Petition — CLEVELAND ELECTRIC ILLUMINATING COMPANY CO. v. ENVIRONMENTAL PROTECTION AGENCY (Nos. 78-84, 78-83)

Supreme Court brief1978

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IN THE

Supreme Court of the United States

October Term, i978

78-5

CLEVELAND ELECTRIC ILLUMINATING CO., et al.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Of Counsel: C. Randolph Light

Louis E. Tosi

FULLER, HENRY, HODGI Michael E. McConnell

& SNYDER 1200 Edison Plaza

1200 Edison Plaza 300 Madison Avenue

300 Madison Avenue P.O. Box 2088

P.O. Box 2088 Toledo, Ohio 43603

Toledo, Ohio 43603 Telephone: (419) 255-8220

Attorneys for Petitioners

Interstate Bret & Record Co, Wurlitzer Bldg. 1509 Broadway. Detroit, Mi 48226

362-8745 962-8746

SUBJECT INDEX

| Page

Dee aay die Gab eb a aun wabens se 2

EN ea nance uhukdeahws soe 4 unws vt 2

ete Bs ee 2

CONSTITUTIONAL PROVISION, STATUTES,

AND REGULATIONS INVOLVED ............. 3

DEPRCPEe GOP BUM GRE chvcccvccsccneccess 4

| Ee Sy’ Gke 66-05 wwe ewe 4

| ee I EP ED hb cencencceeccessneeveis 5

REASONS FOR GRANTING THE WRIT .......... 12

A. The Decision Below Conflicts with Decisions

of this Court and of Other Circuits ........ 12

B. The Sixth Circuit Has Improperly Decided an

Important Question of Federal Law, Which

Has Not Been, But Should Be, Settled by

ER ates ow chan wan. 6 66 8S % 9 08 15

C. The Decision Below Deprives Petitioners of

Se I OE OD acc is ce eecseccdenacess 16

SE il ins dah nehawaekber qeew eben tees 18

APPENDICES

Appendix A: Opinion of United States Court of

Appeals for the Sixth Circuit, The Cleveland

Electric Illuminating Co., et.al. v. Environ-

mental Protection Agency, et al., Nos. 76-2090,

77-1367; 76-2225, 77-1366; 76-2240, 77-1355;

76-2242, 77-1359; 76-2244, 77-1363; 76-2276,

Es in's 0 wien naSee naka si ae 19

Appendix B: Judgment of the United States

Court of Appeals for the Sixth Circuit ........ 71

Appendix C: Order of the United States Court

of Appeals for the Sixth Circuit denying

i RO COTE Pee Ene Hr ny yee

Appendix D: Relevant Provisions of the Clean

Air Act, as amended by the Clean Air Act

Amendments of 1970, 91 Pub. L. 604, 84 Stat.

1676 (formerly codified at 42 U.S.C. §§ 1857 et

seq. (1970)).

O'S & BeOS 88.6. OP 8. oe 6.4 8 OE 8 ee Oi 88 OO

Appendix E: Administrative Procedure Act,

Pees PO EEIOOE | fos coves es ives dae anes

Appendix F: Relevant Provisions of the Clean

Air Act, as amended by the Clean Air Act

Amendments of 1977, 42 U.S.C.A. §§ 7401 et

WN OUT cere oe a enc ee RNY hen tes

Appendix G: The Fifth Amendment to the

Constitution of the United States ...........

Appendix H: The Regulations Being Reviewed,

40 C.F.R. §§ 52.1875, 52.1881 and 52.1882

asad) RBI CESSES OR aN EP Car ere agree ae

Appendix I: Relevant Provisions of EPA

Regulations, 40 C.F.R. §§ 60.45 and 60.46

2 gal SEERA EE are Gr a grr tater eae

Appendix J: EPA Policy Statement, 43 Fed. Reg.

cepcils lati ce Bint MCR Ee PERT Tee

Appendix K: Opinion of the United States

Court of Appeals for the Sixth Circuit,

Cincinnati Gas & Electric Co., et al. v.

Environmental Protection Agency, et al., Nos.

76-2090, 77-1367; 76-2232, 77-1361; 76-2241,

77-1357; 76-2278 (June 29, 1978)

ee eo a me a ae ae

Appendix L: Order of the United States Court

of Appeals for the Sixth Circuit regarding

PEE Crue eas cn anaes ean ees

Page

101

217

218

220

ili

TABLE OF AUTHORITIES

Page

Cases:

American Public Gas Ass’n v. FPC, 567 F.2d 1016

ok eg = > «GNM BIR oe ne eerie 13

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

re a PE ss sake bey eee ee Rae 12,13

District of Columbia v. Train, 521 F.2d 971 (D.C.

Cir. 1975), vacated on other grounds sub

nom., EPA v. Brown, 431 U.S. 99 (1977) ...... 15

International Harvester Co. v. Ruckelshaus, 478

Pie ee ae SU ek cased atidcaerens 13

South Terminal Corp. v. EPA, 504 F.2d 646 (Ist

a eer rs ok oda obs oere aan sed ons 13,15,17

Union Electric Co. v. EPA, 427 U.S. 246 (1976),

rehearing denied, 429 U.S. 873 (1976) ...... 15

Constitutional Provision and

Statutes:

Fifth Amendment to the Constitution of the

eh dae chek ee 3,4,17

EOP ROR Oa) i ee er sere 3

28 U.S.C. § 1254(1) (1970) onc cwcccncveneeceens 2

Clean Air Act, as amended by the Clean Air Act

Amendments of 1970, 91 Pub. L. No. 604, 84

Stat. 1676 (formerly codified at 42 U.S.C.

ie ST gh ON CUO ss oes ines pescce neces 3

§ 110(a)(2)(B) (42 U.S.C. § 1857¢-5(a)(2)(B)

nc AEM Rata t EROT ceo ae Ree 9,13

§ 110(a)(2)(D) (42 U.S.C. § 1857¢-5(a)(2)(D)

eee EEE ey eee em rot ae 17

§ 307(b)(1) (42 U.S.C. § 1857h-5(b)(1) (1970)) . 5,6

Page

§ 307(b)(2) (42 U.S.C. § 1857h-5(b)(2) (1970)) ... = 12

Clean Air Act, as amended by the Clean Air Act

Amendments of 1977, 95 Pub. L. No. 95, 91

Stat. 685 (42 U.S.C.A. §§ 7401 et seq. (Supp.

WT. occ Acree ee 4

§ 113(b) (42 U.S.C.A. § 7413(b) (Supp. 1977)) .. 10

§ 116 (42 U.S.C.A. § 7416 (Supp. 1977)) ....... 8

§ 172 (42 U.S.C.A. § 7502 (Supp. 1977)) ....... 14

§ 307(b)(2) (42 U.S.C.A. § 7607 (Supp. 1977) 12,16

Regulations:

OCEP.R. 6 SD oo nccdccieee 14

40 C.F.R. §§ 52.1875, 52.1881 and 52.1882 (1977) . 4

@ C.F. § TR. TOR) CIGD occa iwnedacsdeves 10

40 C.F.R. §§ 60.45 and 60.46 (1977) ............. 4

SD UP.R. BOOS CTY occ ccuncncdcntdeatunae 11

@ C.F.R. § GO.45(2NG) (1977) nn. ec iccnnewcenen 11

Federal Register Notices:

43 Fed. Reg. 6646 (Feb. 15, 1978) ............... 4,11

43 Fed. Reg. 26380 (June 19, 1978) .............. 14

Miscellaneous:

Guidelines For Air Quality Maintenance Plan-

ning and Analysis Vol. 12: Applying Atmos-

pheric Simulation Models to Air Quality

Maintenance Areas (Sept. 1974) (Rpt. No.

a yr er 6

EPA Workshop on Requirements for Non-

attainment Area Plans (Feb.-March, 1978) .... 14

Pit -

IN THE

Supreme Court of the United States

October Term, 1978

No.

—ey

CLEVELAND ELECTRIC ILLUMINATING CO., et al.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals tor the Sixth Circuit entered in

this proceeding on February 13, 1978."

* This petition is filed on behalf of The Cincinnati Gas and

Electric Company, The Cleveland Electric Illuminating Company,

Columbus and Souther Ohio Electric Company, The Dayton Power

and Light Company, Ohio Edison Company, Pennsylvania Power

Company and The Toledo Edison Company, all of whom were

petitioners in Case Nos. 76-2090 and 77-1367 below.

OPINION BELOW

The opinion of the Sixth Circuit, officially reported at

572 F.2d 1150, is reproduced from the Slip Opinion as

Appendix A hereto. That opinion is unofficially

reported at 11 ERC 1288 and 2 CCH PCG Paragraph

40,140.

JURISDICTION

The judgment of the Sixth Circuit was entered on

February 13, 1978 and is appended hereto as Appendix

B. On February 27, 1978, Petitioners and others filed

with the appellate court a petition for rehearing and

Suggestion for rehearing en banc. The court denied the

petition and suggestion on April 18, 1978 (Appendix C).

This petition for certiorari was filed within 90 days of

that date. This court’s jurisdiction is invoked under

28 U.S.C. § 1254(1) (1970),

QUESTIONS PRESENTED

1. Whether the Sixth Circuit met the “arbitrary and

capricious” standard of judicial review when without

contemporaneous agency explanations of reliability, the

court approved by post hoc rationalizations an air

quality dispersion model of the United States

Environmental Protection Agency, which contains

unrealistic assumptions, overpredicts sulfur dioxide

ambient air concentrations and sets emission limitations

of tremendous costs to Petitioners and the State of

Ohio?

2. Whether the United States Environmental

Protection Agency acted arbitrarily and capriciously and

in contravention of the Clean Air Act when it used an

air quality dispersion model of undetermined validity

to promulgate a sulfur dioxide implementation plan for

the State of Ohio and did not consider fully the

economic and technological feasibility of the plan?

3. Whether the United States Environmental

Protection Agency acted arbitrarily and capriciously and

contrary to the Fifth Amendment’s due process

prohibition on vagueness when it promulgated a sulfur

dioxide implementation plan for the State of Ohio,

which requires an immediate selection of a compliance

means and schedule, imposes severe civil and criminal

penalties for compliance schedule violations, but fails to

specify, leaving to later rulemaking, an integral

component of the plan needed to make an informed

choice of compliance means and to obtain knowledge of

prohibited conduct?

CONSTITUTIONAL PROVISION, STATUTES, AND

REGULATIONS INVOLVED

The Clean Air Act, as amended by the Clean Air Act

Amendments of 1970, 91 Pub. L. No. 604, 84 Stat. 1676

(formerly codified at 42 U.S.C. §§ 1857 et seq. (1970)),

was in effect at the time the regulations being reviewed

were promulgated and petitions for review were filed

with the Sixth Circuit. Relevant provisions of 42 U.S.C.

§§ 1857 et seq. (1970) are set forth in Appendix D hereto.-

The pertinent provision of the Administrative

Procedure Act, 5 U.S.C. § 706(2) (1970), is set forth as

Appendix E hereto. Certain relevant provisions of the

Clean Air Act, as amended by the Clean Air Act

Amendments of 1977, 95 Pub. L. No. 95, 91 Stat. 685 (42

U.S.C.A. §§ 7401 et seq (Supp. 1977)) are set forth in

Appendix F hereto. The Fifth Amendment to the

Constitution of the United States is set forth as

Appendix G hereto. The regulations being reviewed, 40

C.F.R. §§ 52.1875, 52.1881 and 52.1882 (1977), are set

forth in Appendix H hereto. Related EPA regulations

appearing at 40 C.F.R. §§ 60.45 and 60.46 (1977) are

appended hereto as Appendix I. A related EPA policy

statement of February 15, 1978, 43 Fed. Reg, 6646 (1978),

is appended hereto as Appendix J.

STATEMENT OF THE CASE

A. Nature of the Case

Petitioners are electric utilities serving the individual,

commercial, and industrial consumers of electric power

in the major urban areas of Ohio. In this proceed-

ing, they are subject to the first major, statewide

implementation plan for a criteria pollutant

promulgated by the United States Environmental

Protection Agency (“EPA” or ““Agency”) under the

Clean Air Act. In addition, the plan represents EPA's

first widespread use of a regulatory methodology called

dispersion prediction modeling. EPA utilized this

methodology as the sole means for determining the

sulfur dioxide (‘‘SO2’’) emission limitations to be

imposed upon the coal-fired boilers of Petitioners.

The action of EPA involves ‘‘enormous financial

Stakes’’ (Appendix A, p. 46). EPA estimates “capital

costs for Ohio industry of well over half a billion dollars

and annual costs of 171 million dollars’ (Appendix A,

p. 50). These significant costs will surge across Ohio,

increasing electric rates, the cost of goods and services,

and unemployment. Additionally, the plan may render

substantial portions of Ohio’s coal reserves unavailable

to the utilities as a source of energy.

Juxtaposed against these extraordinary costs is EPA’s

reliance on an unproven methodology. Rather than

employ monitored air quality data in developing

emission limitations for Petitioners, EPA used a

mathematical model called the Real-Time Air-Quality

Simulation Model (“RAM”). Although selected as a

proxy for empirical data, RAM was never validated or

otherwise confirmed reliable by the Agency.

B. History of the Case

After the State of Ohio twice withdrew an

implementation plan for SO2, EPA proposed in

November, 1975, and ultimately promulgated in

August, 1976, the regulations in dispute. Major

differences in methodology and Agency considerations

existed between the proposed and promulgated

regulations.

Because of these differences, Petitioners and others

filed petitions for review with the Sixth Circuit

pursuant to § 307(b) (1) of the Clean Air Act (42 U.S.C.

§ 1875h-5(b) (1) (1970); Appendix D, pp. 81-82) and

requested a stay of the August, 1976, regulations

pending judicial review. On November 12, 1976, the

Sixth Circuit granted the stay and sua sponte remanded

the regulations for further consideration.

On May 31, 1977, EPA repromulgated the plan. While

it made some minor modifications, it did not change

the methodology, and Petitioners again filed petitions

for review with the Sixth Circuit under § 307(b) (1) (42

U.S.C. § 1857h-5(b) (1) (1970); Appendix D, pp. 81-82)

of the Clean Air Act. The appellate court consolidated

these petitions with the earlier petitions of Petitioners;

and on February 13, 1978, after receipt of post-argument

memoranda from the parties, it issued an opinion on

the “major general issues”, leaving to later opinions the

remaining questions (Appendix A, pp. 19-20).*

In its decision, the Sixth Circuit explicitly approved

EPA’s use of RAM as a means to determine emission

limitations. Although it expressed reservations about its

authority to review the economic and technological

feasibility of the plan, it observed, nonetheless, that

these features of the plan were reasonable. In addition,

it struck down sub silentio Petitioners’ due process claim

based on the ambiguous compliance scheme of the

plan. |

The State of Ohio appears to be EPA’s initial testing

ground for its use of RAM. EPA, though, has never

validated the reliability of the model even though its

own guidelines state that ‘‘validation - calibration is

required’’. EPA’s Guidelines for Air Quality Maintenance

Planning and Analysis Vol. 12: Applying Atmospheric

Simulation Models to Air Quality Maintenance Areas,

11-12 (Sept. 1974) (Rpt. No. EPA-450/4-74-013),

*On June 29, 1978 the Sixth Circuit entered a second opinion and

judgment in the present and related cases on several of the

unresolved issues (Appendix K). This opinion may warrant a further

petition for writ of certiorari by Petitioners. The court on June 29

also responded to Petitioners’ motion for clarification of the opinion

and judgment of February 13, the subject of the present petition for

writ of certiorari (Appendix L). In its ruling on the motion, the court

enumerated the issues disposed of by its two opinions.

This failure of EPA is significant not only because of

the newness of the model but also because of two other

factors. One, studies of RAM and comparisons between

its prediction results and known air quality indicate

that it systematically overpredicts SO2 concen-

trations in Ohio. Two, RAM contains two unrealistic

assumptions. First, the model is ‘‘operated on the

assumption that the plants concerned operate 24 hours a

day at full [boiler design) capacity’ (Appendix A, p.

39). Neither Petitioners nor any of the sources modeled,

however, ever run at these rates every hour of every

day. Second, the model utilizes vertical dispersion

coefficients, which purport to predict how plumes

released from utility stacks disperse to ground levels in

urban areas. The study from which these coefficients

were derived, though, states that they are based on

short stack emissions and are inapplicable to the taller

stacks of Petitioners.

The Court of Appeals cited eight reasons in

approving EPA’s use of RAM (Appendix A, pp. 42-49).

Most of these reasons are inapposite; and not one

discusses, nor does the court’s opinion elsewhere

examine, the propriety of the maximum operating rate

assumption and the vertical dispersion coefficients.

Of the eight reasons, only three pertain to the

accuracy of RAM. The first involves comparisons by the

Sixth Circuit itself of the relative stringency of the EPA

plan and the two previously promulgated, but

abandoned plans of the State of Ohio. (Appendix A,

pp. 43-45). Even the court concedes that the

“comparisons do not, of course, necessarily demonstrate

RAM’s accuracy” (Appendix A, p. 44). Also, contrary to

the conclusion of the court, the comparisons do not

tend to show that the choice ot RAM by EPA lay within

its administrative discretion (Appendix A, p. 44). This

is so because under § 116 of the Clean Air Act a state

may, which EPA cannot, promulgate emission

limitations more stringent than necessary to meet the

national ambient air quality standards, 42 U.S.C.A.

§ 7416 (Supp. 1977).

The second reason concerns the ‘‘Dayton Study”

(Appendix A, pp. 47-49), This ‘‘study’’, however, is no

study at all but is merely an assortment of several bits

of data pulled from diverse parts of the exceedingly

voluminous administrative record, These tabulations

include no expression of Agency opinion, explanation,

or analysis as to their relevance or as to the correctness

of RAM. Rather than relying on contemporaneous

agency evaluation, the Sixth Circuit substituted its own

judgment of the data. The court admits that the data

does not show RAM’s predictive perfection, but it

asserts that “it certainly tends to show that the EPA’s

use of RAM, if conservative, cannot be held to be

arbitrary and capricious” (Appendix A, p. 48). A model,

however, which contains the unrealistic maximum

operating rate assumption and the inapplicable vertical

dispersion coefficients of RAM is not being used

conservatively and fairly to compensate for its lack of

reliability,

EPA did not formulate the Dayton Study until after

the close of the record and until briefing had begun, In

response to Petitioners’ claim that the study was an

impermissible post hoc rationalization of EPA counsel,

the court merely stated that the raw data in the study

had been available in the administrative record of the

case (Appendix A, p. 48 n.4). EPA, however, had not

produced the data used in the purported study in

response to an earlier Freedom of Information Act

request from Petitioners for “data summaries’’ which

related ‘‘to the comparison of RAM prediction modeling

results with ambient air quality measurements."

The final reason given by the Court of Appeals for

EPA’s use of RAM does not support the model's

accuracy, but rather attempts to excuse its unre-

liability. The court stated that even if RAM did

overpredict, this characteristic would be valid under

§ 110(a) (2) (B) of the Clean Air Act (42 U.S.C.

§ 1857c-5(a) (2) (B) (1970); Appendix D, p. 77), which

requires that emission limitations “insure’’ attainment

of the national ambient air quality standards (Appendix

A, p. 49), This justification by the court of RAM’s use

by EPA begs the question. It attempts to avoid in the

guise of public health the necessary showing from EPA

that it has acted within the scope of its delegated

authority and utilized a model based on rational

assumptions and vested with requisite reliability.

In addition to upholding RAM, the Sixth Circuit

observed in its opinion that EPA had compiled an

administrative record which disclosed the economic and

technological feasibility of its Ohio SO2 plan (Appendix

A, pp. 50-51), EPA, however, has openly admitted that

it did not consider the substantial impact of the sulfur

variability of coal on its cost analysis (Cert. Index to

Rec,, XIV B). This omission reduces the expected supply

of complying coal and places many facilities originally

thought to be in compliance, out of compliance.

Unlike a manufactured commodity which can be

processed to have generally uniform properties, coal is a

natural resource whose sulfur content, ash con-

tent, heating value and other characteristics vary

* Exhibit C, pp. 4 and 2 respectively, of certain Petitioners’

motion of December 14, 1977 to supplement the record.

considerably from one reserve to another and usually

within a reserve. Although acknowledging its failure to

weigh the cost impact of sulfur variability, EPA glossed

over its inadequate analysis by asserting in its

supplemental technical support document to the Ohio

plan that it is not legally obligated to review the

economic and technological feasibility of a federally

promulgated implementation plan. The Sixth Circuit

did not rule to the contrary.

In its opinion, the Sixth Circuit stated that it had

addressed only the ‘‘material’’ issues presented to it

(Appendix A, p. 52). It ignored, however, a significant

issue raised by Petitioners as to the ambiguity of the

compliance scheme contained in EPA’s plan."

The plan specifically obligates Petitioners to certify

compliance or to adhere to compliance schedules which

require them to make irrevocable, progressive

commitments to a selected means of compliance (40

C.F.R. § 52.1882(b) (1977); Appendix H, pp. 211-215).

The severe civil and criminal penalties of the Clean Air

Act attach to violations of the certifications and the

schedules; and, indeed, mandatory enforcement

proceedings may be required against Petitioners as

major stationary sources for these violations (§ 113(b) of

the Clean Air Act, 42 U.S.C.A. § 7413(b) (Supp. 1977);

Appendix F, p. 93-95),

“The June 29, 1978 ruling of the Sixth Circuit on Petitioners’

motion to clarify the opinion and judgment of February 13, 1978

does not rectify this omission in the opinion. The court

miscomprehends the compliance scheme of EPA's plan, as shown in

its ruling when it interrelates compliance with the use of an air

quality dispersion model. The reliability of a model employed to

establish emission limitations is a separate and distinct matter from

the ambiguity of the compliance scheme.

A critical factor in the compliance determination

process is the sulfur content of fuels. The plan provides

that the test methods for determining fuel sulfur content

are those specified in 40 C.F.R. § 60.45 (1977). Such

sampling methods, though, are yet to be promulgated.

See 40 C.F.R. § 60.45(2) (d) (1977); Appendix I, p. 217.

Without knowledge of these methods, Petitioners

cannot make a reasoned assessment of the possible

means of compliance, select the least onerous of those

available, and knowingly avoid unlawful conduct.

In its post-argument memorandum requested by the

appellate court, EPA attempted to rectify this fatal

defect in its plan. It unilaterally announced, and later

published in the Federal Register, 43 Fed. Reg. 6646 (Feb.

15, 1978), a policy statement on fuel sampling

(Appendix J., pp. 218-219). The statement was made

and published without benefit of public comment and

modified the Ohio plan. The statement provides that

the only permissible compliance method is a stack gas

test performed on fuel as burned and that the sampling

of the sulfur content of fuels, which occurs before

burning, is not an assured means of compliance.

Petitioners, therefore, cannot know with any degree of

reasonableness that they have purchased complying coal

until the fuel is consumed and the point of possible

violation has been passed.

Both the required stack gas test and the revocable fuel

sampling method announced by EPA are based on

averaging times of 24 hours or less. EPA concedes that

it developed its emission limitations on the long term

fuel averages of the sources modeled. An inconsistency

between the long term emission limitations and the

short term compliance methods, therefore, exists,

resulting in the emission limitations through the

enforcement scheme of the Ohio plan becoming more

stringent than necessary to attain and preserve the

national ambient air quality standards.

In short, the Sixth Circuit simply has not addressed

the pivotal issues raised in its opinion of February 13,

1978. The court has completely abdicated the

prerogative of judicial review and insistence on-rational

agency action. Its decision is a foreboding precedent for

future court review of the continually expanding and

increasingly complex administrative regulation of our

environment.

REASONS FOR GRANTING

THE WRIT

A. The Decision Below Conflicts with Decisions

of this Court and of Other Circuits.

The admonition of this Court in Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), that

courts engage in a searching inquiry of the record to

determine the rationality of administrative action is a

particularly compelling and fundamental rule in review

of EPA actions. Since the result of § 307(b) (2) (formerly

42 U.S.C. § 1857h-5(b) (2) (1970), Appendix D, p. 82;

presently 42 U.S.C.A. § 7607(b) (2) (Supp. 1977),

Appendix F, p. 98) of the Clean Air Act is to cut off

issues from district court review once subject to circuit

court examination, it is imperative that careful

deliberation rather than conclusory results be the

hallmark of appellate court decision in environinental

cases.

In this case, that searching inquiry should have been

directed toward finding an EPA determination that

RAM was reasonably reliable. Other circuits have

insisted on no less when considering use of prediction

methodology by EPA, and have demanded that EPA’s

technical conclusions no less than others “[be] founded

on supportable data and methodology’’, South Terminal

Corp. v. EPA, 504 F.2d 646, 655 (1st Cir. 1974); that EPA

make a showing of reliability of the methodology of

prediction when prediction is being used to overcome

actual measured data, International Harvester Co. v.

Ruckelshaus, 478 F.2d 615, 647-648 (D.C. Cir. 1973); and

that an administrative agency ‘‘in the absence of

empirical confirmation of accuracy, * * * is obligated to

provide a complete analytical defense to its model”,

American Public Gas Ass'n. v. FPC, 567 F.2d 1016, 1039

(D.C. Cir. 1977).

The Sixth Circuit breached these requirements in

approving EPA’s use of RAM. It did not uphold the

model on any Agency showing. It sustained the model

on its prepared, irrelevant comparison of federal and

withdrawn state regulations, a post hoc rationalization

of EPA counsel in the Dayton Study and its own

makeweight argument based on § 110(a) (2) (B) of the

Clean Air Act.

While repeating the standard of judicial review

announced by this Court in Overton Park, the Sixth

Circuit, nonetheless, has disregarded it. It has given

EPA greater deference and demanded far less by way of

record justification for prediction methodology than

other courts of appeals confronted with similar issues.

The Sixth Circuit has, in effect, relaxed the standard of

review in a manner making its decision wholly

inconsistent with those of this Court and other

appellate courts.

Because of the ever-increasing utilization and

importance of modeling as a regulatory tool, it is urgent

that this Court direct that its use always meet the test of

rationality. Prediction modeling will be the pre-eminent

regulatory technique for permitting, licensing, and

establishing emission standards in the future. Two

highly important and critical EPA programs —

prevention of significant deterioration and revision of

implementation plans in nonattainment areas — will

depend heavily on modeling. EPA’s_ recently

promulgated regulations on prevention of significant

deterioration incorporate modeling guidelines which

specify RAM as an approved EPA technique for

evaluating new sources. See 43 Fed. Reg. 26380, 26386

(June 19, 1978), promulgating 40 C.F.R. § 51.24(m).

Also, EPA’s guidelines to the states relating to the

revision of implementation plans under § 172 of the

Clean Air Act, as amended by the Clean Air Act

Amendment of 1977, 42 U.S.C.A. § 7502 (Supp. 1977),

incorporate heavy reliance on modeling, including

RAM. See EPA Workshop on Requirements for

Non-attaiiment Area Plans, Feb.-March, 1978. As with

previous EPA guidelines, states can be expected to rely

on these pronouncements.

Because of its expected use with respect to evaluating

proposed new source construction under new source

review and significant deterioration regulations,

modeling will govern to a large extent land use and

economic growth of the nation and result in immediate

expenditures by sources throughout the nation. If

wrongly used, it can needlessly prevent industrial and

utility growth in many areas of the country or impose

enormous, unnecessary costs through requiring control

devices not needed for the public good or for the

attainment and maintenance of national ambient air

quality standards. Courts should be directed to ensure,

which the Sixth Circuit did not, that modeling is always

rationally supported by record evidence of its

reasonableness and reliability.

B. The Sixth Circuit Has Improperly Decided an

Important Question of Federal Law Which Has

Not Been, But Should Be, Settled by this Court.

In Union Electric Co. v. EPA, 427 U.S. 246 (1976),

rehearing denied, 429 U.S. 873 (1976), this Court raised

but left unanswered the question whether EPA must

consider claims of economic and technological

infeasibility when it promulgates an implementation

plan for a state. It held that EPA need not examine

claims of economic and technological infeasibility when

weighing approval of an implementation plan

submitted by a state, but expressly excluded from its

review a federally promulgated implementation plan.

See 427 U.S. at 261 n.7.

As this Court noted in Union Electric Co. v. EPA, 427

U.S. at 261 n.7, one appellate court has remanded to

EPA certain of its own promulgated regulations for

consideration of their ‘‘cost factors as related to

anticipated benefits’, and another has stated that EPA

must consider economics in its selection of control

strategies. District of Columbia v. Train, 521 F.2d 971, 997

(D.C. Cir. 1975), vacated on other grounds sub nom, EPA

v. Brown, 431 U.S. 99 (1977); and South Terminal Corp.

v. EPA, 504 F.2d at 675 (1st Cir. 1974) respectively. In

addition to being considered in these ways, the costs of

a federally promulgated plan are also a relevant factor in

determining the possible arbitrary action of EPA in

employing an unvalidated dispersion model contrary to

its own guidelines and without a showing of reliability.

The necessity of using such a model must be weighed

against its potential harm, and pertinent to this

balancing process is the resulting economic impact.

Although it is undisputed that the financial stakes in

this case are enormous, EPA admits that its

deterniination of costs would be even higher if it had

fully considered the pertinent factor of the sulfur

variability of coal. By concluding, however, that the

record supports the economic and _ technological

reasonableness of the control strategies promulgated by

EPA, the Sixth Circuit not only reiterated the error of

EPA in neglecting the significant cost impact of the

sulfur variability in coal, but also it avoided directing

EPA to assess the costs of its promulgated plan against

its anticipated benefits or in any other fashion. This

incongruous result cannot be allowed to stand in light

of the possible restrictions placed on later judicial

review by § 307(b) (2) of the Clean Air Act (42 U.S.C.A.

§ 7607 (b)(2) (Supp. 1977); Appendix F, p. 98)

C. The Decision Below Deprives Petitioners

of Due Process of Law.

The Ohio plan promulgated by EPA breaches an

elementary principle of due process of law. It patently

faiis to give fair notice of prohibited conduct.

The Sixth Circuit either ignored or failed to

comprehend the impact of the enforcement scheme of

EPA’s plan. The regulation compels immediate steps

toward compliance, but is ambiguous as to how

compliance is to be determined. It does not make

known the prescribed method for ascertaining fuel

sulfur content, information needed to make an

intelligent assessment of alternative compliance

strategies and to know anc. to avoid forbidden conduct.

The regulation compels compliance expenditures of

millions of dollars and imposes severe civil and criminal

punishments for noncompliance. Its compliance

scheme, though, is standardless, inviting, if not

encouraging, unequal application. See South Terminal

Corp. v. EPA, 504 F.2d at 670. Lacking the requisite

specificity, it fails to satisfy the -riteria of § 110 of the

Clean Air Act, especially the . 110(a) (2) (D), (42

U.S.C. § 1857¢-5(a) (2) (D) pendix D, p. 78),

constitutes unlawful arbitr. »«- <y action proscribed

by the Administrative I cedure Act, and, most

particularly, violates the «.e process prohibition of

vagueness inherent in the rifth Amendment to the

United States Constitution.

18 19

CONCLUSION APPENDIX A

| The Sixth Circuit has acknowledged that this case

involves “important public questions” (Appendix A, p. OPINION

52). The action of EPA in promulgating a sulfur dioxide

plan for the State of Ohio impacts in innumerable ways (United States Court of Appeals

not only on the citizens of this state but also on the For the Sixth Circuit)

public nationwide through other regulatory uses of

RAM and comparable models. Special and important

reasons exist for the granting of this petition for writ of

Cleveland Electric Illuminating Co., et al.

v. Environmental Protection Agency, et al.

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

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

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

C. Randolph Light (Decided and Filed February 13, 1978)

Louis E. Tosi

Michael E. McConnell Before: PHILLIPS, Chief Judge, EDWARDS and

1200 Edison Plaza PECK, Circuit Judges.

300 Madison Avenue ee?

P.O. Box 2088 EDWARDS, Circuit Judge. This court now has before

it 23 petitions involving 32 companies filed against the

United States Environmental Protection Agency which

Attorneys for Petitioners levy a variety of complaints against the federal agency’s

Of Counsel: imposition of a sulfur dioxide (SO2) pollution control

FULLER, HENRY, HODGE plan for industrial discharges into Ohio’s ambient air.

& SNYDER The issues, which have been extensively briefed and

1200 Edison Plaza argued, divide inte general legal and procedural

S06 Whelieaks Avenue complaints which might be applicable to any one of the

P.O. Box 2088 petitioners and a wider variety of specific complaints

Toledo, Ohio 43603 about the application of the EPA controls to particular

; power-generating or industrial plants. The cases dealt

with in this opinion! present the major general issues.

Toledo, Ohio 43603

1 This decision dismisses the objections to the regulations that

apply to the following facilities:

(a) Cleveland Electric Illuminating Co. — all facilities.

(b) Dayton Power & Light Co. — Montgomery County facil-

ities only.

(continued on following page)

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)

intervenor, 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 informal rulemaking

hearings employed by EPA under 5 U.S.C. § 553 (1970

& Supp. V 1975) were inadequate; and 3) petitioners

claim that the major model employed by the United

States Environmental Protection Agency in establishing

specific emission limitations for particular plans is

invalid both intrinsically and as applied. This model is

termed the ‘Real-Time Air-Quality-Simulator Model’

(hereinafter RAM).

(continued from previous page)

(d) Toledo Edison Co. — all facilities.

(e) The Timkin 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 RAM model.

See EPA Final Technical Support Document at IV-57.

(g) Standard Oil Co. of Ohio — Lucas County steam

generating units.

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

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

THE HISTORY OF THIS LITIGATION

The United States Congress has been wrestling with

the problem of pollution of the ambient air since 1955.

See Act of July 14, 1955, Pub. L. No. 84-159, 69 Stat.

622. The original act has now been amended many

times. It now is cited as the Clean Air Act and has been

codified in 42 U.S.C. §§ 1857-1857(1) (1970 & Supp. V

1975).?

The prior history of litigation concerning sulfur

dioxide emission 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).

The national primary ambient air quality

standards for sulfur oxides measured as sulfur

2 The Clean Air Act was originally enacted in 1963, Pub. L. No.

88-206, 77 Stat. 392. It was amended in relatively minor ways “or

times during the following six years. Pub. L. No. 89-272, 79 pti

(1965); Pub. L. No. 89-675, 80 Stat. 954 (1966); Pub. L. No. 90-148,

Stat. 485 (1967). 7 .

The Act’s present form, however, is derived from sain

adopted in 1970 and subsequently. Clean Air Act Amendments 0

1970, Pub. L. No. 91-604, 84 Stat. 1676, as amended, Pub. L. con

92-157, 85 Stat. 464 (1971); Pub. L. No. 93-319, 88 Stat. 246 (1974);

Pub. L. No. 95-95, 91 Stat. 685 (1977).

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

dioxide by the reference method described in

Appendix A to this part, or by an equivalent

method, are:

(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 micrograms 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 & Second-

ary), 40 C.F.R. §§ 50.4, 50.5 (1976),

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.

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

’ The EPA plan for Ohio presently under consideration contains

no separate implementation plan for secondary air quality standards.

This issue is raised in the petition of the Northern Ohio Lung

Association and will be considered and decided subsequently,

;

}

Se ae

iOS CADSR BAI

Tea

;

environmental features such as low temperatures

or epidemic diseases (influenza) which may in

themselves have serious or fatal consequences.

This has sometimes made it difficult to

determine to what extent pollution and

temperature extremes are responsible 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 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 exposures to air

pollutants. Acute respiratory infections in

children, chronic respiratory diseases in adults,

and decreased levels of ventilatory lung function

in both children and adults have been found to

be related to concentrations of SO2 and

particulates, after apparently sufficient 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 Health Perspectives 97, 99 (1974).

It appears that present national air quality standards

have been set with little or no margin of safety.

Adverse health effects are set forth in the two following

charts; and the minimal or nonexistent margins of

safety are vividly portrayed below:

TABLE |. —EFFECTS THRESHOLD, BEST CHOICE SIGNIFICANT RISK LEVELS

MARGINS CONTAINED IN PRIMARY AMBIENT AIR GU

Averaging time Adverse health effect

Concentration

PUP LE

$3 h33553

HAH BE

% ty

Has tant

peetehieet

SeBe8ovFan8

levels would be 100 percent for the & hour stand-

otf. 2.

margins besed upon ¥

ard and 67 percent for the | howr standard.

Safety

TABLE 2—THRESHOLD AND ILLUSTRATIVE HEALTH RISKS FOR SELECTED AMBIANT LEVELS OF SUSPENDED SULFATES

Mustretive health risk

Sulfur dieside equivalent

600 wg/m? for 24 be.

25 wg/m? for 24 hr or longer 2/2 percent increase in daily 38 wg/m for 24 he

increase im daily mortality

mortality

SO per cent i

750 wg/m? for 24 he.

48 ug/m? for 24 be

75 percent increase im frequency 30 ug/m? for 24 be

Regrets of teat and tony 9 «g/m? for 24 he of longer

eggrevetion.

im the elderly.

Aggrevation of asthms

450 wg/m? for 24 be.

6 to 10 wg/m? for 24 br

of asthms attacks.

50 percent increase in frequency 20 ug/m annual average

100 to 250 ug/m? annual average.

ecute lower respiratory 13 wo/m? for several

100 to 250 ug/m? annual average.

15 to 20 ug/m? anaval

10 to 15 ug/m? for up to ID yx 50 percent increase im risk

averege

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

)

The major source of sulfur dioxide pollution of the

ambient air are coal-fired plants — exemplified by

power plants operated by some of the petitioners in this

case.

Two other facts should be added from the extensive

technical record in this case before we turn to the

specific legal issues. The first is that sulfur dioxide

emitted from plant stacks reacts with other elements in

the atmosphere to form sulfuric acid mist and various

suspended sulfates which are in fact the irritants which

adversely affect human health. T. Lewis, M. Amdur, M.

Fritzhand & K. Campbell, Toxicology of Atmospheric

Sulfur Dioxide Decay Products 17 (1972).

The second important fact is that these derivatives

from sulfur dioxide tend to be airborne for days. They

affect areas at great distances downward, even when in

the original sulfur dioxide form they were emitted from

a high power plant stack. Rall, Review of the Health

Effects of Sulfur Oxides, 8 Env’tal Health Perspectives 97,

106 (1974),

The cases considered in this opinion represent the

fourth time this sulfur dioxide control problem has been

before this court. In the instant cases a hearing was

held November 14, 1976, at which numerous arguments

were advanced concerning petitioners’ claims that they

had been deprived of an adequate opportunity to

comment upon the EPA sulfur dioxide standards. In

particular they complained about not having an

opportunity in advance to comment upon the EPA’s use

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

an order by this court remanding all of these petitions

to the EPA for reopening of the record to allow

presentation of additional objections, corrections, and

comment. The order provided in part as follows:

On receipt and consideration of the thirty-six

(36) above-styled petitions for review attacking

the emission standards for the State of Ohio

applicable to sulphur dioxide (SO2) promulgated

by respondents Environmental Protection

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

On receipt and consideration of respondent's

inotion to consolidate such petitions for hearing

— and certain petitioners’ objections thereto —

and said motion to consolidate having been

granted by this Court; and

On receipt and consideration of certain

petitioners’ motions for stay of the respondent's

orders pending this Court’s review; and

On receipt and consideration of respondent

EPA’s motion to hold a prehearing conference

and certain concurrences therein, and such

prehearing conference having been held after

due notice to all parties; and

On inspection and consideration of peti-

tioners’ motions, briefs, and oral arguments and

noting that many of them deal with claims of

due process violations in respondent EPA’s

closing of the administrative record without

further opportunity on the part of petitioners to

present comment or evidence deemed by them

to be essential to a just result,

Now therefore this Court, in the interest of as

expeditious judicial disposition of this complex

litigation as possible, hereby, sua sponte,

a ee ee ee ee ee ee eS

{

}

extends to all petitioners in this consolidated

proceeding a stay of enforcement of said orders

of respondents EPA and Train, subject to the

following conditions:

No petitioners shall be permitted to submit

any new emission, process or air quality data.

Comments relating to clerical or computational

errors shall be permitted.

Whenever possible, petitioners shall make

consolidated submissions to the Agency.

All submissions shall be made by petitioners

no later than January 14, 1977, and the Agency

shall prepare an appropriate response and shall

amend the subject regulations if and as

necessary within an additional 60 days there-

from.

The stay granted herein will terminate

twenty-one (21) days after respondent EPA files

with this Court the response called for above,

unless otherwise directed by this Court.

Pursuant to the order of this court, the effective date

of the SO2 regulations was June 17, 1977. EPA has

advised this court, however, that it has not begun

enforcement proceedings in relation to any sources

involved directly in this litigation.

Although this court’s order allowed the petitioners 60

days for presentation of additional evidence and

comment, EPA sua sponte extended the remand period

briefly. Promptly upon notice that EPA had filed its

response to petitioners’ objections and comments

resulting from the remand, this court scheduled two full

days of hearings on these cases for purposes of as quick

an adjudication at the appellate level as might be

achieved.

DISPOSITION OF THE GENERAL ISSUES V

1. The State of Ohio's Petitien

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

for leave to intervene in this proceeding. Its motion

attacked the EPA sulfur dioxide emission control plan

as having an adverse impact on the Ohio coal industry,

and the Ohio economy as a whole. The motion also

asserted that the State was developing a sulfur dioxide

plan which would eliminate excessive abatement

requirements which Ohio perceived to exist in the

federal regulations. This court granted the motion for

leave to intervene and has considered the brief and the

reply brief filed by Ohio. Under this first disposition

heading we consider only Ohio’s suggestion that this

court reject the United States Environmental Protection

Agency’s sulfur dioxide control plan and rely upon

Ohio’s implied promise to promulgate a state sulfur

dioxide plan sometime in the future.

We reject this suggestion on the basis of a record of

delay and default which has left Ohio in the position of

being the only major industrialized state lacking an

enforceable plan for control of sulfur dioxide.

It was clearly the intention of Congress to have a plan

for control of sulfur dioxide emissions in place in all

states in need of such control by the year 1972. Clean

Air Act §§ 109 (a), 110(a), 42 U.S.C. §§ 1857c-4(a), 5(a)

(1970 & Supp. V 1975). It was equally clearly the

intention of Congress that the preferred mechanism for

establishment of such a plan was through the

establishment and operation of a state environmental

protection agency. § 107(a), 42 U.S.C. § 1857c-2(a)

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

approval by the Administrator of the United States

Environmental Protection Agency under Section 110 of

the Act and the Administrator approved that plan. That

approval, however, was challenged in this court on the

ground that such approval required a federal

rulemaking hearing prior to the required approval by

the federal Administrator. Among other claims laid

before this court in that petition was an attack on the

sulfur dioxide control scheme contained in the Ohio

plan, claiming ‘there is presently no technologically

feasible method of removing from their coal burning

émissions an amount of sulfur sufficient to meet the

standards.” See Buckeye Power, Inc. v. EPA, 481 F.2d

162, 167 (6th Cir. 1973). It was also petitioners’

contention in that same litigation that they had not

been allowed to document these claims of impossibility

before the federal Administrator prior to his approval of

the state plans. On analysis of these arguments, this

court vacated the approval of the Ohio state plan and

remanded the case to the Agency for compliance with

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

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

to informal rulemaking procedures.

Before the hearing could be held which was called for

in Buckeye Power #1, supra, the governor of Ohio, on

August 27, 1972, “withdrew” the sulfur dioxide portion

of the state EPA plan. At that point Ohio began work

on a new plan for sulfur dioxide control. On May 30,

1974, the second plan was submitted to the United

States EPA for approval. It had, however, been

challenged at the state level and was partially vacated

on procedural grounds by the Ohio Environmental

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

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

withdrew the Ohio plan to control sulfur dioxide.

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

consideration of any State hearing record,

promptly prepare and publish proposed

regulations setting forth an implementation plan,

or portion thereof, for a State if —

(A) the State fails to submit an

implementation plan for any national

ambient air quality primary or secondary

standard within the time prescribed. . . .

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

(1) (Supp. V 1975).

Clearly, the State of Ohio has failed to submit an

implementation plan for sulfur dioxide for which a

national ambient air quality primary standard has been

prescribed. Equally clearly, five years have now elapsed

beyond the date when such an implementation plan

was called for under the Clean Air Act. Under these

circumstances, we find no warrant, consistent with the

purposes of the federal legislation, for giving heed to

Ohio’s petition for further delay.

Intervenor Ohio’s other objections to the United

States EPA’s sulfur dioxide control plan will be

considered under Part 3 of the disposition section of

this opinion.

2. The Additional Remand and Cross-Examination

Issue

The leading brief in this series of cases filed on behalf

of the utilities opens its argument for remand as

follows:

The Most Appropriate Manner To

Resolve The Multitude Of Issues

Raised Is A Remand To The EPA With

Directions To Hold Further Hearings

To Reconsider The Significant Issues;

Given The Nature Of This Rule-

making, Any Remand Should Incor-

porate Procedural Safeguards Such As

Right To Cross-Examine Or Question

EPA.

Admittedly, there is no statutory requirement

that EPA afford the regulated the opportunity

to confront its decision makers through

adjudicative-type hearings. See Buckeye singe

Inc., supra [Buckeye Power, Inc. v. EPA, 481 F.

162 (1973)].

However, this EPA promulgation contains so

many specific findings and actions that the

normal comment period has not been sufficient

to expose and evaluate all of the important eHa

before this Court. EPA has promulgate

emission limits specific to a plant, has te

specific diffusion models specific to a plant, an

has reached specific conclusions regarding

economics specific to a plant. Each decision is

based on fact upon fact and conclusion upon

conclusion. In essence and in operation, this

plan and its formulation smack of the issuance of

an order as defined by EPA.

In Buckeye Power #1, a panel of this court, ‘iaegha

the first remand of the sulfur dioxide problem ri

federal hearings, considered the question as to whet 19

or not adjudicatory hearings (including panes

examination) were required. The opinion rejecte

this suggestion with the following reasoning:

However, as heretofore noted, the petitioners

herein do not simply request a remand with

instructions to adhere to the informal rulemaking

dictates of Section 553 of the APA; they also

request a full-scale evidentiary hearing before

the Administrator to adjudicate their complex

and intricate claims of high cost-benefit,

technological infeasibility and resource

unavailability. We cannot accept this position.

Administrative rulemaking which is to be

preceded by extensive hearings where “[a] party

is entitled to present his case or defense by oral

or documentary evidence, to submit rebuttal

evidence, and to conduct such cross-examination

as may be required for a full and true disclosure

of the facts...” (5 U.S.C. § 556(d) (1967)) is

required only when the last sentence of Section

553(c) of the APA applies. This section provides:

“When rules are required by statute to

There is no provision that, in sp

isapproving proposed state pollution-abatemen

nth eat we U.S.C. § 1857¢-5(a) (2) (1973

Supp.), the Administrator shall make a

determination ‘‘on the record after an

opportunity for an agency hearing.” Further-

more, when Congress intended that actions of

the Administrator of the EPA be preceded by

adjudicatory-type hearings it either specifically

outlined the type of hearings, (42 U.S.C. §

1857f-5a(c) (1) (1973 Supp.)), or invoked the

determination “‘on the record’ provision of 5

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

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

(1973 Supp.). On these grounds alone we would

reject the petitioners’ argument that the

Administrator is required to have full-scale

adjudicatory-type hearings prior to acceptance of

the state plans.

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

(6th Cir. 1973). (Footnote omitted.)

be made on the record after Opportunity for

an agency hearing, sections 556 and 557

of this title apply instead of this

subsection.” (Emphasis added). (5 U.S.C.

§ 553(c) (1967)).

More importantly, we note the following discussion

of the issue now before us in the unanimous opinion in

United States v. Allegheny-Ludlum Steel Corp., 406 U.S.

742 (1972), wherein the Supreme Court of the United

States said:

(Sections 556 and 557 of the APA outline the

requirements for extensive, adjudicatory-type

hearings.)

Thus, when a statutory provision directing

certain agency action states that such action shall

be “made on the record after opportunity for an

agency hearing,”’ then, and only then, is the

agency required to have full-scale adjudicatory

hearings prior to rulemaking. * * *

Sei gies tact SANS DRM RN SEE IE Ra RB SO) REE i LRA sin ES RY PIE ALAR AG HS EE

This Court has held that the Administrative

Procedure Act applies to proceedings before the

Interstate Commerce Commission, Minneapolis &

St. Louis R. Co. v. United States, 361 U.S. 173, 192

(1959). Appellees claim that the Commission s

procedure here departed from the provisions of 5

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

however, govern a rulemaking proceeding only

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

section, dealing generally with rulemaking,

makes applicable the provisions of §§ 556 and

557 only “[w]hen rules are required by statute to

be made on the record after opportunity for an

agency hearing... .”” The Esch Act, authorizing

the Commission “after hearing, on a complaint

or upon its own initiative without complaint,

[to] establish reasonable rules, regulations, and

practices with respect to car service ...,’’ 49

U.S.C. § 1 (14) (a), does not require that such

rules “‘be made on the record.” 5 U.S.C. § 553.

That distinction is determinative for this case.

“A good deal of significance lies in the fact

that some statutes do expressly require

determinations on the record.’’ 2 K. Davis,

Administrative Law Treatise § 13.08, p. 225

(1958). Sections 556 and 557 need be applied

“only where the agency statute, in addition to

providing a hearing, prescribes explicitly that it

be ‘on the record.’ ” Siegel v. Atomic Energy

Comm'n, 130 U.S. App. D.C. 307, 314, 400 F.2d

778, 785 (1968); Joseph E. Seagram & Sons, Inc. v.

Dillon, 120 U.S. App. D. C. 112, 115 n. 9, 344

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

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

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

suggest that only the precise words ‘‘on the

record’’ in the applicable statute will suffice to

make §§ 556 and 557 applicable to rulemaking

proceedings, but we do hold that the language of

the Esch Car Service Act is insufficient to invoke

these sections.

Because the proceedings under review were an

exercise of legislative rulemaking power rather

than adjudicatory hearings as in Wong Yang Sung

v. McGrath, 399 U.S. 33 (1950), and Ohio Bell

Telephone Co. v. Public Utilities Comm'n, 301 U.S.

292 (1937), and because 49 U.S.C. § 1 (14) (a)

does not require a determination ‘‘on the

record,” the provisions of 5 U.S.C. §§ 556 and

557 were inapplicable.

This proceeding, therefore, was governed by

the provisions of 5 U.S.C. § 553 of the

Administrative Procedure Act, requiring

basically that notice of proposed rulemaking

shall be published in the Federal Register, that

after notice the agency give interested persons

an opportunity to participate in the rulemaking

through appropriate submissions, and that after

consideration of the record so made the agency

shall incorporate in the rules adopted a concise

general statement of their basis and purpose.

The “Findings” and “Conclusions” embodied in

‘he Commission’s report fully comply with these

requirements, and nothing more was required

by the Administrative Procedure Act.

United States v. Allegheny-Ludlum Steel Corp.,

supra at 756-58. (Footnote omitted.)

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

410 U.S. 224, 238 (1973), the Supreme Court reiterated

and reinforced its decision in United States v.

Allegheny-Ludlum Steel Corp., supra. In the Florida Coast

R. Co. case the Court held:

Section 553 excerpts from its requirements

rulemaking devoted to ‘‘interpretive rules,

general statements of policy, or rules of agency

organization, procedure, or practice,” and

rulemaking “when the agency for good cause

finds ... that notice and public procedure

thereon are impracticable, unnecessary, or

contrary to the public interest.’’ This exception

does not apply, however, ‘‘when notice or

hearing is required by statute”; in those cases

even though interpretative rulemaking be

involved, the requirements of § 553 apply. But

since these requirements themselves do not

mandate any oral presentation, see Allegheny-

Ludlum, supra, it cannot be doubted that a

Statute that requires a “hearing’’ prior to

rulemaking may in some circumstances be

Satisfied by procedures that meet only the

standards of § 553. The Court's opinion in FPC

v. Texaco, Inc., 377 U.S. 33 (1964), supports such

a broad definition of the term “hearing.”

Similarly, even where the statute requires that

the rulemaking procedure take place ‘‘on the

record after Opportunity for an agency hearing,”

thus triggering the applicability of § 556

subsection (d) provides that the agency may

proceed by the submission of all or part of the

evidence in written form if a party will not be

prejudiced thereby.’” Again, the Act makes it

plain that a specific Statutory mandate that the

proceedings take place on the record after

hearing may be satisfied in some circumstances

by evidentiary submission in written form only

| We think this treatment of the term “hearing”

in the Administrative Procedure Act hey

sufficient basis for concluding that the

requirement ofa “hearing” contained in § 1 (14)

(a), in a situation where the Commission was

{

acting under the 1966 statutory rulemaking

authority that Congress had conferred upon it,

did not by its own force require the Commission

either to hear oral testimony, to permit

cross-examination of Commission witnesses, or

to hear oral argument.

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

240-41.

Taking those precedents into account, it seems clear

to us that the legislative-type hearings conducted by the

United States EPA concerning the Ohio SO: control

plan were consistent with the provision of the Clean

Air Act and the Administrative Procedure Act, and we

further conclude that the hearings are not inconsistent

with the due process clause of the Fourteenth

Amendment. As pointed out in the quotation from

Buckeye Power #1, supra, Congress did not insert into

the Clean Air Act the language requiring the

Administrator to make determinations “on the record

after an opportunity for an agency hearing’ which the

Supreme Court has held to trigger the requirement of

an adjudicative hearing. And if there was a legitimate

due process complaint arising from the fact that

petitioners had not had a chance to comment upon the

RAM model as employed by United States EPA in its

Ohio SO2 control plan, we believe it was surely cured

by this court’s remand for reopening of the

administrative record and United States EPA's

reconsideration thereafter.

We note, as petitioners encourage us to, that some

cases in other circuits hold that it is the importance and

complexity of the issues decided by the administrative

agency which should determine the kind of hearing

procedures required rather than any formal

classification of the process as either rulemaking or

ee See Appalachian Power Co.v. EPA, 477

-2d 495, 500-01 (4th Cir. 1973); Walter Holm & Co )

sais 449 F.2d 1009, 1015 (D.C. Cir. 1971). Typically,

cra it is important and complex problems which

ongress assigns to administrative agencies. Thus far

neither Congress nor the Supreme Court has elected t

adopt such a flexible standard or to assign iaeiaies

responsibility for the choice of

procedures to the federal courts. oF agency Heering

Pr esige petitioners also argue that this Circuit should

; ow the example of the Ninth Circuit in Bunker Hill

a EPA — F.2d — (9th Cir. 1977) (decided July 5

' ) to the extent of remanding the proposed sulfur

dioxide control standards to allow cross-examination pe

United States EPA’ as

heveatios S experts and additional comment

In contrast to our remand order of November 12

1976, the Ninth Circuit did provide for

cross-examination pertaining to what it termed a highl

complex and technical issue concernin od

technological feasibility of the use of sulfur "A ma

effect control of Bunker Hill’s lead smelter ease

While we believe that cross-examination of an

administrative agency’s experts is not a required o

normal part of informal rulemaking under Section 553,

we do not exclude the possibility that a case ma be

presented to this court wherein remand gr

cross-examination about di

! sputed facts will

logical-and necessary. prove both

pe a not, however, find any legal requirement or

, ica need for any more hearings, with or without

Oss-examination, in order to answer the three major

wikiagticc

eee

general issues posed in the instant cases. Petitioners

have had ample opportunities to present their views to

the agency. A full record has been written. There has

already been an inordinate delay of five years longer

than Congress contemplated.

3. The RAM Model

The petitioners in these cases center most of their

criticisms upon the United States EPA’s use of the

Real-Time Air-Quality-Simulation Model (“RAM”)

which was employed by the agency in preparation of

the Ohio sulfur dioxide control plan. RAM is a

dispersion model which evaluates the interaction of a

variety of facts in order to make predictions concerning

the contribution to the pollution of the ambient air by

specific plants. Its formula takes into account the

capacity of each plant on a stack-by-stack basis and

adds thereto smokestack height, surrounding terrain,

and weather conditions. The model is operated on the

assumption that the plants concerned operate 24 hours a

day at full capacity and predictions are made for every

day of the year. The ultimate standards are set

according to the predicted second-worst day in terms of

pollution results shown.

In comparison to all other prior methods of

controlling pollution, RAM starts with a solid,

ascertainable data base. This is the established design

capacity of the power plants in question related to the

sulfur content of the fuel used by each. From these

factors the ‘‘emissions data’’ for each plant is

developed.

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

etc., are figured in, the RAM model has the additional

value of allowing its user to predict with considerable

accuracy the relative contributions of specific power

plant stacks to the points of maximum concentration of

pollution of the ambient air.

The RAM model was actually developed as a result of

United States EPA’s public hearings on the proposed

plan for Ohio after five days of hearings on said

proposed plan in Columbus, Cleveland, Cincinnati, and

Steubenville at which petitioners involved in this

current litigation were given an opportunity (which

most accepted) to appear, testify, or submit comments.

At those hearings the major source of criticism from

industries, including some of the present petitioners,

was that the plan then under consideration did not

determine limitations by individual stacks to a

sufficient degree. EPA in its brief in this case compares

the ‘‘rollback’’ model employed in the preparation of

the first Ohio plan to dispersion models like RAM,

which is now the source of present controversy:

Unlike the rollback model, the dispersion

models used in developing the promulgated plan

allow a determination of the cause-effect

relationship between the SO2 emissions of the

pollution sources in an area and the resulting

ambient air quality. Therefore, it is possible to

determine the proportion by which each source

must reduce emissions to meet ambient

standards, With the use of the rollback model, in

contrast, each source’s emissions in the region,

whether or not they contributed to a pollution

problem, were required to be reduced. Through

dispersion modeling, emission limitations can

now be set with increased precision. Overcontrol

is minimized, so that the plan will still insure

attainment and maintenance of the air quality

i a SE RSI SA Se et

standards, but at a much reduced cost to the

sources. This is most clearly demonstrated by

comparing emission limitations for power plants

under the various plans. Power plants account

for approximately 80% of the sulfur dioxide

emissions in the State.

However, achievement of this added precision

requires a massive analytical task. Tremendous

amounts of data are required for each source

analyzed. In addition to the emissions data for

each source, dispersion modeling requires

detailed information on all the factors that affect

the dispersion of emissions. These include the

height of the source's stack (or usually stacks),

the spatial orientation of the sources to each

other, the topography of the area and the effects

it will have on dispersion, and, of crucial

importance, detailed weather data for the area.

All this information is needed so that the

computer analysis reflects actual conditions. For

example, a gaseous pollutant emitted over a

grassy field will disperse much differently than if

the pollutant is emitted over a large urban area.

There the dispersion will be affected not only by

the local weather conditions but also by the

greater turbulance caused by the different types

of surface areas and heat sources throughout a

city.

EPA goes on to point out that there are more than

1,000 point sources in the State of Ohio and more than

2,000 area sources, and that in relation to emission data,

United States EPA utilized (among other sources) the

data base on sulfur dioxide required to be reported

to the State of Ohio under Ohio Rev. Code Ann

§§ 3704.03(I), 3704.05(c) (Page 1971 & 1976 Supp.).

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

court to determine whether the RAM model represents

the best possible approach to determining standards for

the control of sulfur dioxide emissions. Our standard of

review of the actions of United States EPA is whether

or not the action of the agency is “arbitrary, capricious

an abuse of discretion, or otherwise not in accordance

with law.”’ Clean Air Act Amendments of 1977, Pub. L.

No. 95-95, § 305(a), 91 Stat. 775 (to be codified as 42

U.S.C. § 7607(d) (9) (A)). Thus, we are required to

affirm if there is a rational basis for the agency action

and we are not ‘‘empowered to substitute [our]

judgment for that of the agency.” Citizens to Preserve

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

Our review of this record convinces us that we cannot

properly hold that United States EPA’s adoption of the

RAM model for predicting sulfur dioxide emissions and

for fixing maximum levels of sulfur dioxide emissions

by specific sources was arbitrary and capricious or

beyond the agency’s authority under the Clean Air Act.

The factors cited below support EPA’s argument that

the RAM model is supported by sufficient evidence so

that EPA's adoption cannot be held arbitrary and

capricious:

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

— the principal basis of its first plan on which five

days of public hearings were conducted in Ohio — was

strenuously objected to by representatives of many of

the present petitioners because it was not source-

specific and, as a consequence, tended to require

more stringent sulfur dioxide controls than would be

required if plant capacity, fuel, population, smokestack

height, wind and climate were all taken into account.

Thus John R. Martin, of Smith & Singer Meterologists,

Inc., commented on behalf of Ohio utilities on the first

United States EPA plan as follows:

More sophisticated modeling is necessary in

all seven of the urban counties that use the

proportional rollback. In this way, the Federal air

quality standards can be attained without

unnecessary SO2 emission restrictions being

imposed upon sources that do not contribute to

an SO2 problem.

* * oF

We recommend that new strategies be tested

which will more fairly identify and control SO2

sources that create SO2 problems.

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

said on behalf of Ohio power plants:

{I]n developing an SO2 control program for this

plant, Region V did not consider economically

efficient alternatives to constant uniform

emission standards — alternatives such as

utilizing a supplementary control system to

achieve air quality standards or using separate

SO» emission standards by stack in accordance

with each stack’s contribution to ground-level

SO2 concentrations. Separate emission standards

by stack can reduce considerably the cost of

achieving air quality standards... .

2) EPA responded to these arguments favorably by

devising and adopting the RAM model which did

employ all of these source-specific factors.

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

United States EPA 1976-1977 SO2 control plan

(principally based upon the RAM and MAX-24 models)

shows less stringent regulation on a county-by-county

basis when compared to the Ohio SO» control plans

originally promulgated in 1972 and 1974. In addition,

when the comparison is limited to petitioners involved

in this litigation, but including all of their facilities

which were subjected to RAM modeling (and which are

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

strict on a facility comparison basis than the Ohio 1972

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

the Ohio 1974 plan by a count of 23 to 20.

These comparisons do not, of course, necessarily

demonstrate RAM’s accuracy. Rather, the comparison

with Ohio’s previous plans (based upon the earlier

rollback model which was used and accepted

nationwide) tends simply to show that the choice of

RAM modeling lay within administrative discretion,

RELATIVE STRINGENCY OF US EPA REGULATIONS

AND PREVIOUSLY PROMULGATED REGULATIONS

Ohio EPA Ohio EPA

1, US EPA 1976-77 1972 1974

urban RAM regs are: regs for: regs for:

Stricter than 14 29 of petitioners’

facilities!

less strict than 21 17 "

the same as l l ¥

ambiguous? compared with 6 4 4

US EPA 1976-77

rural RAM regs are:

Stricter than 3 3 7

less strict than 3 3 -

the same as 0 0 2

ambiguous? compared with 0 0) *

US EPA 1976-77

pe. dh ona wit 4 7 Qhio counties’

stricter u

less strict than 4 = d

the same as | 4 :

ambiguous? compared with 24

4. US EPA 1976-77

we ay a se 22 } 32.— oof petitioners’

stricter than pons

less strict than 7 7 d

the same as . 3 :

ambiguous? compared with 14

! Including facilities to the regulation of which

petitioners do not object.

2 J.e., stricter for some stacks or facilities and less

strict for others; or employing different —_ of

measurement, rendering comparison impossible; or

insufficient data available for meaningful comparison.

’ Twenty other counties contain no point sources of

SO2 emissions.

All comparisons are based on the data set out in

Appendices A, B and C.

4) While this court has currently before it some bs

petitioners protesting the United States EPA’s plan .

SO> emission control for Ohio, it must be remembere

that Ohio is estimated to have over 1,000 point sources

and over 2,000 area sources of SO2 pollution.

5) The RAM model is a general formula which can

be applied to many individual sources of pollution :

derive specific estimates of SO2 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 SO2 emission 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 concerned. 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 accuracy 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 requests for greater specificity and

hence lower costs of compliance 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 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 ogee

Enviroplan’s model as available technology until a

unless it is fully disclosed and evaluated by niga

States EPA — the agency charged by Congress wit

making these decisions.

7) We recognize that this record does not present

positive proofs of the accuracy of RAM’s panseoet

Thus far technology has not developed foolproo

methods for validating predictions concerning sonnet

of the ambient air absent years of collection o

monitoring data with far more monitors and far pute

personnel than have thus far been available. Obvious y,

also, the monitor locations and the receptor 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 ses

predicted second-highest 24-hour concentrations 0

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

XI1.B.4.a.(1) (d)).

The following chart displays the data contained in

these documents:

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 18] 163 81

3 83 : ; 117 62 57

4 109 ’ , 15] 109 17

5 161 57 198 ‘ 68 41

6 207 y 13 66 110 75

Our analysis of these data* shows that the yearly

second-highest concentration of SO2 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 different issues, 97 S.Ct. 1597 (1977). See also

Mision Industrial, Inc. v. EPA, 547 F.2d 123, 128-29 (1st

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

_—__—_—..._._.._

4 oe :

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 comparison was made by EPA attorneys

after the closing of the record. Clearly, however, the raw in @

which we have referred and which we have inspected were and are

available in the administrative record of this case.

Canton are located, and that they contend that the

study’s results show gross over-predictions by RAM.

Reevaluation of RAM predictions, however, showed

that most discrepancies were occasioned by data 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, SO2 emissions have a direct impact upon

the health and 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 conservative approach in protection of

health and life was apparently contemplated by

Congress in requiring that EPA plans contain “emission

limitations ... necessary to insure attainment and

maintenance’ of national ambient air standards. 42

U.S.C. § 1857¢-5(a) (2) (B) (1970). (Emphasis added.)

In summery, 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 requirements 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

Administrator’s action in promulgating the sulfur

dioxide control regulations 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,

OTHER ISSUES

Somewhat half-heartedly the leading brief for the

utilities attacks the United States EPA plan for SO2

controls in Ohio as excessively costly and asserts that

the satisfactory operation of Flue Gas Desulfurization

machinery (‘‘scrubbers’’) has not been demonstrated.

We note that the United States 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 industry 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 concernin

Congress’ power to do so. :

We have genuine doubt that this court has the power

review what we regard as petitioners’ slightly

isguised economic and technological infeasibility

;

}

arguments. See generally Union Electric Co. v. EPA, 427

U.S. 246, 265-66 (1976).5 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

would conclude that the technical record compiled in

the agency proceeding provides ample support for the

economic and technological feasibility of the SO2

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 capricious.

Power plant pollution of the ambient air is no respecter

of municipal boundary lines.

We note petitioners’ objection to the use of the urban

dispersion 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 indefinite

postponement of EPA’s mandated task of reducing SO2

pollution in Ohio.

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

the attainment of national air quality standards. It does not seek to

exceed them. See Note, The Cleay Air Act: ‘Taking a Stick to the

States,”’ 25 Cleve. St. L. Rev. 371, 405 (1976).

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 ‘‘secondary standards” for the ambient air.

This petition will b

e the subject of se

consideration. pa

Similarly, this opinion does not govern any petitions

where the RAM model was not used. We do not decide

any specific fact disputes raised by any petitioner as to

plants other than those treated in this opinion.®

Decision of these cases will follow. |

For the reasons stated above, the decision of the

Administrator in imposing the SO2 control plan is

affirmed subject to the reservations indicated above.

No costs are allowed since important public questions

are involved.

® See note 1, supra.

i ll ee tlie es

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 Andersen 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 Ibs. SO2 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

Pertormance Standards.

j. Subject to New Source Performance Standards.

k. Additional limitations, specified in units other

than Ibs. SO2/mBTU heat input, omitted from chart.

m. Information not available.

County;

neat a =a Current US EPA

employed Petitioner; facility 1972 1974” Reg ° Model

° ode

Adama (MAX) A

3.2° 14.8 3.16

Dayton Power & Light, Stuart plant 3,16¢ MAX

Allen(R ;

(Rural RAM; MAX) 1.0 |1.0 | 0,13=5, 39%

Standard O11, Lima refinery

Claus unit 100 1b ~oeohas

8. S80,

TOO Ibs. 5

Catalytic cracker/CO boiler

+350 lbs. 80,

TOO Ibs. product

Trolumen unit

11 lbs. 50,

ton production

Tso stabilizer, split heaters 0

Vac I heater a

All other unite <a

Standard O11, Vistron plant® er

Ohio Power, Woodcock plant® 4.38 may gg

Ashland(no sources) 1.6 14.8 h

Ashtabula(SCIM)

1.6 de band

Cleveland Elec. Illun., ; rae.

Ashtabula plant®

Stacks 1-3 vee

Stack 4 ap

Stack 5 ee

Athena(MAX; SCIM)

1.6 |4.0 .12=7,50*

Columbus & So. Ohio Power, itis

Poston plant

Stacks 1 & 2 2

Stack 3 en?

1.20%"

Auglaize(SCIM) 1.0 [4.0

Goodyear Tire ant Rubber& ri scr

. M

County; Ohio |Ohio |Current US BPA

Model (a) EPA |EPA

employed Petitioner; facility 1972 |1974 | Reg. Model

Belmont(MAX; modified rollback) 1,0 }1.6 2.60

Wheeling-Pitteburgh 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

Fisher Body 1.40 Rural RAM

Carroll(no sources) 1.0 |4.0 h -

Champaign(no sources) 1.0 |4.8 h -

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 4.8 2.02

Cincinnati G. & E.,Beckjord plant 2.02% MAX

Clinton(no sources) 3.2 14.0 h -

Columbiana(MAX) 1.0 {1.0 4.40

Ohio Edison, Bast Palestine plant® 4.40 MAX

Coahocton(MAX) 1.0 {1.6 5.66*

Columbus & So. Ohio Elec.,

Coneaville MAX

Stacks 1-3 5.66"

Stack 4 1.209

County; Ohio] Ohio] Current US BPA

Model (9) 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

Tor OF acts” RAN

Republic Steel RAM

Oxygen furnace, open hearth,

blast furnaces,

foundry, etc. 1.20%

84" lab furnaces 1.24"

Boilers 1,00

Cleveland Elec. Tlluminating,

Lakeshore RAM

Unit 18 1.50

Unita 91-94 1.90

Cleveland Elec. Illumination,

Hamilton Ave. 1,00 RAM

U. S&S. Steel, Cuyahoga-Lorain

works 0.50 RAM

U. S. Steel, Cuyahoga works 1.0 RAM

Dupont RAM

Boiler 18 0.50

Sulfuric acid unite 10 lbs. SO

Ton oY ost

Standard Oil, Cleveland Asphalt

plant 0.50 RAM

General Motors, 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

Brie(MAX) 3.2 11.6 | 1.60%

Pairfield(Max) 3.2 | 4.0 6.90=7.00

Onio| Onio | Current US EPA

Countys :

EPA | EPA

setae 1972] 1974 | Reg. Model

employed Petitioner; facility 9

. 4.0 h bad

Fayette(no sources) 3.2

Pranklin(RAM) 3.2 | 3.2 | 1,064.80" ap

; 2.20

White-Westinghouse

General Motors, Fieher Body . af

plant 1.5

0 4.8 h -

Pulton(no sources) 1

‘ 4.8 8.20-9.50

Gallia(MAX; SCIM) . 3.2 tee chs

Ohio Power, Gavin plant

1.0 | 4.8 h

Geauga (MAX)

. +0 0,306.20

Greene(MAX; Rural RAM; SOIM) 1.6 | 4

1.0 | 4.8 h

Guernoey (MAX)

° 0,W=-5.50

Hamilton(modified rollback; MAX; SCIM) 1.6 12.6 +8)

Cincinnati G. & E., Miami Port ae.

plant +

Stack 2 ,

3.30

Stacks 3&4 ye

Stack 5 “ge

Stack 6

1 lbs. S80

Dupont, Fort Hill plant 2 8 2

ton of acid MAX

‘ 2 2.50-5.20

Hancock(MAX; SCIM) 1.0 15

1.0 |4.0 h

Hardin(MAX)

0 14.0 h e

Harrison(no sources) 1

1.0 1.6 2.10

Henry (MAX)

3.2 |4.0 h -

Highland(no sources)

County; Ohio | Ohio | Current US EPA

Mudel(a) EPA | EPA

employed Petitioner; facility 1972 | 1974 | Keg. Model

Hooking(no sources) 3.2 | 3.2 h

Holmes (MAX) 1.6 5.2 h

Huron(MAX) 3.2 | 4.0 8.00

Jackson(no sources) 3.2 | 4.0 h

Jefferson(MAX; modified rollback) 1.0 |1.0 | 0,80-8,10*

Wheeling-Pittsburgh Steel,

Yorkville

4.20 rollback

Wheeling-Pittsburgh Steel, %

Steubenville (2 plante)® 50 gr. HAS

gr.

100 dacf gas rollback

Ohio Edison, sammis plant 2.91f MAX

Ohio Edison, Toronto plant® 8.10 MAX

Ohio Power, Cardinal plant® 4.76% MAX

Ohic Power, Tidd plant® 1.5ef MAX

Knox (MAX) 1.6 | 3.2 h

Lake (RAM) 1.0 |1.6 | 0.55-6,00%

Cleveland Elec. Illum.,

East Lake plant 1.43¢ RAM

Republic Steel lime plant® 4.21 lbs. $0,

. ’

ton input RAM

Lawrence(MAX; Rural RAM) 3.2 11.6 1.225 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 -

Loraan(Rax) 1.0 |2.6 | 0.27=3,40*

Sieveland Elec. Illvm.,

Avon Lake plant ris?

Chio Edison, Edgewater plant

5. fF. Gocdrish

RAM

3.40 RAM

1.70 RA).

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 unite 1,80

U. S&S. Steel RAM

Boilers 1-9 1.20

Boilers 10-13 0.50

Processes PO35 & PO39 0.17"

All other processes 0.40%

Lucae(RAM) 1.0 |1.0 | 0.04-4.99%

Poledo Edison, Bayshore station 0,.50-1,.20 RAM

Toledo Edison, Acme power plant 1,00=3,00 RAM

Toledo Edison, Water St.

steam plant® 1.06 RAM

Standard 0118 0.2941.00* RAM

Coulton Chemical 0.80" RAM

Gulf O11 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 Cu. 2.00 rollback

Youngstown Sheet & Tube (2 plants) 0.50-9, 68% rolibacs

Republic Steel 0.50-0.68" roliback

Marion(Rural RAM) 1.6 |4.0 4.20-6.10

Medina(MAX) 1.0 [4.8 8,00

Meigs(cther modelling strategy) 2.6 |4.8 1. lbs. S°2

ton input

County;

Model(s) Ohio | Ohio | Current US EPA ie ors omg Current US EPA

EPA | EPA Model(s A A

employed

— Petitioners; facility 1972 ]1974 | Reg, Model employed Petitioners; facility 1972| 1974 | Reg. Model

Mercer

(MAX) 1.0 4.0 8.00 Putnam(MAX) 1.0 4.8 h

Miami (MAX

¢ ) 1.6 4.0 3,20-4, 78" Richland (MAX; SCIM) 1.6 1.6 3.10-9, 30"

White-Westinghouse® 4.50 MAX; SCI

Monroe(no

(ne sources) 1.0 /1.6 |h z Generel Motors, Pisher Body® 3.10 MAX; SCI

Mont gomet

g — 3.6 11.6 | 0.681,60% Rowe(MAX) 3.2 | 3.2 | 4.9 lbs. 80,

ayton P, &2L,, Tait plant 0.6591.25

Dayton P. &L., Hutchings plant 0.6541.20 oH di cna

Dayton P, & L,, Yankee & Monument 0.6 ,

65 RAM Sandusky(MAX; SCI¥) 3.2 14.0 | 7.00%

Morgan (MAX)

1.6 FF 6. 8

Ohio Power, Muskingum R. plant® ign ms a 3.2 | 4.8 | 0.60-6.90%

Morrow(no sources) Ss ine te Seneca(MAX; SCIM) 3.2 | 3.2 | 1.20-6.20*

Muskingum Shelby(no sources) 1.0 | 3.2 h ~

ag é oe pt 138 ‘

wer, Philo plant 1.14% MAX Stark(RAM) 1.0 | 4.8 0.47=5.20*

Noble(no sources) a Republic Steel, Massillon plant® 4.40 RAM

. ° h - Timken, Gambrinus plant RAM

ie) Boilers 1 & 2 3.08

Stewed) 3.2 14.6 | 5.90%

Paulding(Max) Timken, Canton No. 5 plant 0.67 RAM

é 1.0 14.0 | 43 ibs. so Hoover 2.50 Ran

qumumemami>

ton input

heaton vs ,; Summit (RAM) 1.0 |2.0 | 0.70-6.10*

urces 3.2 14.8 h S Pirestone Tire & Rubber 1.78 RAM

Firestone, Seiberling division 1.33 RAM

Picka °

parse . 3.2 11.6 | 0,856.04 B. F. Goodrich 2.71 RAM

umbus & So. Ohio Elec., Goodyear Tire & Rubber, Plant I 1.80-3,96" RAM

Picway plant 6.047 MAX Goodyear Tire & Rubber, Plant II 1.84" RAM

Pike (MAX) Ohio Edison, Beech St. station 2.71 RAM

3.2 14.8 7.00 Ohio Edison, Gorge power plant 2.56 RAM

1.78 RAM

Portage (MAX) ae ee ; PPG Industries 7

Predle(MAX) wa Pre

County;

iedentas Ohio |Ohio | Current US EPA

EPA EPA

employed Petitioner; facility 1972 1974 | Reg Model

Reg. e

Trumbull(MAX; modified rollback) 1.6 [1.0 |0.50-5,41*

Republic Steel® 6 k

1.00-1,.60 rollback

Ohio Edison, Niles plant® £

ate 5.41 MAX

Y. S. Steel, McDonald mills 0.50 rollback

GM, Packard Electric Warren plants r

(2) n rollback

Tuscarawas(MAX) 1.0 [1.6 | 4.60%

Union(no sources) 3.2 14.0 h

Van Wert (MAX) } 4.8 h

Vinton(MAX) 3.2 14.0 4.80

Austin Powder

4,80 MAX

Warren(MAX) 1.6 [4.8 h

Waohington(MAX)

1.6 1 6 2. "U6

Shell Oi) 2 2 oer MAX

Ohio Power, Muskingum R. plant® 6.48 MAX

Wayne(MAX; SCIM) 1.6 [1.6 7.00

Williams (MAX) 1.0 [4.0 h

Wood(RAM) 1.0 4.0 1.10

Wyandot(no sources) 1.6 [4.8 h

APPENDIX B

OHIO EPA 1972 REGULATIONS

EP-11-14 (AP-3-14) Restrictions on emission of sulfur

dioxide from the use of fuel.

(B) Emission limitations.

(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,

(2) All persons located within air control regions

classified as Priority I Regions shall attain or exceed that

degree of emission reduction specified by Curve P-1 by

the effective date of this regulation.

(3) All persons located within air quality control

regions classified as Priority I] Regions shall attain or

exceed that degree of emission reduction specified by

Curve P-2 by the effective date of this regulation.

(4) 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-3 by the effective date of this regulation.

(5) All persons located within air quality control

regions classified as Priority II or III Regions shall attain

or exceed, no later than July 1, 1975, that degree of

emission reduction specified by Curve P-1

(Adopted July 6, 1972; effective July 17, 1972.)

eI-It a

III sara

MM “INdNI LWZH I¥LOL - #

YNOH Wid Nid SNOrT1

3. yy" M ALLOWABLE MAS RATE T EMISSIO}

ND,

te he

“ > ¥ be. -«

ee " Tt .

(AS SULPUR DIOXIDE) ~ IN § ) PER MILL? AN DIN

pH mm

Lat Hid ti nd ma th

nit

fs ;

r lig ne

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 — PARTI-

CONTROL REGION NUMBER CULATES SOx CO NOx PhtOx

Cincinnati (Ky.-Ind.) 079 | il TH |

Cleveland (Akron,

Canton, etc.) 174 | | tT |

Columbus 176 | i iW |

Dayton 173 | i i |

Mansfield-Marion 175 i} i i i

Marietta (W. Va.) 179 | i i i

Northwest Ohio 177 i} | Wl Wl

Portsmouth-ironton

(Ky.-W.Va.) 103 | th TT TT

Sandusky 180 iW i HH tT

Steubenville (W. Va.) 181 | | i Wl

Toledo (Michigan) 124 | | it |

Wilmington-

Chillicothe-Logan 182 tT tT tT TT

Youngstown 178 | i tT i

Zanesville 183 i 1A i it

—

.. Northwest Ohio

(#177)

vor

Dayton

a. 1173)

by Wanita

Cineinnat!

(#079)

aa”

p Northwest

} ele

wen tle ? SP i bes 5 ioe,

. meunat Ld Tay eonr

ie Memverer jens a Youngstown

= a 1 rotten (#1 78)

— nanan ao ~ [is ov | ;

Honcoee Sandusky J Cleveland —— .

(#174)

Mansfield-Marion

(#175)

tare Columbus |

pasate (4176) rennet 5 Weirton-

ao Bat pia Macon

[ “ Parkersb:

| Wilmingto n=Chilli nate Marietta 2

* pe Logar: W182 ) (#179)

t= ay

Huntington- SLnaiee. Portsmouth-Ironton

ennsate |

FIGURE IV

EP 11-06 (AP 3-06)

CLASSIFICATION BY REGIONS

Steubenville @

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

paragraph (1) of this subsection.

(Adopted January 21, 1974; effective February 1, 1974.)

TABLE II (see Figure V at end of EP-11)

SULPHUR DIOXIDE ALLOWABLE

COUNTY

EMISSIONS

Allen 1.0 pounds of sulfur dioxide

Ashtabula per million BTU of heat input

Columbiana

Cuyahoga

Jefferson

Lucas

Summit

Trumbull

COUNTY

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

COUNTY

SULPHUR DIOXIDE ALLOWABLE

EMISSIONS

Athens

Auglaize

Carroll

Clinton

Defiance

Fairfield

Fayette

Greene

Hardin

Harrison

Highland

Huron

Jackson

Marion

Mercer

Miami

Muskingum

Paulding

Sandusky

Union

Vinton

Williams

Wood

4.0 pounds of sulfur dioxide

per million BTU of heat input

All other counties:

4.8 pounds of sulfur dioxide

per million BTU of heat input

1.0 “

oo pedinseryad dioxide ~ 4.0 pounds of lf

. ion ITU of h input , “Vii CS Ot su ur di

~ eat input per million &TU of nek hae

‘47 = 1.6 pounds of « ulfur di }

So iOmM ICE =

per million BTY of heat input nba apr perpen

per million BTU of heat input

= 3.2 pounds of Sulfur dioxide

per million BTU of heat input

FIGURE V (Table II)

EP 11-13

SULFUR DIOXIDE EMISSION LIMITATIONS

APPENDIX B

ORDER

(United States Court of Appeals

For the Sixth Circuit)

Cleveland Electric Illuminating Co., et al.

v. Environmental Protection Agency, et al.

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.

(Filed February 13, 1978)

Before; PHILLIPS, Chief Judge, EDWARDS and

PECK, Circuit Judges.

On petition for review of Action of the Administrator

of the Environmental Protection Agency,

These causes came on to be heard on the record of

proceedings before the Environmental Protection

Agency and were argued by counsel.

On consideration whereof, it is now ordered,

adjudged and decreed by this Court that the decision of

the Administrator of the Environmental Protection

Agency in imposing the SO2 control plan is affirmed

without prejudice to cases reserved for subsequent

disposition.

No costs taxed.

ENTERED BY ORDER OF THE COURT.

/s/ John P. Hehman, Clerk

ISSUED AS MANDATE: March 8, 1978 (As to cases

76-2242, 77-1359, 76-2244,

COSTS: None 77-1363, 76-2276 and 77-1368)

APPENDIX C

ORDER

(United States Court of Appeals

For the Sixth Circuit)

Cleveland Electric Illuminating Co., et al.

vs. Environmental Protection Agency, et al.

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

76-2240, 77-1355

(Filed April 18, 1978)

Before: PHILLIPS, Chief Judge, EDW

, , ARD

PECK, Circuit Judges. : fa

On receipt and consideration of a petition for

rehearing and a suggestion for rehearing en banc

concerning an opinion of this Court, fil

a rt, filed February 13,

No active judge of this Court having moved for

rehearing en banc and the motion having been referred

to the panel which heard the cases; and

On inspection of said motion, finding therein no

argument advanced which had not been carefully

considered before issuance of the Court’ ini

February 13, 1978, rt’s opinion of

Now, therefore, said petition is hereby denied.

Entered by order of the Court

/s/ John P. Hehman, Clerk

APPENDIX D

RELEVANT PORTIONS OF CLEAN AIR ACT

When the regulations herein being reviewed were

proposed and promulgated and the Petitioners’

petitions for review were filed, the Clean Air Act

Amendments of 1970, 91 Pub. L. No. 604, 84 Stat. 1676

(formerly codified at 42 U.S.C. §§ 1857, et seq. (1970))

was in effect. The relevant provisions of 42 U.S,C.

§§ 1857, et seq. (1970), are as follows:

es oe

§ 1857c-—3. [§ 108.] Air quality criteria and control

techniques — Air pollutant list; publication and

revision by Administrator; issuance of air quality

criteria for air pollutants

(a) (1) For the purpose of establishing

national primary and secondary ambient air

quality standards, the Administrator shall within

30 days after December 31, 1970, publish, and

shall from time to time thereafter revise, a list

which includes each air pollutant —

(A) which in his judgment has an adverse

effect on public health or welfare;

(B) the presence of which in the ambient

air results from numerous or diverse mobile or

stationary sources; and

been issued before December 31, 1970, but for

which he plans to issue air quality criteria

under this section.

(2) The Administrator shall issue air quality

criteria for an air pollutant within 12 months

after he has included such pollutant in a list

under paragraph (1). Air quality criteria for an

air pollutant shall accurately reflect the latest

scientific knowledge useful in indicating the

kind and extent of all identifiable effects on

public health or welfare which may be expected

from the presence of such pollutant in the

ambient air, in varying quantities. The criteria

for an air pollutant, to the extent practicable,

shall include information on —

(A) those variable factors (including

atmospheric conditions) which of themselves

or in combination with other factors may alter

the effects on public health or welfare of such

air pollutant;

(B) the types of air pollutants which, when

present in the atmosphere, may interact with

such pollutant to produce an adverse effect on

public health or welfare; and

effects on welfare.

§ 1857c—4. [§ 109.] National primary and secondary

ambient air quality standards; promulgation;

procedure |

(a)(1) The Administrator —

(A) within 30 days after December 31, 1970,

shall publish proposed regulations prescribing

a national primary ambient air quality

standard and a national secondary ambient air

quality standard for each air pollutant for

which air quality criteria have been issued

prior to such date; and

(B) after a reasonable time for interested

persons to submit written comments thereon

(but no later than 90 days after the initial

publication of such proposed standards) shall

by regulation promulgate such proposed

national primary and secondary ambient air

quality standards with such modifications as

he deems appropriate.

(2) With respect to any air pollutant for

which air quality criteria are issued after

December 31, 1970, the Administrator shall

publish, simultaneously with the issuance of

such criteria and information, proposed national

primary and secondary ambient air quality

standards for any such pollutant. The procedure

provided for in paragraph (1) (B) of this

subsection shall apply to the promulgation of

such standards.

(b) (1) National primary ambient air quality

standards, prescribed under subsection (a) of

this section shall be ambient air quality

standards the attainment and maintenance of

which in the judgment of the Administrator,

based on such criteria and allowing an adequate

margin of safety, are requisite to protect the

public health. Such primary standards may be

revised in the same manner as promulgated.

(2) Any national secondary ambient air

quality standard prescribed under subsection (a)

of this section shall specify a levei of air quality

the attainment and maintenance of which in the

judgment of the Administrator, based on such

criteria, is requisite to protect the public welfare

from any known or anticipated adverse effects

associated with the presence of such air pollutant

in the ambient air. Such secondary standards

may be revised in the same manner as

promulgated.

§ 1857¢-—5. [§ 110.] State implementation plans for

national primary and secondary ambient air quality

standards — Submission to Administrator; time for

submission; State procedures; required contents of

plans for approval by Administrator; approval of

revised plan by Administrator

(a) (1) Each State shall, after reasonable notice

and public 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 1857c—4 of this title for any air pollutant,

a plan which provides for implementation,

maintenance, and enforcement of such primary

standard in each air quality control region (or

portion thereof) within such State. In addition,

such State shall adopt and submit to the

Administrator (either as a part of a plan

submitted under the preceding sentence or

separately) within vyine months after the

promulgation of a national ambient air quality

secondary standard (or revision thereof), a plan

which provides for implementation, main-

tenance, 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 implementing such

secondary standard at the hearing required by

the first sentence of this paragraph.

(2) The Administrator shall, within four

months after the date required for submission of

a plan under paragraph (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) (i) in the case of a plan implementing a

national primary 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 secondary ambient air quality

standard, it specifies a reasonable 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 attainment and

maintenance of such primary or secondary

standard, including, but not limited to,

land-use and transportation controls;

and operation of appropriate devices,

methods, systems, and procedures necessary

to (i) monitor, compile, and analyze data on

ambient air quality and, (ii) upon request,

make such data available to the Administrator;

(D) it includes a procedure, meeting the

requirements of paragraph (4), for review

(prior to construction or modification) of the

location of new sources to which a standard of

performance will apply;

(E) it contains adequate provisions for

inter-governmental cooperation, including

measures necessary to insure that emissions of

air pollutants from sources located in any air

quality control region will not interfere with

the attainment or maintenance of such

primary or secondary standard in any portion

of such region outside of such State or in any

other air quality control region;

(F) it provides (i) necessary assurances that

the State will have adequate personnel,

funding, and authority to carry out such

implementation plan, (ii) requirements 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

pursuant to this chapter, which reports shall

be available at reasonable times for public

inspection; and (v) for authority comparable to

that in section 1857h—1 of this title, and

adequate contingency plans to implement such

authority;

(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing

of motor vehicles to enforce compliance with

applicable emission standards; and |

(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 availability of

improved or more expeditious methods of

achieving such primary or secondary standard;

or (ii) whenever the Administrator finds on

the basis of information available to him that

the plan is substantially inadequate to achieve

the national ambient air quality primary or

secondary standard which it implements.

(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.

* 4 ” *

Preconditions for preparation and publication by

Administrator of proposed regulations setting forth

an implementation plan; hearings for proposed

regulations; promulgation of regulations by

Administrator; transportation regulations study and

report; parking surcharge; suspension authority

consideration of any State hearing record,

promptly prepare and publish proposed regu-

lations setting forth an implementation plan, or

portion thereof, for a State if —

(A) the State fails to submit an imple-

mentation plan for any national ambient air

quality primary or secondary standard within

the time prescribed,

(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

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

subsection (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

Administrator determines to be in accordance

with the requirements of this section.

* * * *

Applicable implementation plan

(d) For purposes of this chapter, an

applicable implementation plan is ihe

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 a national primary or secondary

ambient air quality standard in a State.

ae a

§ 1857h—5. Administrative proceedings and

judicial review

Se ae or

(b) (1) A petition for review of action of the

Administrator in promulgating any national

primary or secondary ambient air quality

standard, any emission standard under section

1857c—7 of this title, any standard of performance

under section 1857c—6 of this title, any standard

under section 1857f—1 of this title (other than a

standard required to be prescribed under section

1857f—1 (b) (1) of this title), any determination

under section 1857f—1 (b) (5) of this title, any

control or prohibition under section 1857f—6c of

this title, or any standard under section 1857f—9

of this title may be filed only in the United

States Court of Appeals for the District of

Columbia. A petition for review of the

Administrator’s action in — Pr

ulgatiny any implementation plan unde

tere 8570-5 uf this title or section 1857e—6

(d) of this title, or this action under section

1857c—10 (c) (2) (A), (B), or (C) of this title or

under regulations thereunder, may be filed only

in the United States Court of Appeals for the

appropriate circuit. Any such petition shall be

filed within 30 days from the date of such

promulgation, approval, or action, or after such

date if such petition is based solely on grounds

arising after such 30th day.

(2) Action of the Administrator with respect to

which review could have been obtained under

paragraph (1) shall not be subject to judicial

review in civil or criminal proceedings for

enforcement.

APPENDIX E

ADMINISTRATIVE PROCEDURE ACT

The pertinent section of the Administrative Procedure

Act is 5 U.S.C. § 706 (1970) which is as follows:

§ 706. Scope of review

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the

meaning or applicability of the terms of an

agency action. The reviewing court shall —

(1) compet agency action unlawfully withheld

or unreasonably delayed; and

(2) hold unlawful and set aside agency

action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

authority, or limitations, or short of statutory

right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an

agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the

court shall review the whole record or those

parts of it cited by a party, and due account shall

be taken of the rule of prejudicial error. Pub.L.

89-554, Sept. 6, 1966, 80 Stat. 393.

APPENDIX F

Relevant provisions of the Clean Air Act, as amended

by the Clean Air Amendments of 1977, 42 U.S.C.A.

§§ 7401, et seq. (Supp. 1977), are as follows:

§ 7410. State implementation plans for national

primary and secondary ambient air quality standards

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 public 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 enforcement of such primary

standard in each air quality control region (or

portion thereof) within such State. In addition,

such State shall adopt and submit to the

Administrator (either as a part of a plan

submitted under the preceding sentence or

separately) within nine months after the

promulgation of a national ambient air quality

secondary standard (or revision thereof), a plan

which provides for implementation, main-

tenance, 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 implementing such

secondary standard at the hearing required by

the first sentence of this paragraph.

(2) The Administrator shall, within four

months after the date required for submission of

a plan under paragraph (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 subpara-

graph (I) (i) in the case of a plan implementing

a national primary ambient air quality stan-

dard, it provides for the attainment of such

primary standard as expeditiously as practica-

ble 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 secondary

ambient air quality standard, it specifies a

reasonable 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 attainment and

maintenance of such primary or secondary

standard, including, but not limited to,

transportation controls, air quality

maintenance plans, and preconstruction

review of direct sources of air pollution as

provided in subparagraph (D);

and operation of appropriate devices,

methods, systems, and procedures necessary

to (i) monitor, compile, and analyze data on

ambient air quality and, (ii) upon request,

make such data available to the Administrator;

(D) it includes a program to provide for the

enforcement of emission limitations and

regulation of the modification, construction,

and operation of any stationary 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 national ambient air quality

standards are achieved and maintained, and

(ii) a procedure, meeting the requirements of

paragraph (4), for review (prior to construction

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 source within the

State from emitting any air pollutant in

amounts which will (I) prevent attainment 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, fund-

ing, and authority to carry out such im-

plementation plan; (ii) requirements for instal-

lation 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 pursuant to this chapter,

which reports shall be available at reasonable

times for public inspection; (v) for authority

comparable to that in section 7603 of this title,

Gi Sa F

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and adequate contingency plans to implement

such authority; and (vi) requirements that the

State comply with the requirements respecting

State boards under section 7428 of this title;

(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing

of motor vehicles to enforce compliance with

applicable emission 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 availability 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 available to him that the plan is

substantially inadequate to achieve the

national ambient air quality primary or

secondary standard which it implements or to

otherwise comply with any additional

requirements established 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 de-

fined in section 7501 (2) of this title) to which

such plan applies, if the emissions from such

facility will cause or contribute to concentra-

tions of any pollutant for which a national

ambient air quality standard is exceeded in

such area, unless, as of the time of application

for a permit for such construction or modifica-

tion, 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 subchapter

(relating to prevention of significant

deterioration 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 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.

* *. *. *

Preparation and publication by Administrator of

proposed regulations setting forth implementation

plan; transportation regulations study and report;

parking surcharge; suspension authority; plan

implementation

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

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

subsection (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 promulga-

tion, such State has adopted and submitted a

plan (or revision) which the Administrator

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

consultation) 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 submission.

* + + *

Applicable implementation plan

(d) For purposes of this chapter, an

applicable implementation 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 requirements of this section.

+ * * +

§ 7413. Federal enforcement procedures

Finding of violation;notice; compliance order; civil

action; State failure to enforce plan; construction or

modification of major stationary sources

(a) (1) Whenever, on the basis of any infor-

mation available to him, the Administrator finds

that any person is in violation of any require-

ment of an applicable implementation plan, the

Administrator shall notify the person in violation

of the plan and the State in which the plan

applies of such finding. If such violation extends

beyond the 30th day after the date of the

Administrator’s notification, the Administrator

may issue an order requiring such person to -

comply with the requirements of such plan or he

may bring a civil action in accordance with

subsection (b) of this section.

(2) Whenever, on the basis of information

available to him, the Administrator finds that

violations of an applicable implementation plan

are so widespread that such violations appear to

result from a failure of the State in which the

plan applies to enforce the plan effectively, he

shall so notify the State. If the Administrator

finds such failure extends beyond the 30th day

after such notice, he shall give public notice of

such finding. During the period beginning with

such public notice and ending when such State

satisfies the Administrator that it will enforce

such plan (hereafter referred to in this section as

“period of federally assumed enforcement’’), the

Administrator may enforce any requirement of

such plan with respect to any person —

(A) by issuing an order to comply with such

requirement, or

(B) by bringing a civil action under

subsection (b) of this section.

(3) Whenever, on the basis of any informa-

tion available to him, the Administrator finds

that any person is in violation of section 7411 (e)

of this title (relating to new source performance

standards), section 7412 (c) of this title (relating

to standards for hazardous emissions), or section

119 (g) (relating to energy-related authorities) is

in violation of any requirement of section 7414 of

this title (relating to inspections, etc.), he may

issue an order requiring such person to comply

with such section or requirement, or he may

bring a civil action in accordance with

subsection (b) of this section,

(4) An order issued under this subsection

(other than an order relating to a violation of

section 7412 of this title) shall not take effect

until the person to whom it is issued has had an

opportunity to confer with the Administrator

concerning the alleged violation. A copy of any

order issued under this subsection shall be sent

to the State air pollution control agency of any

State in which the violation occurs. Any order

issued under this subsection shall state with

reasonable specificity the nature of the violation,

specify a time for compliance which the

Administrator determines is reasonable, taking

into account the seriousness of the violation and

any good faith effort to comply with applicable

requirements. In any case in which an order

under this subsection (or notice to a violator

under paragraph (1) is issued to a corporation, a

copy of such order (or notice) shall be issued to

appropriate corporate officers.

(5) Whenever, on the basis of information

available to him, the Administrator finds that a

State is not acting in compliance with any re-

quirement of the regulation referred to in section

129 (a) (1) of the Clean Air Act Amendments of

1977 (relating to certain interpretative regula-

tions) or any plan provisions required under

section 7410 (a) (2) (1) of this title and part D of

this subchapter, he may issue an order

prohibiting the construction or modification of

any major stationary source in any area to which

such provisions apply or he may bring a civil

action under subsection (b) (5) of this section,

Violations by owners or operators of major

stationary sources

(b) The Administrator shall, in the case of any

person which is the owner or operator of a major

stationary source, and may, in the case of any

other person, commence a civil action for a

permanent or temporary injunction, or to assess

and recover a civil penalty of not more than

$25,000 per day of violation, or both, whenever

such person —

(1) violates or fails or refuses to comply with

any order issued under subsection (a) of this

section; or

(2) violates any requirements of an

applicable implementation plan (A) during

any period of Federally assumed enforcement,

(B) more than 30 days after having been

notified by the Administrator under

subsection (a) (1) of this section of a finding

that such person is violating such

requirement; or

(3) violates section 7411 (e) of this title, section

7412 (c) of this title, section 119 (g) (as in effect

before August 7, 1977), subsection (d) (5) of this

(section relating to coal conversion), section 7624

of this title (relating to cost of certain vapor

recovery), section 7419 of this title (relating to

smelter orders), or any regulation under part B of

this subchapter (relating to ozone); or

(4) fails or refuses to comply with any

requirement of section 7414 of this title or

subsection (d) of this section; or

(5) attempts to construct or modify a major

Stationary source in any area with respect to

which a finding under subsection (a) (5) of this

section has been made.

The Administrator may commence a civil action

for recovery of any noncompliance penalty under

section 7420 of this title or for recovery of any

nonpayment penalty for which any person is li-

able under section 7420 of this title or for both.

Any action under this subsection may be

brought in the district court of the United States

for the district in which the violation occurred or

in which the defendant resides or has his prin-

cipal place of business, and such court shall have

jurisdiction to restrain such violation, to require

compliance, to assess such civil penalty and to

collect any noncompliance penalty (and nonpay-

ment penalty) owed under section 7420 of this

title. In determining the amount of any civil

penalty to be assessed under this subsection, the

courts shall take into consideration (in addition

to other factors) the size of the business, the

economic impact of the penalty on the business,

and the seriousness of the violation. Notice of

the commencement of such action shall be given

to the appropriate State air pollution control

agency. In the case of any action brought by the

Administrator under this subsection, the court

may award costs of litigation (including

reasonable attorney and expert witness fees) to

the party or parties against whom such action

was brought in any case where the court finds

that such action was unreasonable.

Penalties

(A) violates any requirement of an

applicable implementation plan (i) during any

period of Federally assumed enforcement, or

(ii) more than 30 days after having been

notified by the Administrator under

subsection (a) (1) of this section that such

person is violating such requirement, or

(B) violates or fails or refuses to comply with

any order under section 7419 of this title or

under subsection (a) or (d) of this section, or

of this title; or

(D) violates any requirement of section 119

(g) (as in effect before August 7, 1977),

subsection (b) (7) or (d) (5) of section 7420 of

this title (relating to noncompliance penalties),

or any requirement of part 8 of this

subchapter (relating to ozone).

shall be punished by a fine of not more than

$25,000 per day of violation, or by imprisonment

for not more than one year, or by both. If the

conviction is for a violation committed after the

first conviction of such person under this parag-

raph, punishment shall be by a fine of not more

than $50,000 per day of violation, or by

imprisonment for not more than two years, or by

both.

(2) Any person who knowingly makes any

false statement, representation, or certification in

any application, record, report, plan, or other

document filed or required to be maintained

under this chapter or who falsifies, tampers

with, or knowingly renders inaccurate any

monitoring device or method required to be

maintained under this chapter; shall upon

conviction, be punished by a fine of not more

than $10,000, or by imprisonment for not more

than six months, or by both.

(3) For the purpose of the subsection, the

term ‘‘person”’ includes, in addition to the

entities referred to in section 7602 (e) of this

title, any responsible corporate officer.

* * 7. *

§ 7607

Judicial review

(b) (1) A petition for review of action of the

Administrator in promulgating any national

primary or secondary ambient air quality stan-

dard, any emission standard or requirement

under section 7412 of this title, any standard of

performance or requirement under section 7411

of this title, any standard under section 7512 of

this title (other than a standard required to be

prescribed under section 7521 (b) (i) of this title)

any determination under section 7521 (b) (5) of

SEH

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this title, any control or prohibition under

section 7545 of this title, any standard under

section 7571 of this title, any rule issued under

section 7413, 7419, or 7420 of this title, or any

other nationally applicable regulations

promulgated, or final action taken, by the

Administrator under this chapter may be filed

only in the United States Court of Appeals for

the District of Columbia. A petition for review of

the Administrator’s action in approving or

promulgating any implementation plan under

section 7410 of this title or section 7411 (d) of

this title, any order under section 7411 (j) of this

title, under section 7412 (c) of this title, under

section 7413 (d) of this title, under section 7419

of this title, or under section 7420 of this title, or

his action under section 119 (c) (2) (A), (B), or

regulations thereunder, or any other final action

of the Administrator under this chapter

(including any denial or disapproval by the

Administrator under subchapter | of this

chapter) which is locally or regionally applicable

may be filed only in the United States Court of

Appeals for the appropriate’ circuit.

Notwithstanding the preceding sentence a

petition for review of any action referred to in

such sentence may be filed only in the United

States Court of Appeals for the District of

Columbia if such action is based on a

determination of nationwide scope or effect and

if in taking such action the Administrator finds

and publishes that such action is based on such

a determination. Any petition for review under

this subsection shall be filed within sixty days

from the date notice of such _ pro-

mulgation, approval, or action appears in the

Federal Register, except that if such petition is

based solely on grounds arising after such

sixtieth day, then any petition for review under

this subsection shall be filed within sixty days

after such grounds arise.

(2) Action of the Administrator with respect

to which review could have been obtained under

paragraph (1) shall not be subject to judicial

review in civil or criminal proceedings for

enforcement.

(9) In the case of review of any action of the

Administrator to which the subsection applies,

the court may reverse any such action found to

be —

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

authority, or limitations, or short of statutory

right; or

(D) without observance of procedure

required by law, if (i) such failure to observe

such procedure is arbitrary or capricious, (ii)

the requirement of paragraph (7) (B) has been

met, and (iii) the condition of the last sentence

of paragraph (8) is met.

(10) Each statutory deadline for promulgation

of rules to which the subsection applies which

requires promulgation less than six months after

date of proposal may be extended to not more

than six months after date of proposal by the

Administrator upon a determination that such

extension is necessary to afford the public, and

the agency, adequate opportunity to carry out

the purposes of this subsection.

(11) The requirements of this subsection shall

take effect with respect to any rule the proposal

of which occurs after ninety days after August 7,

1977,

” ” ” ”

§ 7620. Standardized air quality modeling

Conferences

(a) Not later than six months after August 7,

1977, and at least every three years thereafter,

the Administrator shall conduct a conference on

air quality modeling. In conducting such

conference, special attention shall be given to

appropriate modeling necessary for carrying out

part C of subchapter | of this chapter (relating to

prevention of significant deterioration of air

quality).

Conferees

(b) The conference conducted under this

section shall provide for participation by the

National Academy of Sciences, representatives of

State and local air pollution control agencies, and

appropriate Federal agencies, including the

National Science Foundation; the National

Oceanic and Atmospheric Administration, and

the National Bureau of Standards.

100

Comments; transcripts

submit written comments and a verbatim

transcript of the conference proceedings shall be

maintained,

Promulgation and revision of regulations

relating to air quality modeling

(d) The comments submitted and the

transcript maintained pursuant to subsection (c)

of this section shall be included in the docket

required to be established for purposes of

promulgating or revising any regulation relating

to air quality modeling under part C of

subchapter I of this chapter.

APPENDIX G

The Fifth Amendment to the Constitution of the

United States is as follows:

Amendment V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment 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 offense 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,

101

APPENDIX H

On November 10, 1975, EPA proposed an SO plan

for the State of Ohio. 40 Fed Reg 52410 (1975). On

August 27, 1976, EPA promulgated its SO2 plan for

Ohio. 41 Fed. Reg. 36324 (1976). On November 12, 1976,

the Sixth Circuit stayed that August 27th promulgation

and remanded it to EPA. On May 31, 1977, EPA

published its response to that remand. 42 Fed. Reg.

37588. In relevant part, the foregoing regulations are set

forth below. First, however, relevant portions of the

preambles preceeding them are set forth by date.

1, Preamble, May 31, 1977; 42 Fed. Reg. 37588.

Title 40 — Protection of the Environment

CHAPTER I — ENVIRONMENTAL

PROTECTION AGENCH

(FRL 788-7]

SUBCHAPTER C — AIR PROGRAMS

PART 5 — APPROVAL AND PROMULGATION OF

IMPLEMENTATION PLANS

Ohio-Sulfur Dioxide Plan

AGENCY: Environmental Protection Agency.

ACTION; Final rule.

SUMMARY: This final rule is an amendment to the

federally promulgated Ohio State Implementaton Plan

for Sulfur Dioxide. The amendment is a result of

comments made in response to an Order for

102

reconsideration issued by the United States Court of

Appeals for the Sixth Circuit on November 12, 1976 in

Buckeye Power, Inc., et al. v. Environmental Protection

Agency, No. 76-2099 et al.

EFFECTIVE DATE: May 31, 1977.

FOR FURTHER INFORMATION CONTACT:

Jack Chicca, Chief. Air Programs Branch, Region

V, U.S. Environmental Protection Agency, 230

South Dearborn, Chicago, Ill. 60604.

SUPPLEMENTARY INFORMATION:

On August 27, 1976, the U.S. Environmental Protection

Agency promulgated a regulation for the control of

sulfur dioxide in Ohio (41 FR 36324). Corrections to the

plan were made on November 30, 1976 (41 FR 52455).

Thirty-six petitions for review were filed with the

United States Court of Appeals for the Sixth Circuit

pursuant to Section 307 of the Clean Air Act

Amendments of 1970. Following a_ prehearing

conference on motions to stay, the Court on November

12, 1976, entered a stay of enforcement of the regulation

for petitioners and ordered the Agency to (i) reopen the

administrative record, allowing petitioners to further

comment on the regulation, and (ii) amend the

regulations as necessary. This notice sets forth those

amendments to the regulation justified by petitioners’

comments.

The Agency received forty-two individual comments.

The Agency considered all of the comments and

supporting materials and reevaluated the regulation in

light of this information. The Agency determined that

the changes set forth in this action were warranted

based on computational or transpositional errors in the

103

original data base. The Agency’s analysis of the

comments is set forth in a supplemental technical

support document (STSD), dated May 27, 1977. This

analysis reflects the Administrator's judgments on the

appropriateness and meritoriousness (or lack thereof) of

the comments and is incorporated herein by this

reference. The STSD is available at the USEPA Public

Information Reference Unit. Rm. 2922, 401 M Street

SW., Washington, D.C. 20460. It may also be obtained

(or inspected) at the USEPA Region V office, Air and

Hazardous Materials Division, Eleventh Floor, 280 S.

Dearborn, Chicago, Illinois.

The Agency has reconsidered the appropriate

attainment date and compliance schedules for those

sources subject to the period of reconsideration and

attendant stay of enforcement granted by the Court of

Appeals and has determined that the appropriate

attainment date for all petitioners listed in § 52.1375

footnote f should now be three years from June 17,

1977. This date was derived as follows: First, it was

recognized that, under § 110(a) (2) of the Act,

attainment of the primary standards may be no later

than three years from the date of promulgation. For

those sources affected by the Court’s order of November

12, 1976, the Agency considered a promulgation date of

May 27, 1977. It was on this date that the Agency

issued its response to the comments provided for by the

Court’s order, thereby finalizing the rulemaking for

these sources. However, this would have ignored the

fact that the Court’s order delayed the effectiveness of

the regulations for a period extending 21 days beyond

the Agency’s response.

Taking these 21 days into account and given the

unusual circumstances of this case, the Agency

104

concluded that a promulgation date of June 17, 1977,

was appropriate. Three years from this date is June 17,

1980.

For petitioners only, the Agency is removing from the

fossil fuel-fired steam-generating unit compliance

schedule the eight-week requirement for electing the

intended mode of compliance. Instead petitioners will

have 17 weeks to make this election. It is the

expectation of the Agency that this additional time will

enable such sources to make a more informed judgment

as to whether compliance should be achieved through

fuel adjustments, e.g., the burning of low sulfur coal, or

the use of mechanical coal washing or coal blending, or

through pollution control equipment such as scrubbers.

(A similar revision is not required for petitioning

process sources since such sources are not confronted

with the need to make an election.) The removal of this

increment does not affect the ability to comply with the

final compliance date since it is expected that research

and, perhaps, preliminary design work on all viable

options will be taking place while petitioners are

deciding which option to choose. As is the case with

the new attainment date being established for such

sources, the new compliance schedules applicable to

them will not begin to run until June 17, 1977. To reflect

this, a new paragraph has been added to § 52.1882.

In addition, the Agency gives notice to those sources

electing to comply by use of low sulfur fuel that it is the

enforcement policy of the Agency to require sources

that elect to comply with the regulation by switching to

low sulfur coal to show that they will remain in

compliance with Ohio’s State Plan for particulate

matter. The attainment date for particulate matter is

April 15, 1977. This policy is necessitated by the fact

that under certain conditions switching to low sulfur

¥9.

105

coal normally increases particulate emissions and

requires upgrading controls for particulate matter.

The Administrator has determined that the amended

regulation remains consistent with current EPA policies

and meets the goals set forth in section 110 (c) of the

Clean Air Act Amendments of 1970 and Agency

regulations in 40 CFR Part 51.

(42 U.S.C. 1357-5.)

Dated: May 24, 1977.

DOUGLAS M. COSTLE,

Administrator.

Part 52 of Chapter I, Title 40 of the Code of Federal

Regulations is amended as follows:

Subpart KKK — Ohio

2. Preamble, August 27, 1976; 41 Fed. Reg. 36324.

Title 40 — Protection of the Environment

[FRL 605-8]

CHAPTER I — ENVIRONMENTAL

PROTECTION AGENCY

SUBCHAPTER C — AIR PROGRAMS

PART 52 — APPROVAL AND PROMULGATION OF

IMPLEMENTATION PLANS

Ohio-Sulfur Dioxide Plan

On January 30, 1972, the Governor of Ohio submitted

the ‘Implementation Plan for the Control of Suspended

Particulate, Sulfur Dioxide, Carbon Monoxide,

Hydrocarbons, Nitrogen Dioxide, and Photochemical

Oxidents in the State of Ohio” to the Administrator of

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the Environmental Protection Agency. The plan was

adopted by the Ohio Air Pollution Control Board

following public hearings held on January 18, 1972, in

Columbus, Ohio. This plan was submitted pursuant to

Section 110 of the Clean Air Act, as amended, which

requires States to adopt implementation plans to

achieve and maintain the national ambient air quality

standards (40 CFR Part 60), On May 31, 1972 (37 FR

10842), the Administrator approved the Ohio plan with

specific exceptions, Subsequently, amendments were

submitted which permitted full approval of the plan on

September 22, 1972 (37 FR 19806),

On June 28, 1973, the United States Court of Appeals

for the Sixth Circuit decided the case of Buckeye Power

Company, et at. v. EPA, 481 F2d 162, The court vacated

the Administrator's approval of the Ohio plan and

remanded the case to the Agency for compliance with

Section 553 of the Administrative Procedure Act, as

articulated in the court’s opinion, viz., to take

comments, data or other evidence from interested

parties, and to express the basis for ensuing

administrative actions.

On August 27, 1973, the Governor of Ohio withdrew

from the proposed Ohio plan the control strategy and

regulations for control of sulfur dioxide. The remainder

of the plan was proposed on November 15, 1973 (38 FR

31543) and was approved on April 15, 1974 (39 FR

13530), with specific exceptions. Because the Governor

of Ohio withdrew the originally submitted control

strategy and regulations for control of sulfur dioxide,

the plan was disapproved in that respect.

On May 30, 1974, the Governor of Ohio submitted a

proposed sulfur dioxide strategy and regulations to the

Administrator to cure the defects in the Ohio

Implementation plan noted in the April 15, 1974,

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FEDERAL REGISTER, cited above. However, on

September 13, 1974, the Ohio Environmental Board of

Review overturned a portion of these regulations,

thereby rendering same unenforceable. Since the plan

for control of sulfur oxides could no longer be

effectuated as designed by the State, the Administrator

deemed at an ineffective submission and no further

rulemaking action was taken. The Governor of Ohio

formally withdrew the proposed regulations on July 16,

1975,

Where the Administrator determines that a State plan

or portions thereof do not meet the requirements of the

Clean Air Act as amended, and 40 CFR Part 51, he is

directed by Section 110(c) of the Act to propose and

subsequently promulgate regulations setting forth a

substitute implementation plan or portion thereof.

Accordingly, on November 10, 1975, the Administrator

proposed such as alternate plan for the control of

emissions of sulfur dioxide in the State of Ohio (40 FR

52410 et seq). Hearings on the proposed rules were

conducted by the Environmental Protection Agency in

Cincinnati (December 18, 1975), Cleveland (January 6,

1976), Steubenville (January 8, 1976), and Columbus

(january 13 and 14, 1976). Interested parties presented

their comments at these hearings and through the mail.

Each comment was carefully considered. In several

cases, being responsive to comments necessitated a

modification of the proposed regulation, The final rules

as published herein are, however, completely in

character with the original scheme. Each deviation from

the proposed regulation resulted directly from public

comment and/or a more precise, sophisticated method

of analyzing the data.

Set forth below are the substitute sulfur dioxide

control regulations designed to attain and maintain the

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ambient standards for sulfur dioxide in Ohio thereby

correcting the deficiency in the Ohio Implementation

Plan listed above. The maintenance portion of the plan

is bred on projected growth over the next ten years

and the degree of control required of existing sources

reflects the projected emission increase.

Because of the exceptional circumstances that

surround this rulemaking, i.e., the vacation of the

Administrator’s original plan approval and the inability

of the State to thereafter submit an approvable sulfur

dioxide strategy, the rulemaking contemplated herein

effectively constitutes the first federally operative plan

for controlling sulfur dioxide within the State.

Consistent, therefore, with the Clean Air Act's

injunction that primary ambient standards be attained

within three years of plan approval (or such earlier time

as may be practicable), the attainment date promulgated

herein is three years from this effective date of these

regulations. Not all sources will require a full three

years in order to to achieve compliance; in given cases

“expeditious as practicable’’ compliance may require

compliance far in advance of the attainment date.

CONTROL STRATEGY DESCRIPTION

The contro! strategy promulgated today to attain and

maintain the sulfur dioxide ambient air quality

standards in Ohio was developed through both

county-by-county and facility-specific analyses of air

quality ito determine the existence and severity of any

sulfur dioxide problems. Where air quality problems

were identified, appropriate regulations were developed

for specific counties, groups of sources, or individual

sources as necessitated by the extent of the air quality

problem,

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Growth projections were made for all areas through

1985, with the projected impact of such growth included

in the developed control strategy. Within the

eighty-eight counties comprising the _ state,

approximately 150 individual facilities have been

specifically identified for control. In addition,

thirty-three counties were identified as possessing no

existing or potential sulfur dioxide air quality problems

from existing sources inasmuch as existing sources in

those counties do not adversely affect air quality

standards. No controls are being promulgated for

sources located in these counties. However, it should be

noted that, where applicable, sources in these counties

will still be subject to state new source review

requirements, federal new source performance

standards, and non-significant deterioration

requirements.

In response to public comments received regarding

the application of county-wide emission limitations,

which were derived from the analysis of a single

isolated facility or group of facilities in that county,

individual facilities in counties are now being

specifically identified for control. No controls are being

promulgated for the remaining sources in those

counties for the same reasoning applied to the

thirty-three uncontrolled counties referenced above. For

the remaining counties, the promulgated control

strategy establishes specific industrial process

limitations for identified industry categories and/or a

general industrial process requirement. In addition, fuel

combustion sources,are rquired to meet specified

emission limitations as a function of the rated capacity

and location. Certain sources have made representations

to close down within the next 3 years — for these

sources a zero emission rate was used in the dispersion

110

modeling and is promulgated in the following rules.

Should the present or any subsequent owner or

operator desire to continue in operation any such

source, the Administrator will consider a petition to

establish an appropriate emission limitation.

. oF ” *

FUEL COMBUSTION REGULATIONS

In developing the final fuel combustion emission

limitations, the Administrator reexamined the major fuel

burning installations within each county in the state to

reassess the deyree of control required, if any, in light

of public comments received. The final regulations are

expressed in terms of pounds of SO2 emitted per

million BTU of heat input. Again, as with the industrial

process regulations, the emission limitations vary from

county to county and are both general and

facility-specific depending upon the particular pollution

problems, the size and distribution of the facilities, and

the required overall emission reductions.

Several refinements were made to the methodologies

applied to the various urban areas in Ohio, in arriving

at the final emission limitations. For the Youngstown

(Mahoning and Trumbull Counties), Cincinnati

(Hamilton County), and Steubenville (Jefferson County)

areas, the methodology utilized in the development of

the proposed regulations (i.e., the ‘linear rollback’

concept) was modified to more accurately assess air

quality impacts by source category. Individual major

facilities were also examined separately with computer

dispersion models to arrive at the final facility-specific

emission limitations. However, dispersion model

techniques could not be applied cn a broad basis in

these areas due to the effects of the surrounding terrain.

111

In the Cleveland (Cuyahoga, Lake and Lorain

Counties), Akron (Summit County), Toledo (Lucas

County), Dayton (Montgomery County), Columbus

(Franklin County) and Canton (Stark County) areas,

refined, more sophisticated modelling techniques were

applied to develop the final emission limitations. The

revised methodologies were utilized to provide a more

accurate assessment of the impact of source emissions

on both the annual and short term air quality

standards. No emission limitations are being

promulgated for sources with capacities less than 10

million BTU per hour of heat input as these sources

were found to have an insignificant impact upon air

quality.

For all major isolated fuel combustion facilities in

Ohio where no pollutant/plume interaction could be

found between a particular facility and any surrounding

facilities, control options are being included in the final

emission limitations. These options are such that the

source Owner or operator may choose (within a

specified period of time) between a uniform emission

limitation applicable to all stacks at that facility or a

series of stack-specific emission limitat

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