The opinion of the court was delivered by: KNOX
MEMORANDUM OPINION AND ADJUDICATION: APPLICATIONS FOR PRELIMINARY INJUNCTIONS
Plaintiff filed a motion for preliminary injunction and defendant filed a counterclaim and also a motion for a preliminary injunction claiming it had been denied due process by the government's pursuit of this enforcement action while it was challenging denial of a variance request pending in the state agencies. The counterclaim seeks to enjoin the Environmental Protection Agency EPA from enforcing the Clean Air Act against the defendant. We hold that defendant has not been deprived of due process of law in the application to its Mitchell Power Station of the provisions of the Pennsylvania Implementation Plan. Hearings were held on the applications for preliminary injunction on October 11, 27, and 28, 1977, November 21, 22 and 23, 1977 and February 6, 7, 8 and 9, and 10, 1978, a total of eleven days. At these hearings a great mass of technical and expert testimony was introduced with respect to the alleged violations at the Mitchell Plant and the defendant's defenses to the charges.
It should also be noted that on December 8, 1977, the defendant filed a petition for emergency relief as a result of the emergency situation developing from the coal strike by United Mine Workers which persisted from December 1, 1977, until late March 1978.
The relief granted was to the effect that the defendant could resume operations of Boiler No. 33 at the Mitchell Plant during the national emergency occasioned by the coal strike subject to a fine of not to exceed $ 500 per day. The defendant had shut down Boiler No. 33 following institution of this suit with the approval of the Pennsylvania Public Utility Commission (PUC).
Ten days after the coal strike ended the boiler was again shut down and has remained shut down by the voluntary act of the defendant who chose to discontinue its use rather than run the risk of penalties of $ 25,000 per day. We are not informed whether this is approved by the PUC.
Both sides have filed voluminous requests for findings of fact and conclusions of law and almost weekly have filed supplemental memoranda calling the court's attention to subsequent court and/or administrative decisions in this area which is rapidly developing.
The court makes the following
A. West Penn Has Been Violating the Pennsylvania Implementation Plan
1. West Penn is a Pennsylvania corporation which provides electric service to approximately 500,000 customers in southwestern, south central, and north central portions of Pennsylvania. It is a wholly owned subsidiary of Allegheny Power System, Inc.
2. West Penn operates the Mitchell Power Station, a fossil fired electric generating facility located in Courtney, Union Township, Washington County, Pennsylvania.
3. The station consists of three generating units. Two of these units (Nos. 1 and 2) are relatively small units of 89 megawatts each and are collectively fired by three combustion units (Boilers No. 1, 2 and 3). Each of these three boilers burns No. 6 fuel oil and is in compliance with all applicable emission limitations. They were converted from coal to oil to meet air pollution control requirements.
4. West Penn's Mitchell Station is the second largest emitter of sulfur dioxide in Allegheny county and its close environs. Unit No. 3 alone is the fourth largest emitter of sulfur dioxide in that area.
5. On May 31, 1972, at 37 Fed.Reg. 19842 et seq. (40 CFR § 52.2020 et seq.) the Administrator of the EPA approved in relevant part a State Implementation Plan (hereinafter SIP) for the Commonwealth of Pennsylvania, pursuant to § 110(a)(2) of the Act 42 U.S.C. § 1857c-5(a)(2), recodified at 42 U.S.C. § 7410(a)(2) (1977). The SIP included various regulations of the Pennsylvania Department of Environmental Resources (hereinafter DER) governing the control of air pollution. Pennsylvania DER Rules and Regulations § 123.22(b), approved by the Administrator of EPA as a part of the Pennsylvania SIP, govern the emission of sulfur oxides expressed as SO 2, from combustion units located in the Monongahela Valley Air Basin. Defendant's Mitchell Station is located in the Monongahela Valley Air Basin as defined in Pennsylvania DER Rules and Regulations § 121.1(24), also approved by the Administrator of EPA. Tr. 91-92.
6. Under the Pennsylvania SIP (DER Rules and Regulations § 123.22(b)(2)(iii)), West Penn's Mitchell Power Station Unit No. 3 may not at any time emit sulfur dioxide in excess of .6 pounds per million BTU.
7. West Penn offered testimony that if Boiler No. 33 burned 1.9% Sulfur coal and emitted through a proposed 750 foot stack "Tall stack" emissions from Boiler No. 33 would not interfere with the attainment and maintenance of national ambient air quality standards. (Tr. 1077; 1068-1078). The court finds this does not comply with the emission control regulations.
8. In August 1973 EPA requested information from West Penn on the operation of its Mitchell Station (under the authority granted by § 114 of the Clean Air Act). West Penn furnished EPA with the requested information in early September 1973. See P. Ex. 1 and 2.
9. After review of this information, the Regional Administrator of EPA, Region III, in Philadelphia, found that Mitchell Station Unit No. 3 was emitting sulfur oxides in excess of the limit permitted by the Pennsylvania Implementation Plan and issued on September 13, 1973, a notice of violation to West Penn under § 113(a)(1) of the Clean Air Act, 42 U.S.C. § 1857c-8(a)(1), recodified at 42 U.S.C. § 7413(a)(1). The evidence shows that West Penn was emitting sulfur dioxide from Mitchell Station Unit No. 3 at a rate of approximately 3.38 pounds per million BTU of heat input at that time. P. Ex. 3; Tr. 96.
10. By order of the DER dated September 19, 1973, a variance for Boiler No. 33 was granted. However, conditions in the variance granted were unacceptable to West Penn, to wit, West Penn was ordered to complete construction of a scrubber on Boiler No. 33 by June 1, 1976. (D. Ex. A. 3).
11. The uncontroverted testimony of Mr. Abraham Ferdas, senior air compliance engineer for EPA, showed that subsequently, West Penn's emissions from Mitchell Station Unit No. 3 were 3.16 pounds of sulfur dioxide per million BTU heat input in June 1974, 4.21 pounds of sulfur dioxide per million BTU heat input in January 1976, and 4.51 pounds of sulfur dioxide per million BTU heat input in June 1976. (Tr. 104, 113; P. Ex. 7 and 10). There is no evidence that Mitchell Station Unit No. 3, when operating, emits sulfur dioxide at a rate of .6 pounds per million BTU heat input or less at any time.
B. The Relief Requested by the United States Is Reasonable and Effective
1. The installation of a Scrubber at Mitchell Station Unit No. 3 is Technologically Feasible.
a. West Penn has three options to meet the Pennsylvania sulfur dioxide emission limitation for Boiler No. 33 of .6 pounds per million BTU heat input. Those alternatives are:
(b) removing the sulfur from the coal presently being used at the unit before burning it; and
(c) using the present coal source and installing a scrubber (G. Ex. 11, p. vii, Tr. 124, 125).
The low sulfur coal alternative is not practical for West Penn to undertake. Currently, no producers are guaranteeing a sulfur content for their coal much below 1% Sulfur. Moreover, the purchase of .4% Sulfur coal, if it were available, would be very expensive and would require extensive alterations to Boiler No. 33 in order to burn coal with that low a sulfur content. G. Ex. 11, p. vii; Tr. 125, 205, 208-212, 964. Neither is coal cleaning prior to burning a viable alternative at the present time. Only 10% Of the present coal could be desulfurized for use at the plant, while the remaining 90% Would have to be discarded, with today's infant coal cleaning technology. Here, again, the costs would be very high, estimated at $ 95 million annually. G. Ex. 11, p. viii, Tr. 213-218, 965.
The third option installation of a flue gas desulfurization (FGD) system on Boiler No. 33 is a reliable, effective method for meeting the requirements of the Pennsylvania Implementation Plan and is by far the least expensive of the alternatives open to West Penn. G. Ex. 11, p. viii; Tr. 124-139. The capital costs of a lime scrubber, limestone scrubber and magnesium oxide scrubber are $ 34.9 million, $ 37.2 million, and $ 56.1 million, respectively. G. Ex. 11, pp. 3-16 3-23; Tr. 147-157, 235-237, 414-433.
b. The court finds that it is technologically feasible for West Penn to install a reliable scrubber on Boiler No. 33 to remove enough sulfur dioxide from the flue gas to meet the Pennsylvania emission limitation in 36 months. A removal efficiency of approximately 86% Would be required assuming continued used of West Penn's current coal sources. G. Ex. 11; Tr. 126, 130-131, 138. West Penn does not dispute that a scrubber can be designed to remove 86% Of the sulfur dioxide from the flue gas at Mitchell Station Unit No. 3. Tr. 792, 916, 937.
(1) FGD processes are grouped into two basic categories, regenerable or nonregenerable, based on whether the sulfur is separated from the absorbent as a by product or discarded along with the absorbent as a by product or discarded along with the absorbent as waste. Nonregenerable processes, such as lime, limestone, and sodium carbonate FGD processes, produce a sludge that requires disposal in an environmentally sound manner. Regenerable processes, such as the magnesium oxide process, include additional steps to process the sulfur into by products such as sulfuric acid or elemental sulfur. G. Ex. 12, pp. 3-1 3-22. These by-products may be marketable.
(2) The development of scrubber technology since its inception in 1926 in Britain has not been an entirely smooth road. However, all of the major mechanical problems earlier experienced, such as erosion, corrosion, scaling and plugging, have in large measure been solved. G. Ex. 12, pp. 3-8, 3-15, 3-21, 3-24, Tr. 120-139, 165-167.
(3) As of April, 1977, sixteen major utilities are operating 24 scrubbers on their boilers. G. Ex. 12, p. 3-5. As of the same date, 33 additional FGD systems were under construction and 27 are scheduled for start up before the end of the year. Also, contracts have been awarded for another 18 FGD systems. Sixteen of these systems are planned for start up before or during 1980. Finally, 23 utilities have stated that they plan to install 44 FGD systems with start up dates as early as 1980. G. Ex. 12, pp. 4-6; Tr. 135-137. As of the date of PEDCo report, over 50 utilities are operating, constructing or planning to install FGD systems. G. Ex. 12, p. 4-1. William Cress, West Penn's monitor of scrubber development, stated he was aware that 2 other utilities had committed to construct scrubbers since the completion of the PEDCo report. Tr. 962.
(4) Moreover, there are a number of scrubber installations in the immediate vicinity of the Mitchell Station. West Penn's neighbor Duquesne Light Company is operating FGD systems on its Phillips and Elrama Power Stations, Tr. 120-139. Pennsylvania Power Company is operating on FGD system on its Bruce Mansfield Unit No. 1, is in the process of constructing another scrubber on Unit No. 2 at the station, and has already awarded the contract for the construction of a scrubber on Unit No. 3. G. Ex. 12, pp. 4-5, 4-7. The Mansfield Power plant has attained emissions below the .6 emission limitation and the Elrama and Phillips power plants are planning to do so this year. Tr. 126-138, 526, 793-794, 982-983. In addition, Philadelphia Electric Company is also employing a scrubber on its Eddystone Station Unit No. 1A and has announced plans to install two more scrubbers on Unit Nos. 1B and 2 at the station. The same utility has stated that it will install a scrubber on its Crosby Power Station with a start up date of 1980. G. Ex. 12.
(5) West Penn itself is installing a lime scrubber on its new Pleasants Station in Belmont, West Virginia. Tr. 133, 134, 914, 915, 989, 990. The scrubber on Unit No. 1 is planned to be at full operation next year, with the second unit to come on line in 1980. G. Ex. 12, p. 4-5, Tr. 133, 134. Moreover, West Penn is planning to invest approximately one billion dollars (Tr. 980, 981) to construct a new power station in Armstrong County, Pennsylvania, consisting of three 630-megawatt units to be finished during the years 1983, 1984 and 1985. Tr. 943-946. William Cress Manager of Engineering studies for defendant's parent stated that a FGD system will be installed on all three units. Tr. 943-946. He testified that bids for both lime and limestone will be sought from vendors. Tr. 946.
(6) Mr. Archie Slack was West Penn's proffered expert on scrubber technology. Mr. Slack the court finds is a leading industry spokesman against the installation of scrubbers. Tr. 769-771. He has testified at numerous hearings and conferences on behalf of utilities, always against FGD technology. Tr. 769-771. He has testified against FGD systems on behalf of several companies, such as Texas Utilities Company, the Arizona Public Service, Commonwealth Edison and the Tennessee Valley Authority (Tr. 770), which have since chosen to disregard his testimony, for they are either operating scrubbers or have them under construction. G. Ex. 12, pp. 4-1 4-6. The weight to be given to Mr. Slack's testimony is most questionable, particularly in view of his demand that a scrubber operate to perfection 100% Of the time.
(7) Critical to his testimony is Mr. Slack's definition of a reliable scrubber: a scrubber is reliable enough to control sulfur dioxide from a power plant only if it is operational 100% Of the time. Tr. 773-777, 787-788. In his view, a scrubber is nothing more than a "parasite" (Tr. 774), and cannot be considered reliable if it ever interferes with the power generating facilities of a plant. Tr. 773-777. In contrast, he regarded 75 to 80 percent reliability of a boiler as "good". Tr. 772. ...