Petition — Timken Co. v. Environmental Protection Agency

Supreme Court brief1978

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Y= Supreme Court, U. &.~

( FILED \

No. 78 8 3 l JUL 14.1978

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IN THE MICHAEL RODAK, JR., CLERK _|

Supreme Court of the United States

OctToBer TERM, 1978

TIMKEN Company, Petitioner

THe ENVIRONMENTAL PROTECTION AGENCY, and

Doucias CostLe, Administrator of the

ENVIRONMENTAL PROTECTION AGENCY, Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Erwin N. GRISWOLD

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

Rosert M. Rysoir

800 Cleve-Tuse. Building

Canton, Ohio 44702

Counsel for the Petitioner

Of Counsel:

THomas F. CuLLeNn, JR.

Jones, Day, Reavis & Pocue

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

JEFFREY P. WHITE

Day, Kerrerer, RAey,

Wricut & Rysoutr

800 Cleve-Tuse. Building

Canton, Ohio 44702

——

Pauses of Breow S. Adams Panrrine, Inc, Wasmiveron, D. C.

TABLE OF CONTENTS

Page

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ESSER A RET EE rt a. 2

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a ebemeanenhisn’ 6

re ES SOI gg gc cewccewcewent és oe% 8

Reasons ron GRANTING THE WRIT .................55 10

1. The decision below allowed the RAM model to

be rh arom may as a rule without adequate notice

and comment, contrary to Section 4 of the Ad-

ministrative Procedure Act and in conflict with

the approach of at least three other circuits .... 11

2. Neither Vermont Yankee Nuclear Power v. Nat-

ural Resources Defense Council, decided May 1,

1978, nor Section 4 of the Administrative Proced-

ure Act, 5 U.S.C. $553, preclude a court from

requiring additional os A wen safeguards where,

as here, computer modeling subsumes both the

adjudicatory and the legislative function of the

ID GEE nc ccncctcccnccccessseees 16

3. The failure of the court below to understand or

assess the technical issues is directly in conflict

with the careful standard of review of technical

issues required by Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971) and fol-

lowed by the First Circuit in South Terminal

Corp. v. Environmental Protection Agency, 504

F.2d 646 (1974) and the D.C. Cireuit in Ethyl

ag 1. Environmental Protection Agency, 541

F.2d 1, cert. denied, 426 U.S. 941 (1976) ........ 22

ii Table of Contents Continued

Page

4, The Administrator of the EPA failed adequately

to consider objections based on the economic and

technological infeasibility of the proposed plan,

thus posing directly the question which this Court

left open in Union Electric Corp. v. Environ-

mental Protection Agency, 427 U.S, 246 (1976) ;

and in upholding his action the court below placed

itself in conflict with the decisions of the Ninth

and First Circuits .......cceceeeeeeeveeeenees 28

IE iio oc Casas Vaan yn cbeseeceeseesesas eres 32

APPRMOER A noc ccccccrccvcscreussecccsesercsencers la

APPEMOE Bcc ccccsccrscccnccssaseccesecvecssens 50a

BOOMER DT cc cccccctccecvsceneccsevessneveserens 5la

APPBMDEE D on cccscsceccccccccecccvcccvovcccsvonss 52a

TABLE OF AUTHORITIES

Casss:

American Frozen Food Institute v. Train, 539 F.2d 107

(D.C. Cir. 1976) ..cscccccccccccccsccvscvcesens 5, 13

American Public Gas Association v. Federal Power

Commission, 567 F.2d 1016 (D.C. Cir. 1977) .... 28

Anan) Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir.

TN ed pea mernereeakeeceneen 4

Appalachian Power Co. v. Environmental Protection

Agency, 477 F.2d 495 (4th Cir. 1978) ..... 18-19, 20 ,28

Buckeye Power, Inc. v. Environmental Protection

Agency, 481 F.2d 162 (6th Cir, 1973) ........06.

Bunker Hill Corp. v. Environmental Protection Agency,

572 F.2d 1286 (9th Cir. 1977), clarified on denial

of rehearing 11 Env. Rep. 1204 (BNA) (Dee. 28,

1) eee ST errerrr errr rrr er eTrrrrir erie e 29-30

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

Se CEE See eece dead edeesserevannes 2, 22, 24

Table of Authorities Continued ili

Page

Cleveland Electric Illuminating Co. v. Environmental

Protection Agency, 572 F.2d 1150 (6th Cir.

SHOE. ssa datunveernusecesiveecea ss 1, 5, 8, 10, 25, 29, 31

Ethyl Corp. v. Environmental Protection Agency, 541

F.2d 1 (D.C. Cir. 1975), cert. denied 426 P.S, 941

GUE Ss Chur ovauwanaderadecsssuete 13, 18, 22-23, 24

Goss v. Lopez, 419 U.S. 565 (1975) . 0... ccc cccceeeee 18

Independent Bankers Association of Georgia v. Board

of Governors, 516 F.2d 1206 (D.C. Cir. 1975) ... 20

International Harvester Co. v. Ruckelshaus, 478 F.2d

615 (D. C. Cir, 1973)... cceccececee, re: 12, 27-28

Maryland v, Environmental Protection Agency, 530

2d 215 (4th Cir. 1975) vacated on ae ps

431 U.S. 99 (1977) (per curiam) .............. 15-16

Mision Industriai, Inc. v. Environmental Protecti

Agency, 547 F.2d 123 (1st Cir. 1976) tis ve ie 14

Mobil Oil Corp. v. Federal P isst

F.2d 1238 (D.C. Cir, 1973)... suiereaan ahs 13

Portland Cement Association v. Ruckelshaus, 486 F.2d

875 (D.C. Cir. 1973) cert. denied, 417 U.S, 921

CONWOE ks tunbaciaventensober cere clecdic ok 12

Rodway v. Department of Agricult 1 2

(D. ©. Cir. 1975) ficken snicmassedarecicriens 16

Seacoast Anti-Pollution League v. Costl 2

(ist Cir. 1978) ...... ena : . ’ per 21

South Terminal Corp. vy. Environmental Protecti

Agency, 504 F.2d 646 (1st Cir. 1974) . .13, 22, 23, 27, 30

Texas v. Environmental Protection A

gency, 499 F.2d

289 (5th Cir. 1974) cert. denied, 427 U.S. 905

FON bin deatws bebasieudesvaccecccccceuutes 24-25

Union Electric Co. v. Environmental Protecti

Agency, 427 U.S. 246 (1976) ........... ee 7 098-30

United States v. Florida Coast Rail

294 (1978)... ones. pathos races arpa 13

Vermon! Yankee Nuclear Power v. Natur LR

Defense Council, US, (1978) ee 16-17

iv Table of Authorities Continued

Page

Wagner Electric Corp. v. Volpe, 466 F.2d 1013 (3rd

Che. IAD) .cccvccesnccsecscncscubevenannveene

Walter Holm & Co. v. Hardin, 449 F.2d 1009 (D.C. Cir.

WR) cnccccccvvcnccvcccesescecssssesesesesenn

STATUTES:

5 UBC. GBB 2. ccccvescsvccccessesctsconcscnsucns 4,11

QB U.S.C. §1254(1) ...ccccccccccccscecccccsscscens 2

42 U.S.C. § 7410, formerly 42 U.S.C. § 1857(¢)-5 ..... 4,

15, 17, 20

MISCELLANEOUS:

Boyer, Alternatives to Administrative — Trial-T ype

Hearings for Resoulving Complex Scientific, Eco-

nomic and Social Issues, 71 U. Mich. L. Rev. 111

(IOTE) nn ccvoccccccsscdecssscessneneassenweses 18

1 K. Davis, Administrative Law Treatise, (1958) .... 4

40 Fed. Reg. 52410 (Nov. 10, 1975) .....ecceeeeeees 1,3

41 Fed. Reg. 36324 (Aug. 27, 1976) ........ce scenes 1,3

Friendly, Some Kind of Hearing, 123 U.Pa. L. Rev.

WORT CITB) onc cvcccceccsccnsiaeuuneuusenvanns 18

Environmental Protection Agency, Guidelines on Air

Quality Models (2d draft, May 1977) ........5+5 26

7 Environmental Reporter No. 18 (1976) ..........: 14

Hamill and McGill, ‘‘A Determination of the Predic-

tive Capability of the EPA Real-Time Air-Quality

Simulation Model’? (1977) ........eceeeeeeeees 14-15

H.R. Rep. No. 95-564, 95th Cong., Ist Sess. ‘‘Joint Ex-

planatory Statement of Committee of Conference’’

TROUT) vccccccvccccensssecnceqnepeseuseeaneeee 24

Turner and Novak ‘‘An Efficient Gaussian—Plume

Multiple Source Air Quality Algorithm” 26 Jour-

_ of Air Pollution Control Association 520 (June ‘

errr ee

IN THE

Supreme Court of the United States

OctToBER TERM, 1978

No. 78-

TIMKEN Company, Petitioner

Vv.

THE ENVIRONMENTAL ProrTecTION AGENcy, and

Dova.as CostLe, Administrator of the

ENVIRONMENTAL Prorection AGENCY, Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, the Timken Company, prays that a writ

of certiorari issue to review a judgment of the United

States Court of Appeals for the Sixth Circuit uphold-

ing the validity of a sulfur dioxide emission control

plan for the state of Ohio promulgated by the Admin-

istrator of the Environmental Protection Agency

(EPA).

OPINION BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit (App. A, pp. 1a-49a) is reported

at 572 F.2d 1150. The action of the Administrator

which is at issue here was published at 41 Fed. Reg.

36324 (August 27, 1976).

JURISDICTION

The judgment below was entered on February 13,

1978 (App. B, infra, p. 50a), On April 18, 1978 the

Court of Appeals denied a timely petition for rehear-

ing (App. ©, infra, p. 51a), The jurisdiction of this

Court is invoked under 28 U.S.C, § 1254(1).

QUESTIONS PRESENTED

1. Whether the adoption of an untested and un-

verified computer modei as a basis for a regulation

is valid when there was no adequate opportunity to

present the deficiencies of the model to the agency.

2. Whether in light of Vermont Yankee Nuclear

Power Co. v. National Resources Defense Council,

U.S. ——, decided May 1, 1978, procedural

safeguards beyond notice and comment are statutorily

or constitutionally required where a proposed regula-

tion in effect adjudicates and determines particular

individual rights using an untested computer con-

struct as the decision-maker.

3. Whether an additional period for notice and

opportunity for comment was required by Section 4

of the Administrative Procedure Act when the pro-

posed regulation had been essentially changed in

methodology and impact after the initial notice and

opportunity for comment.

4. Whether on the basis of Citizens to Preserve

Overton Park Inc., v. Volpe, 401 U.S. 402, the court

below adequately assessed the factual record in up-

holding adoption of a computer model as an emission

control regulation—when the model was unverified

against monitor experience, and was based on un-

likely and unverified empirical assumptions—while

failing to address any of the technical objections to

the model’s deficiencies,

5. Whether the court below failed to address ade-

quately the petitioners’ claims of technological and

economic infeasibility in light of the unprecedented

nature and impact of the regulation, and the claims

that such stringent limitations were not warranted by

National Air Quality Standards.

STATUTES INVOLVED

The constitutional and statutory provisions pri-

marily involved are reproduced in Appendix D, infra

pp. 52a-72a.

STATEMENT

This case arises out of a plan for control of emis-

sions of sulfur dioxide in the state of Ohio. The plan

was promulgated by the Administrator of the Envi-

ronmental Protection Administration (EPA) on

August 27, 1976, 41 Fed. Reg. 36324, and was held

valid by the Court of Appeals for the Sixth Circuit,

against the contentions of some 32 petitioners below,

who attacked both the procedural genesis and the

substance of the 1976 plan.

History

On January 30, 1972, the Governor of the state of

Ohio first filed a state implementation plan under

section 110(a) of the Clean Air Act. designed to con-

trol, inter alia, sulfur dioxide emissions, Although the

EPA approved the plan, the court of appeals re-

manded the plan to the EPA in Buckeye Power, Inc.

v. Environmental Protection Agency, 481 F.2d 162

(6th Cir. 1973), because the Administrator had failed

to provide the publication and opportunity for com-

ment required by section 4 of the Administrative Pro-

cedure Act (APA), 5 U.S.C. § 553, infra, pp. 52a-54a,

The plan had been initially promulgated on the as-

sumption that conversion from coal to cleaner fuels,

principally oil and natural gas, would provide much

of the contemplated air quality improvement. When

the oil crisis made this course impracticable by limit-

ing the availability and raising the price of these

fuels, the difficulties of devising a workable plan in-

tensified. After a period in which the emission control

limitations were withdrawn in part, revised, and over-

turned in part by the Ohio Environmental Board of

Review, the Ohio regulations were withdrawn by the

Governor on July 16, 1975.

Pursuant to Section 110(c) of the Clean Air Act,

42 U.S.C. § 7410, formerly 42 U.S.C, 1857(c)-5, the

EPA Administrator on November 10, 1975 proposed a

plan for control of SO: emissions in Ohio, 40 Fed.

Reg. 52410, Public hearings were held and comments

solicited on this plan. The methodology of the plan

varied from county to county, but generally the limi-

tations were based on the type of facility involved,

and not derived on the basis of emission from specific

facilities, In the twelve urban counties emission limits

were based on a sliding scale according to the size of

the facility—the larger the source, the more stringent

the limitation. For the remaining forty-four con-

trolled counties * the plan established flat rate county

limitations determined on the basis of the amount of

‘Thirty-two rural counties were uncontrolled because of mini-

mal or non-existent emission problems,

reduction needed for the worst county faciltiy. The

regulations generally were applied to specific sources

through simple allocation of the emission reduction

calculated to be necessary for the county as a whole.

Computer modeling to predict diffusion of emissions

was used only in a limited way.

Reacting to intense criticism of the stringency of

the proposed limitations and of the failure of the

regulations to take facility-specific differences into

account, EPA in large part abandoned the 1975 plan

for urban areas, and on August 27, 1976 promulgated

a replacement plan based on facility-specific computer

modeling for those urban areas.’

* (nder the 1976 plan, thirty-three counties are uncontrolled and

of the fifty-five controlled counties, twenty-nine counties have a

general fuel combustion regulation, twenty counties have a general

industrial process regulation, six have a general sliding scale, Only

twelve counties have limitations for specifically named facilities.

Timken Co. has facilities in Stark County, Ohio, one of the urban

Ohio counties regulated by EPA’s RAM model.

The appeal in the Sixth Circuit and this Petition are principally

concerned with the source-specifie application of the plan using the

RAM model. App. A, p. 2a, 572 F.2d at 1152, n. 1. Issues raised

with regard to the portions of the Ohio plan covered by the MAX

or CRSTR single-source rural diffusion model have been decided

separately. See clarifying order entered in Docket Nos, 76-2090,

77-1367 on June 29, 1978 under the caption Cincinnati Gas and

Electric Co., et al. v. Environmental Protection Agency and Doug-

las M, Costle, Administrator, The extent to which uncontested

portions of the plan were unchanged or only slightly changed is

irrelevant to the issue of the introduction of RAM into the plan.

Cf. American Frozen Food Inst, v. Train, 539 F.2d 107, 135 (D.C.

Cir, 1976) (inadequate notice and opportunity to comment with

respect to one of the pollutants covered requires remand with

regard to that pollutant).

The model used is the Realtime Air Quality Simu-

lation model, referred to throughout the record as the

RAM model, The controversy here centers upon the

adoption and use of this model.

RAM Model

The RAM modei is an attempt to base emission

limitations on a computer dispersion model. Basically

the model is a mathematical construct which relates

three major sorts of data: meteorological data, source

emission data, and ambient air quality data.’ Ambient

air quality is predicted on the basis of the relation-

ship between source and meteorological data. Based

on this prediction, specific source emission limitations

are calculated. The model then re-predicts ambient air

quality based on these limitations in order to estab-

lish (again according to the model) that national am-

bient air quality standards will be achieved. EPA

Supplemental Technical Support Document pp. 151-

153 (May, 1977).

In applying RAM, EPA incorporated three worst-

case assumptions:

*The Brief on behalf of the Environmental Protection Agency

before the Sixth Cireuit (hereafter EPA Brief) characterizes the

data required in this way:

‘For every source analyzed, dispersion modeling requires the

following specific data: (1) Meteorology data, average wind

speed, stability wind rose (wind velocities, directions, and

percentage of time for each direction), mixing height, tem-

perature; (2) Source data, emission rate (only one used in

rollback), stack height, stack diameter, average stack gas

volume flow, corresponding temperature, exit velocity, maxi-

mum stack gas volume flow with corresponding temperature

and exit velocity, and specific source location using a stand-

ardized system of coordinates. Ambient air data requires maxi-

mum concentrations, spatial distributions of concentrations.’’

EPA Brief, p, 17, n, 26.

ce ee ee a ee ee ee a ee

1. Full-eapacity operation of all sources of a

given company or facility at all times;

2. Full capacity operation of all other sources in

the same county; and

3. Worst meteorological conditions, leading to

the highest ground level ambient concentra-

tions of sulfur dioxide.’

The 1976 plan had several features which set it

apart from all previous EPA emission plans, includ-

ing the EPA plan which it replaced. First, the new

plan relied extensively on computer prediction of air

quality violations to the exclusion of monitor data;

second, the new plan relied on facility-specifie data

and generated facility-specific limitations; third, it

took into account the relationships umong multiple

sources; fourth, it incorporated separate dispersion

factors for urban and rural terrain.

Petitioners below complained that the new model

was largely unexamined and untried and that addi-

tional time, study, and commentary were needed.’

*See Appendix to the Brief on behalf of Timken Co, to the

Sixth Cireuit Court of Appeals (Timken Appendix), p. A-9.

*The RAM model was outlined in an article published in June,

1976, Turner and Novak, ‘‘An Efficient Gaussian-Plume Multiple

Source Air Quality Algorithm,’’ 26 Journal of A‘r Pollution Con-

trol Association 570 (June 1976). Turner and Novak state that

RAM can be used as a tool to locate air quality monitors and

“‘assist’’ in emission reduction tacties, Petitioners below endorsed

these types of ancillary use of RAM modeling techniques, Joint

Brief of Petitioners Relative to the Use of the RAM Model, p, 17

(hereafter Joint Brief).

In a memorandum dated August 11, 1976 (sixteen days before

publication of the original regulation), Turner and Novak stated:

“* * * Although RAM has not been fully checked out, com-

putations appear correct, and therefore we are making these

On November 12, 1976, prior to the decision below

on the merits, the Sixth Circuit sua sponte ordered a

stay and reopening of the administrative record ‘“sub-

ject to the following conditions’? (App. A, p. 8a; 572

F.2d at 1155):

‘‘No petitioners shall be permitted to submit any

new emission, process, or air quality data, Com-

ments relating to clerical or computational errors

shall be permitted,”’

Many of the petitioners submitted such comments and

corrections. The EPA declared that it would entertain

only those comments which related to EPA’s clerical

and computational errors in feeding its raw data into

the model.’ No significant changes in the model or its

application were made.

The Sixth Circuit Decision

Thirty-two petitioners, among them the Timken

Company, the petitioner here, attacked the final regu-

lations in the Court of Appeals for the Sixth Circuit

on a number of procedural and substantive grounds.

The main objections were that (1) the procedures for

——_= = <= tamemeses Seems 8) es =o oct aes eee oe =

four versions provisionally available to you, However, until

further testing and debugging is completed, consider these

versions provisional and for EPA use only, Your provisional

use of these current versions of RAM may assist us in the

final debugging. ee 6”

(App, to Joint Brief at p, 476.)

In April, 1977, the EPA solicited technical proposals which were

to propose ways to optimize the computational efficiency of the

model, RFP No, DU-77-B117, and to validate the RAM model,

RFP No, DU-77-B124 (both dated April 22, 1977),

* Letter Dated December 6, 1976 from G, William Frick, General

Counsel to EPA, to all petitioners below, Supplement to Certified

Index to the Record Below, Item E, 2,

adoption of the RAM model were deficient in that the

procedures did not allow full examination of the

RAM model itself nor full adjudication of the appli-

cation of the RAM model to the petitioners’ particu-

lar situations; (2) adoption of the plan was arbitrary

and capricious because of erroneous assumptions made

in constructing the model and beeause no effort was

made to validate the predictions or results of the

plan against actual air quality data; (3) adoption of

the plan was contrary to the Clean Air Act, as well as

arbitrary and capricious, because the Administration

had totally failed to consider the economic and tech-

nological infeasibility of the plan or any alternatives

to achieve the National Ambient Air Quality Stand-

ards for sulfur dioxide,

The court of appeals upheld the action of the Ad-

ministrator, In reaching this result, the court focused

on the purpose of the Act to ‘‘insure’’ attainment and

maintenance of national air quality standards, It said

that insofar as the RAM model overpredicted concen-

trations of SOs, it was ‘‘conservative’’ rather than

arbitrary, and that objections based on economic or

technological infeasibility must fall before a perceived

congressional mandate of achieving the national stand-

ards of air quality despite the attendant economic

burdens, App. A, pp. 2la-30a, infra; 572 F.2d 1161-

1165. Arguments based on the EPA’s failure to pro-

vide any opportunity for petitioners to confront the

proponents of the RAM model, or to provide even

notice and opportunity for comment with regard

to the RAM model, were dismissed on the ground that

the statute did not specifically require a hearing rad

decision ‘‘on the record,’”’? and because the remand

period (during which the petitioners were allowed to

comment on clerical and computational errors only)

cured any problems of notice and opportunity to com-

n._nt with regard to the RAM model. App. A, pp. 12a-

18a; 572 F.2d at 1157-1160, On this basis judgment

was entered for the EPA and its Administrator.

REASONS FOR GRANTING THE WRIT

The decision below, in upholding use of the RAM

computer model, raises critical questions about the

appropriate use of predictive computer technology in

administrative decision-making, As the mechanism for

predicting air quality and deriving specific emission

limitations, the RAM model both supplies the general

emission control rule and performs the adjudicatory

function of applying the rule to particular facilities,

Adoption of such a model cannot and should not be

done on faith alone, and yet when the record is ex-

amined, it reveals:

¢ The RAM model had never been used before as

the basis for a state emission control plan;

e Little or nothing was done to validate the re-

sults or the reliability of the model;

e There was significant evidence of systematic

overprediction ;

¢ In Stark County, where Timken’s facilities are

located, stringent and costly emission limita-

tions were imposed despite the fact that Stark

County has never had a measured violation of

ambient air quality standards,

¢ No hearing or confrontation of witnesses was

rovided despite the adjudicative nature of the

ecision-making, the dramatic impact on indi-

vidual petitioners as well as the region, and the

unprecedented nature of the plan;

e Nor was there any real opportunity for com-

ment provided with respect to the RAM model,

in violation of section 4 of the APA (5 U.S.C.

§ 553).

The mystique of the computer and the quantitative

nature of the input into the mathematical decision-

maker cannot be allowed to obscure 1) the necessity

for testing the assumptions and design of the model,

2) the clearly adjudicative nature of the facts on

which particular applications are to be based,’ and

3) the direct and particular impact of the computer’s

decision on specific sources and persons." Adequate

demonstration of the computer model’s reliability and

adequate protection of participants’ rights are neces-

sary to prevent administrative decision-making from

taking place within a closed mathematical system. The

Sixth Circuit failed to recognize these concerns. A

decision so fundamental and far reaching should be

reviewed by this Court.

1. The Decision Below Allowed The RAM Model To Be Promul-

gated As A Rule Without Adequate Notice And Comment,

Contrary To Section 4 Of The Administrative Procedure Act

And In Conflict With The Approach Of At Least Three Other

Circuits.

The RAM model is the central issue of this case.

Although notice and comment procedures were car-

ried out with regard to the 1975 version of the Ad-

ministrator’s emission plan, as required by Section 4

* See United States v. Florida Coast Rwy. Co., 410 U.S, 224, 245

(1973); see also 1 K, Davis, Administrative Law Treatise, § 7.02

at 413 (1958).

*Compare Seacoast Anti-Pollution League v. Costle, 572 F.2d

872 (1st Cir. 1978),

of the Administrative Procedure Act (APA), the

1975 version gave no indication that the RAM model

would later be used.’ Indeed, the RAM model was not

known to petitioners below at that time.

The EPA attempted to justify its failure to repro-

pose the emission plan containing the RAM model by

arguing that it is the purpose of notice and comment

procedures to stimulate rule changes, and that modifi-

cation in response to comments should not itself re-

qvire another round of comments, citing International

Harvester, Inc. v. Ruckelshaus, 478 F.2d 615, 652,

n.51 (D.C. Cir. 1973)."° The court held that the limited

remand previously ordered, for correction of clerical

and computational errors, solved any procedural

problems. App. A, p. 18a; 572 F.2d at 1160.

This reasoning allows the RAM model to go into

effect without any real opportunity for specifically

affected parties to comment upon the model’s par-

ticularized impact. See Portland Cement Association

v. Ruckelshaus, 486 F.2d 375, 393 (D.C. Cir. 1973),

cert. denied, 417 U.S. 921 (1974). Publie as well as

private interests are slighted if the assumptions and

design of the model, as well as its predictive results,

are not tested in the public comment procedure.

°Cf. Anaconda Co. v, Ruckelshaus, 482 F.2d 1301, 1307 (10th

Cir. 1973) (Lewis, J. concurring), disapproving EPA’s use of an

arbitrary ‘‘bait’’ figure for discussion purposes in its notice of

rulemaking.

The International Harvester court said that a contrary rule

would allow an agency to ‘‘learn’’ only at its ‘‘peril,’’ 478 F.2d

at 632, n.51, but it held only that ‘‘[g]iven the circumstances’’

presented there, denial of the opportunity to comment was not

denial of due process though ‘‘such opportunity would certainly

have been salutary.’’ 478 F.2d at 632.

Even under the narrowest formulation of review

under the Clean Air Act, the reviewing court must

insist that EPA construct a procedure which insures

the reliability of technical decisions. Ethyl Corp. v.

Environmental Protection Agency, 541 F.2d 1, 66-67

(D.C. Cir. 1975) (Bazelon, J., concurring), cert. de-

nied, 426 U.S. 941 (1976). On the vital issue of the

RAM model, the EPA’s procedure lacked ‘‘some

mechanism for interested parties to introduce ad-

verse evidence and criticize evidence introduced by

others.’’ Mobil Oil Corp. v. Federal Power Commis-

sion, 483 F.2d 1238, 1258 (D.C. Cir. 1973)."

The petitioners are not insisting ‘‘that a rule re-

main frozen in its vestigial form.’’ Compare South

Terminal Corp. v. Environmental Protection Agency,

504 F.2d 646, 659 (1st Cir. 1974). Their position is

simply that publication and comment on one plan

cannot be taken as adequate for a totally different

plan.”

**The radical departure from the plan originally proposed in

1975 signalled by the adoption of the RAM model clearly separates

this case from cases where small or evolutionary changes do not re-

quire reopening of the comment period. Compare Ethyl Corp.,

supra at 48-49, (‘‘The Agency theories underlying the proposed

regulations were identical .. .’’ and a fourth publication for com-

ment was not required where the changes were evolutionary.) See

American Frozen Food Inst. v. Train, 539 F.2d 107, 135 (D.C.

Cir. 1976) (failure to mention in the notice of rulemaking fecal

coeli as an item to be controlled rendered the regulation invalid

as to that item and required remand to the Administrator).

** Without publication and opportunity for comment with re-

gard to the RAM model, the procedure lacks any assurances of

reliability and fairness, because the parties were not ‘‘ ‘fairly ad-

vised’ of exactly what the [agency] proposed to do sufficiently in

advance of the entry of the final order to give them adequate time

Use of the RAM model is not merely a drastic

change in the context of this proceeding—it is one of

the most ambitious and comprehensive uses to date of

predictive computer modeling techniques for setting

emission limitations. It is a revolutionary, not an

evolutionary change.

As late as August, 1976, the original authors of the

model were urging that it needed substantial ‘‘de-

bugging’ before it could be put to concrete use. See

note 5, supra. Nor has the EPA ever satisfactorily

explained its offhand dismissal of the only two studies

which attempted to relate the model to actual emis-

sion levels. The EPA explanation is that one of the

studies related to an earlier version of the model

(there is apparently no comparable study for this

version)" and that the poor performance of the RAM

to formulate and to present objections to the [agency’s] proposal.’’

United States v. Florida East Coast Rwy. Co., 410 U.S, 224, 243

(1973).

‘A plan or revision cannot have undergone a public hearing if

it was so incomplete when the hearing was held as to lack the

substance of the final approved plan.’’ Mision Industrial, Ine, v.

EPA, 547 F.2d 123, 126 n.2 (1st Cir. 1976) (dictum).

With regard to the drastic changes in the final plan, the Director

of the Ohio Environmental Protection Agency stated that his

agency ‘‘had no more notice of the changes than anybody else’’

and that ‘‘there were enough changes in [the pian] that they

should have gone back to hearings.’’ 7 Environmental Reporter,

No, 18 at 686 (1976) (emphasis added).

1* EPA, Supplemental Technical Support Document, p. 17 (May

1977). This study was ‘‘A Determination of the Predictive Capa-

bility of the EPA Real-Time Air-Quality Simulation Model,’’ by

Hamill and McGill. It is unclear whether the EPA ever consid-

ered the results of this study in the course of its decision to

promulgate the RAM model. The study was conducted in St.

Louis where RAM was used to predict SO, concentrations at 40

air quality monitor sites. By comparison of predicted values and

measured values, Hamill concluded the following :

model in the other study was a result of data defi-

ciencies which have, according to EPA’s assertion,

been remedied.”

The approach of the court of appeals below, which

held that opportunity to comment on EPA’s handling

of its raw data constitutes sufficient opportunity to

be heard on all aspects of the RAM plan, cannot be

reconciled with proper administrative procedure or

with the holdings of at least three other courts of

appeals which have faced similar issues.’* Guidance

from this Court is necessary to resolve the conflict

: approach and insure proper administrative proce-

ures,

‘The results of this analysis show that the model error is

fairly large and that the model tends to overestimate pollu-

tion concentrations.

e e eo

‘“* © * This indicates that the model definitely tends to over-

estimate pollution levels.’’

Moreover, analysis of the differences between the earlier and later

versions of RAM seems to indicate that the overprediction effect

ro been intensified rather than solved (App. to Joint Brief at p.

‘‘* * * this difference between the Original [Hamill] RAM

Model and the Urban RAM Model indicates that the Urban

RAM Model is expected to produce higher predicted concen-

trations than the Original [Hamill] RAM Model.’’

“This study, by Environplan, Inc., was commissioned by peti-

tioners specifically to evaluate the application of the RAM model

to Ohio, and concluded, like the Hamill study, that the RAM model

grossly and systematically overestimated pollution levels. See ¢.g.

App. to Joint Brief at pp. 240-241.

*°(1) In Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), va-

cated on other grounds, 431 U.S, 99 (1977) (per curiam), a portion

of an EPA-promulgated implementation plan under Section 110 of

the Act required large employers to submit to the EPA a proposal

for encouraging employees to utilize mass transit facilities, The pro-

posed plan had not made any mention of such a program, however,

2. Neither Vermont Yankee Nuclear Power v. Natural Resources

Defense Council, Decided May 1, 1978, Nor Section 4 Of The

Administrative Procedure Act, 5 U.S.C. §553, Preclude A

Court From Requiring Additional Procedural Safeguards

Where, As Here, Computer Modeling Subsumes Both The

Adjudicatory And The Legislative Function Of The Adminis-

trative Agency.

This Court in Vermont Yankee found in a ease in-

volving ‘‘rulemaking in its pristine sense’’ (a licens-

and the subject had not come up in the public hearings on the

proposed version, Even though the EPA had offered to consider

comments submitted after the plan had become final, the court held

the regulation invalid under APA Section 4. The opinion stated,

in pertinent part (530 F.2d at 222) :

‘Since the disputed regulations were not subject to hearings

at a state level, were not a part of the proposed regulations

that were subject to comment, and were not mentioned prior

to December 12, 1973 when they were issued in final form,

it is clear that the intensive pre-promulgation inquiry antici-

pated by Appalachian Power [Appalachian Power Co. v.

EPA, 477 F.2d 495 (4th Cir. 1973)] was not afforded the

petitioners.’’

(2) In Rodway v. Dep’t of Agriculture, 514 F.2d 809 (D.C, Cir.

1975), a publie notice of rulemaking set forth a large number of

rules for the administration of respondent's Food Stamp Program

but included no reference to the adoption of an allotment system

for Food Stamp coupons, As a result the court held that publie

notice was inadeque‘e.

(3) In Wagner Electric Corp, v. Volpe, 466 F.2d 1013 (3rd Cir.

1972), the Court remanded a National Highway Traffic Safety

Administration order governing the performance of turn signal

and hazard-warning flashers beeause the notice had not clearly

conveyed the scope of the intended rulemaking. The court empha-

sized that (466 F.2d at 1020; emphasis in original) :

‘‘, .. the Administrative Procedure Act requires notice before

rulemaking, not after. The right of interested persons to peti-

tion for the issuance, amendment, or repeal of a rule... . is

neither a substitute for nor an alternative to compliance with

the mandatory notice requirements .. ,’’

ing procedure under the Nuclear Regulatory Act)

that (No. 76-419, decided May 1, 1978; slip opinion

p. 21):

Absent constitutional constraints or extremely

compelling circumstances ‘‘the administrative

agencies ‘should be free to fashion their own rules

of procedure and to pursue a method of inquiry

capable of permitting them to discharge their

multitudinous duties.’’’ (Italics supplied.)

Review here is necessary to guide both courts and

administrators in assessing the scope of this language

and to make clear the import of the expressly stated

exception.

The petitioners here do not seek to deny the agency

freedom to order its own procedures. But the mechani-

cal insistence of the EPA and the court on the bare

minimum of procedural requirements totally ignores:

a. The constitutions « * ‘raints which arise from

the direct an’ ar impact of the com-

puter plar paticular individuals and

sources;

b. the compelling circumstances which are a result

of the radical departure and immense prece-

dential importance involved in use of untested

computer modeling to predict violations, estab-

lish mathematically a general rule to deal with

them, and apply the rule to specific facilities;

c. the requirement of Section 110(c) of the Clean

Air Act that the Administrator provide reason-

able notice and hearing;

d. the fact that the APA does not preclude more

elaborate procedures where they are required by

constitution, by statute, or by ‘‘compelling cir-

cumstances.”’

Due process is an inherently flexible concept, as this

Court recently reemphasized in Goss v. Lopez, 419 U.S.

565, 578 (1975). What kind of hearing is necessary

depends on the peculiar circumstances of the case,

and adapting hearing procedures to the demands of

technical decision-making has been an issue of continu-

ing controversy and confusion. See Ethyl Corp. v. En-

vironmental Protection Agency, 541 F.2d 1 (D.C. Cir.

1975), cert. denied, 426 U.S. 941 (1976); see also

Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev.

1267 (1975); Boyer, Alternatives to Administrative

Trial-Type Hearings for Resolving Complex Scten-

tific, Economic and Social Issues, 71 U. Mich. L. Rev.

111 (1972).

The use of source-specific computer modeling pro-

cedures causes two distinct concerns, the resolution

of which is necessary to insure fairness to the parties,

accountability of the decision maker, and reliability

of the decision. Cf. Friendly, supra, 123 U. Pa. L. Rev.

at 1314-15:

First, the model itself must be measured against the

standards of scientific rationality through some sort

of dialogue between the agency and those outside, con-

cerning design, assumptions, and empirical reliability.

The highly critical Hamill and Enviroplan studies,

and the absence of any inquiry of comparable weight

on the other side, makes it clear that it cannot merely

be assumed that the RAM plan is rational. See gener-

ally, the Joint Brief and Joint Reply Brief below

relative to the use of the RAM model; see also, Tim-

ken Appendix, pp. A43-A200; Appalachian Power

Co. v. Environmental Protection Agency, 477 F.2d

495, 502-503 (4th Cir. 1973).

Second, the source specific input data must be tested

against actual conditions to insure that inaccurate

data do not lead to inaccurate and unacceptable re-

sults in particular cases. See Seacoast Anti-Pollution

League v. Costle, 572 F.2d 872 (1st Cir. 1978).**°

In light of the insensitivity and inadequacy of the

procedure below, only this Court can provide direction

to the EPA (and other agencies which seek to use

computer modeling as a decision-making tool) as to

**The Seacoast court’s discussion of why adjudicatory proce-

dures were necessary, in the context of an application for a dis-

charge permit for a nuclear plant under the Federal Water Pollu-

tion Control Act, is highly relevant here. The court said (572 F.2d

at 876-877) :

We begin with the nature of the decision at issue. The EPA

Administrator must make specific factual findings about the

effects of discharges from a specific point source. On the basis

of these findings the Administrator must determine whether

to grant a discharge permit to a specific applicant, Though

general policy considerations may influence the decision, the

decision will not make general policy. Only the rights of the

specific applicant will be affected, ‘‘As the instant proceeding

well demonstrates, the factual questions involved in the issu-

ance of section 402 permits will frequently be sharply dis-

puted. Adversarial hearings will be helpful, therefore, in

guaranteeing both reasoned decisionmaking and meaningful

judicial review. In summary, the proceedings below were

conducted in order ‘to adjudicate disputed facts in particular

eases,’ not ‘for the purposes of promulgating policy-type rules

or standards.’ ’’

This is exactly the kind of quasi-judicial proceeding for

which the adjudicatory procedures of the APA were intended

... The panoply of procedural protections provided by the

APA is necessary not only to protect the rights of an applicant

for less stringent pollutant discharge limits, but is also needed

to protect the public for whose benefit the very strict limita-

tions have been enacted. (Italics supplied; citation omitted.)

yg!

how to meet these concerns. See Appalachian Power,

supra; see also Walter Holm & Co. v. Hardin, 449

F.2d 1009, 1016 (D.C. Cir. 1971) (effective presenta-

tion on novel and crucial matters required oral hear-

ing and cross-examination).

Such direction is totally consistent with the Clean

Air Act which requires the Administrator to insure

that ‘‘reasonable notice and hearing’’ are provided by

the state when it promulgates a state emission plan,

and to consider the record of that hearing (Section

110(a)(2)), and likewise requires the Administrator

himself to provide ‘‘such a hearing’’ when the state

does not implement a plan. The absence of the talis-

manic words concerning decision ‘‘on the record”’ after

opportunity for hearing, see Independent Bankers As-

sociation of Georgia v. Board of Governors, 516 F.2d

1206 (D.C. Cir. 1975), should not preclude either the

Administrator or this Court from concluding that

‘reasonable notice and hearing’’ require more than

the restricted notice and comment opportunities of-

fered here.”

The central role of computer modeling in the deci-

sionmaking process presents a novel procedural prob-

lem. Without some greater opportunity for participa-

tion of those affected, the process is a closed system—

assumptions + data + equations inevitably leads to

** Although the EPA raised the prospect of individual relief in

its brief below, it removed all meaning from the prospect in the

same breath stating that an individual review ‘‘would ordinarily

involve a showing by petitioner, consistent with Agency method-

ology that it is entitled to a different emission limitation.’’ EPA

Brief, p. 24, n.40 (emphasis supplied). The two problems are that

agency methodology is the RAM model which dictates particular

as well as general results and that the implementation plan, con-

trary to Section 110(a)(2)(H) of the Clean Air Act, contains no

specific procedures to obtain a revision.

. = _ Sane

Se AO eK pb

ambient impact prediction + limitation regulations.

If the model is to make the decision, all three of the

inputs must be tested in public procedures. Measure-

ment against reality is the only discipline for theo-

retical constructions of events, and when the theo-

retical construction becomes a bureaucratic rule, dis-

cipline can only be applied through full and open

procedures, public hearing and cross-examination.

‘‘Tf determinations such as the one at issue here

are not made on the record, then the fate of the

Hampton-Seabrook Estuary could be decided on

the basis of evidence that a court would never

see or, what is worse, that a court could not be

sure existed.’’ Seacoast Anti-Pollution League Vv.

Costle, 572 F.2d 872, 877 (1st Cir. 1978).”

18 Petitioner objects as firmly to RAM’s potential for inaccuracy,

as it does to its inaccuracy in fact. Once EPA input date for RAM

is ascertained, the comprehensive system closes, and remains closed,

removed from the moderating influence of intermediate adjust-

ment, until the bottom line emission limitations issue, Application

of RAM to any one county is not much different from attempting

to use a computer model to resolve injury claims arising from a

multi-car automobile accident.

To gather input data, the computer expert would merely send

out questionnaires to individuals involved in the accident to de-

scribe the events that occurred, the property damage sustained,

and the injuries suffered. By the use of programming judgment to

resolve credibility questions in cases of conflicting answers, and

through sophisticated computer programs to predict medical costs,

all in lieu of medical examination, issues of liability and damages

could be mathematically adjudicated. Everything necessary for

quick ‘‘scientific’’ disposal of the problem is present—everything

but the human element to insure that personal rights are not

violated by a vague or improperly framed questionnaire, improper

exercise of discretion by the programmer, and unfounded assump-

tions in the cost-predictive programs. Few lawyers or judges would

place much stock in such an adjudicative system, no matter how

3. The Failure Of The Court Below To Make Any Attempt To

Understand Or Assess The Technical Issues Is Directly In

Conflict With The Standard Of Careful Review Of Technical

Issues Required By Citizens To Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402 (1971), And Followed By The First

Circuit In South Terminal Corp. v. Environmental Protection

Agency, 504 F.2d 646 (1974) And The D. C. Circuit In Ethyl

Corp. v. Environmental Protection Agency, 541 F.2d 1, cert.

denied, 426 U.S. 941 (1976),

In Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402, 416, this Court instructed lower courts

to make a searching inquiry into the basis for ad-

ministrative decision and to reverse on the basis of

“clear error of judgment.’’ In Ethyl Corp. v. En-

vironmental Protection Agency, the D.C, Circuit made

it clear that the purpose of evidentiary examination

is not to substitute judicial for administrative judg-

ment, but rather to enable the court to determine

whether the agency action was rational and based on

the relevant factors. Full understanding of the evi-

dence in the record is necessary before this function

can be performed, The court said (541 F.2d at 36);

modern or scientific, in the absence of intermediate human checks

and balances,

With RAM, source-specific data are gathered by questionnaire,

followed by exercise of programming discretion, SO, sources within

a county are interdependent—more than one source can contribute

to a single Violation, just as several automobiles can contribute to

a single injury in a multi-car accident, The need for and degree

of emission cutbacks is adjudicated through computer routines

without any verification of computer results against monitor obser.

vation, As in the hypothetical accident model, the procedural safe-

guards are inadequate to the requirements of reliability and fair-

hess, particularly in the absence of any sort of verification, Finally

in addition to the record evidence that RAM systematically over.

— igh 's Pager Pemgenar gpa al ‘approach insulates

th errors from the serutin i imi

pret y that could otherwise eliminate such

“There is no inconsistency between the deferen-

tial standard of review and the requirement that

the reviewing court involve itself in even the most

complex evidentiary matters; rather, the two in-

dicia of arbitrary and capricious review stand in

careful balance. The close scrutiny of the evidence

is intended to educate the court, It must under-

stand enough about the problem gor ye | the

agency to comprehend the meaning of the evidence

relied upon and the evidence discarded; the ques-

tions addressed by the agency and those by-

passed; the choices open to the agency and those

made. The more technical the case, the more in-

tensive must be the court’s effort to understand

the evidence, for without an appropriate under-

standing of the case before it the court cannot

properly perform its appellate function.’’

In South Terminal Corp. v. Environmental Protec-

tion Agency, 504 F.2d 646 (1st Cir, 1974), the First

Circuit declined to uphold the EPA’s conclusions as

to photochemical oxidant and carbon monoxide levels

and reductions after a close review of the evidentiary

record. The arbitrary and capricious standard cannot

absolve the reviewing court of the need to review and

evaluate the record. It said (504 F.2d at 665):

While reviewing courts are not to substitute their

judgment for an agency’s, they are to establish

parameters of a rationality within which the

agency must operate. A court would abdicate its

function were it, when confronted with important

and seemingly plausible objections going to the

heart of a key technical determination, to pre-

sume that the agency could never behave irra-

tionally, It has a duty to see that the objections

are faced in a proper procedural settin and satis-

factory answers provided demonstrating careful

agency consideration.

See also Texas v. Environmental Protection Agency,

499 F.2d 289 (5th Cir. 1974), cert. denied, 427 U.S.

905 (1976), where the court reversed the EPA in

part on the issue of the amount of reduction of hydro-

carbon emission needed because the data submitted

by the petitioners contradicted the predictions relied

upon by the EPA.

There is no indication that the court below engaged

in any such review of the facts.” To the contrary, the

court below contented itself with noting that over-

prediction by RAM was consistent with ‘“insuring”’

appropriate air quality, that no better method had

been presented, that the level of complaint was low in

relationship to the number of persons affected, and

that some of petitioners’ comments formed the basis

for devising some of the features of the RAM model.

None of this reasoning has any relevance to the

reliability and technical accuracy of the RAM model.

On this crucial issue the Court relied on a Dayton

“Study’’ which consisted of a post-hoe visual com-

* Indeed, examination of the opinion below, the opinion in South

Terminal, and the five differing opinions in Ethyl Corp, shows

that the appropriate role of courts in reviewing technical matters

is a subject of some confusion, See Ethyl Corp., supra, 541 F.2d

at 34, n.74, for an extended discussion of the confusion among the

lower courts in applying the Overton Park standard of review in

cases such as the present one, The legislative history of the Clean

Air Act amendments of 1977 emphasizes that Congress intends

courts to continue to engage in a rigorous review of EPA action.

House Report No, 95-564, 95th Cong., Ist Sess,, ‘‘Joint Explana-

tory Statement of Committee of Conference,’’ at p. 178 (1977),

addresses the standard of review in these words:

i respect to the ‘arbitrary and capricious’ scope

of review retained in these amendments, the conferees intend

that the courts continue their thorough, comprehensive review

which has characterized judicial proceedin der the Cl

Air Act thus far.’’ ¥ aia as

wot eV am mms <a “

Sad

parison of monitor and model-predicted data which

was prepared for the review proceeding and merely

placed a small selection of numbers from the two

sources side by side on a sheet of paper. App. A, pp.

26a-27a; 572 F.2d at 1163. There was no indication that

the EPA had considered this study, or anything relat-

ing RAM predictions to real monitor experience of

sulfur dioxide emission, in devising and promulgating

the RAM model.”

A sampling of the unanswered or unremedied fail-

ings of the RAM model should serve to indicate the

inadequacy of the review of the factual record made

by the court below. Review by this Court is neces-

sary, not to correct factual misapprehensions, but to

direct reviewing courts to devote adequate attention

to the technical factual record. The need is demonstra-

ble in this case.

1. Computer dispersion modeling was utilized by

the EPA to the exclusion of measured ambient air

quality data. This circumstance presents directly the

need for safeguards and checks if decisions are to be

made by computer model; the fragmentary post-hoc

Dayton study was only an attempt to validate the

model against verified experience and it is proce-

durally and substantively worthless.”

In Texas v. EPA, supra, the court upheld EPA's choice of a

‘‘proportional rollback’? model to determine emission limitations.

But this sort of model does not predict air quality as the RAM

model does; it merely generates a pattern of emission limitations

once air quality is determined from monitor data.

*! Inter alia, the few sampled sources are virtually all well under

emission control limits so the ‘‘study’’ does not relate to perform-

ance of the model at the critical ambient levels.

2. The Sixth Circuit has never faced demonstra-

tion clearly made in the record that the model used

totally inappropriate dispersion factors. See Timken

Appendix at A102-A154.

3. The Sixth Circuit accepted as ‘‘conservative’’

the cumulative worst case assumptions about weather

and full capacity operations, despite the fact that the

record showed the cumulative probability of such a con-

eatenation of circumstance to be zero. As Timken has

established, it is virtually unheard of for even one in-

dustrial source to be using all of its capacity at any

one time; the EPA nonetheless assumed that all

sources would operate at full capacity all of the time.

See Timken Appendix A20-A22; A88-A89.

4. The Sixth Circuit ignored the impact of the

EPA’s own guidelines on modeling which would seem

to prohibit the free-hand procedure which the EPA

has used in this case. These guidelines provide (App.

to Joint Brief below at 354-355) :

‘To be certain that dispersion model estimates

are as accurate as possible, validation-calibration

is required. Any model may have faults which

cause estimated concentration to be in error.

Therefore, tt 1s necessary to validate and calibrate

the model estimates. * * *’ (Guidelines for Air

Quality Maintenance Planning and Analysis, Vol.

12: Applying Atmospheric Simulation Models to

Air Quality Maintenance Areas, at 11-12. (Em-

phasis added.)

See also EPA, Guidelines on Air Quality Models,

p. 3 (2d draft May 1977) (likewise requiring com-

parison of predictive model results with real air qual-

ity data).

5. With particular reference to Stark county, in

which Timken’s facilities are located, stringent and

costly emission limitations were imposed despite the

fact that there has never been a measured violation

of national ambient air quality standards in Stark

county.”

This Court should assure that reviewing courts

conduct a searching inquiry into the record to assure:

That EPA’s ‘‘* * * technical conclusions no less than

others are founded on supportable data and method-

ology * * *’’, South Terminal Corp. v. Environmental

Protection Agency, 504 F.2d 646, 655 (1st Cir. 1974) ;

that the predictor, EPA, makes ‘‘* * * a showing of

reliability of the methodology of prediction * * *”’

when prediction is being used to overcome actual

measured data, International Harvester Co. v. Ruckel-

#2 The EPA’s Technical Support Document (TSD) confirms this

contention :

‘‘The existing air quality monitoring data indicates the at-

tainment of the [ambient air quality] standards.’’ TSD, Vol.

1, at IV-53.

Further, Appendix G of the TSD indicates that federal primary

ambient air quality standards were comfortably met in both 1973

and 1974. (TSD, Vol. II, App. G.5, at 721.) Gary L. Ewing, Air

Pollution Control Director of the Canton City Health Department,

testified as follows before U.S. EPA on January 6, 1976:

‘‘ambient air quality levels of SO, as observed by our moni-

toring equipment have not substantiated any ambient air

quality violations in any area of ... [Stark] County.’’

The highest measured 24-hour concentration of sulfur dioxide in

Stark County in 1973 was 126 micrograms per cubic meter (based

on observation at five intermittent or ‘‘bubbler’’ monitoring sites),

while the highest observed 24-hour concentration in 1974 was 170

micrograms per cubic meter (on the basis of observations at eight

intermittent or ‘‘bubbler’’ sites). These highest 24-hour concentra-

tions were well beneath the federal 24-hour ambient air quality

standard of 365 micrograms per cubic meter.

shaus, 478 F.2d 615 (D.C. Cir. 1973) ; and that ‘** * *

[EPA] is obligated to provide a complete analytical

defense of its model * * *.’? American Public Gas

Association v. Federal Power Commission, 567 F.2d

1016, 1039 (D.C. Cir. 1977).

4. The Administrator Of The EPA Failed Ad el -

sider Objections Based On The Economic parcgoin Be ace

Infeasibility Of The Proposed Plan, Thus Posing Directly The

Question Which This Court Left Open In Union Electric Corp.

v. Environmental Protection Agency, 427 U.S. 246 (1976); And

In Upholding His Action The Court Below Placed Itself In

Conflict With Decisions Of The Ninth And First Circuits.

Tn Union Electric Corp. v. Environmental Protec-

tion Agency, 427 U.S. at 261, n.7, this Court explicitly

left open the question ‘‘[w]hether claims of economic

or technical infeasibility must be considered by the

Administrator in drafting an implementation plan,’’

while holding that the Administrator may not con-

sider such claims in deciding whether or not to ap-

prove a state plan. This Court emphasized the op-

portunity for a petitioner to raise such claims before

state authorities and the primary discretion of the

state to formulate and administer its plan. 427 U.S.

at 266-67. Accord, Appalachian Power Co. v. Envi-

ronmental Protection Agency, 447 F.2d 495, 503 (4th

Cir. 1973) (indicating that where the state promul-

gates the plan, it is the state’s responsibility to pro-

vide adequate procedures). This Court further noted

that such claims are allowed by the 1970 Amendments

to the Clean Air Act ‘“‘in situations where considera-

_tion of such claims will not substantially interfere

with the primary congressional purpose of prompt

attainment of the national air qualit ”

age q y standards.’’ 427

ee eee ee

‘bt SOLED ASE Pn Da > oe

This case presents directly the question left open

by Union Electric. Since the Administrator drafted

and promulgated the plan, the petitioner here has no

other forum in which to assert claims of technological

or economic infeasibility. Moreover, the systematic

overprediction of sulfur dioxide emissions which the

Sixth Cireuit approved as a proper ‘‘conservative’’

approach to the air quality problem makes considera-

tion of such claims particularly appropriate because

it is unlikely that consideration of them will ‘‘inter-

fere” with attainment of national air quality stand-

ards.

The Court below expressed serious doubt that it

could entertain objections based on economic and tech-

nological infeasibility. App. A, pp. 29a-30a; 572 F.2d

at 1164-65. Although it found, in the alternative that

these objections were not compelling, this statement

must be evaluated in the light of the court’s acknowl-

edgment of the enormous financial impact of the plan

and its willingness nonetheless to approve a plan in

which the controls are based on multiple overpredic-

tion of emissions as a ‘‘conservative’’ approach.

The issue presented is whether the Administrator

may, without regard to technological or economic in-

feasibility, promulgate regulations which are calcu-

lated to provide such a ‘‘conservative’’ margin of pre-

diction. While it is clear that the states may promul-

gate a plan more stringent than the standards, see

Union Electric Corp. v. Environmental Protection

Agency, 427 U.S. at 263-265, the Administrator is not

granted such discretion by the Act.

As the Ninth Circuit recognized in Bunker Hill

Corp. v. Environmental Protection Agency, 572 F.2d

yp!

1286 (1977), clarified on denial of rehearing, 11 Env.

Rep. 1204 (BNA) (Dee. 28, 1977), the Administrator

should not be empowered to make rules without re-

gard to whether they can be carried out or whether

the infeasible portions of such rules are necessary to

attainment of national air quality standards. The un-

warranted deference of the court below to the Admin-

istrator, and the Administrator’s blithe disregard of

issues of technological and economic infeasibility

are inconsistent with Bunker Hill, supra, and with the

reasoning of this Court in Union Electric. Cf. Appa-

lachian Power, supra. See also South Terminal Corp.

v. Environmental Protection Agency, 504 F.2d 646,

673-74 (ist Cir. 1974) (expressing confidence that

hardship exemptions which would not interfere with

attainment of the Act’s purposes can be drafted by

the Administrator on remand).

These considerations are particularly cogent here

where various alternatives, including modifications of

the RAM model suggested by several parties in sup-

plemental comments and on brief, present the possi-

bility of significant amelioration of the impact of the

plan. See Joint Brief below at p. 17. There is no basis

for believing that the choice is clean air at this cost or

not at all. The Sixth Circuit below rejected any con-

sideration of these alternatives stating that it need

not conclude that the RAM plan was the ‘‘best pos-

sible approach.’”’ App. A, p. 21a; 572 F.2d at 1161. This

response begs the question and illustrates the need

for guidance by this Court.

If significant problems of economic and technologi-

cal infeasibility can be avoided through plan modifi-

cations which do not interfere with the attainment of

national air quality standards, it should be the duty

of the Administrator as well as the reviewing court

to consider and evaluate those alternatives. The na-

tional commitment to attainment of air quality stand-

ards is not undercut by a requirement that these

standards not be carelessly or profligately pursued

when more feasible or less costly alternatives are

available. This recognition is implicit in the fact that

the Administrator is not given the authority to pur-

sue any level of air quality he deems appropriate, but

merely to promulgate plans to insure attainment and

maintenance of national air quality standards as

established by regulation. See App. A, p. 29a; 572 F.2d

at 1164, n. 5. If concerns of equity and the balance

between costs and benefits are to be jettisoned, serious

constitutional as well as statutory problems would be

raised, see Union Electric Corp., 427 U.S. at 269 n.19.

The constitutionally necessary rational relationship

between the hardships imposed, and the legislative

purpose in imposing them, cannot be maintained if

the Administrator is free to act without any consid-

eration of equity, necessity, and cost. This principle

should be affirmed by this Court. |

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Erwin N. GRISWOLD

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

Rosert M. RyYBour

800 Cleve-Tuse. Building

Canton, Ohio 44702

Counsel for the Petitioner

Of Counsel:

THomMas F.. CULLEN, JR.

Jones, Day, Reavis & Poaur

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

JEFFREY P. WHITE

Day, Kerrerer, RALEY,

Wricat & RyBout

800 Cleve-Tuse. Building

Canton, Ohio 44702

July, 1978

——S eee ee.

APPENDIX A

Nos. 76-2090, 77-1367; 76-2225, 77-1366;

76-2240, 77-1355; 76-2242, 77-1359;

76-2244, 77-1363; 76-2276, 77-1368.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THE CLEVELAND ELECTRIC ILLUMINAT- |

ING CoMPANY, THE DayTON POWER

& Licut Co., THE Onto Epson Co.,

THE ToLtepo Epison Co., THE

TIMKEN Co., WHITE-WESTINGHOUSE

Corp., THE STANDARD Or Co. oF

Onto, INTERLAKE, INc., THE CouL-

TON CHEMICAL Corp.,

Petitioners,

ENVIRONMENTAL PROTECTION AGENCY,

and Doucias M. CostL_e, ADMIN-

ISTRATOR OF THE ENVIRONMENTAL

PROTECYION AGENCY,

Respondents.

Petitions for Review

of Action of the Ad-

ministrator of the En-

vironmental Protec-

tion Agency.

Decided and Filed February 13, 1978.

Before: Puituips, Chief Judge, Epwarps and Peck, Circuit

Judges.

Epwarps, Circuit Judge. This court now has before it 23

petitions involving 32 companies filed against the United States

Environmental Protection Agency which levy a variety of

complaints against the federal agency’s imposition of a sulfur

Cleveland Elec. Ilum.,, et al. v. EPA Nos, 76-2090 ete.

dioxide (SO,) pollution control plan for industrial discharges

into Ohio’s ambient air, The issues, which have been extensive-

ly briefed and argued, divide into general legal and procedural

complaints which might be applicable to any one of the

petitioners and a wider variety of specific complaints about

the application of the EPA controls to particular power-gen-

erating or industrial plants, The cases dealt with in this opinion!

present the major general issues, Other individual cases, in

addition to presenting one or more of the general issues, also

present specific issues of fact. These are reserved pending a

review of and reports on the factual disputes between the

United States EPA and the individual petitioners,

The major issues dealt with in this Opinion are; 1) in- °

tervenor, the State of Ohio, claims that this court should

disapprove the federal plan as irrational and arbitrary and

rely upon Ohio to come forward with a more rational plan

sometime in the future; 2) petitioners claim that the EPA

SO, plan should be remanded for hearings because the in-

formal rulemaking hearings employed by EPA under 5 U.S.C,

§ 553 (1970 & Supp. V 1975) were inadequate; and 3) peti-

itoners claim that the major model employed by the United

States Environmental Protection Agency in establishing spe-

' This decision dismisses the objections to the regulations that apply

to the following facilities:

(a) Qleveland Electric Illuminating Co, — all facilities.

(b) — Power & Light Co, — Montgomery County facilities

on y.

(d) Toledo Edison Co, — all facilities.

(e) The Timken Co. — all steam generating units.

(f) White-Westinghouse Corp. — all facilities. (Although there

was some confusion on this point in the briefs, the record

makes clear that White: Westinghouse’s Franklin County

facility is subject to the RA model, See EPA F

Technical Support Document at IV-57, saat

(g) — Oil Co, of Ohio — Lucas County steam generating

(h) Interlake, Inc, — all steam generating units.

(i) Coulton Chemical Corp. — all steam generating units.

—_— wo —_——-

Nos. 76-2090 etc. Cleveland Elec, Illum.,, et al. v. EPA

. invalid both

ific emission limitations for particular plans is ;

parartinee and as applied, This model is termed the “Real-

Time Air-Quality-Simulator Model” (hereinafter RAM).

THE HISTORY OF THIS LITIGATION

The United States Congress has been wrestling with the

problem of pollution of the ambient air since 1955, See 0

of July 14, 1955, Pub. L. No, 84-159, 69 Stat, 622. The geome

act has now been amended many times. It now is cite

as the Clean Air Act and has been codified in 42 U.S.C,

8§ 1857-1857(1) (1970 & Supp. V 1975).?

lfur dioxide

The prior history of litigation concerning su

oaaee controls in this court is set forth in Buckeye Power,

Inc. v. EPA, 481 F.2d 162 (6th Cir, 1973) (Buckeye Power #1)

and Buckeye Power, Inc. v. EPA, 525 F.2d 80 (6th Cir. 1975)

(Buckeye Power #2).

National air quality standards for sulfur dioxide, one of the

most important pollutants of the ambient air, were set by

EPA in 1973 as follows:

§ 50.4 National primary ambient air-quality standards

for sulfur oxides (sulfur dioxide),

dards for

The national primary ambient air quality stan

sulfur oxides measured as sulfur dioxide by the reference

method described in Appendix A to this part, or by an

equivalent method, are:

L. No.

Act was originally enacted in 1963, Pub. L.

48-206, 77 Stat, 302 It ——— = relatively, pot ere ie

lowin x y ‘ . iL ’ » :

Hee) bute ee 89-67 , 80 Stat. 954 (1966); Pub, L. No, 90-148, 81

Stat. 485 (1967). rae

; nt form, however, is derived from amendme

PP ag aig 7 and subsequently. Clean Air ie Amendments

1970. Pub, L. No. 91-604, 84 Stat. 1676, as amended, Pu bh Pub xf

85 Stat. 464 (1971); Pub, L. No, 98-319, 88 Stat. 246 ( : Pub. L:

. 95-95, 91 Stat. 685 (1977).

the Act is being recodified as 42 U.S.C. §§ 7401-7626,

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

(a) 80 micrograms per cubic meter (0,03 p.p.m.)—

annual arithmetic mean,

(b) 365 micrograms per cubic meter (0.14 p.p.m,)—

Maximum 24-hour concentration not to be exceeded more

than once per year.

§50.5 National secondary ambient air quality standards

for sulfur oxides (sulfur dioxide).

The national secondary ambient air quality standard for

sulfur oxide measured as sulfur dioxide by the reference

method described in Appendix A to this part, or by any

equivalent method is 1,300 microg ams per cubic meter

(0.5 p.p.m.) maximum 3-hour concentration not to be

exceeded more than once per year.’

Ambient Air Standards (Primary & Secondary), 40 C.F.R.

§§ 50.4, 50.5 (1976).

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

to be predominantly affected. In addition to these acute

episodes, pollutants can attain daily levels which have

been shown to have serious consequences to city dwellers.

There is a large and increasing body of evidence that

significant health effects are produced by long-term ex-

posures to air pollutants, Acute respiratory infections in

children, chronic respiratory diseases in adults, and de-

creased levels of ventilatory lung function in both chil-

dren and adults have been found to be related to con-

centrations of SO, and particulates, after apparently suf-

ficient allowance has been made for such confounding

variable as smoking and socioeconomic circumstances,

Rall, Review of the Health Effects of Sulfur Oxides, 8

Env'taL HeattH Perspectives 97, 99 (1974).

It appears that present national air quality standards have

been set with little or no margin of safety. Adverse health

The federal Clean Air Act program which produced these

standards is based primarily upon the adverse effect which air

pollution has upon human life and health.

effects are set forth in the two following charts; and the

minimal or nonexistent margins of safety are vividly por-

trayed below:

Acute episodes of high pollution have clearly resulted

in mortality and morbidity. Often the effects of high

pollutant concentrations in these episodes have been

combined with other environmental features such as low

temperatures or epidemic diseases (influenza) which may

in themselves have serious or fatal consequences, This

has sometimes mace it difficult to determine to what

extent pollution and temperature extremes are responsi-

ble for the effects. Nevertheless, there is now no longer

any doubt that high levels of pollution sustained for

periods of days can kill. Those aged 45 and over with

chronic diseases, particularly of the lungs or heart, seem

3 The EPA plan for Ohio presently under considerati tains

separate implementation plan for ‘second y air “quality stenderas

a! This issue is raised in the petition of the Northern Ohio Lung Associa-

tion and will be considered and decided subsequently,

RESHOLD, BEST CHOICE SIGNIFICANT RISK LEVELS AND SAFETY

RGINS CONTAINED IN PRIMARY AMBIENT AIR QUALITY STANDARDS

TABLE 1.

acne Se

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

+] §° $4" 5 9835*

' ’

Oh ea ee

oF ’

A on a Oe

‘ ’

2 Fae i ee We a ee

, Fie For 6. fe

oe he ee Cee oe

‘

‘ '

ee Ge, pee Pe a

‘ior a ee ee”

Averaging time Adverse health effect

SE ET Tae Some *

“Weg Ae ee ee oe), it

ih NT Sesh

i ae ae tas

a > a oo a

9 ug/x

250 to 300

70 to 250

-- 300 te 400

Pollutant

Total suspended particulates _

«x

(=)

ie)

Sulfur dioxide equivalent

Illustrative health risk

Level

Definition

Threshold concentration and

exposure duration

Adverse health effec:

600 ug/m? for 24 ir.

daily 38 ug/m? for 24 hr

22 percent increase in

mortality

3 lung 9 ug/m? for 24 hr or longer.___

Increase in daily mortality __

750 ug/m? for 24 hr.

450 ucg/m? for 24 hr.

in symptom 48 ug/m3 for 24 hr

increase in

a frequency 30 ug/m? for 24 hr ___

per cent increase

é@ggravation.

75 percent

-- 640 10 ug/m3 for 24 he

i f

whee

5 £

fespir

120 Conc. Rec. 18973 (1974) (report of Drs. Finklea, Hammer & Cole)

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

The major source of sulfur dioxide pollution of the ambi-

ent air are coal-fired plants — exemplified by power plants

operated by some of the petitioners in this case.

Two other facts should be added from the extensive tech-

nical record in this case before we turn to the specific legal

issues, The first is that sulfur dioxide emitted from plant

stacks reacts with other elements in the atmosphere to form

sulfuric acid mist and various suspended sulfates which are

in fact the irritants which adversely affect human health. T.

Lewis, M. AMpur, M, FrirzHanp & K, CAMPBELL, TOxICOLOGY

oF ATMOSPHERIC SULFUR Dioxipe Decay Propucts 17 (1972).

The second important fact is that these derivatives from

sulfur dioxide tend to be airborne for days. They affect areas

at great distances downwind, even when in the original sulfur

dioxide form they were emitted from a high power plant stack.

Rall, Review of the Health Effects of Sulfur Oxides, 8 ENv’TAL

HEALTH Perspectives 97, 106 (1974).

The cases considered in this opinion represent the fourth

time this sulfur dioxide control problem has been before this

court. In the instant cases a hearing was held November 14,

1976, at which numerous arguments were advanced concern-

ing petitioners’ claims that they had been deprived of an

adequate opportunity to comment upon the EPA sulfur dioxide

standards, In particular they complained about not having an

opportunity in advance to comment upon the EPA’s use of

the RAM model. The hearing resulted in the entry of an

order by this court remanding all of these petitions to the

EPA for reopening of the record to allow presentation of ad-

ditional objections, corrections, and comment. The order pro-

vided in part as follows:

On receipt and consideration of the thirty-six (36)

above-styled petitions for review attacking the emission

standards for the State of Ohio applicable to sulphur di-

oxide (SO,) promulgated by respondents Environmental

Cleveland Elec. Illum., et al. v. EPA Nos, 76-2090 etc.

Protection Agency (EPA) and Train on August 27, 1976;

and

: tion

On receipt and consideration of respondent's mo

to consolidate such petitions for hearing — and certain

petitioners’ objections thereto — and said motion to con-

solidate having been granted by this Court; and

i titioners’

On receipt and consideration of certain pe

motions for stay of the respondent's orders pending this

Court’s review; and

On receipt and consideration of respondent EPA’s mo-

tion to hold a prehearing conference and certain con-

currences therein, and such prehearing conference having

been held after due notice to all parties; and

On inspection and consideration of petitioners’ motions,

briefs, and oral arguments and noting that many of

them deal with claims of due process violations in re-

spondent EPA’s closing of the administrative record with-

out further opportunity on the part of petitioners to pre-

sent comment or evidence deemed by them to be essen-

tial to a just result,

Now therefore this Court, in the interest of as ex-

peditious judicial disposition of this complex litigation

as possible, hereby, sua sponte, extends to all petitioners

in this consolidated proceeding a stay of enforcement of

said orders of respondents EPA and Train, subject to the

following conditions:

No petitioners shall be permitted to submit any new

emission, process or air quality data. Comments relating

to clerical or computational errors shall be permitted.

Whenever possible, petitioners shall make consolidated

submissions to the Agency.

All submissions shall be made by petitioners no later

than January 14, 1977, and the Agency shall prepare an

appropriate response and shall amend the subject regu-

Nos. 76-2090 etc. Cleveland Elec. IVum., et al. v. EPA

lations if and as necessary within an additional 60 days

therefrom.

The stay granted herein will terminate twenty-one (21)

days after respondent EPA files with this Court the re-

sponse called for above, unless otherwise directed by

this Court.

Pursuant to the order of this court, the effective dave of

the SO, regulations was June 17, 1977. EPA has advised this

court, however, that it has not begun enforcement proceedings

in relation to any sources involved directly in this litigation.

Although this court’s order allowed the petitioners 60 days

for presentation of additional evidence and comment, EPA

sua sponte extended the remand period briefly. Promptly upon

notice that EPA had filed its response to petitioners’ objec-

tions and comments resulting from the remand, this court

scheduled two full days of hearings on these cases for pur-

poses of as quick an adjudication at the appellate level as might

be achieved.

DISPOSITION OF THE GENERAL ISSUES

l. The State of Ohio’s Petition

On July 13, 1977, the State of Ohio belatedly moved for

leave to intervene in this proceeding. Its motion attacked the

EPA sulfur dioxide emission control plan as having an ad-

verse impact on the Ohio coal industry, and the Ohio economy

as a whole. Yhe motion also asserted that the State was

developing a sulfur dioxide plan which would eliminate ex-

cessive abatement requirements which Ohio perceived to ex-

ist in the federal regulations. This court granted the mo-

tion for leave to intervene and has considered the brief and

the reply brief filed by Ohio. Under this first disposition

heading we consider only Ohio's suggestion that this court

reject the United States Environmental Protection Agency’s

Ss ee eee eee

10a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 ete.

sulfur dioxide control plan and rely upon Ohio's implied

promise to promulgate a state sulfur dioxide plan sometime

in the future.

We reject this suggestion on the basis of a record of delay

and default which has left Ohio in the position of being the

only major industrialized state lacking an enforceable plan

for control of sulfur dioxide.

It was clearly the intention of Congress to have a plan for

control of sulfur dioxide emissions in place in all states in

need of such control by the year 1972. Clean Air Act §§ 109

(a), 110(a), 42 U.S.C. §§$ 1857c-4(a), 5(a) (1970 & Supp.

V 1975). It was equally clearly the intention of Congress

that the preferred mechanism for establishment of such a

plan was through the establishment and operation of a state

environmental protection agency. § 107(a), 42 U.S.C. § 1857c-

2(a) (1970). On January 30, 1972, Ohio did submit a plan

for approval by the Administrator of the United States En-

vironmental Protection Agency under Section 110 of the Act

and the Administrator approved that plan. That approval,

however, was challenged in this court on the ground that such

approval required a federal rulemaking hearing prior to the

required approval by the federal Administrator. Among other

claims laid before this court in that petition was an attack

on the sulfur dioxide control scheme contained in the Ohio

plan, claiming “there is presently no technologically feasible

method of removing from their coal burning emissions an

amount of sulfur sufficient to meet the standards.” See Buck-

eye Power, Inc. v. EPA, 481 F.2d 162, 167 (6th Cir. 1973).

It was also petitioners’ contention in that same litigation that

they had not been allowed to document these claims of

impossibility before the federal Administrator prior to his

approval of the state plans. On analysis of these argu-

ments, this court vacated the approval of the Ohio state

plan and remanded the case to the Agency for compliance

with Section 4 of the Administrative Procedure Act, 5 U.S.C.

lla

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

§ 553 (1970 & Supp. V 1975), which requires adherence to

informal rulemaking procedures.

Before the hearing could be held which was called for in

Buckcye Power #1, supra, the governor of Ohio, on August 27,

1972, “withdrew” the sulfur dioxide portion of the state EPA

plan. At that point Ohio began work on a new plan for sulfur

dioxide control. On May 30, 1974, the second plan was sub-

mitted to the United States EPA for approval. It had, how-

ever, been challenged at the state level and was partially

vacated on procedural grounds by the Ohio Environmental

Board of Review on September 12, 1974, and for a second

time on July 16, 1975, the governor of Ohio withdrew the

Ohio plan to control sulfur dioxide.

The Clean Air Act, as amended, provides in part:

(c)(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation

plan for any national ambient air quality primary or

secondary standard within the time prescribed. . . .

Clean Air Act §110(c)(1), 42 U.S.C. § 1857¢-5(c) (1)

(Supp. V 1975).

Clearly, the State of Ohio has failed to submit an imple-

mentation plan for sulfur dioxide for which a national ambient

air quality primary standard has been prescribed. Equally

clearly, five years have now elapsed beyond the date when

such an implementation plan was called for under the Clean

Air Act. Under these circumstances, we find no warrant,

consistent with the purposes of the federal legislation, for

giving heed to Ohio's petition for further delay.

Intervenor Ohio's other objections to the United States EPA’s

12a 13a

Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

iccnnaciceaanian Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

sulfur dioxide control plan will be considered under Part 3

of the disposition section of this opinion. quired. The opinion rejected this suggestion with the fol-

lowing reasoning:

2. The Additional Remand and Cross-Examination Issue However, as heretofore noted, the petitioners herein do

not simply request a remand with instructions to adhere

The leading brief in this series of cases filed on behalf of to the informal rulemaking dictates of Section 553 of

the utilities opens its argument for remand as follows: the APA; they also request a full-scale evidentiary hear-

ing before the Administrator to adjudicate their complex

The Most Appropriate Manner To Resolve The and intricate claims of high cost-benefit, technological in-

Multitude Of Issues Raised Is A Remand To sails G8 vasauiee cae

The EPA With Directions To Hold Further re nace A ty. We cannot accept

Hearings To Reconsider The Significant Issues;

Given The Nature Of This Rulemaking, Any Administrative rulemaking which is to be preceded by

Remand Should Incorporate Procedural Safe- extensive hearings where “[a] party is entitled to present

guards Such As Right To Cross-Examine Or his case or defense by oral or documentary evidence,

Question EPA. to submit rebuttal evidence, and to conduct such cross-

Admittedly, there is no statutory requirement that EPA a ae maa be CUS C4864) (198 ¥*

afford the regulated the opportunity to confront its de- seenihied tule sien tin Pe pes nat of Sestion 683(c}

cision makers through adjudicative-type hearings. See of the APA applies. This section provides:

Buckeye Power, Inc., supra. [Buckeye Power, Inc. v. EPA,

481 F.2d 162 (1973)]. Pipe os pose required nd Monge to be —

on recor er opportunity for an agency hear-

—— oly — - — pode | ing, sections 556 and 557 of this title apply instead

specific findings and actions that the n of this subsection,” (Emehess edded’ (6 Uc.

period has not been sufficient to expose and evaluate

all of the important facts before this Court. EPA has § 553(c) (1967)).

promulgated emission limits specific to a plant, has ap-

plied specific diffusion models specific to a plant, and has

reached specific conclusions regarding economics specific

to a plant. Each decision is based on fact upon fact

and conclusion upon conclusion. In essence and in op-

eration, this plan and its formulation smack of the issu-

ance of an order as defined by EPA.

(Sections 556 and 557 of the APA outline the require-

ments for extensive, adjudicatory-type hearings. )

Thus, when a statutory provision directing certain

agency action states that such action shall be “made on

the record after opportunity for an agency hearing,” then,

and only then, is the agency required to have full-scale

adjudicatory hearings prior to rulemaking. * * °

In Buckeye Power #1, a panel of this court, prior to There is no provision that, in approving or disap-

the first remand of the sulfur dioxide problem for federal proving proposed state pollution-abatement plans pur-

hearings, considered the question as to whether or not ad- suant to 42 U.S.C. § 1857c-5(a)(2) (1973 Supp.), the

judicatory hearings (including cross-examination) were re- Administrator shall make a determination “on the rec-

ord after an opportunity for an agency hearing.” Further-

l4a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

more, when Congress intended that actions of the Ad-

ministrator of the EPA be preceded by adjudicatory-type

hearings it either specifically outlined the type of hear-

ings, (42 U.S.C. § 1857f-5a(c)(1) (1973 Supp.) ), or in-

voked the determination “on the record” provision of

5 U.S.C. § 553(c) (1967). See 42 U.S.C, § 1857c-5(f) (2)

(1973 Supp.); 42 U.S.C, § 1857f-5(b)(2)(B) (1973

Supp.). On these grounds alone we would reject the

petitioners’ argument that the Administrator is required to

have full-scale adjudicatory-type hearings prior to ac-

ceptance of the state plans.

Buckeye Power, Inc. v. EPA, 481 F.2d 162, 172-73 (6th

Cir. 1973). (Footnote omitted. )

15a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

record,” 2 K. Davis, Administrative Law Treatise § 13.08,

p. 225 (1958). Sections 556 and 557 need be applied

“only where the agency statute, in addition to providing

a hearing, prescribes explicitly that it be ‘on the record.’”

Siegel v. Atomic Energy Comm'n, 130 U. S. App. D. C.

307, 314, 400 F. 2d 778, 785 (1968); Joseph E. Seagram

& Sons, Inc. v. Dillon, 120 U. S. App. D. C. 112, 115

n. 9, 344 F. 2d 497, 500 n. 9 (1965). Cf. First National

Bank v. First Federal Savings & Loan Assn., 96 U. S. App.

D. C, 194, 225 F, 2d 33 (1955). We do not suggest that

only the precise words “on the record” in the applicable

statute will suffice to make §§ 556 and 557 applicable

to rulemaking proceedings, but we do hold that the

language of the Esch Car Service Act is insufficient to in-

More importantly, we note the following discussion of

the issue now before us in the unanimous opinion in United

States v. Allegheny-Ludlum Steel Corp., 406 U.S, 742 (1972),

wherein the Supreme Court of the United States said:

This Court has held that the Administrative Procedure

voke these sections.

Because the proceedings under review were an exer-

cise of legislative rulemaking power rather than adju-

dicatory hearings as in Wong Yang Sung v. McGrath,

339 U. S. 33 (1950), and Ohio Bell Telephone Co. v.

Act applies to proceedings before the Interstate Com-

merce Commission, Minneapolis & St. Louis R. Co. v.

United States, 361 U.S. 173, 192 (1959). Appellees claim

that the Commission’s procedure here departed from the

provisions of 5 U. S, C, §§ 556 and 557 of the Act. Those

sections, however, govern a rulemaking proceeding only

when 5 U. S. C. § 553 so requires. The latter section,

dealing generally with rulemaking, makes applicable the

provisions of §§ 556 and 557 only “[w]hen rules are re-

quired by statute to be made on the record after op-

portunity for an agency hearing... .” The Esch Act,

authorizing the Commisison “after hearing, on a com-

plaint or upon its own initiative without complaint, [to]

establish reasonable rules, regulations, and practices with

respect to car service... ,” 49 U.S, C. § 1 (14) (a), does

not require that such rules “be made on the record.” 5

U. S. C, § 553. That distinction is determinative for this

case. “A good deal of significance lies in the fact that

some statutes do expressly require determinations on the

Public Utilities Comm'n, 301 U. S. 292 (1937), and be-

cause 49 U. S. C. §1 (14)(a) does not require a deter-

mination “on the record,” the provisions of 5 U. S. C.

§§ 556 and 557 were inapplicable.

This proceeding, therefore, was governed by the pro-

visions of 5 U. S. C. §553 of the Administrative Pro-

cedure Act, requiring basically that notice of proposed

rulemaking shall be published in the Federal Register, that

after notice the agency give interested persons an op-

portunity to participate in the rulemaking through ap-

priate submissions, and that after consideration of the

record so made the agency shall incorporate in the rules

adopted a concise general statement of their basis and

purpose. The “Findings” and “Conclusions” embodied in

the Commission’s report fully comply with these re-

quirements, and nothing more was required by the Ad-

ministrative Procedure Act.

United States v. Allegheny-Ludlum Steel Corp., supra

at 756-58, (Footnote omitted. )

16a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

Further, in United States v. Florida East Coast R. Co., 410

U.S. 224, 238 (1973), the Supreme Court reiterated and re-

inforced its decision in United States v. Allegheny-Ludlum

— Corp., supra. In the Florida Coast R. Co. case the Court

eld:

Section 553 excepts from its requirements rulemaking

devoted to “interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice,” and rulemaking “when the agency for good

cause finds . . . that notice and public procedure there-

on are impracticable, unnecessary, or contrary to the

public interest.” This exception does not apply, however,

“when notice or hearing is required by statute”; in those

cases, even though interpretative rulemaking be involved,

the requirements of §553 apply. But since these re-

quirements themselves do not mandate any oral presenta-

tion, see Allegheny-Ludlum, supra, it cannot be doubted

that a statute that requires a “hearing” prior to rule-

making may in some circumstances be satisfied by pro-

cedures that meet only the standards of § 553. The Court’s

opinion in FPC v. Texaco, Inc., 377 U. S. 33 (1964),

supports such a broad definition of the term “hearing.”

Similarly, even where the statute requires that the

rulemaking procedure take place “on the record after op-

portunity for an agency hearing,” thus triggering the

applicability of § 556, subsection (d) provides that the

agency may proceed by the submission of all or part of

the evidence in written form if a party will not be

“prejudiced thereby.” Again, the Act makes it plain that

a specific statutory mandate that the proceedings take

place on the record after hearing may be satisfied in

some circumstances by evidentiary submission in written

form only.

We think this treatment of the term “hearing” in the

Administrative Procedure Act affords a sufficient basis

for concluding that the requirement of a “hearing” con-

tained in § 1 (14)(a), in a situation where the Commis-

17a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

sion was acting under the 1966 statutory rulemaking au-

thority that Congress had conferred upon it, did not

by its own force require the Commission either to hear

oral testimony, to permit cross-examination of Commission

witnesses, or to hear oral argument.

United States v. Florida East Coast R. Co., supra at

240-41.

Taking those precedents into account, it seems clear to us that

the legislative-type hearings conducted by the United States

EPA concerning the Ohio SO, control plan were consistent

with the provisions of the Clean Air Act and the Administrative

Procedure Act, and we further conclude that the hearings are

not inconsistent with the due process clause of the Fourteenth

Amendment. As pointed out in the quotation from Buckeye

Power #1, supra, Congress did not insert into the Clean Air

Act the language requiring the Administrator to make deter-

minations “on the record after an opportunity for an agency

hearing” which the Supreme Court has held to trigger the

requirement of an adjudicative hearing. And if there was

a legitimate due process complaint arising from the fact that

petitioners had not had a chance to comment upon the RAM

model as employed by United States EPA in its Ohio SO, con-

trol plan, we believe it was surely cured by this court's re-

mand for reopening of the administrative record and United

States EPA’s reconsideration thereafter.

We note, as petitioners encourage us to, that some cases

in other circuits hold that it is the importance and com-

plexity of the issues decided by the administrative agency

which should determine the kind of hearing procedures re-

quired rather than any formal classification of the process

as either rulemaking or adjudicatory. See Appalachian Power

Co. v. EPA, 477 F.2d 495, 500-01 (4th Cir. 1973); Walter Holm

& Co. v. Hardon, 449 F.2d 1009, 1015 (D.C. Cir. 1971).

Typically, however, it is important and complex problems

which Congress assigns to administrative agencies, Thus far

18a

Cleveland Elec. Illum:, et al. v. EPA Nos. 76-2090 etc.

neither Congress nor the Supreme Court has elected to adopt

such a flexible standard or to assign exclusive responsibility for

the choice of agency hearing procedures to the federal courts.

Several petitioners also argue that this Circuit should follow

the example of the Ninth Circuit in Bunker Hill Co. v. EPA,

—— F.2d —— (9th Cir. 1977) (decided July 5, 1977), to the

extent of remanding the proposed sulfur dioxide control stand-

ards to allow cross-examination of United States EPA’s ex-

perts and additional comment thereafter.

In contrast to our remand order of November 12, 1976, the

Ninth Circuit did provide for cross-examination pertaining

to what it termed a highly complex and technical issue con-

cerning the technological feasibility of the use of sulfur burn-

ers to effect control of Bunker Hill’s lead smelter emissions.

While we believe that cross-examination of an administrative

agency's experts is not a required or normal part of informal

rulemaking under Section 553, we do not exclude the possi-

bility that a case may be presented to this court wherein

remand for cross-examination about disputed facts will prove

both logical and necessary.

We do not, however, find any legal requirement or practical

need for any more hearings, with or without cross-examination,

in order to answer the three major general issues posed in

the instant cases. Petitioners have had ample opportunities to

present their views to the agency. A full record has been

written. There has already been an inordinate delay of five

years longer than Congress contemplated.

3. The RAM Model

The petitioners in these cases center most of their criticisms

upon the United States EPA’s use of the Real-Time Air-Quality-

Simulation Model (“RAM”) which was employed by the

agency in preparation of the Ohio sulfur dioxide control plan.

RAM is a dispersion model which evaluates the interaction

19a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

of a variety of facts in order to make predictions concerning

the contribution to the pollution of the ambient air by spe-

cific plants. Its formula takes into account the capacity of

each plant on a stack-by-stack basis and adds thereto smoke-

stack height, surrounding terrain, and weather conditions.

The model is operated on the assumption that the plants con-

cerned operate 24 hours a day at full capacity and predic-

tions are made for every day of the year. The ultimate

standards are set according to the predicted second-worst day

in terms of pollution results shown.

In comparison to all other prior methods of controlling pollu-

tion, RAM starts with a solid, ascertainable data base. This

is the established design capacity of the power plants in ques-

tion related to the sulfur content of the fuel used by each.

From these factors the “emissions data” for each plant is

developed.

When stack height, wind, weather, terrain, land use, etc.,

are figured in, the RAM model has the additional value of

allowing its user to predict with considerable accuracy the

relative contributions of specific power plant stacks to the

points of maximum concentration of pollution of the ambient

air,

The RAM model was actually developed as a result of

United States EPA’s public hearings on the proposed plan for

Ohio after five days of hearings on said proposed plan in Co-

lumbus, Cleveland, Cincinnati, and Steubenville at which pe-

titioners involved in this current litigation were given an

opportunity (which most accepted) to appear, testify, or

submit comments. At those hearings the major source of

criticism from industries, including some of the present peti-

tioners, was that the plan then under consideration did not

determine limitations by individual stacks to a sufficient degree.

EPA in its brief in this case compares the “rollback” model

employed in the preparation of the first Ohio plan to dispersion

20a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

models like RAM, which is now the source of present con-

troversy:

Unlike the rollback model, the dispersion models used

in developing the promulgated plan allow a determina-

tion of the cause-effect relationship between the SO,

emissions of the pollution sources in an area and the

resulting ambient air quality. Therefore, it is possible to

determine the proportion by which each source must re-

duce emissions to meet ambient standards. With the

use of the rollback model, in contrast, each source’s emis-

sions in the region, whether or not they contributed to

a pollution problem, were required to be reduced.

Through dispersion modeling, emission limitations can

now be set with increased precision. Overcontrol is

minimized, so that the plan will still insure attainment

and inaintenance of the air quality standards, but at a

much reduced cost to the sources. This is most clearly

demonstrated by comparing emission limitations for power

plants under the various plans. Power plants account for

approximately 80% of the sulfur dioxide emisisons in the

State.

However, achievement of this added precision requires

a massive analytical task. Tremendous amounts of data

are required for each source analyzed. In addition to the

emissions data for each source, dispersion modeling re-

quires detailed information on all the factors that affect

the dispersion of emissions. These include the height

of the source’s stack (or usually stacks), the spatial ori-

entation of the sources to each other, the topography of

the area and the effects it will have on dispersion, and,

of crucial importance, detailed weather data for the area.

All this information is needed so that the computer an-

alysis reflects actual conditions. For example, a gaseous

pollutant emitted over a grassy field will disperse much

differently than if the pollutant is emitted over a large

urban area. There the dispersion will be affected not only

by the local weather conditions but also by the greater

2la

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. vy. EPA

turbulence caused by the different types of surface areas

and heat sources throughout a city.

EPA goes on to point out that there are more than 1,000

point sources in the State of Ohio and more than 2,000 area

sources, and that in relation to emission data, United States

EPA utilized (among other sources) the data base on sulfur

dioxide required to be reported to the State of Ohio under

Ono Rev. Cope ANN. §§ 3704.03(1), 3704.05(c) (Page 1971

& 1976 Supp. ).

It is, of course, no part of the responsibility of this court

to determine whether the RAM model represents the best

possible approach to determining standards for the control of

sulfur dioxide emissions. Our standard of review of the ac-

tions of United States EPA is whether or not the action

of the agency is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, § 305(a), 91 Stat.

775 (to be codified as 42 U.S.C. § 7607(d)(9)(A)). Thus,

we are required to affirm if there is a rational basis for the

agency action and we are not “empowered to substitute [our]

judgment for that of the agency.” Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 416 (1971).

Our review of this record convinces us that we cannot prop-

erly hold that United States EPA’s adoption of the RAM model

for predicting sulfur dioxide emissions and for fixing maxi-

mum levels of sulfur dioxide emissions by specific sources was

arbitrary and capricious or beyond the agency’s authority un-

der the Clean Air Act. The factors cited below support EPA’s

argument that the RAM model is supported by sufficient evi-

dence so that EPA’s adoption cannot be held arbitrary and

capricious:

1) United States EPA’s use of the “rollback” model — the

principal basis of its first plan on which five days of public

hearings were conducted in Ohio — was strenuously objected

22a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

to by representatives of many of the present petitioners be-

cause it was not source-specific and, as a consequence, tended

to require more stringent sulfur dioxide controls than would

be required if plant capacity, fuel, population, smokestack

height, wind and climate were all taken into account. Thus

John R. Martin, of Smith & Singer Meterologists, Inc., com-

mented on behalf of Ohio utilities on the first United States

EPA plan as follows:

More sophisticated modeling is necessary in all seven

of the urban counties that use the proportional roll-

back. In this way, the Federal air quality standards

can be attained without unnecessary SO, emission re-

strictions being imposed upon sources that do not con-

tribute to an SO, problem.

We recommend that new strategies be tested which

will more fairly identify and control SO, sources that

create SO, problems.

Similarly Dr. Howard M. Ellis, of Enviroplan, Inc., said

on behalf of Ohio power plants:

[I]n developing an SO, control program for this plant,

Region V did not consider economically efficient alterna-

tives to constant uniform emission standards — alterna-

tives such as utilizing a supplementary control system

to achieve air quality standards or using separate SO,

emission standards by stack in accordance with each

stack’s contribution to ground-level SO, concentrations.

Separate emission standards by stack can reduce consid-

erably the cost of achieving air quality standards... .

2) EPA responded to these arguments favorably by de-

vising and adopting the RAM model which did employ all

of these source-specific factors.

3) Further, as shown on the following charts, the United

23a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

States EPA 1976-1977 SO, control plan (principally based

upon the RAM and MAX-24 models) shows less stringent regu-

lation on a county-by-county basis when compared to the

Ohio SO, control plans origiaally promulgated in 1972 and

1974, In addition, when the comparison is limited to peti-

tioners involved in this litigation, but including all of their fa-

cilities which were subjected to RAM modeling (and which

are identified in this record), we find the plan slightly less

strict on a facility comparison basis than the Ohio 1972 plan

by a count of 24 to 17, and slightly more strict than the

Ohio 1974 plan by a count of 23 to 20.

These comparisons do not, of course, necessarily demon-

strate RAM’s accuracy. Rather, the comparison with Ohio’s

previous plans (based upon the earlier rollback model which

was used and accepted nationwide) tends simply to show

that the choice of RAM modeling lay within administrative

discretion.

RELATIVE STRINGENCY OF US EPA REGULATIONS

AND PREVIOUSLY PROMULGATED REGULATIONS

Ohio EPA Ohio EPA

1, US EPA 1976-77 1972 1974

urban RAM regsare: _— regs for: _ regs for:

stricter than 14 20 of petitioners’

facilities*

less strict than 21 17 a

the same as 1 l ”

ambiguous” compared with 6 4 Hd

2. US EPA 1976-77

rural RAM regs are:

stricter than 3

less strict than 3

the same as 0

ambiguous” compared with 0

”

oo oO &W

”

a a ee

24a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

3. US EPA 1976-77

regs (all models) are:

stricter than 4 7 Ohio counties*®

less strict than 40 35 7

the same as 0 ) -

ambiguous” compared with 24 26

4. US EPA 1976-77

regs (all models) are:

stricter than 22 32 of petitioners’

facilities*

less strict than 50 43 ”

the same as 1 | ”

ambiguous” compared with 14 11 ”

“Including facilities to the regulation of which petitioners

do not object.

> /.e., stricter for some stacks or facilities and less strict for

others; or employing different units of measurement, render-

ing comparison impossible; or insufficient data available for

meaningful comparison.

emissions.

All comparisons are based on the data set out in Appendices

A, B and C,

25a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

4) While this court has currently before it some 32 pe-

titioners protesting the United States EPA’s plan for SO, emis-

sion control for Ohio, it must be remembered that Ohio is

estimated to have over 1,000 point sources and over 2,000

area sources of SO, pollution.

5) The RAM model is a general formula which can be ap-

plied to many individual sources of pollution to derive spe-

cific estimates of SO, emission rates for each. It employs a

wider, more complete and more accurate data base than any

prior model yet employed in devising a sulfur dioxide control

strategy for a state or county. The crucial data with which

the RAM model starts is the design capacity figure, plus the

fuel sulfur content, from which is computed the SO, emis-

sion rate for each of the heating or power plants sought to be

controlled. Thus at the outset the RAM model starts with

ascertainable specific figures for each source where disputes

can be resolved by inspection of the equipment or fuel con-

cerned. Many of the additional components such as stack

height, wind direction, physical relationship of sources to each

other, and topography of the area are similarly ascertainable

as matters of fact. With the enormous financial stakes involved

in this litigation, every effort to avoid disputes about the ac-

curacy of the data base should be made. This record shows

that United States EPA’s design of the RAM model was

brought about at least in large part by Ohio industry’s re-

quests for greater specificity and hence lower costs of com-

pliance with National Air Quality Standards,

6) While there may yet be developed (and hopefully will

be) a better method of establishing a control strategy for

sulfur dioxide emissions than the RAM model, no one has

yet come forward with such. Nor do petitioners point to

any such,

This is not to ignore that petitioners do cite Enviroplan’s

claims of a superior model termed Air Pollution Evaluation

26a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

System. This record shows, however, that United States EPA

asked for the Enviroplan model and was refused, and is now

refused the operative details of that model on the grounds of

proprietary interest. While such withholding may be both

defensible as a matter of law, and understandable as a matter

of economics, this court cannot consider Enviroplan’s model

as available technology until and unless it is fully disclosed

and evaluated by United States EPA — the agency charged

by Congress with making these decisions.

7) We recognize that this record does not present posi-

tive proofs of the accuracy of RAM’s predictions. Thus far

technology has not developed foolproof methods for validating

predictions concerning pollution of the ambient air absent

years of collection of monitoring data with far more monitors

and far more personnel than have thus far been available. Ob-

viously, also, the monitor locations and the recepicr sites

for the RAM predictions must correspond.

We find such identity of monitor locations and receptor

sites available in this administrative record for the City of

Dayton.

The EPA Appendix contains:

1) RAM model computer printouts showing predicted

second-highest 24-hour concentrations of sulfur dioxide for

several receptor sites, and the location of those sites. (EPA

Appendix, Vol. IV, at 85-94, Certified Index XIII, EEE.1.a.3.);

2) Air quality data for 1972-76 at several Dayton sulfur

dioxide monitors (EPA Appendix, Vol. IV, at 61, 79, Certified

Index XV.K.2.r. and s.); and

3) The locations for the Dayton monitors (EPA Appendix,

Vol. IV, at 95-96, Certified Index XII.B.4.a.(1)(d)).

The following chart displays the data contained in these

documents:

27a

Nos, 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

Second-Highest

24-hr Concen- Actual Monitor Readings

tration Predicted (micrograms per cubic meter )

Site by RAM (micrograms

No. per cubic meter) 1972 1973 1974 1975 1976

l 195 : ° 219 * .

2 201 73 438 +4181 163~—=«=Bi

3 83 a . 117 =—62—CéiéSH

4 109 ' . 151 109 17

5 161 57 198 7 68 = 41

6 207 13 66 4110 75

Our analysis of these data* shows that the yearly second-

highest concentration of SO, pollution (for a 24-hour average )

actually recorded on available monitors exceeded the RAM

model prediction for each location once in a five-year period

at five out of six locations. This analysis certainly falls short

of showing RAM’s predictive perfection. But it certainly tends

to show that the EPA’s use of RAM, if conservative, cannot

be held to be arbitrary and capricious. See Sierra Club v. EPA,

540 F.2d 1114, 1136 (D.C. Cir. 1976), cert. granted on dif-

ferent issues, 97 S.Ct. 1597 (1977). See also Mision Industrial,

Inc. v. EPA, 547 F.2d 123, 128-29 (Ist Cir. 1976).

We recognize that petitioners presented Enviroplan’s study

on RAM predictions and existing monitor results for the three

counties in which Akron, Toledo and Canton are located, and

that they contend that the study's results show gross over-

predictions by RAM. Reevaluation of RAM predictions, how-

ever, showed that most discrepancies were occasioned by data

4 Petitioners object with vehemence to EPA's reference in its brief

to its discussion of these data as a “study,” calling our attention to

the fact that the com n was made by EPA attorneys after

the closing of the record. Clearly, however, the raw data to which we

have referred and which we have inspected were and are available

in the administrative record of this case.

28a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

errors factored into the original RAM predictions for these

three counties. |

We have also considered the argument based on the Hamill

study of RAM’s application to St. Louis and Enviroplan’s

subsequent study thereof. While this latter commentary

must be taken into account, when weighed against all other

record evidence it fails to convince us that United States

EPA’s use of RAM was arbitrary and capricious.

8) Finally, as we pointed out at the beginning of this

opinion, SO, emissions have a direct impact upon the health

and the lives of the population of Ohio — particularly its

young people, its sick people, and its old people. If the

RAM model did overpredict emission rates, such a conserva-

tive approach in protection of health and life was apparently

contemplated by Congress in requiring that EPA plans con-

tain “emission limitations . . . necessary to insure attainment

and maintenance” of national ambient air standards, 42 U.S.C.

§ 1857c-5(a)(2)(B) (1970). (Emphasis added. )

In summary, we hold that United States EPA’s adoption and

employment of the RAM model as its general working tool was

based upon informal rulemaking which satisfied both the re-

quirements of the Clean Air Act, the Administrative Procedure

Act, and the due process requirements of the United States

Constitution. Further, the record indicates that the Administra-

tor’s action in promulgating the sulfur dioxide control regula-

tions for Ohio through use of the RAM model was a rational

choice which was well within the discretion committed to him

and his agency. We decline petitioners’ requests to set the

disputed orders aside on the ground that they are arbitrary

and capricious.

29a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

OTHER ISSUES

Somewhat half-heartedly the leading brief for the utilities

attacks the United States EPA plan for SO, controls in Ohio

as excessively costly and asserts that the satisfactory opera-

tion of Flue Gas Desulfurization machinery (“scrubbers”) has

not been demonstrated.

We note that the United States EPA control strategy for

Ohio does not rely heavily upon Flue Gas Desulfurization.

(EPA estimates — and petitioners do not dispute — that only

six utilities will choose this compliance route.) Alternatives to

installation of “scrubbers” are the purchasing and use of low

sulfur coals or the employment of coal cleaning or blending

techniques. There is no doubt, of course, that SO, controls will

indeed be costly. EPA estimates capital costs for Ohio in-

dustry of well over half a billion dollars and annual costs of

171 million dollars. It also projects these costs as requiring a

3% increase in annual electric bills for the consumers who

will ultimately pay them — and who will also breathe the less

polluted air. Basically the choice of economic burden versus

continued deterioration of the air we breathe was made by

Congress. In this litigation no issue is raised concerning Con-

gress’ power to do so.

We have genuine doubt that this court has the power to

review what we regard as petitioners’ slightly disguised eco-

nomic and technological infeasibility arguments. See generally

Union Electric Co. v. EPA, 427 U.S. 246, 265-66 (1976).§ Since

this issue does not appear to be definitely resolved as to a

United States EPA-designed implementation plan (such as

we deal with here), see Union Electric Co. v. EPA, supra at

261 n.7, we observe that if we did have such power, we

5 United States EPA’s SO, control plan for Ohio has as its goal

the attainment of national air uality standards. It does not seek

to exceed them. See Note, The Clean Air Act: “Taking a Stick to the

States,” 25 Creve. Sr. L. Rev. 371, 405 (1976).

30a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

would conclude that the technical record compiled in the

agency proceeding provides ample support for the economic

and technological feasibility of the SO, control strategies which

United States EPA has promulgated for Ohio.

Petitioners, Cleveland Electric Illuminating Co. and Dayton

Power & Light Co., enter objections to the classification of

three power plants as “urban.” Inspection of the geographic

location of these plants and of the population distribution in

the near vicinity convinces us that the United States EPA

classification cannot properly be termed arbitrary and ca-

pricious. Power plant pollution of the ambient air is no re-

specter of municipal boundary lines.

We note petitioners’ objection to the use of the urban disper-

sion coefficients employed in the RAM model. EPA defends

their use by citing the St. Louis study and by noting that

no better or more accurate coefficients are available. Since

to this observation petitioners reply by asking for more study,

we conclude that study should progress while the purposes

of the Clean Air Act were being served rather than by in-

definite postponement of EPA’s mandated task of reducing SO,

pollution in Ohio.

No other material issues are presented.

One petition pending before this court from the Northern

Ohio Lung Association attacks United States EPA’s failure

to promulgate a separate implementation plan for the “sec-

ondary standards” for the ambient air. This petition will be

the subject of separate consideration.

Similarly, this opinion does not govern any petitions where

the RAM model was not used. We do not decide any spe-

cific fact disputes raised by any petitioner as to plants other

than those treated in this opinion. Decision of these cases

will follow.

6See note 1, supra.

8la

Nos, 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

For the reasons stated above, the decision of the Admin-

istrator in imposing the SO, control plan is affirmed subject to

the reservations indicated above.

No costs are allowed since important public questions are

involved.

32a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

APPENDIX A

COMPARISON OF PROMULGATED REGULATIONS

CONCERNING SULFUR DIOXIDE EMISSION

LIMITATIONS FOR THE STATE OF OHIO

Footnote list:

a. Source: Ohio Environmental Protection Agency Reg.

EP-11-14 (AP-3-14), effective July 17, 1972 (available from

Anderson Publishing Co., Cincinnati, Ohio), See Appendix B.

b. Source: Ohio Environmental Protection Agency Reg.

EP-11-13, effective Feb. 1, 1974 (available from Anderson

Publishing Co., Cincinnati, Ohio). See Appendix C.

c. Source: 41 Fed. Reg. 36,324-40 (Aug. 27, 1976); 41

Fed. Reg. 42,455-56 (Nov. 30, 1976); 42 Fed. Reg. 27,588-93

(May 31, 1977).

d. All figures represent lbs. SO, per million British Thermal

Units (mBTU) heat input, unless otherwise specified.

e. Located in Morgan and Washington Counties.

f, Optional compliance equation omitted from chart.

g. No present objection to regulation of this facility.

h. Not regulated.

i. Excluding sources subject to New Source Performance

Standards.

j. Subject to New Source Performance Standards.

k. Additional limitations, specified in units other than Ibs.

SO,/mBTU heat input, omitted from chart.

m. Information not available.

33a

Nos. 76-2000 etc. Cleveland Elec.

Illum., et al. v. EPA

County; Ohio |Ohio | Current US EPA

Model (a) EPA | EPA

employed Petitioner; facility 19724 1974” | Reg.° Model

Adauno (MAX) 3.29 14.8 | 3.26

Dayton Power & Light, Stuart plant 3.167 MAX

Allen(Rural RAM; MAX) 1.0 11.0 | 0.13+5, 39

Standard Oil, Lima refinery Rural RAM

Claus unit 100 lbs. sO

é 2

1000 Ibs.5

Catalytic cracker/CO boiler

+30 lbs. 80,

000 Ibs. product

Trolumen unit 11 lbs. SO

, 2

ton production

Ieo stabilizer, split heaters 0.71

Vac I heater 0.21

All other unite 0.13

Standard 011, Vietron plant& 1.27 Rural RAM

Ohio Power, Woodcock plant® 4.38 MAX

Ashland(no sources) 1.6 14.8 h

Ashtabula(SCIM) 1.6 {1.0 1.30-9.10

Cleveland Elec. Illum.,

Ashtabula plant® SCIM

Stacks 1-3 2.40 |

Stack 4 9.10

Stack 5 8.20

Athene(MAX; SCIM) 1.6 4.0 | 3.72-7.504

Columbus & So. Ohio Power,

Poston. plant MAX

Stacks 1 & 2 3.72°

Stack 3 1.2074

Auglaize(SCIM) 1.0 /4.0 4.20

Goodyear Tire and Rubbder®

4.20 SCIM

ee = —

34a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

County; Ohio |Ohio |Current US BPA

Model(s) EPA EPA

employed Petitioner; facility 1972 |1974 | Reg. Model

Belmont(MAX; modified rollback) 1.0 {1.6 2.60

Wheeling-Pittsburgh Steel,

Martine Ferry 2.60 rollback

Ohio Edison, Burger plant h

Brown(no sources) 3.2 14.8 h -

Butler(Rural RAM) 1.6 |1.6 |0.50-3.43"

Armco, Hamilton coke plant 0.73 Rural RAM

Armco, Middletown plant Rural RAM

Boilers Bl-B4 2.11

Boilers B7-B10 1.79

General Motors, Hamilton

Pisher Body 1.40 Rural RAM

Carroll(no sources) 1.0 {4.0 h -

Champaign(no sources) 1.0 [4.8 jh ~

Clark (MAX) 1.6 4.8 1.00-4.62

Ohio Edison, Mad River plant® MAX

Stacks 1-3 4.62*

Stacks 4&5 1.00

Clermont (MAX) 1.6 14.8 2.02

Cincinnati G. & E,,Beckjora plant 2.027 MAX

Clinton(no sources) 3.2 14.0 h -

Columbiana(MAX) 1.0 {1.0 4.40

Ohio Edison, East Palestine plant® 4.40 MAX

Coshocton(MAX) 1.0 /1.6 5.66"

Columbus & So. Ohio Elec.,

Conesville MAX

Stacks 1-3 5.66%

Stack 4 1.20

35a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

County; Ohio] Ohio] Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972] 1974] Reg. Model

Crawford (MAX). 1.6 | 4.8 9.60

Cuyahoga(RAM) 1.0] 1.0 | 0.50-4,60*

Allied Chemical 4.8 lbs. SO

ton of acid RAM

Republic Steel RAM

Oxygen furnace, open hearth,

blast furnaces,

foundry, etc. 1.20%

84" slab furnaces 1.24

Boilers 1.00

Cleveland Elec. Illuminating,

Lakeshore RAM

Unit 18 1.80

Unite 91-94 1.90

Cleveland Elec. Illumination,

Hamilton Ave. 1.00 RAM

U. &S. Steel, Cuyahoga-Lorain

works 0.50 RAM

U. S&S. Steel, Cuyahoga works 1.30 RAM

Dupont RAM

Boiler 18 0.50

Sulfuric acid units 10 lbs. SO

Toro? sett

Standard Oil, Cleveland Asphalt

plant 0.50 RAM

General Motcrs, Fisher Body

plant 2.10 RAM

Darke(no sources) 1.6 | 4.8 | h -

Defiance (MAX) 1.0 | 4.0 h

Delaware (MAX) 3.2 | 4.8 4.00

Eric (MAX) 3.2 11.6 | 1.60%

36a

Cleveland Elec. Illum., et al. v.

EPA Nos. 76-2090 etc.

County; Ohio] Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972] 1974 | Reg. Model

Fayette(no sources) 3.2 | 4.0 h ~

Franklin(RAM) 3.2 | 3.2 | 1.06-4.80*

White-Westinghouse 2.20 RAM

General Motors, Fisher Body

plant 1.50 RAM

Fulton(no sources) 1.0 | 4.8 h -

Gallia(MAX; SOIM) 3.2 | 4.8 | 8.20-9.50

Ohio Power, Gavin plant® 9.50 MAX

Geauga(MAX) 1.0 | 4.8 h

Greene(MAX; Rural RAM; SOIM) 1.6 | 4.0 0.30-6,20*

Guernsey(MAX) 1.0 | 4.8 h

Hamilton(modified rollback; MAX; SCIM) 1.6 }1.6 | 0.30-5.50*

Cincinnati G. & E., Miami Fort

plant MAX

Stack 2 0.30

Stacks 3 & 4 3.30

Stack 5 5.50

Stack 6 1.204

Dupont, Fort Hill plant 21 lbs. 50,

ton of acid MAX

Hancock(MAX; SCIM) 1.0 3.2 2.50=-5.20

Hardin(MAX) 1.0 |4.0 h

Harrison(no sources) 1.0 14.0 h -

Henry(MAX) 1.0 {1.6 2.10

Highland(no sources) 3.2 |4.0 h 7

37a

Nos, 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA

County; Ohio!] Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972 | 1974 | Reg. Model

Hocking(no sources) 3.2 | 5.2 h -

Holmes (MAX) 1.6 | 3.2 h

Huron(MAX) 3.2 14.0 8.00

Jackson(no sources) 3.2 14.0 h -

Jefferson(MAX; modified rollback) 1.0 |1.0 | 0.80-8.10*

Wheeling-Pitteburgh Steel,

Yorkville 4.20 rollback

Wheeling-Pittsburgh Steel,

Steubenville (2 plants)® 50 gr. #8

100 dscf gas rollback

Ohio Edison, Sammis plant 2.917 MAX

Ohio Edison, Toronto plant® 8.10 MAX

Ohio Power, Cardinal plant® 4.76% MAX

Ohio Power, Tidd plant® 1.587 MAX

Knox (MAX) 1.6 3.2 h

Lake(RAM) 1.0 ]1.6 | 0.55-6.00*

Cleveland Elec. Illum.,

Bast Lake plant 1.437 RAM

Republic Steel lime plant® 4.21 lbs. 80,

ton input RAM

Lawrence(MAX; Rural RAM) 3.2 |1.6 | 1.22-5,.52*

Allied Chemical, Semet-Solvay 5.52 Rural RAM

Licking(MAX) 3.2 |3.2 1.50

Logan(no sources) 1.0 |4.8 h 7

Lorain(RAM) 1.0 {1.6 0.17=3.40*

Cleveland Elec. Illum.,

Avon Lake plant. 1.157 RAM

Ohio Edison, Edgewater plant 3.40 RAM

B. F. Goodrich 1.70 RAM

38a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

County; Ohio | Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972 |1974 | Reg. Model

Lorain(RAM) (cont.) 1.0 |1.6 0.17=3.40*

General Motors, Fisher Body

Elyria plant RAM

Boilers 1 & 2 0.80

Boiler 4 0.90

Other units 1.80

U. S. Steel RAM

Boilers 1-9 1.20

Boilers 10-13 0.50

Processes PO33 & PO39 0.17*

All other processes 0.40%

Lucae(RAM) 1.0 [1.0 | 0.04-4.99*

Toledo Edison, Bayshore station 0,.50-1.20 RAM

Toledo Edison, Acme power plant 1.00=3.00 RAM

Toledo Edison, Water St.

ateam plant® 1,06 RAM

Standard 0118 0.29-1.00" RAM

Coulton Chemical 0.80% RAM

Gulf 011 0.04-0.81* RAM

Interlake Steel 0.10* RAM

General Motors, Chevrolet plant 1.30 RAM

Madison(MAX) 3.2 |4.8 h

Mahoning(modified rollback) 1.6 |1.6 | 0.50-2.00*

Ohio Edison, North Ave. plant 2.00 rollback

Koppers Ov. 2.00 rollback

Youngstown Sheet & Tube (2 plants) 0.50-0.66" rollback

Republic Steel 0.50-0.68" rollback

Marion(Rural RAM) 1.6 |4.0 4,.20-6.10

Medina(MAX) 1.0 |4.8 8.00

Meigs(other modelling strategy) 1.6 |4.8 11 lbs. SC,

ton input

39a

Nos. 76-2090 etc. Cleveland Elec. Ilum., et al. v. EPA

County; Ohio | Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioners; facility 1972 | 1974 | Reg. Model

Mercer(MAX) 1.0 | 4.0 8.00

Miami (MAX) 1.6 |4.0 | 3.20-4.78%

Monroe(no sources) 1.0 [1.6 h -

Mont gomety(RAM) 1.6 |1.6 | 0.65-1.60*

Dayton P, & L., Hutchings plant 0.65=1.20 RAM

Dayton P, &L., Yankee & Monument 0.65 RAM

Morgan (MAX) 1.6 | 3.2 6.48

Ohio Power, Muskingum R, plant® 6.48* MAX

Morrow(no sources) 1.6 | 4.8 h -

Muskingum (MAX) 1.0 |4.0 | 1,14

Ohio Power, Philo plant® 1.14f MAX

Noble(no sources) 1.0 |4.8 h -

Ot tawa (MAX) 3.2 |4.8 | 5.90%

Paulding(MAX) 1.0 | 4.0 43 lbs. 80,

ton input

Perry(no sources) 3.2 14.8 h -

Pickaway(MAX) 3.2 11.6 0.85-6.04

Columbus & So. Ohio Blec.,

Picway plant 6.047 MAX

Pike(MAX) 3.2 14.8 7.00

Portage (MAX) 1.0 |4.8 h

Preble(MAX) 1.6 4.8 h

40a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

County; Ohio] Ohio |] Current US EPA

Modol(s) BPA | EPA

employed Petitioners; facility 1972] 1974 | Reg. Model

Putnam(MAX) 1.0 | 4.8 h

Richland(MAX; SCIM) 1.6 |1.6 | 3.10-9.30%

White-Westinghouse® 4.50 MAX; SCIM

General Motors, Fisher Boay® 3.10 MAX;SCIM

Rosa(MAX) 3.2 | 3.2 4.9 lbs. 80,

ton input

Sandusky(MAX; SOIM) 3.2 14.0 | 7.00%

BoiLoto(MAX) 3.2 14.8 | 0.60-6.90*

Seneca(MAX; SCIM) 3.2 |3.2 | 1.20-8.20%

Shelby(no sources) 1.0 | 3.2 h -

Stark (RAM) 1.0 | 4.8 | 0.47-5.20*

Republic Steel, Massillon plant® 4.40 RAM

Timken, Gambrinus plant RAM

Boilers 1 & 2 3.08

Boiler 5 0.93

Timken, Canton No. 5 plant 0.67 RAM

Hoover 2.50 RAM

Summit (RAM) 1.0 |1.0 | 0.70-6.10*

Firestone Tire & Rubber 1.78 RAM

Firestone, Seiberling division 1.33 RAM

B. F. Goodrich 2.71 RAM

Goodyear Tire & Rubber, Plant I 1.80-3.96* RAM

Goodyear Tire & Rubber, Plant II 1.84" RAM

Ohio Edison, Beech St. station 2.71 RAM

Ohio Edison, Gorge power plant 2.56 RAM

PPG Industries 1.78 RAM

dla

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. vy. EPA

County; Ohio |Ohio | Current US EPA

Model(s) EPA |EPA

employed Petitioner; facility 1972 |1974 | Reg. Model

Trumbull(MAX; modified rollback) 1.6 }1.0 |0.50-5.42*

Republic Stee1® 1.00-1.60* rollback

Ohio Edison, Niles plant®& 5.41% MAX

U. S. Steel, McDonald mills 0.50 rollback

GM, Packard Electric Warren plants

(2) n rollback

Tuscarawas (MAX) 1.0 |1.6 4.60%

Union(no sources) 3.2 14.0 h -

Van Wert(MAX) 1.0 [4.8 h

Vinton(MAX) 3.2 14.0 4.80

Austin Powder 4.80 MAX

Warren(MAX) 1.6 [4.8 h

Shell Oil 2.50 MAX

Ohio Power, Muskingum R. plant® 6.48 MAX

Wayne(MAX; SCIM) 1.6 |1.6 7.00

Williams (MAX)

Wood(RAM)

Wyandot(no sources)

1.0 [4.0 h

1.0 [4.0 1.10

1.6 [4.8 h

eser = —~——

42a

43a

. Illum., .v. EPA _ Nos. 76-2090 etc.

Cleveland Elec. Illum., et at. v we — Nos. 76-2090 ete. Cleveland Elec. Illum., et al. v. EPA

APPENDIX B

S - MAXIMUM ALLOWABLE MASS RATE OF EMISSION OF SULFUR COMPOUNDS

(AS SULFUR DIOXIDE) - IN POUNDS PER MILLION BTU INPUT

eee te ia uv & & a veo- n vw & vw auee

Samana hetel finens; ol - 7 —

‘ ‘ meee Bee bebep . Pbbere bobby de

£,

Ped MAA 4 OW Me ey | LRT fied nated okamellades

il} Pad Sea Hanh A fete te CT

OHIO EPA 1972 REGULATIONS Hu ee HA

EP-11-14 (AP-3-14) Restrictions on emission of sulfur dioxide

from the use of fuel.

weecos yr €

€-d ZAWND

: oe : a Seana inn +1

(B) Emission limitations. Le i

(1) No person shall cause, suffer, allow, or permit the

emission of sulfur compounds caused by the combustion of

fuel in fuel-burning equipment from any stack or chimney

in excess of the quantity set forth in Figure III.

wi (eae

z-d IND =

I-d JAWND

6029

(2) All persons located within air control regions classified

as Priority 1 Regions shall attain or exceed that degree of

emission reduction specified by Curve P-1 by the effective

date of this regulation.

€T-Tl a

III 2MOId

YUNOH Wid NLA SNOITHW ‘INdNI LVJH TVLOL - H

(3) All persons located within air quality control regions

classified as Priority II Regions shall attain or exceed that

degree of emission reduction specified by Curve P-2 by the

effective date of this regulation.

seecsserieée

(4) All persons located within air quality control regions

classified as Priority III Regions shall attain or exceed that

degree of emission reduction specified by Curve P-3 by the i athe

effective date of this regulation. are

tesco vp €

(5) All persons located within air quality control regions

classified as Priority II or III Regions shall attain or exceed, it

no later than July 1, 1975, that degree of emission reduction

specified by Curve P-1.

o*T=S

t=Ss

ee=S

oooba

(Adopted July 6, 1972; effective July 17, 1972.)

Nt OS SS ee _

44a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

EP-11-06 (AP-3-06) Classification of regions.

CLASSIFICATION BY REGIONS (See Figure IV at end of EP-11)

FEDERAL PRIORITY CLASSIFICATION — BY POLLUTANT —

FEDERAL REGISTER, MAY 31, 1972

AIR QUALITY

FEDERAL

CONTROL REGION NUMBER

Cincinnati (Ky.-!nd.)

Cleveland (Akron,

Canton, etc.)

Columbus

Dayton

Mansfield-Marion

Marietta (W. Va.)

Northwest Ohio

Portsmouth-ironton

Ps ey _—

aemeanhe (W. Va.)

Toledo (Michigan)

Wilmington-

Chillicothe-Logan

Youngstown

Zanesville

079

PARTI-

CULATES SOx

| |

| il

| ul

ll |

| tl

WI tT

| |

WI tT}

I la

NOx PhtO x

| |

il it

il itl

it HL

il itl

il it

HL itl

| |

Wl il

i i

il il

Nos. 76-2090 etc.

45a

Cleveland Elec. Illum., et al. v. EPA

lene ‘

va |

jinentos

onown Ree—L

Huntington-Ashland-Portsmouth-Ironton

(#103)

eee

FIGURE IV

EP 11-06 (AP 3-06)

CLASSIFICATION BY REGIONS

ayntaeules

jeiitane TRAST" ea Cae pee siostheres’

| | Toledo fer a ie ee.

t ee 4 - - a Thin

eccaiheda _| ini G 124) ar pe rain — Youngstown

CANCE | Yaoov — n

| l — ae a oe Pa (i 178)

Rint — ata Sandusky J Cleveland “mae

a! #160 #14

—_— Northwest Ohio ( Ben . eo '

ven wen (43 177) WrAncor ‘eam == AIC MLARD Waren ae Lmnnl

Saw? = Le, Mansfield-Marion | nag :

| | b), € . tite (#175) ' LANMUAL |

‘ae [esmua. = ee | Manin es | [roveees yen Tuscarawas | ~

| | Zu} me | C= — ] ] JUNPERIOR

‘t _— | ans Pr COLNOCION 1 Trantaen

—_— i aa Zanesvillo-Cambridgo

a _ fea),

Dayton | aa ae mate | Steubenville

(#173) caain Columbus ee \ =o Weirton-

wine [uenromend & (#1 76) prairie] penny” L rT -——«-« Wheeling

; ~ MORALE

forced recs —f (#181)

| | Paverte | |

PTT) —— Pe + > . (nawwncrvon

7 fa

Cincinnati | F sas j of =Parkersburg-

___#079) , Wilmington-Chillicothe Marietta

Wanton Cai Pa Loaan (#182) ( #179)

46a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

APPENDIX C

OHIO EPA 1974 REGULATIONS

EP-11-13 Restrictions on emission of sulfur dioxide from use

of fuel.

(B) Emission limitations.

(1) No person shall cause, permit, or allow the emission

of sulfur oxides from any facility as defined in subsection (A)

(2) of this regulation in excess of the quantity set forth in

Table II (Figure V following EP-11) for the county in which

the source is located.

(2) No person shall cause, permit, or allow the emission

of sulfur oxides in excess of 1.0 pounds per one million BTU

of heat input from any new facility made up of one or more

new sources with a combined capacity of 100 million BTU

per hour or more for which a Permit to Install or Permit to

Construct was not obtained before February 1, 1974. New

sources with a combined capacity of less than 100 million BTU

per hour shall comply with the emission limitations in para-

graph (1) of this subsection.

(Adopted January 21, 1974; effective February 1, 1974.)

TABLE II (See Figure V at end of EP-11)

COUNTY SULPHUR DIOXIDE ALLOWABLE

EMISSIONS

Allen 1.0 pounds of sulfur dioxide

Ashtabula per million BTU of heat input

Columbiana

Cuyahoga

Jefferson

Lucas

Summit

Trumbull

Nos. 76-2090 etc.

COUNTY

47a

Cleveland Elec. Illum., et al. v. EPA

SULPHUR DIOXIDE ALLOWABLE

EMISSIONS

Belmont

Butler

Coshocton

Erie

Hamilton

Henry

Lake

Lawrence

Lorain

Mahoning

Monroe

Montgomery

Pickaway

Richland

Tuscarawas

Washington

Wayne

1.6 pounds of sulfur dioxide

per million BTU of heat input

Franklin

Hancock

Hocking

Holmes

Knox

Licking

Morgan

Ross

Seneca

Shelby

3.2 pounds of sulfur dioxide

per million BTU of heat input

48a

Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

SULPHUR DIOXIDE ALLOWABLE

_ EMISSIONS

COUNTY

Athens 4.0 pounds of sulfur dioxide

Auglaize per million BTU of heat input

Carroll

Clinton

Defiance

Fairfield

Fayette

Greene

Hardin

Harrison

Highland

Huron

Jackson

Marion

Mercer

Miami

Muskingum

Paulding

Sandusky

Union

Vinton

Williams

Wood

All other counties: 4.8 pounds of sulfur dioxide

per million BTU of heat input

49a

Nos. 76-2090 ete. Cleveland Elec. Illum., et al. v. EPA

| | . caicr” [Run |

Om Ai @ : feat

4.0 .e Mancocn — com ; ad | g p “|

ta va Ours Jwvanoor oe RiLAMD Zt, | al } \

| lL. 4- f ayer. sik [escumorane “7

Pa) aL LD |

LOE Orx4_O SO;

ee, yaa

a Lor P

- 1.0 pounds of sulfur dioxide

per million BTU of heat input

(:.9) = 1.6 pounds of sulfur dioxide

~ 4.0 pounds of sulfur dioxide

per million BTU of heat input

= 4.8 pounds of sulfur dioxide

per million BTU of heat input

«= 3.2 pounds of sulfur dioxide

per million BYU of heat Jnput

FIGURE V (Table II)

EP 11-13

SULFUR DIOXIDE EMISSION LIMITATIONS

APPENDIX B

eee

Judgment

(Caption Omitrep in Prin tING)

Filed February 13, 1978

On petition to review certain regulations promulgated

by the Administrator of the Environmental Protection

Agency,

These causes came on to be heard on the record of pro-

ceedings before the Environmental Protection Agency and

were argued by counsel.

Upon consideration, it is now ordered, adjudged and

decreed by this Court that the decision of the Administra-

tor in imposing a sulfur dioxide (SO,) pollution control

plan for industrial discharge into the State of Ohio’s am-

bient air is affirmed to the extent related in the Court’s

opinion filed February 13, 1978. See specifically, footnote

1 therein.

No costs are to be taxed.

ENTERED BY ORDER OF THE COURT

/s/ Joun P. Henman

John P. Hehman, Clerk

APPENDIX C

dla

APPENDIX C

Order

(Caption OmiTTED IN PRINTING)

(Filed April 18, 1978)

On receipt and consideration of a petition for rehearing

and a suggestion for rehearing en banc concerning an

opinion of this Court, filed February 13, 1978; and

No active judge of this Court having moved for rehear-

ing en banc and the motion having been referred to the

panel which heard the cases; and

On inspection of said motion, finding therein no argu-

ment advanced which had not been carefully considered

before issuance of the Court’s opinion of February 13,

1978,

Now, therefore, said petition is hereby denied.

Entered by order of the Court

/s/ Joun P. Henman

John P. Hehman, Clerk

APPENDIX D

52a

APPENDIX D

United States Constitution

AMENDMENT V

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

5 United States Code § 553

Rute MAKING

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or per-

sonnel or to public property, loans, grants, benefits, or

contracts.

(b) General notice of proposed rule making shall be pub-

lished in the Federal Register, unless persons subject there-

to are named and either personally served or otherwise

have actual notice thereof in accordance with law. The

notice shall include—

53a

(1) a statement of the time, place, and nature of

public rule making proceedings ;

(2) reference to the legal authority under which the

rule is proposed; and

(3) either the terms or substance of the proposed

rule or a description of the subjectts and issues in-

volved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice ; or

(B) when the agency for good cause finds (and in-

corporates the finding and a brief statement of reasons

therefor in the rules issued) that notice and public pro-

cedure thereon are impracticable, unnecessary, or con-

trary to the public interest.

give interested persons an opportunity to participate in

the rule making through submission of written data, views,

or arguments with or without opportunity for oral pre-

sentation. After consideration of the relevant matter pre-

sented, the agency shall incorporate in the rules adopted a

concise general statement of their basis and purpose. When

rules are required by statute to be made on the record after

opportunity for an agency hearing, sections 556 and 557

of this title apply instead of this subsection.

(d) The required publication or service of a substantive

rule shall be made not less than 30 days before its effective

date, except—

(1) a substantive rule which grants or recognizes an

exemption or relieves a restriction;

54a

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good

cause found and published with the rule.

(e) Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a rule.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat, 383,

42 United States Code § 7410

Stare IMPLEMENTATION PLANS For NaTIONAL PRIMARY AND

Seconpary Amprent Arr Quatity Stanparps

Adoption of plan by State; submission to Administrator;

content of plan; revision; new sources; indirect source

review program; supplemental or intermittent control

systems

(a)(1) Each State shall, after reasonable notice and pub-

lic hearings, adopt and submit to the Administrator, within

nine months after the promulgation of a national primary

ambient air quality standard (or any revision thereof)

under section 7409 of this title for any air pollutant, a plan

which provides for implementation, maintenance, and en-

forcement of such primary standard in each air quality con-

trol region (or portion thereof) within such State. In addi-

tion, such State shall adopt and submit to the Adminis-

trator (either as a part of a plan submitted under the pre-

ceding sentence or separately) within nine months after

the promulgation of a national ambient air quality second-

ary standard (or revision thereof), a plan which provides

for implementation, maintenance, and enforcement of such

secondary standard in each air quality control region (or

portion thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan im-

plementing such secondary standard at the hearing re-

quired by the first sentence of this paragraph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under para-

55a

graph (1), approve or disapprove such plan or each portion

thereof, The Administrator shall approve such plan, or any

portion thereof, if he determines that it was adopted after

reasonable notice and hearing and that—

(A) except as may be provided in subparagraph (1)

(i) in the case of a plan implementing a national pri-

mary ambient air quality standard, it provides for the

attainment of such primary standard as expeditiously

as practicable but (subject to subsection (e) of this

section) in no case later than three years from the date

of approval of such plan (or any revision thereof to

take account of a revised primary standard) ; and (ii)

in the case of a plan implementing a national second-

ary ambient air quality standard, it specifies a reason-

able time at which such secondary standard will be

attained ;

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure at-

tainment and maintenance of such primary or second-

ary standard, including, but not limited to, transpor-

tation controls, air quality maintenance plans, and

preconstruction review of direct source of air pollution

as provided in subparagraph (D) ;

eration of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and an-

alyze data on ambient air quality and, (ii) upon request,

make such data available to the Administrator;

(D) it ineludes a program to provide for the en-

forcement of emission limitations and regulation of the

modification, construction, and operation of any sta-

tionary source, including a permit program as required

in parts C and D of this subchapter and a permit or

equivalent program for any major emitting facility,

within such region as necessary to assure (i) that na-

56a

tional ambient air quality standards are achieved and

maintained, and (ii) a procedure, meeting the require-

ments of paragraph (4), for review (prior to construc-

tion or modification) of the location of new sources to

which a standard of performance will apply;

(E) it contains adequate provisions (i) prohibiting

any stationary sources within the State from emitting

any air pollutant in amounts which will (I) prevent at-

tainment or maintenance by any other State of any

such national primary or secondary ambient air quality

standard, or (II) interfere with measures required to

be included in the applicable implementation plan for

any other State under part C of this subchapter to

prevent significant deterioration of air quality or to

protect visibility, and (ii) insuring compliance with

the requirements of section 7426 of this title, relating

to interstate pollution abatement;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and au-

thority to carry out such implementation plan; (ii) re-

quirements for installation of equipment by owners or

operators of stationary sources to monitor emissions

from such sources; (iii) for periodic reports on the

nature and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency with

any emission limitations or standards established pur-

suant to this chapter, which reports shall be available

at reasonable times for public inspection; (v) for au-

thority comparable to that in section 7603 of this title,

and adequate contingency plans to implement such au-

thority; and (vi) requirements that the State comply

with the requirements respecting State boards under

section 7428 of this title;

57a

(G) it provides, to the extent necessary and prac-

ticable, for periodic inspection and testing of motor

vehicles to enforce compliance with applicable emis-

sion standards;

(H) it provides for revision, after public hearings,

of such plan (i) from time to time as may be necessary

to take account of revisions of such national primary

or secondary ambient air quality standard or the avail-

ability of improved or more expeditious methods of

achieving such primary or secondary standard; or (ii)

except as provided in paragraph (3)(C), whenever the

Administrator finds on the basis of information avail-

able to him that the plan is substantially inadequate

to achieve the national ambient air quality primary or

secondary standard which it implements or to other-

wise comply with any additional requirements estab-

lished under the Clean Air Act Amendments of 1977;

(1) it provides that after June 30, 1979, no major

stationary source shall be constructed or modified in

any nonattainment area (as defined in section 7501(2)

of this title) to which such plan applies, if the emis-

sions from such facility will cause or contribute to con-

centrations of any pollutant for which a national am-

bient air quality standard is exceeded in such area,

unless, as of the time of application for a permit for

such construction or modification, such plan meets the

requirements of part D of this subchapter (relating to

nonattainment areas) ;

(J) it meets the requirements of section 7421 of this

title (relating to consultation), section 7427 of this title

(relating to public notification), part C of this sub-

chapter (relating to prevention of significant deterio-

ration of air quality and visibility protection) ; and

(K) it requires the owner or operator of each major

stationary source to pay to the permitting authority as

58a

a condition of any permit required under this chapter

a fee sufficient to cover-——

(i) the reasonable costs of reviewing and acting

upon any application for such a permit, and

(ii) if the owner or operator receives a permit

for such source, whether before or after August 7,

1977, the reasonable costs (incurred after August

7, 1977) of implementing and enforcing the terms

and conditions of any such permit (not including

any court costs or other costs associated with any

enforcement action).

(3)(A) The Administrator shall approve any revision of

an implementation plan applicable to an air quality control

region if he determines that it meets the requirements of

paragraph (2) and has been adopted by the State after

reasonable notice and public hearings.

(B) As soon as practicable, the Administrator shall, con-

sistent with the purposes of this chapter and the Energy

Supply and Environmental Coordination Act of 1974, re-

view each State’s applicable implementation plans and re-

port to the State on whether such plans can be revised in

relation to fuel burning stationary sources (or persons sup-

plying fuel to such sources) without interfering with the

attainment and maintenance of any national ambient air

quality standard within the period permitted in this section.

If the Administrator determines that any such plan can be

revised, he shall notify the State that a plan revision may

be submitted by the State. Any plan revision which is sub-

mitted by the State shall, after public notice and oppor-

tunity for public hearing be approved by the Administrator

if the revision relates only to fuel burning stationary

sources (or persons supplying fuel to such sources), and

the plan as revised complies with paragraph (2) of this

subsection. The Administrator shall approve or disapprove

any revision no later than three months after its submis-

sion.

59a

thereof) approved under this subsection, nor the Admin-

istrator in the case of a plan (or portion thereof) promul-

gated under subsection (c) of this section, shall be required

to revise an applicable implementation plan because one or

more exemptions under section 7418 of this title (relating

to Federal facilities), enforcement orders under section

7413(d) of this title, suspensions under section 7410(f) or

(g) of this title (relating to temporary energy or economic

authority) or orders under section 7419 of this title (relat-

ing to primary nonferrous smelters) have been granted, if

such plan would have met the requirements of this section

if such exemptions, orders, extension, or variances had been

granted.

(D) Any applicable implementation plan for which an

attainment date later than December 31, 1982, is provided

pursuant to section 7502(a)(2) of this title shall be revised

by July 1, 1979, to include the comprehensive measures and

requirements referred to in subsection (c)(5)(B) of this

section.

(4) The procedure referred to in paragraph (2)(D) for

review, prior to construction or modification, of the location

of new sources shall (A) provide for adequate authority to

prevent the construction or modification of any new source

to which a standard of performance under section 7411 of

this title will apply at any location which the State deter-

mines will prevent the attainment or maintenance within

any air quality control region (or portion thereof) within

such State of a national ambient air quality primary or

secondary standard, and (B) require that prior to com-

mencing construction or modification of any such source,

the owner or operator thereof shall submit to such State

such information as may be necessary to permit the State

to make a determination under clause (A).

(5)(A)(i) Any State may include in a State implemen-

tation plan, but the Administrator may not require as a

60a

condition of approval of such plan under this section, any

indirect source review program. The Administrator may

approve and enforce, as part of an applicable implemen-

tation plan, an indirect source review program which the

State chooses to adopt and submit as part of its plan.

(ii) Exception as provided in subparagraph (B), no plan

promulgated by the Administrator shall include any in-

direct sources review program for any air quality control

region, or portion thereof.

(iii) Any State may revise an applicable implementation

plan approved under this subsection to suspend or revoke

any such program included in such plan, provided that

such plan meets the requirements of this section.

(B) The Administrator shall have the authority to pro-

mulgate, implement and enforce regulations under subsec-

tion (c) of this section respecting indirect source review

programs which apply only to federally assisted highways,

airports, and other major federally assisted indirect

sources.

source means a facility, building, structure, installation,

real property, road, or highway which attracts, or may

attract, mobile sources of pollution. Such terms includes

parking lots, parking garages, and other facilities subject

to any measure for management of parking supply (within

the meaning of subsection (¢)(2)(D)(ii) of this section),

including regulation of existing off-street parking but such

term does not include new or existing on-street parking.

Direct emissions sources or facilities at, within, or associ-

ated with, any indirect source shall not be deemed indirect

sources for the purpose of this paragraph.

(D) For purposes of this paragraph the term ‘‘indirect

source review program’’ means the facility-by-facility re-

view of indirect sources of air pollution, including such

measures as are necessary to assure, or assist in assuring,

6la

that a new or modified indirect source will not attract mo-

bile sources of air pollution, the emissions from which

would cause or contribute to air pollution concentrations—

(i) exceeding any national primary ambient air

quality standard for a mobile source-related air pollu-

tant after the primary standard attainment date, or

(ii) preventing maintenance of any such standard

after such date.

(E) For purposes of this paragraph and paragraph

(2)(B), the term “transportation control measure” does

not include any measure which is an ‘‘indirect source re-

view program.’’

(6) No State plan shall be treated as meeting the require-

ments of this section unless such plan provides that in the

case of any sources which uses a supplemental, or intermit-

tent control system for purposes of meeting the require-

ments of an order under section 7413(d) or section 7419 of

this title (relating to primary nonferrous smelter orders),

the owner or operator of such source may not temporarily

reduce the pay of any employee by reason of the use of such

supplemental or intermittent or other dispersion dependent

control system.

Extension of period for submission of plans

(b) The Administrator may, wherever he determines nec-

essary, extend the period for submission of any plan or

portion thereof which implements a national secondary am-

bient air quality standard for a period not to exceed 18

months from the date otherwise required for submission of

such plan.

———.

62a

Preparation and publication by Administrator of proposed

regulations setting forth implementation plan; trans-

portation regulations study and report; parking sur-

charge; suspension authority; plan implementation

(c)(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation plan

which meets the requirements of this section,

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in sub-

section (a)(2)(H) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing within such State on

any proposed regulation. The Administrator shall, within

six months after the date required for submission of such

plan (or revision thereof), promulgate any such regulations

unless, prior to such promulgation, such State has adopted

and submitted a plan (or revision) which the Administra-

tor determines to be in accordance with the requirements

of this section. Notwithstanding the preceding sentence, any

portion of a plan relating to any measure described in the

first sentence of section 7421 of this title (relating to con-

sultation) or the consultation process required under such

section 7421 shall not be required to be promulgated before

the date eight months after such date required for sub-

mission.

63a

(2)(A) The Administrator shall conduct a study and

shall submit a report to the Committee on Interstate and

Foreign Commerce of the United States House of Repre-

sentatives and the Committee on Public Works of the

United States Senate not later than three months after

June 22, 1974, on the necessity of parking surcharge, man-

agement of parking supply, and preferential bus/carpool

lane regulations as part of the applicable implementation

plans required under this section to achieve and maintain

national primary ambient air quality standards. The study

shall include an assessment of the economic impact of such

regulations, consideration of alternative means of reducing

total vehicle miles traveled, and an assessment of the im-

pact of such regulations on other Federal and State pro-

grams dealing with energy or transportation. In the course

of such study, the Administrator shall consult with other

Federal officials including, but not limited to, the Secretary

of Transportation, the Federal Energy Administrator, and

the Chairman of the Council on Environmental Quality.

(B) No parking surcharge regulation may be required

by the Administrator under paragraph (1) of this subsec-

tion as a part of an applicable imp/ementation plan. All

parking surcharge regulations previously required by the

Administrator shall be void on June 22, 1974. This sub-

paragraph shall not prevent the Administrator from ap-

proving parking surcharges if they are adopted and sub-

mitted by a State as part of an applicable implementation

plan, The Administrator may not condition approval of any

implementation plan submitted by a State on such plan’s

including a parking surcharge regulation.

January 1, 1975, the effective date or applicability of any

regulations for the management of parking supply or any

requirement that such regulations be a part of an applicable

implementation plan approved or promulgated under this

section. The exercise of the authority under this subpara-

graph shall not prevent the Administrator from approving

64a

such regulations if they are adopted and submitted by a

State as part of an applicable implementation plan. If the

Administrator exercises the authority under this subpara-

graph, regulations requiring a review or analysis of the

impact of proposed parking facilities before construction

which take effect on or after January 1, 1975, shall not

apply to parking facilities on which construction has been

initiated before January 1, 1975.

(D) For purposes of this paragraph—

(i) The term ‘‘parking surcharge regulations’’

means a regulation imposing or requiring the imposi-

tion of any tax, surcharge, fee, or other charge on

parking spaces, or any other area used for the tem-

porary storage of motor vehicles.

(ii) The term ‘‘management of parking supply”’

shall include any requirement providing that any new

facility containg a given number of parking spaces

shall receive a permit or other prior approval, issu-

ance of which is to be conditioned on air quality consid-

erations.

(iii) The term ‘‘preferential bus/carpool lane’’ shall

include any requirement for the setting aside of one or

more lanes of a street or highway on a permanent or

temporary basis for the exclusive use of buses or car-

poo’s, or both.

(E) No standard, plan, or requirement, relating to man-

agement of parking supply or preferential bus/carpool

lanes shall be promulgated after June 22, 1974, by the Ad-

ministrator pursuant to this section, unless such promulga-

tion has been subjected to at least one public hearing which

has been held in the area affected and for which reasonable

notice has been given in such area. If substantial changes

are made following public hearings, one or more additional

hearings shall be held in such area after such notice.

65a

(3) Upon application of the chief executive officer of any

general purpose unit of local government, if the Adminis-

trator determines that such unit has adequate authority

under State or local law, the Administrator may delegate

to such unit the authority to implement and enforce within

the jurisdiction of such unit any part of a plan promulgated

under this subsection. Nothin

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