# Petition — Timken Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1363%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 910 ## Text Y= Supreme Court, U. &.~ ( FILED \ No. 78 8 3 l JUL 14.1978 a ee - a 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. a ee TABLE OF CONTENTS Page ae ara ee maka e oa onl 1 Ne ne ee ctbeneaneeken 2 ESSER A RET EE rt a. 2 DEE OE OE SO Te 3 ee np caemmans eauwule 3 tt i che uit ktwanem ees cadeen eeusada seeded 3 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 a 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). 2 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 3 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 4 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, 5 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). 6 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 7 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 8 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 ——_= = oe 29 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! 30 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 31 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. | 32 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. ¥ 7 g 4 on APPENDIX A la 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, v. 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 2a 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. (c) Ohio Edison Co. — Lorain County facilities only, (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 —_——- Sa 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, da 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). 5a 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 6a 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 _ E if a g 6 : 3 Ps = /.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. © Twenty other counties contain no point sources of SO, 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 = t 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 7T z (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 I ra 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 l | ll | | tl WI tT | | | | WI tT} | I la co 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) i eee FIGURE IV EP 11-06 (AP 3-06) CLASSIFICATION BY REGIONS ee 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) mao | ica a © aoe for ' ' 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 os | | . 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 Ne TO | (2) | | ©) Q- 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 © © 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. (c) After notice required by this section, the agency shall 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) ; (C) it ineludes provision for establishment and op- 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 (C) Neither the State, in the case of a plan (or portion 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. (C) For purposes of this paragraph, the term “indirect 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, or (C) the State fails, within 60 days after notification 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. (C) The Administrator is authorized to suspend until 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. Nothing in this paragraph shall pre- vent the Administrator from implementing or enforcing any applicable provision of a plan promulgated under this subsection. (4) In the case of any applicable implementation plan containing measures requiring— (A) retrofits on other than commercially owned in- use vehicles, (B) gas rationing which the Administrator finds would have seriously disruptive and widespread eco- nomic or social effects, or (C) the reduction of the supply of on-street parking spaces, the Governor of the State may, after notice and oppor- tunity for public hearing, temporarily suspend such meas- ures notwithstanding the requirements of this section until January 1, 1979, or the date on which a plan revision under subsection (a)(2)(I) of this section is submitted, which- ever is earlier. No such suspension shall be granted unless the State agrees to prepare, adopt, and submit such plan revision as determined by the Administrator. (5)(A) Any measure in an applicable implementation plan which requires a toll or other charge for the use of a bridge located entirely within one city shall be eliminated from such plan by the Administrator upon application by the Governor of the State, which application shall include a certification by the Governor that he will revise such plan in accordance with subparagraph (B). 66a (B) In the case of any applicable implementation plan with respect to which a measure has been eliminated under subparagraph (A), such plan shall, not later than one year after August 7, 1977, be revised to include comprehensive measures (including the written evidence required by part D of this subchapter), to: (i) establish, expand, or improve public transporta- tion measures to meet basic transportation needs, as expeditiously as is practicable; and (ii) implement transportation control measures nec- essary to attain and maintain national ambient air quality standards, and such revised plan shall, for the purpose of implement- ing such comprehensive public transportation measures, in- clude requirements to use (insofar as is necessary) Federal grants, State or local funds, or any combination of such grants and funds as may be consistent with the terms of the legislation providing such grants and funds. Such meas- ures shall, as a substitute for the tolls or charges elimi- nated under subparagraph (A), provide for emissions re- ductions equivalent to the reductions which may reasonably be expected to be achieved through the use of the tolls or charges eliminated. (C) Any revision of an implementation plan for pur- poses of meeting the requirements of subparagraph (B) shall be submitted in coordination with any plan revision required under part D of this subchapter. Applicable implementation plan (d) For purposes of this chapter, an applicable imple- mentation plan is the implementation plan, or most recent revision thereof, which has been approved under subsection (a) of this section or promulgated under subsection (c) of this section and which implements the requirement of this section. ——— 67a Extension of time period for attainment of national pri- mary ambient air quality standard in implementation plan; procedure; approval of extension by Adminis- trator (e)(1) Upon application of a Governor of a State at the time of submission of any plan implementing a national ambient air quality primary standard, the Administrator may (subject to paragraph (2)) extend the three-year pe- riod referred to in subsection (a)(2)(A)(i) of this section for not more than two years for an air quality control re- gion if after review of such plan the Administrator deter- mines that— (A) one or more emission sources (or classes or moving sources) are unable to comply with the require- ments of such plan which implement such primary standard because the necessary technology or other alternatives are not available or will not be available soon enough to permit compliance within such three- year period, and (B) the State has considered and applied as a part of its plan reasonably available alternative means of attaining such primary standard and has justifiably concluded that attainment of such primary standard within the three years cannot be achieved. (2) The Administrator may grant an extension under paragraph (1) only if he determines that the State plan provides for— (A) application of the requirements of the plan which implement such primary standard to all emission sources in such region other than the sources (or classes) described in paragraph (1)(A) within the three-year period, and (B) such interim measures of control of the sources (or classes) described in paragraph (1)(A) as the Ad- 68a ministrator determines to be reasonable under the circumstances. National or regional energy emergencies; determination by President (f)(1) Upon application by the owner or operator of a fuel burning stationary source, and after notice and oppor- tunity for public hearing, the Governor of the State in which such source is located may petition the President to determine that a national or regional energy emergency ex- ists of such severity that— (A) a temporary suspension of any part of the ap- plicable implementation plan may be necessary, and (B) other means of responding to the energy emer- gency may be inadequate. Such determination shall not be delegable by the President to any other person. Jf the President determines that a national or regional energy emergency of such severity exists, a temporary emergency suspension of any part of an applicable implementation plan adopted by the State may be issued by the Governor of any State covered by the President’s determination under the condition specified in paragraph (2) and may take effect immediately. (2) A temporary emergency suspension under this sub- section shall be issued to a source only if the Governor of such State finds that— (A) there exists in the vicinity of such source a tem- porary energy emergency involving high levels of un- employment or loss of necessary energy supplies for residential dwellings; and (B) such unemployment or loss can be totally or partially alleviated by such emergency suspension. atl 69a Not more than one such suspension may be issued for any source on the basis of the same set of circumstances or on the basis of the same emergency. (3) A temporary emergency suspension issued by a Gov- ernor under this subsection sha]l remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator, if any. The Administrator may disapprove such suspension if he determines that it does not meet the requirements of paragraph (2). (4) This subsection shall not apply in the case of a plan provision or requirement promulgated by the Adminis- trator under subsection (c) of this section, but in any such case the President may grant a temporary emergency sus- pension for a four month period of any such provision or requirement if he makes the determinations and findings specified in paragraphs (1) and (2). (5) The Governor may include in any temporary emer- gency suspension issued under this subsection a provision delaying for a period identical to the period of such suspen- sion any compliance schedule (or increment of progress) to which such source is subject under section 7419 of this title, as in effect before August 7, 1977, or section 7413(d) of this title, upon a finding that such source is unable to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspension was issued under this subsection. Governor’s authority to issue temporary emergency sus- pensions (g)(1) In the case of any State which has adopted and submitted to the Administrator a proposed plan revision which the State determines— (A) meets the requirements of this section, and 70a (B) is necessary (i) to prevent the closing for one year or more of any source of air pollution, and (ii) to prevent substantial increased in unemployment which would result from such closing, and which the Administrator has not approved or disapproved under this section within the required four month period, the Governor may issue a temporary emergency suspension of the part of the applicable implementation plan for such State which is proposed to be revised with respect to such source. The determination under subparagraph (B) may not be made with respect to a source which would close without regard to whether or not the proposed plan revi- sion is approved. (2) A temporary emergency suspension issued by a Gov- ernor under this subsection shall remain in effect for a maximum of four months or such lesser period as may be specified in a disapproval order of the Administrator. The Administrator may disapprove such suspension if he deter- mines that it does not meet the requirements of this sub- section. (3) The Governor may include in any temporary emer- gency suspension issued under this subsection a provision delaying for a period identical to the period of such sus- pension any compliance schedule (or increment of progress) to which such source is subject under section 7419 of this title as in effect before August 7, 1977, or under section 7413(d) of this title upon a finding that such source is un- able to comply with such schedule (or increment) solely because of the conditions on the basis of which a suspen- sion was issued under this subsection. Annual publication of comprehensive document for each State setting forth requirements of applicable imple- mentation plan (h)(1) Net later than one year after August 7, 1977, and annually thereafter, the Administrator shall assemble and Tla publish a comprehensive document for each State setting forth all requirements.of the applicable implementation plan for such State and shall publish notice in the Federal Register of the availability of such documents. Hach such document shall be revised as frequently as practicable but not less often than annually. (2) The Administrator may promulgate such regulations as may be reasonably necessary to carry out the purpose of this subsection. Modification of requirements prohibited (i) Except for a primary nonferrous smelter order un- der section 7419 of this title, a suspension under subsection (f) or (g) of this section (relating to emergency suspen- sions), an exemption under section 7418 of this title (re- lating to certain Iederal facilities), an order under section 7413(d) of this title (relating to compliance orders), a plan promulgation under subsection (c) of this section, or a plan revision under subsection (a)(3) of this section, no order, suspension, plan revision, or other action modifying any requirement of an applicable implementation plan may be taken with respect to any stationary source by the State or by the Administrator. Technological systems of continuous emission reduction or new or modified stationary sources; compliance with performance standards (j) As a condition for issuance of any permit required under this subchapter, the owner or operator of each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the per- mitting authority that the technological system of contin- uous emission reduction which is to be used will enable such source to comply with the standards of performance which are to apply to such source and that the construction 72a or modification and operation of such source will be in com- pliance with all other requirements of this chapter. July 14, 1955 e. 360, Title I, § 110, as added Dee. 31, 1970, Pub.L. 91-604, § 4(a), 84 Stat. 1680, and amended June 22, 1974, Pub.L. 93-319, §4, 88 Stat. 256; Aug. 7, 1977, Pub.L. 95-95, Title I, §§ 107, 108, 91 Stat. 691, 693; Nov. 16, 1977, Pub.L. 95-190, § 14(a)(1)-(6), 91 Stat. 1399. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1363%3A1. Public record. Not legal advice.