to reconvert these units to coal at any time, and that the plant will at any rate be physically unable to store coal for approximately two years. It also explicitly concedes that boilers 25 and 26 cannot lawfully be reconverted to coal without additional emission control measures. The Court therefore also regards the violations by these boilers during the time when they were fueled by coal as irrelevant to the instant motion. Since the conversion of boilers 25 and 26 to oil, however, visible emissions have continued. There is no issue of fact as to the existence of these visible emissions: PEPCO's own records show at least twenty-four such incidents between the time of the conversion (around August 21, 1975) and December 23, 1975. In addition, PEPCO admits the existence of occasional visible emissions, stating in fact that such emissions are unavoidable during abnormal operating conditions (cold boiler start-up, boiler shutdown, adjustment of boiler controls during major shifts in generator load, and malfunction of equipment), except by plant shutdown. For the foregoing reasons, the balance of the Court's discussion of the merits of plaintiffs' motion will proceed on the premise and be addressed to the significance of continuing visible emissions from boilers 25 and 26 at the Benning Road facility, operating in an oil-fired mode.
Although it might appear that since the existence of visible emissions in the face of a regulation which prohibits any visible emissions has been established, the discussion would be at an end, PEPCO advances a series of legal arguments by which it hopes to avoid the impact of the regulation. Certain of these arguments are not frivolous and merit discussion. PEPCO first points out that on April 26, 1974 the D.C. City Council amended the provisions of § 8-2:713 to permit visible emissions not exceeding 20% opacity for 2 minutes in any 60 minute period and for an an aggregate of 12 minutes in any 24 hour period, if such emissions result from start-up, cleaning, soot blowing, and/or adjusting combustion controls of boilers. This proposed revision of the D.C. State Implementation Plan was submitted to EPA for approval under § 110(a)(3) of the Clean Air Act. The Agency has not yet approved the revision, but verbal and written correspondence between EPA and D.C. officials indicates that as of mid-1976 the Agency had tentatively decided to disapprove the revision as too stringent and therefore impracticable. PEPCO argues that since the new regulation is less stringent than the old one, and since both the District and apparently EPA view the old one as too stringent, it would be absurd to interpret the law to require compliance with the old regulation. However attractive this argument might at first appear, the Court does not start with a clean slate in interpreting the law. It is now settled that a state implementation plan (SIP) may contain control strategies involving emission limitations more stringent than those necessary to meet the minimal requirements of the primary and secondary ambient air quality standards. Union Electric Co. v. Environmental Protection Agency, U.S. (June 25, 1976). Revisions in an SIP must be approved by EPA to become effective, see Train v. N.R.D.C., 421 U.S. 60 (1975), and before any such change is approved the effective, federally-enforceable requirement is the prior one, which has been approved by EPA. Metropolitan Washington Coalition For Clean Air v. District of Columbia, 167 U.S. App. D.C. 243, 511 F.2d 809 (C.A. D.C., 1975). The current federally-enforceable requirement is therefore the original § 8-2:713, wholly prohibiting visible emissions.
PEPCO also argues in this connection that the visible emission regulation is somehow not federally enforceable, claiming that it does not "implement an ambient air quality standard". This argument is without merit. Section 304(a)(1) provides that a citizen suit may be brought against any person "who is alleged to be in violation of (A) an emission standard or limitation under this Act...". Section 304(f) defines the phrase "emission standard or limitation under this Act" to include "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard...which is in effect... under an applicable implementation plan." Section 110(d) defines an "applicable implementation plan" as "the implementation plan, or most recent revision thereof, which has been approved under subsection (a) or promulgated under subsection (c) and which implements a national primary or secondary ambient air quality standard in a State." To be approved by EPA, the District of Columbia's implementation plan had to be "a plan implementing a national primary ambient air quality standard..." [§ 110(a)(2)(A)(i)]. Such a plan must include "emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary...standard..." [§ 110(a)(2)(B)]. The District of Columbia's limitation on visible emissions is obviously an "emission limitation". PEPCO cites no authority to the contrary, and indeed it is well-settled that such visible emissions regulations are emission limitations for pollution control purposes in general and for the Clean Air Act in particular. See, e.g., Portland Cement Association v. Train, 168 U.S. App. D.C. 248, 513 F.2d 506, 508 (C.A.D.C., 1975), reh. den., June 19, 1975, cert. den., 423 U.S. 1025 (1975), reh. den., 423 U.S. 1092 (1976). Furthermore, in order for visible emissions regulations not to be related in any way to the implementation of the ambient air quality standards, PEPCO must show that visible emissions are wholly unrelated to the emission of any pollutants for which there are ambient air quality standards. It seems obvious that, since PEPCO admits that visible emissions result from particulate emissions during abnormal operations, it can hardly contend that a visible emission regulation is wholly unrelated to achievement of ambient air quality standards. And while visible emissions limitations may be contained in a plan designed to achieve a greater degree of reduction of pollution than that required to meet the primary or secondary standards, as long as the regulation is part of the approved plan implementing those standards it is federally enforceable by way of § 304 citizen suits. See, Union Electric Co. v. EPA, supra.
PEPCO further contends that the original, approved § 8-2:713 should not be construed to prohibit all visible emissions from stationary sources. PEPCO suggests that the EPA approval of the regulation should not be taken as an approval of the provision eliminating the abnormal operations exemption as of August 31, 1973, and analogizes the automatic elimination provision to a variance. PEPCO also argues that EPA has implicitly approved the repeal of the old regulation and has implicitly disapproved the continued operation of that regulation. The relation of these arguments to any reasonable interpretation of the Clean Air Act is at best tangential. EPA explicitly approved the old regulation in its entirety, and it is therefore effective in its entirety, including the elimination of the abnormal operations exemption. Moreover, the provision for the automatic elimination of the exemption on August 31, 1973 bears no relation whatever to a variance under an SIP. See, Train v. N.R.D.C., supra. All variances operate to relax requirements otherwise imposed under a plan; this provision is exactly the opposite, and EPA would have had no power to disapprove a provision increasing the stringency of the regulation. Union Electric Co. v. EPA, supra. Nor does the correspondence and discussion between EPA Region III officials and District of Columbia officials, in which EPA indicated a preliminary intention to disapprove the new regulation as impracticably stringent, amount to an implicit approval of the repeal of the more stringent old regulation. No such legal effect can be ascribed to these informal interchanges, and indeed after Union Electric it is highly doubtful that EPA will be able to disapprove the new regulation for excessive stringency. However until the Agency does approve the new regulation, the zero-visible-emission regulation is the law, enforceable by citizen suit. Of course in formulating relief, the Court will naturally take into account the probability that approval of the new regulation is imminent, if indeed that appears to be the case.
Finally, PEPCO asserts that the alleged technological and economic infeasibility of the absolute prohibition on visible emissions constitutes a defense to a charge of violation of the regulation. PEPCO relies principally on Buckeye Power, Inc. v. EPA, 481 F.2d 162 (C.A. 6, 1973), to sustain this contention. The question of whether a violator may in certain circumstances raise a defense of economic or technological infeasibility was explicitly left open by the Supreme Court in Union Electric, supra at n. 18. The Court's reasoning and findings however totally undermine the rationale of the Buckeye Court, leaving its holding without persuasive effect. The Buckeye court examined the legislative history of the 1970 Clean Air Act amendments and found that Congress did not intend plant shutdowns in the face of failure to meet the requirements of SIPs, 481 F.2d at 168. The Supreme Court, in contrast, found that the Act is meant to be "technology-forcing", and that public health had been given absolute priority over continued operations of noncomplying polluters. The Buckeye court further articulated the rationale underlying its holding as follows:
Since we have determined that there could not have been an adequate hearing on individual claims such as those presented by the petitioners herein prior to approval of the state plans, the claims can be asserted as a defense in either federal or state enforcement proceedings.
481 F.2d at 173. The Supreme Court however held that such individual claims were wholly irrelevant to the Administrator's decision to approve or disapprove a state plan, and that such claims could rather be considered by the state in formulating the plan. Since the underlying premise of the Buckeye court has been found to be faulty, its holding cannot be given effect in the present case, And finally, despite the Buckeye court's reading of the legislative history of the 1970 amendments, that legislative history clearly contemplates that the Act's requirements be technology-forcing, and plainly reflects a congressional intent that claims of technological and economic infeasibility not constitute a defense to an adjudication of violation of applicable SIP requirements. See, Union Electric, supra; Bonine, "The Evolution Of 'Technology-Forcing' In The Clean Air Act", 6 Environmental Reporter, Monograph No. 21 (July 25, 1975); Bleicher, "Economic And Technical Feasibility In Clean Air Act Enforcement Against Stationary Sources" 89 Harv. L. Rev. 316 (1975), This does not mean that each source that is genuinely unable to comply with every requirement of an SIP must inevitably be closed; in formulating equitable relief the Court must always exercise discretion and balanced judgment. While this judgment must give dominant weight to the public health interests protected by the Act, the Court might for example, upon a finding of prior good faith efforts at compliance by the source, place it on a tight compliance schedule with shut-down specifically ordered if compliance had not been effected by a date certain. Whether such an extension of the original SIP requirements may be permitted will depend on the circumstances of each case, again with the public health criteria of the Act as primary guidelines. It may also of course be relevant to consider what relief plaintiffs actually seek; in the present case, they seek not shut-down but the maximum compliance possible given the current state of pollution control technology.
Accordingly, it is by the Court this 16th day of August, 1976,
ORDERED, that plaintiffs' motion for partial summary judgment be, and hereby is, granted, and it is
ADJUDGED AND DECLARED, that defendant Potomac Electric Power Company, in the operation of boilers 25 and 26 at its Benning Road facility in the District of Columbia, is and has been in violation of § 8-2:713 of the Health Regulations of the District of Columbia, which section constitutes part of the approved State Implementation Plan for the District of Columbia pursuant to the Clean Air Act.
William B. Bryant
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