42 U.S.C. § 7423

Stack heights

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(a) Heights in excess of good engineering practice; other dispersion techniquesThe degree of emission limitation required for control of any air pollutant under an applicable implementation plan under this subchapter shall not be affected in any manner by—(1) so much of the stack height of any source as exceeds good engineering practice (as determined under regulations promulgated by the Administrator), or(2) any other dispersion technique.The preceding sentence shall not apply with respect to stack heights in existence before December 31, 1970, or dispersion techniques implemented before such date. In establishing an emission limitation for coal-fired steam electric generating units which are subject to the provisions of section 7418 of this title and which commenced operation before July 1, 1957, the effect of the entire stack height of stacks for which a construction contract was awarded before February 8, 1974, may be taken into account.(b) Dispersion technique

For the purpose of this section, the term “dispersion technique” includes any intermittent or supplemental control of air pollutants varying with atmospheric conditions.

Not later than six months after August 7, 1977, the Administrator, shall after notice and opportunity for public hearing, promulgate regulations to carry out this section. For purposes of this section, good engineering practice means, with respect to stack heights, the height necessary to insure that emissions from the stack do not result in excessive concentrations of any air pollutant in the immediate vicinity of the source as a result of atmospheric downwash, eddies and wakes which may be created by the source itself, nearby structures or nearby terrain obstacles (as determined by the Administrator). For purposes of this section such height shall not exceed two and a half times the height of such source unless the owner or operator of the source demonstrates, after notice and opportunity for public hearing, to the satisfaction of the Administrator, that a greater height is necessary as provided under the preceding sentence. In no event may the Administrator prohibit any increase in any stack height or restrict in any manner the stack height of any source.

(July 14, 1955, ch. 360, title I, § 123, as added Pub. L. 95–95, title I, § 121, Aug. 7, 1977, 91 Stat. 721.)Statutory Notes and Related SubsidiariesEffective Date

Section effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d) of Pub. L. 95–95, set out as an Effective Date of 1977 Amendment note under section 7401 of this title.

Notes of Decisions

Cited in 14 cases (1 in the last 5 years), 1978–2024 · leading case: Alabama Power Company v. Douglas M. Costle, as Administrator, Environmental Protection Agency, Sierra Club, Intervenors.

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Alabama Power Company v. Douglas M. Costle, as Administrator, Environmental Protection Agency, Sierra Club, Intervenors. (1980) cadc · cites it 5× “721 , 42 U.S.C. §§ 7423 (a)(2), (b) (Supp. I 1977), is the problem of intermittent controls, which involve extensive operation when meteorological conditions will best disperse the emissions and curtailed operations at other times.”

Montana Sulphur & Chemical Co. v. United States Environmental Protection Agency (2012) ca9 · cites it 4× “Concerned that such a dispersion technique does not actually reduce the amount of pollution but merely spreads it around, Congress adopted 42 U.S.C. § 7423 to regulate the use of tall stacks.”

Sierra Club v. Environmental Protection Agency (1985) cadc · cites it 3× “Congress prohibited the EPA from regulating the actual heights of the stacks, 42 U.S.C. § 7423 (c) (1982), but Congress mandated that emissions limitations for sources be calculated as if the stacks were no higher than that dictated by “good engineering practice” (GEP), id.”

Sierra Club v. Environmental Protection Agency (1983) cadc · cites it 13× “42 U.S.C. § 7423 (Supp. V 1981). Rather, pollution standards were to be achieved by direct limitations on emissions.”

West Penn Power Company v. United States Environmental Protection Agency and Lee M. Thomas, Administrator (1989) ca3 “(quoting § 123(a), 42 U.S.C. § 7423 (a) (Supp. V 1981)). Section 123 declares that no source of pollution can get credit for any improvements in local air quality that merely stem from the dispersive effect of a stack that exceeds that height mandated by “good engineering…”

The Dow Chemical Company, a Delaware Corporation v. United States Environmental Protection Agency and Douglas M. Costle (1981) ca6 · cites it 3× “In addition, in 1977 Congress added a new Section 123(a) ( 42 U.S.C. § 7423 (a)) stating that “[t]he degree of emission limitation required” by a SIP “shall not be affected in any manner” by the use of excessive stack heights or “any other dispersion technique,” and a new…”

Natural Resources Defense Council, Inc. v. Thomas (1988) cadc · cites it 7× “This incongruity may account for some of the logical difficulties encountered in trying to apply the statute and controlling precedents. The battle has proceeded in the agency, the courts and Congress.”

Alabama Power Company v. Douglas M. Costle, as Administrator, Environmental Protection Agency, Sierra Club, Intervenors. (1979) cadc “For purposes of this section such height shall not exceed two and a half times the height of such source unless the owner or operator of the source demonstrates, after notice and opportunity for public hearing, to the satisfaction of the Administrator, that a greater height is…”

Kamp v. Hernandez (1985) ca9 · cites it 2× “Dispersion Techniques Section 123(a) of the Clean Air Act, 42 U.S.C. § 7423 (a), provides that EPA cannot approve an implementation plan which relies on “dispersion techniques” to attain compliance with the NAAQSs.”

United States v. West Penn Power Co. (1978) pawd “Defendant claims that new § 123 ( 42 U.S.C. § 7423 ) 7 requires credit for tall stack in measuring compliance, and that it can demonstrate that this is less expensive and the regulations are more stringent than necessary.”

Hawaiian Electric Co. v. United States Environmental Protection Agency (1984) ca9 “They also argue that because 42 U.S.C. § 7423 (a)(1) states that polluters should not be given credit for smokestacks higher than good engineering practice, adjustments must be made to the monitoring results.”

Connecticut v. Environmental Protection Agency (1982) ca2 “See 42 U.S.C. § 7423 (a)(2) and discussion infra at 161.”

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