasonably to say that the standard did not envision achievement of the standard by scrubbing alone. Rather, at the time of promulgation EPA contemplated that in some cases where high sulfur coal would be
2. Notice That the Basis of the Standard Had Changed Since Proposal
The Electric Utilities also argue that the switch from a proposed standard based on FGD with optional credit for fuel pretreatment, to a final rule that is achievable only through the combined use of FGD and fuel pretreatment is a "major change" that, under the Act, requires an expanded and forthright explanation. Nonetheless we do not think that EPA's ultimate dependence on fuel pretreatment to demonstrate the achievability of the standard in the "most demanding situations" came about without notice or that it actually prejudiced the Electric Utilities in any way that would require us to remand the standard for a new round of public comment.
From the beginning of the rulemaking EPA specified that credits for coal washing could be taken toward meeting the percentage reduction requirement.
EPA received several comments on the subject of sulfur removal by fuel pretreatment and on the combined use of coal washing and FGD.
EPA targeted the importance of coal washing on at least two other occasions. With the agency's December 1978 announcement of the phase two modeling results EPA stated that it had reassessed its modeling assumptions and had added coal washing to its analysis because "the coal washing credit ... was found to have a significant effect" on the modeling results.
Post-comment period submissions by the Electric Utilities,
On this record, if EPA had plainly stated that the basis of the final rule had changed since the time of its proposal, there would be no question that the change would have been permissible. Indeed, section 307 of the Act by its very terms appears to anticipate that changes will take place during the course of the rulemaking.
B. The Achievability of the 90 Percent Standard
EPA's rationale for the achievability of the 90 percent standard is based on three determinations: First, that the long term median
The Electric Utilities challenge each element of EPA's rationale for the 90 percent standard. The evidence on both sides is extraordinarily technical and often confusing. We have studied the record and the briefs with an eye toward judging whether, given the agency's expertise in evaluating conflicting data and selecting among reasonable approaches for pursuing statutory goals, EPA has plotted a reasonable course through the evidentiary thicket and stated a logical rationale for the route it chose.
1. The Support For EPA's Conclusions About FGD Performance
We begin with EPA's finding that a 92 percent long term median reduction is necessary, along with a performance variability range of no greater than 0.36 standard deviation (at the 95th percent confidence level) to meet the 90 percent standard. The Electric Utilities are correct, and EPA concedes, that there is no data on the record showing that the 92 percent long term median figure is actually achieved on a continuous basis by any currently operating commercial lime or limestone system. However, EPA projects the 92 percent figure in part from: (1) data obtained from a very limited number of lime FGD systems that do perform for varying numbers of 24 hour periods (from 22 to 42) at medians of 88 and 89 percent, (2) other short term data from nonlime/limestone FGD systems that report
The Electric Utilities say, on the other hand, that short term performances of less than 90 percent cannot be projected into a long term 92 percent median. Further, the short term data on performances of more than 90 percent is irrelevant because it is not taken from lime/limestone scrubbers cleaning high sulfur coal exhaust. They discredit the Japanese data because the conditions under which it was conducted are undocumented, and are indicative only of short term scrubbing of low to medium, rather than high sulfur coal. Further, the Electric Utilities profess no knowledge of the improved design features or operational practices that EPA relies on to predict future scrubbing achievability, and argue alternatively that many of EPA's "improvements" have been already rejected by the industry as impractical or ineffective.
Even if the 92 percent figure were achievable, the Electric Utilities contend that EPA's 0.36 variability range is not representative since it is based on data from only one plant. In addition, they are troubled by the fact that EPA did not include the autocorrelation factor in its statistical analysis until the Electric Utilities, in their petition for reconsideration, submitted their own analysis demonstrating the relevance of autocorrelation when determining whether a long term median will achieve a particular given level of control.
EPA responds that its most recent statistical analysis of scrubbing efficiency "is in close agreement with [the Electric Utilities'] analysis when the same process variation and amount of autocorrelation was assumed."
(a) The Achievability of 92 Percent Long Term Removal Efficiency
EPA states that "the most important measure of an FGD system ... is its median removal efficiency."
The 92 percent figure is derived from data on existing plants and on EPA's projection regarding the capabilities of well designed and operated scrubbers in future plants. As EPA correctly points out, the NSPS apply only to new plants, and since most current FGD systems were not designed to operate at 90 percent removal efficiency, the NSPS should not be based solely on existing levels of removal efficiency. Nevertheless, to determine whether it was reasonable for EPA, even with expected improvements, to project a 92 percent median, we must first look at the agency's test results at currently operating plants.
EPA's test data show that long term removal efficiencies exceeding 92 percent occur on low sulfur coals both in this country and in Japan.
EPA's data also show that FGD systems using scrubbing reagents that are more reactive than lime or limestone were achieving very high sulfur removal efficiencies on a short term basis. For example, the magnesium oxide FGD at Philadelphia Electric's Eddystone Station achieved a median sulfur dioxide removal of 96.8 percent in an 8 day test.
The Electric Utilities argue and we are inclined to agree that this data is not conclusive since EPA specified that the standards were based on lime or limestone systems, and not the more expensive and less available regenerative systems, or systems using reagents and additives more reactive than lime. Both the proposed and the final standards, and the background support documents conclude that the standard is achievable by many types of FGD, including lime/limestone systems, Wellman-Lord, magnesium oxide, and double-alkali processes. However, EPA's emphasis on the lime and limestone processes and the uncontested fact that the non-lime/limestone processes are not widely available, preclude EPA from demonstrating the achievability of the standard on the basis of data from non-lime and limestone scrubbers.
The data advanced by EPA from lime/limestone systems are sparse, primarily because few plants had any need to attempt to achieve removal efficiencies over 90 percent on high sulfur coal under the former standard.
EPA suggests that a 92 percent long term median removal may be interpolated between the lower 88.6 to 88.8 percent medians of the two lime scrubber units and the higher removal efficiencies of the non-lime Japanese and American units burning low sulfur coal. Counsel for EPA states that 92 percent represents "an intermediate level among the [FGD] data."
(Emphasis in original, footnotes omitted.) We agree that splitting the difference between data for lime scrubbers treating high sulfur coal exhaust and the data for non-lime/limestone systems and systems treating low sulfur coal is an unacceptable method for demonstrating that a 92 percent median is achievable by a lime system burning high sulfur coal.
Thus we cannot accept EPA's 92 percent median solely on the basis of evidence that only one commercial scale plant and one small pilot unit can almost but not quite meet the standard. To uphold the standard we must rely on EPA's predictions that a 92 percent median can be achieved with some design and operational improvements in new scrubbers. Two reports in the record and the Supplemental Background Document for the NSPS elaborate in great detail the kind of changes in future scrubbers that could be expected to increase their performance.
Recognizing that the Clean Air Act is a technology-forcing statute,
(b) The Reasonableness Of EPA's Assumption About FGD Variability
Having determined that a median removal efficiency of 92 percent is achievable, the
EPA based its variability assumption on its conclusion that the maximum variability of 0.36 percent at the Cane Run plant represents the outer boundaries of FGD variability. EPA explains that "variability in the performance of a well-operated FGD system will not exceed the maximum variability of the most variable well-run lime or limestone plant that has been tested [Cane Run]."
Initially we were skeptical about the validity of assuming that the variability sample of one plant was representative of the entire industry. Upon review we are satisfied that EPA's case justifying its variability assumption is a reasonable one. The agency collected variability data from many plants including the seven plants in the agency's data base for FGD median efficiency.
The Electric Utilities also argued that the variability experienced at the Cane Run plant is not representative of worst case variability because the variability is greater at the Bruce Mansfield plant, which is one of the other two plants EPA considers to be a well run lime/limestone FGD system. The Electric Utilities' analysis of the Bruce Mansfield data concluded that FGD variability at such a plant could be at least as high as 0.38.
In sum, the record supports the achievability of the level of FGD performance which is necessary to comply with the 90 percent standard by a long term median efficiency of 92 percent with a maximum variability of 0.36.
2. The Support for EPA's Conclusion That the 90 Percent Standard Was Achievable by the Use of Coal Washing in Conjunction With Scrubbing
EPA has sufficiently established that a minimum 86 percent removal efficiency (on a thirty day rolling average) — derived from a 92 percent median with 0.36 variability — is achievable on a continuous basis by the use of scrubbers alone. We now consider whether coal preparation techniques can enable utilities to increase
(a) Description of the Coal Washing Process
Coal washing is a widely practiced and relatively inexpensive method of removing sulfur from coal currently used on approximately one-half of the coal produced in the United States including about 40 percent of the coal destined for electric utility plants.
Coal washing separates unwanted sulfur from coal by suspending crushed coal in a fluid, then separating the dense sulfur particles, which sink to the bottom, from the less dense particles of cleaned coal, which rise to the top.
The proportions of organic and pyritic sulfur vary widely depending on the coal. While coal washing can remove from 35 to 70 percent of pyritic sulfur, the total percentage of removable sulfur is limited by the amount of nonwashable organic sulfur in the coal, which ranges from 30 to 70 percent of total sulfur content.
As a general rule, when coal is crushed into smaller particles, more sulfur can be washed out. However, the smaller the coal particles, the more coal that is inadvertently washed out with the sulfur, and the more energy that is consumed in processing the coal. Both of these kinds of energy losses are measured in terms of the percentage of Btu's in raw coal that are recovered after washing. For example, standard coal washing results in an energy loss of from 5 to 20 percent, which translates to a Btu recovery ranging from 95 to 80 percent. In addition to energy loss, handling and processing costs increase with the amount of crushing. These economic constraints limit the maximum amount of coal washing that is feasible in any given situation.
The specific gravity at which the separation is performed is also a critical factor. The lower the specific gravity the greater the amount of pyritic sulfur that is eliminated. However, as lower specific gravities are used more coal is also lost and thus fewer Btu's are recovered.
Lowering the sulfur content of coal by a given percentage through coal washing reduces the potential sulfur dioxide emitted from burning the coal by the same percentage since the sulfur in coal is converted into sulfur dioxide in a fixed proportion. The percentage of sulfur reduction achieved by a coal washing in turn reduces the level of efficiency of a scrubber required to achieve the overall 90 percent reduction standard. But there is significantly less than a percent for percent trade-off between coal washing and necessary scrubbing. Every percent removed by coal washing reduces the needed efficiency of FGD by much less than one percent. A brief example will illustrate the point: given a coal with uncontrolled emissions of 10 lbs./MBtu, the final standard would require a 90 percent overall reduction to 1.0 lbs./MBtu. If coal washing reduced potential emissions 25 percent to 7.5 lbs./MBtu, then the scrubbers would have to eliminate 6.5 lbs./MBtu to limit emissions to 1 lb./MBtu. This means that the scrubbers must operate at 87 percent reduction efficiency.
(b) The Percentage Reduction Achievable By Washing High Sulfur Coal
EPA asserts that it is conservative to assume that a 27 percent reduction in sulfur
Our inspection of the record reveals a wealth of technical data on the washability of every type and variety of coal in the United States. A Bureau of Mines ("BOM") Report, prepared in 1976 and included in the record of this rulemaking, examined the percentage of sulfur removal by different levels of washing in 455 raw coal channel samples in different regions, states, and coal beds.
In the final rule, however, EPA appeared to back off from the 35 percent figure to the more conservative 27 percent
In the denial of the Electric Utilities' petition for reconsideration EPA cited NCA's data and said:
The Electric Utilities' own consultant wrote that "[t]he available docket information basically supports the 27 percent average coal washing credit cited by EPA."
There is little doubt that the record supports an average 27 percent coal washing reduction potential on high sulfur coal. The remaining question is whether such an "average" figure can be relied upon to support the requirement of section 111 that the "achievability" of a standard must be "demonstrated." The Electric Utilities argue that the 27 percent does not take account of variability so that washing on the low ends of the "average" would not be sufficient to meet the standard. Both NCA's limited data and the Bureau of Mines' seam by seam data indicate deviations from the "average" sulfur removal attainable by washing the coal sampled. The data, however, also suggest to us that fluctuations in the removal potential of washing are closely tied to the varying characteristics of the coal itself (primarily its sulfur content) and not the reliability of the washing process.
In any event, the best answer to the variability argument seems to lie in the mechanics of the compliance provisions of the rule that set out the methods of taking coal washing credits. A standard may be based on reliable data about the "average" removal from coal washing if the utilities who must comply with the standard are permitted the same leeway in "averaging" for compliance purposes.
If for some reason a utility obtains coal that has not been washed to the desired level the result is not an automatic violation of the standard, as the Electric Utilities imply. Rather, utilities have the option of: (1) not burning the coal, (2) enforcing their supply contracts, or (3) burning the coal realizing that when averaged with other quarterly supplies the credit needed to comply will be obtained.
Thus the variability of individual lots of washed coal does not assume so critical a role as variability does in FGD systems which are under continuous monitoring. Since there is no doubt that a 27 percent "average" is achievable with the highest sulfur coals that must meet the 90 percent reduction, we believe that the standard can be upheld on the basis of the coal washing data in the record.
The Electric Utilities' final argument is that the record contains no data on the actual combined use of coal washing and FGD, and that EPA has not demonstrated that the standard is achievable simply by hypothesizing that coal washing and FGD can work together.
We do not believe that, on the facts in this record, such an actual demonstration was necessary. The record is replete with documentation that lower sulfur coal is easier to scrub than higher sulfur coal, and the Electric Utilities have not cited nor have we found any evidence that washed coals create any special problems for scrubbers. The main difference between washed and unwashed coal of the same sulfur content is that the washed coal contains fewer impurities that may be expected to interfere with FGD performance. In fact, the record contains reports analyzing the potential reductions achievable by the combined technologies and evidence that washing can be expected to increase FGD performance.
For all of the foregoing reasons we find that EPA has adequately demonstrated the achievability of the 90 percent standard.
IV. THE STANDARD FOR EMISSION OF PARTICULATE MATTER
Most particulates emitted from electric utility sources come from coal-fired units.
A. Technical Background
1. ESP Control Technology
Since ESP's were introduced to the utility industry in the 1920's, they have become the most widely used means of controlling particulate emissions from coal-fired boilers.
Two other important determinants of ESP effectiveness and cost are the characteristics of the fly ash produced by the burned coal and the temperature of the gas exhaust stream.
2. Baghouse Control Technology
Baghouse control of particulate emissions is an increasingly popular alternative to ESP's among electric utilities, largely because baghouses are not affected by particulate resistivity to electrical charge, and thus are less expensive to operate for power plants burning low sulfur coals with high resistance ash.
In a baghouse system, particulate-laden gas is passed through a fabric filter so that particulates in the gas are retained on the upstream or dirty-gas side of the fabric. In a baghouse system the dirty gases flow into the housing, upward through the bags, and then out of the clean gas outlet.
A baghouse consists of numerous tubular fabric bags (each about one foot in diameter and thirty feet long) arranged in compartments or cells parallel to each other, standing like a stack of porous straws in a box. The flue gas from the boiler is divided so that a small fraction of the gas passes through the individual bags. Large baghouse systems can be designed as one large cell or module or many individual modules. With several modules, one module can be taken out of service for maintenance without affecting the operation of the other modules. If enough modules or isolated components are provided, even the largest pulverized coal-fired steam generators can be kept on line at full load while necessary maintenance is performed.
Two determinants of baghouse performance are the "air-to-cloth" ratio and the "pressure drop."
There is a maximum pressure drop that can be achieved by a given boiler operating at full capacity. If the baghouse is undersized, that is, if the air-to-cloth ratio is too high, then the boiler will not be able to achieve full load. Thus, unlike ESP systems, where undersizing does not affect the capacity of the steam generator, but does
B. The Evolution of the Particulate Standard
In 1975, EPA began to investigate whether the 0.10 lbs./MBtu standard for particulates should be revised because the existing techniques for control of particulate emission appeared to be more effective than when the standard was originally promulgated in 1971.
In January 1977, while EPA was reassessing the capability of ESP control, the agency found that baghouse technology was developing well enough to warrant considering baghouses as an alternative to ESP's for even the largest utilities.
Although finding that either technology could be employed at a reasonable cost to achieve the standard, EPA predicted that utilities would rely on ESP's for high sulfur coal applications and baghouses for low sulfur coal applications because of cost advantages.
C. The Achievability of the Standard
In order for EPA to demonstrate the achievability of the standard for particulate matter it must: (1) identify variable conditions that might contribute to the amount of expected emissions, and (2) establish that the test data relied on by the agency are representative of potential industry-wide performance, given the range of variables that affect the achievability of the standard. National Lime Association v. EPA.
Citing these principles, the Electric Utilities argue that EPA's data base does not show that the particulate matter standard is achievable on a continuous basis, for either ESP or baghouse control. Initially, the Electric Utilities fault EPA's analysis of ESP and baghouse performance because it did not take into account whether the standard is achievable by utilities firing lignite coal, which they contend is a relevant variable. EPA counters that it did consider the achievability of the standard with lignite, and that it concluded that lignite was not a relevant factor because it was no more difficult to control lignite emissions than the emissions from other high resistivity coals. Most of the Electric Utilities' other objections are to the representativeness of the test data for both ESP's and baghouses. They say that the ESP and baghouse test results are incomplete, that the samples are too small and that the data reflect only short term performance while the standard requires long run continuous compliance. In addition, they claim that EPA has failed to reveal its methods of data collection and the conditions present during the tests. Finally, the Electric Utilities contend that the baghouse data are not representative because all of the data available at the time of promulgation of the standard were from small scale baghouse operations whereas the data obtained after promulgation from commercial size installations actually refute EPA's conclusions. These contentions require that we evaluate EPA's data in greater detail. As discussed below we uphold the particulate standard despite concern about EPA's ESP data because we find that the agency's baghouse data alone establish the achievability of the standard.
1. EPA's ESP Data
EPA satisfied its burden under the first prong of the National Lime test by describing the variable conditions that could be expected to affect ESP performance (e. g., coal ash characteristics, ESP size, gas volume and flow, maintenance practices, etc.).
The ESP test results are listed in a table in the Background Information Document for the Proposed Standard which is shown as Figure 22 in the appendix to this opinion.
The table in which EPA's ESP data is compiled lists complete data for only twelve of the twenty-one units.
In another table, shown as Figure 23 in the appendix to this opinion, EPA lists a
We note that EPA's data are inadequate in other respects. First, the background document which contains the data reveals very little information about the duration of the tests and the conditions under which they were taken. We have been able to find some partial references in the joint appendix which disclose some of this information.
The Electric Utilities have also argued that the record does not reveal EPA's method of data collection. We believe, however, that throughout the rulemaking process EPA has given notice of the established test methods relied on; thus, the data base is not objectionable on this basis.
Our concerns with the lack of documentation for EPA's data base are somewhat allayed by independent evidence on the record which tends to support the reasonableness of the agency's conclusions about ESP performance. High efficiency particulate removal has been practiced for decades on high and medium sulfur coal.
2. EPA's Baghouse Data
We can uphold the 0.03 lbs./MBtu standard for particulates because we are satisfied that there is substantial evidence on the record supporting the achievability of the standard by baghouse technology. The preamble to the final rule refers to this evidence, which includes extensive tests of small scale installations, limited data from one full scale commercial sized operation, in addition to industry practices that indicate that baghouse control technology is a viable method of complying with the standard.
EPA identified, in accordance with National Lime, the variable conditions that affect baghouse performance (e. g., baghouse size, pressure drop, cleaning, maintenance, etc.).
Complete data are listed for all four of the units tested by EPA methods.
All of the small scale units were less than 44 MW. Before announcing the final standard EPA was able to obtain test data from one new unit with 350 MW capacity.
In addition to the operating experience from eight small scale facilities and one large scale facility, EPA noted that the trend in the utility industry reflected considerable confidence in full scale baghouse technology:
The Electric Utilities vigorously argue that EPA's data are not representative of the performance at full scale electric power plants and say that there are technological barriers to scaling baghouses up to commercial size facilities.
The Electric Utilities also object that the agency's baghouse data are unrepresentative because only two of the eight small scale units were utility boilers
The Electric Utilities also rely on post-promulgation data acquired from two full
The Electric Utilities also maintained that the high pressure drop encountered at Harrington and Monticello would increase operating costs. EPA responds first that the Harrington plant is undersize, and that both plants experienced difficulties due to poor bag design and fabric selection.
In sum, EPA has sufficiently established that the standard for particulate emission is achievable by baghouse control by accounting for relevant variables and by demonstrating the representativeness of its data.
V. THE 1.2 LBS./MBTU EMISSION CEILING
EPA proposed and ultimately adopted a 1.2 lbs./MBtu ceiling for total sulfur dioxide emissions which is applicable regardless of the percentage of sulfur dioxide reduction attained.
A. EPA's Rationale for the Emission Ceiling
EPA explained in the preamble to the proposed rule that two primary factors were considered in selecting the 1.2 lbs./MBtu ceiling: FGD performance, and the impact of the ceiling on high sulfur coal reserves.
Following the September 1978 proposal the joint interagency working group investigated options lower than the 1.2 lbs./MBtu ceiling, according to EPA, in order "to take full advantage of the cost effectiveness benefits of a joint coal washing/scrubbing strategy on high-sulfur coal."
As a result of concerns expressed on the record by NCA and others about the impacts of more rigorous emission ceilings, EPA called a meeting of principal participants in the rulemaking for April 5, 1979. At the meeting EPA presented its new analysis which showed that a 0.55 lbs./MBtu limit would require more than 90 percent scrubbing on 5 to 10 percent of Northern Appalachian reserves and 12 to 25 percent of Eastern Midwest reserves. A 0.80 ceiling would require more than 90 percent scrubbing on less than 5 percent of the reserves in each of these regions.
After the April 5 meeting EPA also "concluded that the actual buying practices of utilities rather than the mere technical usability of coals should be considered."
B. EDF's Procedural Attack
EDF alleges that as a result of an "ex parte blitz" by coal industry advocates conducted after the close of the comment period, EPA backed away from adopting the .55 lbs./MBtu limit, and instead adopted the higher 1.2 lbs./MBtu restriction. EDF asserts that even before the comment period had ended EPA had already narrowed its focus to include only options which provided for the .55 lbs./MBtu ceiling.
In order for this court to assess these claims, we must identify the particular actions and incidents which gave rise to EDF's complaints.
1. Late Comments
The comment period for the NSPS began on September 19, 1978, and closed on January 15, 1979.
EDF objects to nine different meetings.
1. March 14, 1979 — This was a one and a half hour briefing at the White House for high-level officials from the Department of Energy (DOE), the Council of Economic Advisers (CEA), the White House staff, the Department of Interior, the Council on Environmental Quality (CEQ), the Office of Management and Budget (OMB), and the National Park Service.
2. April 5, 1979 — This is the meeting discussed at length above.
3. April 23, 1979 — This was a 30-45 minute meeting held at then Senate Majority Leader Robert Byrd's request, in his office, attended by EPA Administrator Douglas Costle, Chief Presidential Assistant Stuart Eizenstat, and NCA officials.
4. April 27, 1979 — This was a briefing on dry scrubbing technology conducted by EPA for representatives of the Office of Science and Technology Policy, the Council on Wage and Price Stability, DOE, the President's domestic policy staff, OMB, and various offices within EPA.
5. April 30, 1979 — At 10:00 a. m., a one hour White House briefing was held for the President, the White House staff, and high ranking members of the Executive Branch "concerning the issues and options presented by the rulemaking."
6. April 30, 1979 — At 2:30 p. m., a technical briefing on dry scrubbing technology at the White House was conducted by EPA for the White House staff. A short memorandum
7. May 1, 1979 — Another White House briefing was held on the subject of FGD technology.
8. May 1, 1979 — EPA conducted a one hour briefing of staff members of the Senate Committee on Environmental and Public Works concerning EPA's analysis of the effect of alternative emission ceilings on coal reserves. The briefing was "substantially the same as the briefing given to Senator Byrd on May 2, 1980."
9. May 2, 1979 — This was a brief meeting between Senator Byrd, EPA, DOE and NCA officials held ostensibly for Senator Byrd to hear EPA's comments on the NCA data.
On June 16, 1980, responding to motions filed by EDF,
EDF believes that the communications just outlined, when taken as a whole, were so extensive and had such a serious impact on the NSPS rulemaking, that they violated EDF's rights to due process in the proceeding, and that these "ex parte" contacts were procedural errors of such magnitude that this court must reverse. EDF does not specify which particular features in each of the above-enumerated communications violated due process or constituted errors under the statute; indeed, EDF nowhere lists the communications in a form designed to clarify why any particular communication was unlawful. Instead, EDF labels all post-comment communications with EPA — from whatever source and in whatever form — as "ex parte," and claims that "this court has repeatedly stated that ex parte contacts of substance violate due process."
At the outset, we decline to begin our task of reviewing EPA's procedures by labeling all post-comment communications with the agency as "ex parte." Such an approach essentially begs the question whether these particular communications in an informal rulemaking proceeding were unlawful.
C. Standard for Judicial Review of EPA Procedures
This court's scope of review is delimited by the special procedural provisions of the Clean Air Act,
Our authority to reverse informal administrative rulemaking for procedural reasons is also informed by Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.
Bearing this caveat in mind, we now set out the procedural requirements which Congress mandated for this rulemaking. Since EDF does not question — nor do we doubt — the constitutional sufficiency of the procedures mandated by the Clean Air Act, we shall reverse only (1) if the statutory requirements, or the procedures reasonably inferable from them or from basic notions of constitutional due process,
D. Statutory Provisions Concerning Procedure
The procedural provisions of the Clean Air Act specifying the creation and content of the administrative rulemaking record are contained in section 307.
Pedersen distinguished his "procedural record" idea from what he called a "historical record" approach, in which a reviewing court requires the rulemaking agency to provide it with a post hoc assemblage of materials consisting of the data actually considered (as a matter of "historical" fact) by the agency decisionmaker, regardless of the procedures, if any, which governed the materials' inclusion in any formal record. Pedersen criticized the "historical record" approach
Following Pedersen's recommendations, the 1977 Amendments required the agency to establish a "rulemaking docket" for each proposed rule which would form the basis of the record for judicial review.
In contrast to other recent statutes,
The only other provision treating post-comment period procedures states that
In this case EPA refused to convene a reconsideration proceeding, stating
Of course, if this assessment by EPA of EDF's petition for reconsideration were wrong, it would constitute reversible error. But since this court can reverse an agency on procedural grounds only if it finds a failure to observe procedures "required by law,"
E. Validity of EPA's Procedures During the Post-Comment Period
The post-comment period communications about which EDF complains vary widely in their content and mode; some are written documents or letters, others are oral conversations and briefings, while still others are meetings where alleged political arm-twisting took place. For analytical purposes we have grouped the communications into categories and shall discuss each of them separately. As a general matter, however, we note at the outset that nothing in the statute prohibits EPA from admitting all post-comment communications into the record; nothing expressly requires it,
1. Written Comments Submitted During Post-Comment Period
Although no express authority to admit post-comment documents exists, the statute does provide that:
This provision, in contrast to others in the same subparagraph, is not limited to the comment period. Apparently it allows EPA not only to put documents into the record after the comment period is over,
Such a reading of the statute accords well with the realities of Washington administrative policymaking, where rumors, leaks, and overreactions by concerned groups abound, particularly as the time for promulgation draws near. In a proceeding such as this, one of vital concern to so many interests — industry, environmental groups, as well as Congress and the Administration — it would be unrealistic to think there would not naturally be attempts on all sides to stay in contact with EPA right up to the moment the final rule is promulgated.
EPA of course could have extended, or reopened, the comment period after January 15 in order formally to accommodate the flood of new documents; it has done so in other cases.
If, however, documents of central importance upon which EPA intended to rely had been entered on the docket too late for any meaningful public comment prior to promulgation, then both the structure and spirit of section 307 would have been violated. The Congressional drafters, after all, intended to provide "thorough and careful procedural safeguards ... [to] insure an effective opportunity for public participation in the rulemaking process."
The case before us, however, does not present an instance where documents vital to EPA's support for its rule were submitted so late as to preclude any effective public comment. The vast majority of the written comments referred to earlier at text accompanying nn.425-27, supra, were submitted in ample time to afford an opportunity for response. Regarding those documents submitted closer to the promulgation date, our review does not reveal that they played any significant role in the agency's support for the rule.
EDF makes only one particularized allegation concerning its inability to respond adequately to documents submitted during the post-comment period. It argues that at the April 5 meeting called by EPA, representatives of NCA produced new data
We therefore conclude that it was not improper in this case for EPA to docket and consider the post-comment documents submitted to it. Nor was it improper for EPA to decline to reopen the formal comment period and delay promulgation, since there was no proof that evidence crucial to the rule's validity was entered too late for any effective public comment.
2. Meetings Held With Individuals Outside EPA
The statute does not explicitly treat the issue of post-comment period meetings with individuals outside EPA. Oral face-to-face discussions are not prohibited anywhere, anytime, in the Act. The absence of such prohibition may have arisen from the nature of the informal rulemaking procedures Congress had in mind. Where agency action resembles judicial action, where it involves formal rulemaking, adjudication, or quasi-adjudication among "conflicting private claims to a valuable privilege,"
Under our system of government,
Regardless of this court's views on the need to restrict all post-comment contacts in the informal rulemaking context, however, it is clear to us that Congress has decided not to do so in the statute which controls this case. As we have previously noted:
Lacking a statutory basis for its position, EDF would have us extend our decision in Home Box Office, Inc. v. FCC
It still can be argued, however, that if oral communications
EDF is understandably wary of a rule which permits the agency to decide for itself when oral communications are of such
Turning to the particular oral communications in this case, we find that only two of the nine contested meetings were undocketed by EPA.
The other undocketed meeting occurred at the White House and involved the President and his White House staff. Because this meeting involves considerations unique to intra-executive meetings, it is discussed in the section immediately infra.
(a) Intra-Executive Branch Meetings
We have already held that a blanket prohibition against meetings during the post-comment period with individuals outside EPA is unwarranted, and this perforce applies to meetings with White House officials. We have not yet addressed, however, the issue whether such oral communications with White House staff, or the President himself, must be docketed on the rulemaking record, and we now turn to that issue. The facts, as noted earlier, present us with a single undocketed meeting held on April 30, 1979, at 10:00 a. m., attended by the President, White House staff, other high ranking members of the Executive Branch, as well as EPA officials, and which concerned the issues and options presented by the rulemaking.
We note initially that section 307 makes specific provision for including in the rulemaking docket the "written comments" of other executive agencies along with accompanying documents on any proposed draft rules circulated in advance of the rulemaking proceeding. Drafts of the final rule submitted to an executive review process prior to promulgation, as well as all "written comments," "documents," and "written responses" resulting from such interagency review process, are also to be put in the docket prior to promulgation.
The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered. The executive power under our Constitution, after all, is not shared — it rests exclusively with the President. The idea of a "plural executive," or a President with a council of state, was considered and rejected by the Constitutional Convention.
The authority of the President to control and supervise executive policymaking is derived from the Constitution;
We recognize, however, that there may be instances where the docketing of conversations between the President or his staff and other Executive Branch officers or rulemakers may be necessary to ensure due process. This may be true, for
The purposes of full-record review which underlie the need for disclosing ex parte conversations in some settings do not require that courts know the details of every White House contact, including a Presidential one, in this informal rulemaking setting. After all, any rule issued here with or without White House assistance must have the requisite factual support in the rulemaking record, and under this particular statute the Administrator may not base the rule in whole or in part on any "information or data"
(b) Meetings Involving Alleged Congressional Pressure
Finally, EDF challenges the rulemaking on the basis of alleged Congressional pressure, citing principally two meetings with Senator Byrd.
In D. C. Federation the Secretary of Transportation, pursuant to applicable federal statutes, made certain safety and environmental findings in designating a proposed bridge as part of the interstate highway system. Civic associations sought to have these determinations set aside for their failure to meet certain statutory standards, and because of possible tainting by
D. C. Federation thus requires that two conditions be met before an administrative rulemaking may be overturned simply on the grounds of Congressional pressure. First, the content of the pressure upon the Secretary is designed to force him to decide upon factors not made relevant by Congress in the applicable statute. Representative Natcher's threats were of precisely that character, since deciding to approve the bridge in order to free the "hostage" mass transit appropriation was not among the decisionmaking factors Congress had in mind when it enacted the highway approval provisions of Title 23 of the United States Code. Second, the Secretary's determination must be affected by those extraneous considerations.
In the case before us, there is no persuasive evidence that either criterion is satisfied. Senator Byrd requested a meeting in order to express "strongly" his already well-known views that the SO
* * * * * *
In sum, we conclude that EPA's adoption of the 1.2 lbs./MBtu emissions ceiling was free from procedural error. The post-comment period contacts here violated neither the statute nor the integrity of the proceeding. We also hold that it was not improper for the agency to docket and consider documents submitted to it during the post-comment period, since no document vital to EPA's support for the rule was submitted so late as to preclude any effective public comment. Hence we find no reason under section 307 to overturn the 1.2 lbs./MBtu standard. The field of course is open for Congress or the agency to formulate further procedural rules in this area.
Since the issues in this proceeding were joined in 1973 when the Navajo Indians first complained about sulfur dioxide fumes over their Southwest homes, we have had several lawsuits, almost four years of substantive and procedural maneuvering before the EPA, and now this extended court challenge. In the interim, Congress has amended the Clean Air Act once and may be ready to do so again. The standard we uphold has already been in effect for almost two years, and could be revised within another two years.
We reach our decision after interminable record searching (and considerable soul searching). We have read the record with as hard a look as mortal judges can probably give its thousands of pages.
Cases like this highlight the critical responsibilities Congress has entrusted to the courts in proceedings of such length, complexity and disorder. Conflicting interests play fiercely for enormous stakes, advocates are prolific and agile, obfuscation runs high, common sense correspondingly low, the public interest is often obscured.
We cannot redo the agency's job; Congress has told us, at least in proceedings under this Act, that it will not brook reversal for small procedural errors; Vermont Yankee reinforces the admonition. So in the end we can only make our best effort to understand, to see if the result makes sense, and to assure that nothing unlawful or irrational has taken place. In this case, we have taken a long while to come to a short conclusion: the rule is reasonable.
ROBB, Circuit Judge, concurs in the result.
Figure Description ------ ----------- 1 Typical Wet Scrubber 2 Typical Dry Scrubber 3 Typical Dry Scrubber 4 EPA Phase Three Modeling Analysis, Table 1 5 EPA Phase Three Modeling Analysis, Table 2 6 EPA Phase Three Modeling Analysis, Table 3 7 EPA Phase Three Modeling Analysis, Table 4 8 EPA Phase Three Modeling Analysis, Table 5 9 EPA Reconsideration Analysis, Table 1 10 EPA Reconsideration Analysis, Table 2 11 EPA Reconsideration Analysis, Table 3 12 EPA Economic Analysis of Dry Scrubbing 13 EPA Economic Analysis of Dry Scrubbing 14 EPA Economic Analysis of Dry Scrubbing 15 EPA Economic Analysis of Dry Scrubbing 16 EPA Economic Analysis of Dry Scrubbing 17 EPA Economic Analysis of Dry Scrubbing 18 EPA Economic Analysis of Dry Scrubbing 19 Typical ESP 20 Typical Baghouse (2 Cell) 21 Typical Baghouse (Multicell) 22 EPA's ESP Data 23 EPA's ESP Data for Difficult Cases 24 EPA's Baghouse Data
FIGURE 4Table 1. — Key Modeling Assumptions ------------------------------------------------------------------------------ Assumption ------------------------------------------------------------------------------ Growth rates ........................1975-1985; 4.8%/yr. 1985-1995: 4.0% Nuclear capacity ....................1985: 97 GW. 1990: 165. 1995: 228. Oil prices ($ 1975) .................1985: $12.90/bbl. 1990: $16.40. 1995: $21.00. Coal transportation .................1% per year real increase. Coal mining labor costs .............U.M.W. settlement and 1% real increase thereafter. Capital charge rate .................12.5% for pollution control expenditures. Coal reporting basis ................1978 dollars. FGD costs ...........................No change from phase 2 analysis except for the addition of dry scrubbing systems for certain applications. Coal cleaning credit ................5%-35% SO 2reduction assumed for high sulfur bituminous coals only. Bottom ash and fly ash content ......No credit assumed. ------------------------------------------------------------------------------ 44 Fed. Reg. at 33608
FIGURE 5Table 2. — National 1995 SO 2Emissions From Utility Boilers a[Million tons] -------------------------------------------------------------------------------- Level of control b----------------------------------------------------- 1975 Current Full control Partial Variable Plant category actual standards control control 33% 70% minimum minimum --------------------------------------------------------------------------------- Wet dDry eWet Dry Wet Dry Wet Dry SIP/NSPS Plants c............ 15.5 15.8 16.0 16.2 15.9 16.2 16.0 16.1 New Plants f................. 7.1 7.0 3.1 3.1 3.6 3.4 3.3 3.1 Oil Plants .................. 1.0 1.0 1.4 1.4 1.3 1.2 1.3 1.2 ------------------------------------------------------ Total National Emissions .......... 18.6 23.7 23.8 20.6 20.7 20.8 20.9 20.6 20.5 ----------------------------------------------------- Total Coal Capacity (GW) ...... 205 552 554 521 520 534 537 533 537 Sludge generated (million tons dry) ................. 23 27 55 58 43 39 50 41 --------------------------------------------------------------------------------- aResults of joint EPA/DOE analyses completed in May 1979 based on oil prices of $12.90, $16.40, and $21.00/bbl in the years 1985, 1990, and 1995, respectively. bWith 520 ng/J maximum emission limit. cPlants subject to existing State regulations or the current NSPS of 1.2 lb SO 2/million BTU. dBased on wet SO 2scrubbing costs. eBased on dry SO 2scrubbing costs where applicable. fPlants subject to the revised standards. 44 Fed. Reg. at 33608.
FIGURE 6Table 3. — Regional 1995 SO 2Emissions From Utility Boilers a[Million tons] -------------------------------------------------------------------------------- Level of control b----------------------------------------------------- 1975 Current Full control Partial Variable actual standards control control 33% 70% minimum minimum -------------------------------------------------------------------------------- Wet cDry dWet Dry Wet Dry Wet Dry Total National Emissions .......... 18.6 23.7 23.8 20.6 20.7 20.8 20.9 20.6 20.5 ----------------------------------------------------- Regional Emissions: East e..................... 11.2 11.2 10.1 10.1 9.8 9.8 9.8 9.7 Midwest f.................. 8.1 8.3 7.9 7.9 7.9 8.0 7.9 8.0 West South Central g....... 2.6 2.6 1.7 1.7 1.8 1.8 1.8 1.7 West h..................... 1.7 1.7 0.9 0.9 1.2 1.2 1.1 1.1 ----------------------------------------------------- Total Coal Capacity (GW) ...... 205 552 554 521 520 534 537 533 537 --------------------------------------------------------------------------------- aResults of joint EPA/DOE analyses completed in May 1979 based on oil prices of $12.90, $16.40, and $21.00/bbl in the years 1985, 1990, and 1995, respectively. bWith 520 ng/J maximum emission limit. cBased on wet SO 2scrubbing costs. dBased on dry SO 2scrubbing costs where applicable. eNew England, Middle Atlantic, South Atlantic, and East South Central Census Regions. fEast North Central and West North Central Census Region. gWest South Central Census Region. hMountain and Pacific Census Regions. 44 Fed. Reg. at 33608.
FIGURE 7Table 4. — Impacts on Fuels in 1995 a------------------------------------------------------------------------------------------------------------- Level of control b------------------------------------------------------------------------- 1975 Current standards Full control Partial control Variable control actual 33% minimum 70% minimum ------------------------------------------------------------------------------------------------------------- Wet cDry dWet Dry Wet Dry Wet Dry U.S. Coal Production (million tons): Appalachia .................... 396 489 524 463 465 475 486 470 484 Midwest ....................... 151 404 391 487 488 456 452 465 450 Northern Great Plains ......... 54 655 630 633 628 622 576 632 602 West .......................... 46 230 222 182 180 212 228 203 217 --------------------------------------------------------------------------- Total ........................ 647 1,778 1,767 1,765 1,761 1,765 1,742 1,770 1,752 Western Coal Shipped East (million tons) .................. 21 122 99 59 55 68 59 71 70 Oil Consumption by Power Plants (million bbl/day): Power Plants .................. ... 1.2 1.2 1.6 1.6 1.4 1.4 1.4 1.4 Coal Transportation ........... ... 0.2 0.2 0.2 0.2 0.2 0.2 0.2 0.2 --------------------------------------------------------------------------- Total ....................... 3.1 1.4 1.4 1.8 1.8 1.6 1.6 1.6 1.6 ------------------------------------------------------------------------------------------------------------- aResults of EPA analyses completed in May 1979 based on oil prices of $12.90, $16.40, and $21.00/bbl in the years 1985, 1990, and 1995, respectively. bWith 520 ng/J maximum emission limit. cBased on wet SO 2scrubbing costs. dBased on dry SO 2scrubbing where applicable. 44 Fed. Reg. at 33609. FIGURE 8Table 5. — 1995 Economic Impacts a[1978 dollars] ------------------------------------------------------------------------------------------------------------- Level of control b-------------------------------------------------------------------- Current standards Full control Partial control Variable control 33% minimum 70% minimum ------------------------------------------------------------------------------------------------------------- Wet cDry dWet Dry Wet Dry Wet Dry Average Monthly Residential Bills ($/ month) .................................. $53.00 $52.85 $54.50 $54.45 $54.15 $53.95 $54.30 $54.05 Indirect Consumer Impacts ($/month) ....... ...... ...... 1.50 1.60 1.15 1.10 1.30 1.20 Incremental Utility Capital Expenditures, Cumulative 1976-1995 ($ billions) ....... ...... ...... 4 5 6 - 3 10 - 1 Incremental Annualized Cost ($ billions) .. ...... ...... 4.1 4.4 3.2 3.0 3.6 3.3 Present Value of Incremental Utility Revenue Requirements ($ billions) ....... ...... ...... 41 45 32 31 37 33 Incremental Cost of SO 2Reduction ($/ton) . ...... ...... 1,322 1,428 1,094 1,012 1,163 1,036 ------------------------------------------------------------------------------------------------------------- aResults of EPA analyses completed in May 1979 based on oil prices of $12.90, $16.40, and $21.00/bbl in the years 1985, 1990, and 1995, respectively. bWith 520 ng/J maximum emission limit. cBased on wet SO 2scrubbing costs. dBased on dry SO 2scrubbing costs where applicable. 44 Fed. Reg. at 33609.
FIGURE 9Table 1. — Summary of 1995 Impacts With Phase 3 Assumptions 1------------------------------------------------------------------------------- Level of control with 520 ng/J maximum emission limit --------------------------------------- Variable Variable control, control, Current 50 pct 70 pct Full standards minimum minimum control ------------------------------------------------------------------------------- National SO 2Emissions (million tons) .. 23.8 20.6 20.5 20.7 East 2.............................. 11.2 9.7 9.7 10.1 Midwest ............................ 8.3 8.0 8.0 7.9 West South Central ................. 2.6 1.8 1.7 1.7 West ............................... 1.7 1.1 1.1 0.9 Incremental Annualized Cost (billions 1978 $) .................... 2.9 3.3 4.4 Incremental Cost of SO 2Reduction (1978 $/ton) .............. .......... 914 1,036 1,428 Oil Consumption (million bbl/day) ...... 1.4 1.6 1.6 1.8 Coal Production (million tons) ......... 1,767 1,745 1,752 1,751 Total Coal Capacity (GW) ............... 554 537 537 520 ------------------------------------------------------------------------------- 1With wet and dry scrubbing and the following energy assumptions: -------------------------------------- Oil prices Nuclear ($ 1975) Capacity (GW) -------------------------------------- Year: 1985 .... $12.90 97 1990 .... 16.40 165 1995 .... 21.00 228 -------------------------------------- 2See 44 FR 33608 for designation of census regions. Assumed Oil Prices [Dollars per Barrel] ------------------------------------------------------------------------------- Sensitivity Phase 3 Analysis ------------------------------------------------------------------------------- 1985 ........ 25 16 1990 ........ 30 20 1995 ........ 38 26 ------------------------------------------------------------------------------- 45 Fed. Reg. at 8218.
FIGURE 10Table 2. — Summary of 1995 Impacts With Higher Oil Prices 1------------------------------------------------------------------------------- Level of control with 520 ng/J maximum emission limit --------------------------------------- Current Variable Variable Full standards control, control, control 50 pct 70 pct minimum minimum ------------------------------------------------------------------------------- National SO 2Emissions (million tons) .. 23.2 19.6 19.6 19.7 East 2............................. 10.9 9.1 9.1 9.5 Midwest ............................ 8.2 7.9 7.8 7.8 West South Central ................. 2.6 1.7 1.6 1.5 West ............................... 1.6 1.1 1.0 0.9 Incremental Annualized Cost (billions 1978 $) .................... ..... 3.3 3.6 5.0 Incremental Cost of SO 2Reduction (1978 $/ton) ......................... ..... 967 977 1,049 Oil Consumption (million bbl/day) ...... 0.9 0.9 0.9 0.9 Coal Production (million tons) ......... 1,800 1,797 1,802 1,632 Total Coal Capacity (GW) ............... 588 587 587 587 ------------------------------------------------------------------------------- 1With wet and dry scrubbing and the following energy assumptions: -------------------------------------- Oil prices Nuclear ($ 1975) Capacity (GW) -------------------------------------- Year: 1985 .... $20.20 97 1990 .... 24.20 165 1995 .... 30.70 228 -------------------------------------- 2See 44 FR 33608 for designation of census regions. 45 Fed. Reg. at 8219.
FIGURE 11Table 3. — Summary of 1995 Impacts With Higher Oil Prices and Less Nuclear Growth 1------------------------------------------------------------------------------- Level of control with 520 ng/J maximum emission limit --------------------------------------- Current Variable Variable Full standards control, control, control 50 pct 70 pct minimum minimum ------------------------------------------------------------------------------- National SO 2Emissions (million tons) .. 25.0 20.9 20.6 20.5 East 2............................... 12.0 9.8 9.7 10.1 Midwest ................................ 8.6 8.2 8.1 8.0 West South Central ..................... 8.6 1.6 1.7 1.6 West ................................... 1.7 1.2 1.1 0.9 Incremental Annualized Cost (billions 1978 $) .................... ..... 3.8 4.1 5.9 Incremental Cost of SO 2Reduction (1978 $/ton) ......................... ..... 883 914 1,259 Oil Consumption (million bbl/day) ...... 0.9 0.9 0.9 0.9 Coal Production (million tons) ......... 1,940 1,943 1,948 1,964 Total Coal Capacity (GW) ............... 644 644 644 643 ------------------------------------------------------------------------------- 1With wet and dry scrubbing and the following energy assumptions: -------------------------------------- Oil prices Nuclear ($ 1975) Capacity (GW) -------------------------------------- Year: 1985 .... $20.20 92 1990 .... 24.20 141 1995 .... 30.70 173 -------------------------------------- 2See 44 FR 33608 to designation of census regions.
Assumed Nuclear Capacity -------------------------------------------- Sensitivity Phase 3 analysis -------------------------------------------- 1985 ........ 92 GW 97 GW 1990 ........ 141 GW 165 GW 1995 ........ 173 GW 228 GW -------------------------------------------- 45 Fed. Reg. at 8219.
FIGURE 13Table 3-7 — Economics of Dry SO 2Control Coal Sulfur Content #SO 2/MM BTU 1.68 2.3 4.0 ----------------------------------------------------------- Total Capital 30.30 30.30 30.30 Investment $ KW O&M Costs Lime 2,678,000 3,666,000 6,376,000 Labor 454,000 454,000 454,000 Replacements 500,000 500,000 500,000 Power Costs 213,000 213,000 213,000 Disposal 525,000 718,000 1,250,000 ----------------------------------------------------------- TOTAL 4,370,000 5,551,000 8,793,000 O&M Mills/KWH 1.5 1.9 3.1 Based Upon 500 MWe Plant, 70% Removal 65% Load Factor $40/Ton of Lime $5/Ton Waste Disposal Cost Non-Alkaline Ash (1977 Dollars) Ad. Doc. No. V-B-1, supra note 75, at 3-67, J.A. at 2671. FIGURE 14Table 3-8 — Representative Coals Used in EPA's Economic Model ------------------------------------------------------------------------------------ Pounds of SO 2/ Coal Sulfur Designation Million BTU Content, % Coal Rank ------------------------------------------------------------------------------------ A 0.8 0.4 Subbituminous B 1.2 0.6 Subbituminous D 1.7 0.68-0.8 Subbituminous, bituminous lignite F 3.3 1.32-1.65 Subbituminous, bituminous lignite G 5.0 2.5 Bituminous H greater than 5.0 greater than 2.5 Bituminous ------------------------------------------------------------------------------------ Ad. Doc. No. V-B-1, supra note 75, at 3-69, J.A. at 2673.
FIGURE 22Table 4-2 — Summary of Data on Pulverized Coal-Fired Steam Generator High Efficiency Electrostatic Precipitator Systems --------------------------------------------------------------------------------------------------------- Specific Collection Area (SCA) Unit & Reference Square Metres Per Actual Cubic Control Effectiveness Identification Unit Size ESP Type Metres per Second Nanograms per Joule Number Megawatts (% Sulfur) (Ft 2/1000 ACFM) (lb/10 6Btu) --------------------------------------------------------------------------------------------------------- 1 9500 Cold (0.6) 96.1 18-20 a(488) (0.042-0.046) 2 10800 Hot (0.5) 60.4 12-18 a(307) (0.027-0.043) 3 10800 Hot (0.5) 60.4 14.16 a(307) (0.033-0.038) 4 11570 Cold (1.9) 57.3-59.1 14-17 (291-300) (0.032-0.040) 5 12570 Cold (1.9) 52.8-54.3 10-18 (268-276) (0.024-0.043) 6 13500 Cold (0.5) 174 3.0-8.6 a(884) (0.007-0.020) 7 14657 NG (1.1) NG 16-17 a(0.037-0.039) 8 1546 NG (1.4) NG 9.0-15 a(0.021-0.034) 9 1546 NG (1.4) NG 6.4-14 a(0.015-0.033) 10 161300 Cold (0.9) 65.9 17-20 (335) (0.040-0.046) 11 1769 Hot (1.4) NG 8.2-15 a(0.019-0.036)
12 18250 Cold (0.7) 158 19-20 (803) (0.044-0.047) 13 18250 Cold (0.7) 158 20-21 (803) (0.046-0.050) 14 19190 Hot (1.4) 53.0 4.3-5.6 a(269) (.010-.013) 15 20350 Hot (0.4) NG 18.9 a,b(0.044) 16 21700 Hot (1.4) 53.7 15-17 a,b(273) (.034-.039) 17 22141 NG (0.8) NG 11-13 a(.026-.030) 18 22187 NG (0.8) NG 6.0-7.3 a(0.014-.017) 19 23411 NG (1.1) NG 5.6-10 a(.013-.024) 20 2474 NG (1.4) NG 10.13 a(.024-.031) 21 25680 Cold (0.5) 151.0 12-17 a,b(767) (0.027-0.040) --------------------------------------------------------------------------------------------------------- aEPA Method 5 bEPA Sponsored Test NG = Data not given Ad. Doc. No. III-B-1, supra note 311, at 4-34, J.A. at 1394. FIGURE 23Table 4-3 — Summary of Data on Difficult Electrostatic Precipitator Control Cases for Pulverized Coal-Fired Steam Generators --------------------------------------------------------------------------------------------------------- Specific Collection Area (SCA) Average Unit & Reference Square Metres Per Actual Cubic Control Effectiveness Identification Unit Size ESP Type Metres per Second Nanograms per Joule Number Megawatts (% Sulfur) (Ft 2/1000 ACFM) (lb/10 6Btu) --------------------------------------------------------------------------------------------------------- 2 10800 Hot (0.5) 60.4 13.7 a(307) (0.032) 3 10800 Hot (0.5) 60.4 15.5 a(307) (0.036) 22 26330 Hot (0.9) 57.5 17.2 a(292) (0.040) 12 18250 Cold (0.7) 158 19.8 (803) (0.046) 13 18250 Cold (0.7) 158 20.6 (803) (0.048) 6 13500 Cold (0.5) 174 4.0 a(884) (0.0094) 21 25680 Cold (0.5) 151 13.6 (767) (0.032) --------------------------------------------------------------------------------------------------------- a= EPA Method 5 b= EPA Sponsored Test Ad. Doc. No. III-B-1, supra note 311, at 4-38, J.A. at 1398.
FIGURE 24Table 4-5 — Summary of Data on Baghouses Applied to Coal-Fired Steam Generator Combustion Gases ------------------------------------------------------------------------------------------------------------------------- Air to Cloth Ratio Coal Sulfur Actual Cubic Metres Effectiveness Source Content and Type Per Minute per Pressure Drop Nanograms Identification Source Source Size Type Cleaning Square Metre Kilopascals per Joule Number Type Megawatts Filtration Method (ACFM/Ft 2) (inches H 2O) (lb/10 6Btu) ------------------------------------------------------------------------------------------------------------------------- 1 27S (2.0) 10 *Outside-in Reverse air 0.61-0.76 0.52-0.70 4.7 a,b(2.0-2.5) (2.1-2.8) (0.011) 1 27S (2.0) 10 *Outside-in Pulse jet 0.76-0.91 0.55-1.1 9.9 a,b(2.5-3.0) (2.2-4.3) (0.023) 2 28PC (2.0) 44 **Inside-out Reverse air 0.58 0.62 1.2-43 a,b(1.9) (2.5) (0.0028-0.0100) 3 29S (0.7) 13 **Inside-out Shaking and 0.85 1.25 0.60-7.7 a,breverse air (2.8) (5.0) (0.0014-0.0180) 4 30S 18 *NG NG NG NG 11.2 c(0.026) 5 30S 12.5 *NG NG NG NG 3.9 c(0.0.009) 6 30S 24 *NG NG NG NG 18 c(0.042) 7 30S 6.4 *NG NG NG NG 6.4 c(0.015) 8 31PC (0.5) 25 *Inside-out Reverse air 0.69 2-2.5 15.5 a,b(2.26) (8-10) (0.036) ------------------------------------------------------------------------------------------------------------------------- NG = Data not given S = Stoker PC = Pulverized Coal *= Industrial Boiler a= EPA Method 5 b= EPA Sponsored Test c= Non-EPA or No Data **= Utility Boiler Ad. Doc. No. III-B-1, supra note 311, at 4-41, J.A. at 1401.
The NSPS apply to units capable of firing greater than 250 MBtu per hour. (A boiler capable of burning 250 MBtu per hour can consume approximately ten tons of coal per hour, or about one railroad car of coal (70 tons) every seven hours.) A typical 500 megawatt (MW) power plant can burn about 5000 MBtu per hour. At full capacity it would consume 200 tons of coal per hour or one railroad car every twenty minutes. Brief for Respondent EPA at 8 n.6.
"lbs./MBtu" is a ratio of the weight of emissions to the heat content of the fuel. (Different coals have different heat content.) At 1.2 pounds per MBtu, a boiler with 250 MBtu capacity would emit 300 pounds of sulfur dioxide per hour. The consumption of a ton of coal, at 25 MBtu's a ton heat content, would emit 30 pounds of sulfur dioxide to the atmosphere. Brief for Respondent EPA at 8 n.7.
See generally Report of the National Commission on Air Quality, To Breathe Clean Air (1981); Del Duca, The Clean Air Act: A Realistic Assessment of Cost Effectiveness, 5 Harv.Env.L.Rev. 184 (1981); Harrison & Portney, Making Ready for the Clean Air Act, Regulation, March/April 1981, 24-31; Smith, The Fight Over Clean Air Begins, SCIENCE, March 20, 1981, 1328-30.
In 1976 coal-fired steam turbine generators made up 38 percent of the total generating capacity installed in the United States, far more than any other type of generators. Approximately 46.3 percent of the total net production of electrical energy in the United States in 1976 was derived from coal. Id. at 5-2 to 5-3, J.A. at 1940-41. By 1979 coal burning power plants contributed 48 percent of all electrical power produced in the United States. Ackerman & Hassler, supra note 8, at 1468 (citing 2 U.S. Energy Information Admin., Ann.Rep. to Congress 135 (1979)). During 1980, 830 million tons of coal were mined and electric utilities consumed 565 million tons. Taylor, Coal: Buried Under Tons of Problems, U.S. News & World Report, April 16, 1981 at 57-58.
The World Coal Study predicts that coal will be the primary energy source for 55 percent to 57 percent of the electricity produced in the United States by the year 2000. Due to increased overall demand for electric power by the turn of the century, this increased market share may well generate an increase of 100 percent to 200 percent in the amount of coal burned to generate electricity. Id. But see Taylor, supra note 9.
Citations to other studies on the future of the coal-burning power plant are collected in Ackerman & Hassler, supra note 8, at 1468 n.5.
See also Council on Environmental Quality, Global Energy Futures and the Carbon Dioxide Problem (1981); United States Regulatory Council, Cooperation and Conflict: Regulating Coal Production (1981).
First, we are not presented with the question whether the Act permits a standard that requires scrubbing by all utility plants. No party before the court argues that a standard which requires scrubbing in all cases for compliance is contrary to the Act. Rather, the focus of this litigation has been on the appropriate level of pollution control that EPA should require. Brief for Petitioner APCO at 59; Brief for Intervenor APCO at 4, 8 n.10, & 22. In fact, EPA and Sierra Club believe that the Act requires all coal firing utility plants to use scrubbers. Brief for Respondent EPA at 64-65; Brief for Petitioner Sierra Club at 32-38. See generally and compare Ackerman & Hassler, supra note 8.
Second, as a corollary, it is not necessary for us to decide, and we do not hold, that section 111 of the Act imposes a universal scrubbing requirement or otherwise mandates some specific method for achieving compliance with NSPS. On the contrary, section 111(h) permits EPA to specify a "design, equipment, work practice, or operational standard" only if it is "not feasible" to allow sources of pollution to choose the control technology they will employ to meet emission standards. The definition of situations where it is "not feasible" to allow dischargers of pollution to choose their own control technology is extremely limited. 42 U.S.C. § 7411(h)(2). See also 42 U.S.C. § 7411(b)(5). As a practical matter if the percentage reduction requirement is sufficiently stringent, then scrubbing will be necessary at all emission sources in order to meet the NSPS, given the present state of technology. As noted, both EPA and Sierra Club adopt the view that the percentage reduction requirement must be set high enough to "require that all power plants use scrubbers," e. g., Brief for Respondent EPA at 64-65; Brief for Petitioner Sierra Club at 32-38. But section 111 does not on its face mandate any particular percentage. The "standard of performance" defined in section 111(a) is required to "reflect the degree of emission limitation and the percentage reduction achievable through application of the best technological system of continuous emission reduction which ... the Administrator determines has been adequately demonstrated." 42 U.S.C. § 7411(a)(1). In turn, the term "technological system of continuous emission reduction" is defined to mean "a technological process for production or operation by any source which is inherently low-polluting or nonpolluting," or "a technological system for continuous reduction of the pollution generated by a source before such pollution is emitted into the ambient air, including precombustion cleaning or treatment of fuels." 42 U.S.C. § 7411(a)(7). This is not an explicit textual mandate to use scrubber technology. While there is no universal scrubbing requirement elsewhere on the face of the statute, the House Committee Report explains that by requiring a "technological system" section 111 requires the use of scrubbers or other "add-on" technology and not just the use of untreated low sulfur coal. H.R.Rep.No.1175, 94th Cong., 2d Sess. 161, 129-30 (1976), reprinted in The Environmental Policy Division, Congressional Research Service, The Library of Congress, 95th Cong., 2d Sess. 7 A Legislative History of the Clean Air Act Amendments of 1977 [hereinafter L.H.] 6547, 6710. [After first full citation legislative materials will be cited if possible by their Legislative Document Number, e. g., "H.R.Rep.No.___" with a reference back to the place in the opinion where the full citation occurs, followed by parallel citations to the original page numbers, and the prepared Legislative History "L.H." Thus the above-cited reference would hereinafter appear as H.R.Rep.No.1175, supra note 38, at 161, 7 L.H. at 6710.]; see also H.R.Rep.Conf.No.95-564, 95th Cong., 2d Sess. 129-30 (1977), U.S.Code Cong. & Admin.News 1077, 1502, 3 L.H. 381, 509-10 (Conference Report) (the Conference agreement was tailored "to preclude use of untreated low sulfur coal alone as a means of compliance"). But see Ackerman & Hassler, supra note 8, at 1494-511, 1560 (discussing legislative history of section 111 and its significance in interpreting the statute) and Currie, supra note 8, at 1425-31.
Third, we do not decide whether the Act prohibits the use of low sulfur coal alone as a method of compliance. No party presently advocates NSPS which could be satisfied by burning untreated low sulfur coal alone, without utilizing scrubbers or other "add-on" control technology. Instead the parties share the view that the Act prohibits reliance on burning untreated low sulfur coal alone as a system of emission control. E. g., Brief for Petitioner Sierra Club at 34, 38; Brief for Respondent EPA at 64-65; Brief for Intervenor APCO at 12; this position adheres to the statements in the House Committee Report and the Conference Committee Report, H.R.Rep.No.94-1175, supra at 161, 7 L.H. at 6710; H.R.Rep.No.95-564, supra at 130, 3 L.H. 509-10. But see Ackerman & Hassler, supra at 1494-511 and Currie, supra at 1425-31.
The Electric Utilities' position is "we do not believe that the variable control option chosen by the Administrator represented the variable control alternative which reflects the best balance among the statutory criteria. However, under existing standards of judicial review in this Circuit, the Administrator's detailed analysis of alternative standards and comments filed on those analyses are more than sufficient to negate a claim of `arbitrariness and irrationality' in the formulation of the final 70 percent variable control rule." Id. at 22 (footnote omitted). However, the Electric Utilities urge that if this court remands the variable standard for reconsideration, that EPA be instructed to reconsider lowering as well as raising the 70 percent floor. Id. at n.50.
Sierra Club argues to the contrary, that variable control would permit burning low sulfur coal alone because utilities would be able to by-pass part of their waste stream around the scrubber and still comply with the standard. Brief for Petitioner Sierra Club at 38 (quoting 44 Fed.Reg. at 33583, col. 1).
We note, initially, that by-passed flue gas can be considered untreated only if no other add-on technology like coal washing is employed and a substantial percentage of coal can be expected to be pretreated under the new standard. See text at nn. 288-310 infra. But in any case the flue gas by-pass argument seems to us beside the point. Utilities are only required to achieve overall emission and percentage reductions in accordance with the NSPS. The Act does not address the question of how much of the waste stream has to be scrubbed — it does not even explicitly mandate scrubbing. Instead, the Act instructs EPA to set a percentage reduction requirement which reflects a variety of criteria without foreclosing a degree of flexibility in approaches to achieving the standard.
Flue gases can be treated through wet, semidry, or dry desulfurization processes of both throwaway and recovery types. Wet FGD processes are subdivided further into the categories of slurry processes and clear liquor processes. In slurry processes a suspension of active sorbent is used to contact or scrub the gas stream. Examples of slurry processes are lime and limestone scrubbing (see text infra) and the regenerable magnesium oxide (MAGOX) process. Clear liquor desulfurization processes involve various scrubbing solutions including sodium carbonate (used in the throwaway, "single alkali" process), sodium sulfite ("double-alkali" process and "Wellman-Lord" process), and ammonia.
In the semidry FGD process, small quantities of spray containing sodium carbonate contact the flue gas. The spent sorbent is either discarded or regenerated. Dry throwaway FGD processes entail, for example, the use of nahcolite (a mineral containing natural sodium bicarbonate) or limestone (consisting mainly of calcium carbonate) injected into the boiler. Two dry regenerable FGD processes are the carbon adsorption and copper oxide processes.
There are advantages and disadvantages to these and other variations of FGD in the context of any particular industrial situation.
See "Overview of Flue Gas Desulfurization Processes," Ad.Doc. No. III-B-3, supra note 9, at 4-60 to 4-64, J.A. at 1846-50.
See also "Flue Gas Desulfurization Systems," Flue Gas Desulfurization System Capabilities for Coal-Fired Steam Generators, Vol. II, Technical Report, at 3-1 to 3-357, J.A. 477, 515-871 (EPA Pub.No.600/7-78-032b, March 1978) (Ad.Doc. No. II-A-71).
During the late 1970's dry scrubbing control systems emerged as potential alternatives to wet scrubbing. "Dry SO
44 Fed.Reg. 33582, col. 2; Ad.Doc. No. III-B-3, supra note 9, at 4-63, J.A. at 1849; Ad.Doc. No. V-B-1, supra at 3-66 to 3-75, J.A. at 2670-79.
"All wet processes cause a considerable cooling of the treated flue gas and an increase in its moisture content. Reheat of the gas prior to discharge may be desirable in certain applications to avoid condensation and corrosion in ducts, fans and stacks downstream of the scrubber and to restore the buoyancy of the flue gas entering the stack. These drawbacks are largely circumvented in semidry and dry processes. Further, the disposal of solid wastes generated in semidry and dry throwaway processes may be easier than the disposal of sludges and liquid wastes." Ad.Doc. No. III-B-3, supra note 9, at 4-63, J.A. at 1849.
42 U.S.C. § 7501(3).
The Conference Committee Report explained:
H.R.Rep.No.564, supra note 38, at 157, U.S.Code Cong. & Admin.News at 1538, 3 L.H. at 537. See also Remarks of Senator Muskie introducing S. 252 for debate, 123 Cong.Rec. 18018 (1977), 3 L.H. at 717 (indicating broad discretion allowed EPA under section 111 "is inappropriate" in nonattainment areas "where public health is at risk").
Ad.Doc. No. III-C-1, supra note 18, at 15-16, J.A. at 2956-57.
Ad.Doc. No. III-C-1, supra note 18, at 7, J.A. at 2948.
42 U.S.C. § 7617(d) states that this assessment shall be "as extensive as practicable." See also Exec. Order No. 12044, 3 C.F.R. 152-56 (March 24, 1978).
DeLong, supra note 124, at 289.
Id. at 294.
Id. at 346-47 (footnotes omitted). See Rodgers, supra note 129, at 219-25.
American Public Gas Ass'n v. FPC, 567 F.2d 1016, 1037 (D.C.Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978). See also DeLong, supra note 124, at 319-38; Del Duca, supra note 115, at 195.
DeLong, supra at 329 & n.342 (citations omitted). DeLong continues:
The basic policy analysis criticism of government is that agencies frequently do not structure decisionmaking processes in ways that make explicit the agency's choices and the tradeoffs inherent in those choices. Consequently the agency may ignore or not collect important information, neglect technical analyses of the action's impact, fail to consider regulatory costs or redistributive effects and generally avoid facing the complexity and the uncertain effects of the regulation, the relationship, or lack of one, between available resources and decided ends may be obscured, and possible alternative ways of achieving ends often will not be considered.
Id. at 330.
Id. at 33603, col. 2-3.
Brief for Intervenor MAMU at 9.
Throughout the rulemaking EPA described dry scrubbing as an innovative or emerging technology. Nevertheless, at times EPA's discussion comes close to suggesting that dry scrubbing may be adequately demonstrated. E. g. Brief for Respondent EPA at 63; see also 45 Fed.Reg. at 8217, cols. 1-2.
Although it is conceivable that a particular control technique could be considered both an emerging technology and an adequately demonstrated technology, there is inherent tension between the two concepts, see e. g., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 391-92 (D.C.Cir.1973); Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 628-29 (D.C.Cir.1973); Currie, supra note 8, at 1412-17.
We feel compelled to state, so that there is no suggestion that the standard has been relaxed, that we do not hold that dry scrubbing is adequately demonstrated technology. Indeed, the record in this case would indicate the contrary.
A report prepared for EPA as recently as February 1980 by a private contractor concludes:
(Emphasis supplied.) "Survey of Dry SO
Previously EPA conceded that "no full scale dry scrubbers are presently in operation at utility plants so information available ... dealt with prototype units." 44 Fed.Reg. at 33594, col. 3. See also Ad.Doc. No. V-B-1, supra note 75, at 3-62, J.A. at 2666. EPA reported test results for dry scrubbers at the time the final rule was published. 44 Fed.Reg. at 33594, col. 3. See also results of pilot scale testing reported in the final background document, Ad.Doc. No. V-B-1, supra at 3-62 to 3-66, J.A. at 2666-2670. EPA does not attempt to explain how these results may be used to predict performance in full scale plants throughout the industry. The data standing alone is insufficient to establish that dry scrubbing is adequately demonstrated. See our discussion of the representativeness of test data used to demonstrate the statutory requirement of achievability in National Lime Association v. EPA, 627 F.2d 416, 432-34 (D.C.Cir.1980). See also Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 392 (D.C.Cir.1973); Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 647 (D.C.Cir.1973); American Petroleum Institute v. EPA, 540 F.2d 1023, 1038 (10th Cir. 1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601. EPA itself has been aware that "the major uncertainty which exists with dry SO
Furthermore, there is no test data at all available for the performance of dry scrubbers burning low alkaline coal, which comprises roughly half of the supply of low sulfur coal, and is more difficult to clean than low sulfur coal with high alkalinity. See, e. g., 44 Fed.Reg. at 33523, col. 1; Ad.Doc. No. V-B-1, supra, at 3-62 to 3-68, J.A. at 2666-72. Both of the fuels used in the pilot plants with dry scrubbers, North Dakota lignite and Powder River Basin sub-bituminous coal, are highly alkaline and thus are relatively easier to clean with a dry scrubber than coals with lower alkaline content. Id. See our discussion of the issue of low alkaline coal, text at nn.181-84 infra.
For these reasons, it would be premature to conclude that dry scrubbing is adequately demonstrated technology.
According to Sierra Club, the cost differential between the 33 percent minimum standard which EPA rejected and the 70 percent minimum standard which the agency adopted (0.5 billion dollars) is "virtually identical" to the differential between the 70 percent minimum standard adopted and the 90 percent minimum standard Sierra Club favors but EPA also rejected (0.4 billion dollars). "On the other hand, EPA expressed concerns about higher emissions (1 million tons annually) under the 33% versus the 70% option. But the 70% standard would allow 17 million more tons of SO
However, "a glance at the wet scrubbing figures" stated in the tables does not reveal that "full controls would result in far less emissions" than variable control but instead that Sierra Club misread the tables. The figure listed by EPA for total national emissions under the variable control option with wet scrubbing is the same as the amount reported for the full option (20.6 million tons) and not seventeen million tons greater as Sierra Club erroneously states.
Consider the following table from 44 Fed.Reg. 33608, cols. 2-3:
Table 2. — National 1995 SO
2Emissions From Utility Boilers a[Million tons] ------------------------------------------------------------------------------ Level of control bPlant ----------------------------------------------------------------- category Partial Variable control control 1975 Current Full 33% 70% actual standards control minimum minimum ------------------------------------------------------------------------------- Wet dDry eWet Dry Wet Dry Wet Dry SIP/NSPS Plants c................. 15.5 15.8 16.0 16.2 15.9 16.2 16.0 16.1 New Plants f............... 7.1 7.0 3.1 3.1 3.6 3.4 3.3 3.1 Old Plants ................. 1.0 1.0 1.4 1.4 1.3 1.2 1.3 1.2 ----------------------------------------------------- Total National Emissions. 18.6 23.7 23.8 20.6 20.7 20.8 20.9 20.6 20.5 ----------------------------------------------------- Total Coal Capacity (GW) .......... 205 552 554 521 520 534 537 533 537 Sludge generated (million tons dry) .............. 23 27 55 56 43 39 50 41 ------------------------------------------------------------------------------- aResults of joint EPA/DOE analyses completed in May 1979 based on oil prices of $12.90, $16.40, and $21.00/bbl in the years 1985, 1990, and 1995, respectively. bWith 520 ng/J maximum emission rate. cPlants subject to existing State regulations of the current NSPS of 1.2 lb SO 2/million BTU. dBased on wet SO 2scrubbing costs. eBased on dry SO 2scrubbing costs where applicable. fPlants subject to the revised standards.
(Emphasis supplied.) Note that "Total National Emissions" predicted for 1995 are 20.6 million tons for both full control and variable control assuming that wet scrubbing alone will be utilized. Apparently, Sierra Club has transposed lines from the table, twice — once vertically and once horizontally. Sierra Club has mistakenly listed the figures for "Total Coal Capacity" in place of the correct figures for "Total National Emissions," Brief for Petitioner Sierra Club at 23-24, and then in order to arrive at a difference of 17 million tons between variable and full control must have compared the figures listed in the "Dry" columns instead of the figures listed in the "Wet" columns as would have been appropriate. Ironically, a difference of 17 million tons in total coal capacity under variable control assuming the use of dry scrubbing reinforces selecting this control option. Thus, the data supports rather than refutes EPA's finding that variable control "produces emissions that are equal to or lower than the other options."
We have already disposed of Sierra Club's additional argument that the rerun modeling analysis performed during the pendency of the petitions for reconsideration demonstrated that full control was preferable. See text at nn. 139-142 supra.
The House Committee Report stated:
(Emphasis supplied.) H.R.Rep.No.294, supra, at 189, U.S.Code Cong. & Admin.News at 1267, 4 L.H. at 2656.
The Senate Committee Report stated that section 111 was intended "to assure the use of available technology and to stimulate the development of new technology." S.Rep.No.127, supra note 114, at 171, 3 L.H. at 1391. (Emphasis supplied.) The Senate Report continued:
Id. at 18, 3 L.H. at 1392 (emphasis supplied).
42 U.S.C. § 7411(b)(5).
A later EPA memorandum by the same author stated that "[l]imited data suggest that up to 90 percent SO
Studies prepared for EPA by private contractors reported achievement of removal efficiencies of 90 percent or more by various types of dry scrubbers. Ad.Doc. No. II-A-71, supra note 69, at 3-331, 3-340, J.A. at 845, 854; Flue Gas Desulfurization Systems: Design and Operating Considerations, Vol. II: Technical Report, 2-14, J.A. 1003, 1036 (EPA Pub.No. 600/7-78-030b, March 1978) (Ad.Doc. No. II-A-75). See also Letter from J. Brecher to D. Costle, 2-3, J.A. 5387, 5388-89 (Supplement to Sierra Club Petition for Reconsideration, Jan. 14, 1980) (Ad.Doc. No. VI-B-27) which contains information obtained from EPA pursuant to a Freedom of Information Act Request that shows that there were at least two plants (in EPA region VIII) which voluntarily switched from wet scrubbing to dry scrubbing and proposed to meet a removal efficiency standard of 90 percent.
EPA argues that such evidence of high removal efficiency (greater than 70 percent) must be discounted because the data is derived from plants burning high alkaline coal. Brief for Respondent EPA at 75-79; see text at nn. 180-84 & n. 184 infra.
Since all of the published test results are for alkaline coals, the uncertainty in the stoichiometric ratio which is required to achieve a 70 percent reduction for nonalkaline coals is larger than for alkaline coals. This uncertainty could have a significant impact on the [operating and maintenance] costs because the reagent and waste disposal costs are about 70-85 percent of the operating and maintenance requirements [of a dry scrubber].
Ad.Doc. No. V-B-1, supra note 75, at 3-68, J.A. at 2672.
Thus in the preamble to the final rule EPA concluded:
44 Fed.Reg. at 33583, col. 1.
EPA's economic analysis of dry scrubbing is contained in the final background document, Ad.Doc. No. V-B-1, supra note 75, at 3-66 to 3-75, J.A. at 2670-79, and included in the materials distributed to the panel at argument. See also Attachments to EPA Memorandum from W. Barber to Files (Documenting May 1, 1980 meeting in S. Eizenstat's White House Office), J.A. at 4993, 5801-06 (EPA, May 24, 1980) (Ad.Doc. No. IV-E-21). (The relevant tables and diagrams are shown as Figures 13 through 18 in the appendix to this opinion.)
These materials are deficient in several respects. They are inaccurate (e. g., Figure 3-28 should read "D" instead of "C" on the horizontal axis) and incomplete (e. g., there is no economic comparison of wet scrubbing and dry scrubbing at the 90 percent or full control level and there is no explanation of how the materials were compiled). At any rate the tables and diagrams amount to little more than visual depictions of EPA's conclusory statements and do not reflect calculations, tests, and existing data. In fact, the economic materials contain no citations whatsoever as to sources of the information represented in the figures. EPA's background document in this case lists "References" as footnotes at the end of the chapter, but the single reference applicable to the section on the economics of dry scrubbing did not attempt to document the tables and diagrams contained in the section. If the supporting data is buried elsewhere in the voluminous record, EPA has not called it to our attention. See Natural Resources Defense Council v. Nuclear Regulatory Comm'n, 547 F.2d 633, 646 (D.C.Cir.1976); Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C.Cir.1977); Asarco, Inc. v. EPA, 616 F.2d 1153, 1162-63 (9th Cir. 1980) (criticizing agency's conclusory statements and superficial inquiry). U. S. Lines v. FMC, 584 F.2d 519, 533 (D.C.Cir.1978) (admonishing agency for "blind references"). Ackerman & Hassler, supra note 8, at 1554 indicate that EPA relied on "sketchy cost data provided by its Office of Resource and Development."
In fact, data in documents prepared by EPA less than one month before issuance of the final rule seemed to point in the opposite direction. E. g., "Basin Electric's Involvement With Dry Flue Gas Desulfurization," EPA Memorandum from D. Hawkins to S. Eizenstat, Attachment D, J.A. 4863, 4873 (EPA, May 2, 1980, docketed June 1, 1980) (Ad.Doc. No. VI-C-268). Economic evaluations of wet versus dry scrubbing showed that dry scrubbing was more economical than wet scrubbing even when reagent costs increased dramatically. In one case dry scrubbing was more economical even though total projected reagent costs increased from approximately 9 to almost 49 million dollars (over 35 years). Id. at Table 8, J.A. at 4890. In another case total reagent costs were actually lower for dry scrubbing than for wet scrubbing. Id. at Table 7, J.A. at 4889. Considerable savings associated with dry scrubbing such as lower capital, replacement, and manpower costs were shown to offset costs of extra reagent. Compare id. at Table 2, J.A. at 4884, with id. at Table 8, J.A. at 4890.
In addition, a comparison of the total lifetime costs of the two plants for which economic data were reviewed suggests that on a per megawatt basis, dry scrubbing at 90 percent removal efficiency at the larger plant will be less expensive than dry scrubbing to only 78 percent removal efficiency at the smaller plant. Although the significance of this particular comparison may be limited by possible economies of scale and other variables not accounted for, it hardly instills confidence in the reasonableness of EPA's final economic analysis of the performance of dry scrubbing. See also EPA Memorandum from J. Haines to J. Farmer, Table 8 in Attachment No. 2, Table 2 in Attachment No. 4 (EPA, Docketed May 4, 1979) (Ad.Doc. No. IV-B-66, not included in Joint Appendix).
Statement of George Greene, Public Service Co. of Colorado, Hearing on Proposed Standards (EPA Dec. 13, 1978), 88, 92-93, J.A. 3061, 3064-66. See Comments of Rep. Patricia Schroeder, 2, J.A. 4687, 4689 (Jan. 12, 1979) (Ad.Doc. No. IV-D-590).
The Electric Utilities also complained that there was insufficient time to comment on the dry scrubbing aspects of the phase three analysis, along with the supporting data entered into the record after the close of the public comment period. Electric Utilities' Petition for Reconsideration, 9, 21, J.A. 5133, 5137, 5143 (Aug. 10, 1979) (Ad.Doc. No. VI-A-5).
Id. And see National Tour Brokers Ass'n v. United States, 591 F.2d 896 (D.C.Cir.1978); U. S. Lines v. FMC, 584 F.2d 519, 533-35 (D.C.Cir.1978); Home Box Office, Inc. v. FCC, 567 F.2d 9, 34-35 (D.C.Cir.1977); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 392-95 (D.C.Cir.1973).
Compliance with the standard is required for every 30 day period of boiler operation. Therefore, each day of boiler operation begins a new 30 day compliance period. E. g., 44 Fed.Reg. at 33609, col. 3.
Ad.Doc. No. II-A-75 (Bechtel Report), supra note 263, iii, 4-1 to 4-24, J.A. at 1007, 1073-96. The Bechtel Report defines changes that would be applied to a new facility to obtain 90 percent or greater removal "[w]here an installed full-scale FGD system has demonstrated good operation, but at lower SO
Ad.Doc. No. III-B-4, supra note 125 at 4-19 to 4-23, J.A. at 2329-33.
At the company's Paddy Run Station, magnesium oxide insertion produced over 99 percent removal during two 8-hour tests. Ad.Doc. No. III-B-4, supra.
There are many allusions in the legislative history to the ability of scrubbers to achieve 80 to 90 percent removal efficiency. E. g., remarks of Sen. Muskie 123 Cong.Rec. 18023 (1977), 3 L.H. at 729; H.Rep.No.294, supra note 47, 89-90, 4 L.H. at 2556-7. These figures were supported by the Federal Energy Administration, the Commerce Department's Technical Advisory Committee, and the National Academy of Sciences. Id.
The Electric Utilities have summarized the variability data they contend are relevant to the variability determination in the petition for reconsideration, supra note 190, at Appendix B (Entropy Report) 26, Table 1, J.A. at 5204, and Reply Brief for Petitioner APCO at A-1, B-13 to B-14.
There were continuously monitored data from three well-operated lime/limestone systems: Cane Run, Bruce Mansfield, and Shawnee.
The Shawnee data on variability became available after the proposal and was discussed by EPA for the first time in the Denial of the Petition for Reconsideration although the data was put into the record in May, 1979. Shawnee is a pilot plant and Cane Run and Mansfield are commercial-scale units. Cane Run has been termed a "peak" plant and Mansfield and Shawnee were described as "base" plants. Variability at Mansfield and Shawnee was lower than at Cane Run. 45 Fed.Reg. at 8224, col. 2. The utilities claimed that the agency changed the basis for its variability assumption by introducing the Shawnee data after the final rule was promulgated and differentiating for the first time between "peak" and "base" plants. We find the agency's explanation adequate that in discussing Shawnee at length, it was merely responding to the utilities' own analysis of the variability of all the data base plants, and that its distinction between peak and base load plants was a refinement of its earlier analysis and did not alter its original conclusion on variability based on the Cane Run data. We do agree with the utilities that the agency does not satisfactorily define a "base" or a "peak" load plant.
EPA's Supplemental Memorandum filed Feb. 3, 1981 pursuant to this court's order of Jan. 22, 1981 and the Electric Utilities' Response to EPA's Supplemental Memorandum filed Feb. 17, 1981, discuss the relevance and interpretation of the Bruce Mansfield data in great detail which we do not believe necessary to recapitulate in this opinion.
Meanwhile the monitors at the site collected additional data from December 8, 1977 through April 1978. Id. The Electric Utilities obtained this data and submitted it for inclusion on the record three days before EPA published its denial of the petition for reconsideration. Ad.Doc. No. VI-B-22, supra note 283, at 7 n.19, J.A. at 5409 n.19 & Attachments B & C.
The Electric Utilities and EPA agree that the data collected from December 8, 1977 until March 10, 1978 (phase three) were statistically indistinguishable from the phase one and phase two data. Ad.Doc. No. VI-B-22, supra, at 7-8, 5409-10. Supplemental Memorandum for Respondent EPA at 4 n.3. The controversy centers over the remainder of the data collected from March 17 until April 15, 1978 (phase four). The variability during phase four was higher than during phases one, two, and three. The first three phases were conducted when the Bruce Mansfield Unit No. 1 boiler was operating at a fairly even load at between 350 MW and 400 MW (about one-half load) with only three scrubber modules in service. However, in March 1978 a second stack was returned to service, and the boiler operated at levels fluctuating between 600 MW and 770 MW (between three-quarters and full load).
The data is summarized in the following table:
-------------------------------------------------------------------- Removal Efficiency VariabilityAd.Doc. No. VI-B-22, supra, at Attachment A, Table 2, J.A. at 5437.
aEstimates for Phases I through IV at Bruce Mansfield --------------------------------------------- Typical Median SO 2Efficiency Degrees Load Range Removal Variability of Phase (MW) Efficiency (%) (σ) Freedom -------------------------------------------------------------------- I 350-400 81.1 0.237 19 II 350-400 85.4 0.212 10 III 350-400 78.2 0.228 6 IV 600-700 90.1 0.380 10 Pooled Est. 350-400 -- 0.229 b35 -------------------------------------------------------------------- aStandard deviation of Ln (1-efficiency/100). bPooled estimate of efficiency variability for Phases I, II and III.
Ad.Doc. No. II-A-62, supra note 232, at 4, J.A. at 309.
Section 111 allows an NSPS to be based on sulfur removal techniques like coal washing since it defines "technological system of continuous emission reduction" as "including precombustion cleaning or treatment of fuels." 42 U.S.C. § 7411(a)(7)(B). The legislative history showed that Congress intended coal washing to be considered a sulfur removal technology although use of coal washing alone would not be a suitable substitute for FGD. H.R.Rep.No.294, supra note 47, at 188-89, 4 L.H. 2655-56.
The government's counsel erroneously state that "[p]hysical coal cleaning is capable of removing up to 70 percent of the sulfur in coal." Brief for Respondent EPA at 57. The report they rely on, supra, states that up to 70 percent may be removed by washing of the unbonded inorganic sulfur.
Another example is found in Ad.Doc. No. II-A-62, supra note 232, at 28, J.A. at 333: "if 50 percent of the sulfur were removed by coal cleaning, then the scrubber would have to operate at only 80 percent removal to achieve the 90 percent removal required...." See also Ad.Doc. No. III-B-3, supra, note 9, at 4-32 (Table 4-5), J.A. at 2342.
The BOM data showed that reductions greater than the averages cited in n.296 supra could be attained when the sulfur content of the coal exceeded the average, and when the coal was crushed smaller than the 1½ inch size, and/or the specific gravity of the float was less than 1.6. Late in the rulemaking EPA concluded that crushing to 3/8 inch top size would be unduly expensive, lead to unacceptable energy loss, and pose coal handling problems. EPA found and NCA acknowledged that 1½ inch top size, 1.6 specific gravity represented common industry practice. 44 Fed.Reg. at 33593, col. 2, & 33595, col. 3 — 33596, col. 1.
Recounting the evolution of the 27 percent figure puts petitioners' challenge in perspective. Reassessment of the agency's 35 percent coal washing assumption came in the context of the debate on whether the 1.2 lbs./MBtu emission limitation should be lowered. Following the September 1978 proposed NSPS the joint interagency working group investigated alternative standards lower than the proposed 1.2 lbs./MBtu ceiling. EPA stated that:
44 Fed.Reg. at 33595, col. 3. At the December public hearing EPA received testimony on whether lower emission ceilings would preclude use of high sulfur coal reserves. One witness testified that if the degree of reduction achievable for coal washing was less than 35 percent assumed then the preclusion effect on high sulfur coal reserves would increase accordingly. Testimony of R. Ayres, Ad.Doc. No. IV-F-1, supra note 94, at 65, J.A. at 2970. Written comments expressed concern that a 35 percent reduction could not be achieved by coal washing on all high sulfur coal reserves. Ad.Doc. No. IV-D-756, supra note 242; Ad.Doc. No. IV-D-744, supra note 241, at 8-9, J.A. at 4734-35; Ad.Doc. No. IV-D-761, supra note 241; Ad.Doc. No. IV-D-848, supra note 241.
In February 1978 EPA took a more detailed look at regional coal production impacts using the Bureau of Mines seam by seam data. The analysis identified the amount of reserves that would require more than 90 percent scrubbing of washed coal in order to meet the designated ceiling. To determine the potential sulfur reduction achievable through coal washing EPA assumed two levels of coal preparation technology which were thought to represent the state-of-the-art: crushing to 1½ inch top size with separation at 1.6 specific gravity, and crushing to 3/8 inch top size with 1.6 specific gravity.
On April 5, 1979 a meeting was held in order for EPA and NCA to present their respective findings as they pertained to the potential impacts of lower emission standards on high-sulfur coal reserves in the Eastern Midwest and Appalachia and to discuss the degree of sulfur removal achievable with coal washing. As a result of this meeting EPA revised its assessment of state-of-the-art coal washing. EPA concluded that crushing to 3/8 inch top size would be unduly expensive, lead to unacceptable energy loss, and pose coal handling problems. 44 Fed.Reg. at 33596, col. 1. EPA found and NCA acknowledged that 1½ inch top size and 1.6 specific gravity represented common industry practice. Id.
On April 6, 1979 NCA submitted written documentation supplementing its concerns previously raised about the achievability of the 35 percent washing figure. Ad.Doc. No. IV-D-756, supra note 242. NCA stated "[b]ased on a review of the results currently being achieved using good engineering practice in operating mines, we believe that expectation (35 percent removal) to be optimistic by 5 to 10 percentage points." Id. at 2, J.A. at 4778. This conclusion was based on limited data of actual coal practices under the former standards at a total of 46 mines in four states. The average actual reduction by washing in these states at the plants surveyed was, according to NCA, 27 percent. The average reduction in each of the four states ranged from 31 percent in Indiana, 27 percent in Illinois, 26 percent in West Virginia, to 20 percent in Ohio. These averages appear to have included washing figures for all coals including low and medium sulfur coals, which are more difficult to wash, although in these particular states there is a large proportion of high sulfur coal. However, as a consultant to the Electric Utilities stated, the data were not presented "in a manner suitable for a detailed analysis." Brief for Petitioner APCO at B3.
EDF's written response vigorously objected to the pessimistic 27 percent average as being based on "a very select set of data from current operations...." Significantly, the 20 percent figure developed from Ohio was based on a survey of just 6.3 million tons of Ohio coal (from material provided by just two companies). This compares to a survey involving almost four times that amount of coal in Illinois — 24.4 million tons. Ad.Doc. No. IV-D-763, supra note 243, at 3, J.A. at 4811. EDF pointed out that material already in the record supported the assumption that coal washing of high sulfur coal could achieve between 30 and 40 percent reduction. Id.
With EPA's announcement of the 90 percent standard it did not expressly maintain that it had retreated from the 35 percent assumption for washing high sulfur coal. Instead, it merely stated that 1½ inch top size and 1.6 specific gravity were present practice for coal washing. In the denial of the Electric Utilities' petition for reconsideration EPA cited NCA's data and indicated that 90 percent reduction requirement was attainable even if a coal washing plant achieved only the average 27 percent level of cleaning reported by NCA for conventional plants.
Early in the rulemaking an EPA memorandum recommended that the credit:
Memorandum from T. Schrader to J. Farmer (EPA Nov. 9, 1977), Brief for Petitioner APCO at A-18.
However, EPA did consider relevant differences between lignite and other ranks of coal in establishing the revised NO
EPA's denial of the petition for reconsideration does not expressly refer to, nor does it preclude, other materials on the record which appear to support the agency's finding that lignite coals are no more difficult to control than some other coals. 45 Fed.Reg. at 8229, col. 1. See, e. g., Ad.Doc. No. II-I-388, supra note 315, at I-2, I-7, figures 1-1, 1-3, J.A. at 2750, 2755.
On the basis of EPA's ESP data we are also at a loss to understand EPA's statements concerning the size and temperature range that would be needed to meet the standard. See text at n. 331 supra. Giving EPA the benefit of doubt, these projected design features apparently are extrapolations from the test data. We are aware of formulas in the record for calculating the ESP specifications needed for achieving a given level of performance. See, e. g., Ad.Doc. No. III-B-1, supra note 311, at 4-4, J.A. at 1364. See also discussions of SCA sizing based on modified "Deutsch equation" at Ad.Doc. No. II-I-388, supra note 315, at III-10 to III-13, J.A. 2814-17. However, EPA makes no attempt to explain or even reproduce its calculations. In fact, without careful and tedious scrutiny of the referenced data, a reader of the agency's preamble would not know that an extrapolation has been made. Even after making this discovery we are expected to either accept the agency's conclusions with a leap of faith or bridge the chasm between the technical data and the agency's conclusions on our own. In this instance we decline to take either course.
Memorandum from J. Copeland to G. Crane J.A. 4715 (EPA Feb. 5, 1979) (Ad.Doc. No. IV-B-29).
The National Coal Association (NCA) representatives distributed materials sent to EPA on April 6, 20, and 23 alledging [sic] that adoption of an emissions ceiling more stringent than 1.2 pounds per million Btu would preclude substantially [sic] coal reserves in the east and midwest. Douglas Costle informed the participants at the meeting that it was not the Agency's intent to rule out large portions of eastern or midwestern coal reserves as a result of setting the power plant new source performance standard. Stu Eizenstat confirmed that this was not the Administration's intent either. Mr. Costle advised the NCA representatives that the material would be fully considered. Senator Byrd expressed his opinion that a decision to set an emission ceiling which would preclude the use of coal reserves would cause him great concern.
As the April 23 letter from NCA does not indicate that copies have been provided to other major parties in the rulemaking, I am providing copies of that letter this day to the Utility Air Regulatory Group, NRDC, EDF and the Sierra Club.
1. EDF's Motion to Supplement the Record
EDF seeks to include in the rulemaking record provided for in 42 U.S.C. § 7607 several documents it contends support its challenge. These documents fall into five categories:
(1) Documents which, according to EDF, evidence numerous ex parte contacts between EPA and interested parties either directly or through members of Congress or high level administration officials. Petitioner EDF's Appendix of Lodged Documents, filed September 12, 1980, Schedule A.
(2) Documents described by EDF as internal EPA communications which reflect the effect of the improper ex parte contacts on the evolution of the promulgated regulation. Id., Schedule B.
(3) Documents which reflect EPA policies and Department of Justice advice regarding ex parte contacts. Id., Schedule C.
(4) Documents relating to the use of adipic acid to improve scrubber efficiency, which EDF would have entered on the record had it "been given the opportunity to do so," to refute the allegedly improper communications with EPA. Two out of the three documents in this category are studies already entered on the record at EDF's request. The third document in this category is a letter from the Administrator responding to a Congressman's request for information, which according to EDF, demonstrates that EPA considered and agreed with the results of the adipic acid studies, rather than, as EPA claims, considered and rejected the two studies. Id., Schedule D.
(5) Any materials EDF acquires if this court grants EDF's motion for further discovery. See infra.
Except for the materials which are the subject of EDF's discovery motion, all of the documents in question were obtained by EDF after the promulgation of the final standard as part of material released to EDF pursuant to a Freedom of Information Act request filed June 5, 1979. On April 2, 1980, EDF requested that EPA add the documents to the administrative record; the agency refused to do so on May 1, 1980. After EDF filed the instant motion, both EDF and EPA urged the court to defer its ruling until consideration of the merits of the review petition, and in the meantime to lodge the documents with the court. This request was granted. Order of June 16, 1980. Consequently, on September 12, 1980, the documents were lodged in a separate appendix, available to the court during the review.
Our ruling now on supplementing the rulemaking record with these documents in categories (1)-(4) is guided by the resolution of a similar controversy in Lead Industries Ass'n v. EPA, 647 F.2d 1130, at 1180-1181, 1184 (D.C.Cir.1980), cert. denied, 449 U.S. 1042, 101 S.Ct. 621, 66 L.Ed.2d 503 (1980). Both EPA and EDF agree that here, as in Lead Industries, which also involved a procedural challenge to the integrity of the rulemaking, a satisfactory solution is to lodge the documents with the court for the purpose of its review of the merits of EDF's procedural arguments. Cf. American Petroleum Institute v. Costle, 609 F.2d 20, 22 (D.C.Cir.1979). Reply Brief for Petitioner EDF, at 32-33; Brief for Respondent EPA at 178. Since these documents have already been lodged and examined by us during our review of EDF's procedural claims, there is no need formally to add them now to the rulemaking record, the contours of which are strictly defined in section 307, 42 U.S.C. § 7607. Hence the motion to formally add them to the rulemaking record is denied.
2. EDF's Motion for Leave to Obtain Discovery
EDF seeks to take depositions from, or in the alternative to serve interrogatories on, five EPA officials, none of whom still occupy the offices they held at the time the motion was filed: Administrator Costle; Barbara Blum, Deputy Administrator; David Hawkins, Assistant Administrator for Air, Noise & Radiation; Charles Warren, Regional Administrator for Region II and former Director, Office of Legislation; and Walter Barber, Office of Air Quality Planning Standards. According to EDF the inquiries will be limited to "(1) the identity of participants in post-comment period conversations and meetings with private parties, members of Congress, and senior officials of other government agencies and offices; and (2) simple narrative descriptions of conversations and meetings, particularly by non-EPA participants." EDF Motion, filed April 11, 1980, at 2.
We find it neither necessary nor appropriate to permit discovery to supplement the extensive record already compiled in this case. Under the Clean Air Act, judicial review of NSPS is to be conducted — except in the most unusual circumstances — on the record provided for in the Act. Section 307(d)(7)(A), 42 U.S.C. § 7607(d)(7)(A). In contrast to instances where agency decisionmakers may be required to submit affidavits or to testify because no explanation for agency action appears on the record, see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), this is a case where EPA has, in keeping with the explicit procedures required by the Clean Air Act, submitted a substantial explanation for its promulgation of the standard and its denial of the petition for reconsideration. These statements and the underlying record must therefore serve as the basis for our review. See Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973).
We are aware that in certain circumstances, in order to afford effective review, it may be necessary for the court to order affidavits and other evidence to be submitted directly to it. See National Nutritional Foods Ass'n v. FDA, 491 F.2d 1141, 1144 (2d Cir.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974); see also Home Box Office, Inc. v. FCC, 567 F.2d 9, 52 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977) (court sua sponte ordered the Commission to provide "a list of all of the ex parte presentations, together with the details of each, made to it, or any of its members or representatives, during the rulemaking proceedings"). Cf. 42 U.S.C. § 7607(c) (court may require EPA to take additional evidence). In this case, however, the court has already required, and EPA has filed, affidavits concerning post-comment period meetings. We do not now discern any serious gaps in the record which frustrate our ability to appraise EDF's procedural challenges. The record already contains much, if not all, of the information that EDF desires: i. e., "what meetings took place, who attended, what information was imparted, and what use was made of the material." Brief for Petitioner EDF at 83.
Although further discovery might be warranted upon a "strong showing of bad faith or improper behavior," see Citizens to Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 420, 91 S.Ct. at 825, it follows from our discussion below on the merits of EDF's appeal, that it has not made the requisite showing of bad faith or improper conduct which would create serious doubts about the fundamental integrity of this rulemaking proceeding. For these reasons the motion for additional discovery is denied.
42 U.S.C. § 7607(d).
Pedersen, supra note 467, at 79 (emphasis partially supplied).
S.Rep. No. 96-184 at 22 n.7 (1979) (emphasis supplied). See also 47 C.F.R. § 1 (1979) (FCC rules); 14 C.F.R. § 300.2 (1979) (CAB rules); 16 C.F.R. § 1012 (1979) (CPSC rules).
In general, factual or methodological information which is critical to a proposed rule should be available in such a way as to provide an adequate opportunity for comment. See, e. g., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 394, 402 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). See also Home Box Office, Inc. v. FCC, 567 F.2d 9, 55 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977) (stressing importance of "adversarial comment"); United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977) (criticizing FDA's failure to put scientific data on the record); Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615, 631-32 (D.C.Cir.1973) (criticizing EPA's failure to provide opportunity to comment on methodology used in investigations concerning its decision not to suspend application of new auto emission standards). But cf. FCC v. WNCN Listeners Guild, 450 U.S. 582, 591, 101 S.Ct. 1266, 1272 n.22, 67 L.Ed.2d 521 (1981), rev'g and remanding, 610 F.2d 838, 846-47 & n.24 (D.C.Cir.1979) (en banc) (Although Commission failed to disclose "important" staff study prior to issuing formal policy statement, thereby depriving participants of opportunity to comment upon the study, Court holds that "the action of the Commission, even if a procedural lapse, [was not] a sufficient ground for reopening the proceedings before the Commission").
We note that during the spring of 1979 the trade journals carried reports of the serious consideration being given to a ceiling lower than 1.2 lbs./MBtu; of the possibility of a combined washing-scrubbing basis for the 90 percent reduction standard; of the refusal of utilities to buy coal they would have to scrub more than 90 percent; and of the Byrd meeting with the Administrator. In their recent book, Ackerman and Hassler summed it up thus: a "reader of the weekly BNA Environmental Reporter would have no difficulty following the main course of the decision...." See Ackerman & Hassler, supra note 8, at 113; see also Banks, supra note 8, at 67 (account of the press coverage during the pre-publication period).
With regard to EPA's own analysis conducted in February 1979 on the availability of coal reserves, EDF states "[t]here is no recorded evidence of the `new EPA analysis,' nor has the public been offered an opportunity to comment upon them." Reply Brief for Petitioner EDF at 7-8. This statement is contrary to EDF's admission that it received copies of EPA's reserve analysis at the April 5 meeting. Brief for Petitioner EDF at 15. Moreover, the statement is incorrect. EPA's analysis was distributed and docketed before the April 5 meeting, Ad.Doc. No. IV-B-57, supra note 239, distributed at the April 5 meeting attended by EDF, Ad.Doc. No. IV-E-11, supra note 440, and docketed again after the meeting, Ad.Doc. No. IV-E-12, supra note 240. The BOM coal data underlying EPA's analysis was published in 1976 and discussed throughout the rulemaking. EDF could have obtained this data, as the court did, from the library of the Department of the Interior.
EDF claims that remand is necessary to afford it the opportunity to examine "scrubber efficiency," "the increased efficiency of scrubbers using adipic acid," "the fundamental flaw in confusing production with reserves," and "the greatly reduced SO
See also Verkuil, The Emerging Concept of Administrative Procedure, 78 Colum.L.Rev. 258, 290 (1978); Nathanson, Report to the Select Committee on Ex Parte Communications in Informal Rulemaking Proceedings, 30 Admin.L.Rev. 377, 396-97 (1978):
See generally Ex Parte Communication During Informal Rulemaking, 14 Colum. J. L. & Soc.Prob. 269, 275 (1979).
Congressional intent not to restrict ex parte contacts in informal rulemaking under the APA — an intent expressed just prior to enactment of the 1977 Clean Air Act Amendments — could not have been clearer. "Informal rulemaking proceedings ... will not be affected by the [Sunshine Act] provision." Senate Comm. on Gov't Operations, Rept. to Accompany S. 5, Gov't in the Sunshine Act, S.Rep. No. 94-354, 94th Cong., 1st Sess. 35 (1975). See also 121 Cong.Rec. 35330 (1975) (remarks of Sen. Kennedy) ("informal rulemaking proceedings are also susceptible to ex parte influence. These areas are, however, left untouched by the provisions of [the Sunshine Act]").
EDF believes that the statute, 42 U.S.C. § 7607(d)(4)(B), (d)(5), requires a transcript of any oral presentation in the course of the rulemaking. See, e. g., Reply Brief for Petitioner EDF at 4. In context, however, we think the transcript requirement refers to formal presentations made on request during the comment period, and is designed to insure that both oral and written presentations made during that time are included in the record. It does not mean that a party can demand an opportunity for an oral presentation or insist upon a full transcript of such presentation being inserted in the record after the comment period has closed. We believe the Administrator may receive oral contacts thereafter without making a complete transcript of such contacts, however useful such recording might be to ward off criticism. All oral contacts, in other words, are not "oral presentation[s]" within the meaning of the statute.
Many commentators agree that ex parte comments during informal rulemaking should not be restricted; but there is also agreement that at least those communications which produce significant new information should be noted on a public record. See, e. g., K. Davis, supra note 478, at § 6:18; 1 C.F.R. § 205.77-3 (1980) (Admin. Conf. of the United States, Ex Parte Communications in Informal Rulemaking Proceedings, Rec. No. 77-3):
Of course, Executive Branch personnel are not exempt from the requirement of § 7607(d)(4)(B)(i), that all written materials received from "any person" during the comment period shall be placed in the docket. See 42 U.S.C. § 7602(e).
Myers v. United States, 272 U.S. 52, 135, 47 S.Ct. 21, 31, 71 L.Ed. 160 (1926).
45 Fed.Reg. 86407, 86408 (Dec. 31, 1980) (emphasis supplied) (Admin.Conf. of the United States, Recommendation on Intragovernmental Communications in Informal Rulemaking, Rec. No. 80-6, issued Dec. 23, 1980). See also Verkuil, supra note 485, at 988 (suggesting that neither the existence nor the substance of personal Presidential communications should be recorded, but that in the case of White House staff contacts, only the substance of such contacts should be shielded from disclosure); Bruff, supra note 523, at 504-05 (suggesting that essentially all White House communications should be added to the public record).
In Koniag, a letter was sent from a Congressman to the Secretary of the Interior about an adjudicatory, adversary proceeding which concerned the eligibility of certain Alaskan villages to take land and revenues under the Alaskan Native Claims Settlement Act. The letter requested the Secretary to postpone his decision on the cases pending a review and opinion by the Comptroller General, because it "appears from the testimony [at the hearings] ... that certain villages should not have been certified as eligible for land selections under ANCSA." 580 F.2d at 610. This court found that the letter compromised the appearance of the Secretary's impartiality. Id. Both Pillsbury and Koniag are easily distinguishable on the grounds explained earlier, see text at nn.499ff. supra. Cf. American Public Gas Ass'n v. FPC, 567 F.2d 1016, 1070 (D.C.Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978) (during FPC ratesetting proceeding, Congressional subcommittee questioning and criticism of Commissioners did not in this case result in unlawful interference with the Commission's independence); Environmental Defense Fund, Inc. v. Blum, 458 F.Supp. 650, 662-63 (D.D.C.1978) (during informal rulemaking, communications from Congressmen which were directly relevant to the agency's proceedings did not reflect any impropriety).
The Washington Post, May 5, 1979, at A-1 (emphasis supplied). We do not believe that a single newspaper account of strong "hint[s]" represents substantial evidence of extraneous pressure significant enough to warrant a finding of unlawful congressional interference.