than close the unit. After installation of a scrubber, the cost of operating Mitchell Station Unit No. 3 would still be less than purchasing power from another utility, and, in fact, would be less expensive than operating nine other plants in Allegheny Power System's power pool in its place. Pltf. Ex. 14; Tr. 275-280, 321.
(d) The Pennsylvania Public Utility Commission has stated in recent opinions that expenditures for pollution control equipment would be included in the rate base and made specific reference to the installation of scrubbers. Penna Public Comm. v. Duquesne Light Co., Rate Investigation Docket (RID) No. 89, p. 22 (July 30, 1974); Penna Public Utility Comm. v. Duquesne Light Co., RID 198, pp. 6, 7 (July 13, 1976); Penna Public Utility Comm. v. Penna Power Co., RID No. 243, pp. 9-10 (Jan. 27, 1977). See Tr. 666, 7; Mr. Glauthier's rebuttal deposition pp. 12-15.
C. West Penn's Defense That The Applicable Emission Limitation is More Stringent Than Necessary to Attain and Maintain NAAQS is Without Merit
1. The National Primary Ambient Air Quality Standards (NAAQS) for sulfur dioxide are 80 micrograms per cubic meter (.03 parts per million) as an annual average and 365 micrograms per cubic meter (.14 parts per million) as a 24 hour average. (Tr. 1039) (See 40 CFR 50.1 et seq.). There is also a secondary standard for a three hour period, not to be exceeded over once a year of 1300 micrograms per cubic meter (.5 parts per million) (1040).
2. The modeling effort of a defendant's witnesses contain numerous errors in methodology, which cast doubt on their conclusions.
3. Defendant's modeling efforts contain errors in data reduction, which also cast doubt on their conclusions.
4. Defendant's modeling, even if valid, does not support a finding of over stringency in the sulfur dioxide emission limitations.
5. Plaintiff's modeling efforts, which the court accepts demonstrate that as applied to all sources in and around Allegheny County or to the Mitchell Power Station, the sulfur dioxide emission limitation is not more stringent than necessary to attain and maintain NAAQS. (See P. Ex. 44, 46).
6. Actual monitoring studies conducted in the vicinity of Mitchell Power Station demonstrate actual violations of NAAQS caused by the Mitchell Station, and validate the Cramer model.
This case presents another instance of the tensions which arise when the interests of the public in removal of pollutants from the atmosphere clash with those of the power companies and their customers. Usually the cry is, "Do you want jobs or a clean environment?" The implication of this argument is you can't have both.
When the polluter is a power company with its emission of smoke including sulfur dioxide (SO 2) the issue becomes more confused because the same public with interest in a clean environment is also interested as consumers in keeping utility rates down in a time of increasing inflation. The determination of this clash of interests, however, as illustrated in this case is basically a problem for the legislature, not the courts. The federal courts are only empowered to act in this area to enforce legislation passed by Congress unless it is made to appear that the legislation regulating this subject conflicts with the constitution. Absent this it is our duty to enforce the mandates of Congress.
Litigation continued over four years by the defendant in this case has substantially increased costs of compliance with the Clean Air Act passed by Congress in 1970 and amended in 1977 (Now 42 U.S.C. § 7401, et seq.). After eleven days of hearings on the government's application for a preliminary injunction the court is not convinced that the defendant has made any showing of constitutional violation in application of the statute to it, that substantial and continued violations of the act have been shown and the government is entitled to a preliminary injunction in accordance with 42 U.S.C. § 7413(b).
The early history of the attempts of this defendant to avoid compliance with Clean Air Act is set forth in the opinion of our Court of Appeals in West Penn Power Company v. Train, 522 F.2d 302 (3d Cir. 1975) affirming on somewhat different grounds the decision of this court in West Penn v. Train, 378 F. Supp. 941 (1974) wherein we held we had no jurisdiction to enter a declaratory judgment or an injunction against the Environmental Protection Agency (EPA). The Court of Appeals held that defendant's claims of denial of due process as the result of technological or economic infeasibility of compliance with the Act and regulations pursuant thereto could be presented to the State Department of Environmental Resources (DER) or to this court in an enforcement proceeding. (See 522 F.2d at 312). After denial of certiorari by the U.S. Supreme Court and a later attempt to file a late appeal from denial of the Pennsylvania State Implementation Plan (SIP) (See 538 F.2d 1020 (3d Cir. 1975)) the defendant elected to follow the routes indicated and a proceeding for further variance is now pending before the State Environmental Hearing Board (EHB).
Finally, on October 3, 1977 the U.S. filed this enforcement suit against defendant alleging continuous violation of the regulations governing emission of sulfur oxides in excess of the permissible rate, notwithstanding notice of violation issued by the EPA on September 13, 1973, received by defendant September 17, 1973. The government seeks both a preliminary and permanent injunction under § 113(b) of the Act (42 U.S.C. § 4213(b)) and a civil penalty of not more than $ 25,000 per day as also authorized by the Act from August 7, 1977, the effective date of the 1977 Amendments to the Clean Air Act (P.L. 95-95, 91 Stat., pp. 685, 701).
The court has held that in this proceeding the defendant is entitled to a full and fair hearing on its claims of violation of due process as required by our Circuit in West Penn Power v. Train, 522 F.2d 302, supra. The court has also in this respect heeded the thoughts expressed by the U.S. Supreme Court on this subject in Union Electric Co. v. E. P. A. 427 U.S. 246 at 266-269, 96 S. Ct. 2518, 49 L. Ed. 2d 474 (1976). For these reasons, the court has denied the government's motions to limit the defense in this respect. Nevertheless, after eleven days of hearings on the government's request for a preliminary injunction the court determines that no legal showing of technological or economic infeasibility or impossibility of compliance has been shown and that the government has otherwise shown itself entitled to a preliminary injunction.
Despite the lapse of over 41/2 years since the issuance of notice of violation by EPA the defendant has continued its course of violation. The record shows that the Mitchell plant of the defendant is the second largest emitter of SO 2 in the area
and its Boiler No. 33 with a rated capacity of 291 megawatts, the main target in this suit, emits more SO 2 than the Clairton Works of U.S. Steel Corporation a short distance down the Monongahela. This plant exceeded in 1972 and continues to exceed the National Ambient Air Standards for SO 2 (40 CFR 52.2021).
The Pennsylvania SIP provides for an emission limitation of .6 pounds per million BTU of heat input.
In September 1973 the date of the violation notice, defendant was emitting SO 2 at a rate of 3.38 pounds and in June 1976 at a rate of 4.51 pounds.
These figures alone show the need for action by the courts in this situation. The defendant did secure an extension from the Pennsylvania authorities on September 19, 1973, for compliance until June 30, 1976. Notwithstanding the granting of this extension defendant has done nothing to comply in the two years since that date. Instead it has chosen to continue to litigate while costs escalate. Defendant now has further proceedings pending before the Pennsylvania Agency and we will not interfere with them, but this is no reason for this court withholding action in this case as will be discussed later. It was noted by the Pennsylvania EHB in its opinion of June 19, 1978 in the case of West Penn Power Co. v. Commonwealth of Pennsylvania, DER, Docket No. 73-330 D, that West Penn by its legal contests has succeeded in avoiding emission controls on Boiler 33 for five years.
All this is contrary to the intent of Congress in passing this statute. It has been held by the U.S. Supreme Court that until he gets a variance (which may or may not be approved as an amendment to the SIP if it results in violation of national standards Train v. National Resources Defense Council, 421 U.S. 60, 95 S. Ct. 1470, 43 L. Ed. 2d 731 (1975), the polluter is subject to existing requirements. Congress foresaw that there might be protracted litigation, as here, in attempts to secure variances, but such litigation is to be carried out on the polluter's time, not the public's. As to this the court said in Train v. N. R. D.C., supra.
"As made clear in the Getty case ( Getty Oil Co. v. Ruckelshaus, 342 F. Supp. 1006 (D.Del.1972)) cited by the First Circuit, a polluter is subject to existing requirements until such time as he obtains a variance, And variances are not available under the revision authority until they have been approved by both the State and the Agency. Should either Entity Determine that granting the variance would prevent attainment or maintenance of national air standards, the polluter is presumably within his rights in seeking judicial review. This litigation, however, is carried out on the polluter's time, not the public's for during its pendency the original regulations remain in effect, and the polluter's failure to comply may subject him to a variety of enforcement procedures."
See also Getty v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972).
To make sure that defendant's rights to due process are being respected, the court has heard lengthy testimony expert and otherwise, as to the technological and economic infeasibility of installing scrubbers to reduce the SO 2 emissions at this plant to comply with national standards. We have also received testimony as to whether the national standards could be achieved by the use of so called "Tall Stacks" (750 Feet in height or more) in possible combination with low sulfur coal. We have done so in compliance with what we regard as the determination of this circuit in West Penn Power Co. v. Train, Supra, and the use of such defense in enforcement proceedings as suggested by the U.S. Supreme Court in Union Electric Co. v. E. P. A., supra. We assume that if defendant, which has the burden of persuasion on this point, could demonstrate that it was practically impossible to comply with the regulations and that the government was requiring it to expend upwards of $ 60 million for nothing this would be a defense to an enforcement proceeding. But the court holds that this has not been shown, as yet, in this case.
We also have considered what the U.S. Supreme Court has said as to such defense in Union Electric v. E. P. A., supra, 427 U.S. at 256-259, 96 S. Ct. at 2525:
"As we have previously recognized, the 1970 Amendments to the Clean Air Act were a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution. The amendments place the primary responsibility for formulating pollution control strategies on the States, but nonetheless subject the States to strict minimum compliance requirements. These requirements are of a "technology-forcing character', Train v. N. R. D.C., (421 U.S.) at 91 (95 S. Ct. 1470 at 1487, 43 L. Ed. 2d 731) and are expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible."