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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978

## Text

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

72

73

82

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

|

iv
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

Se

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?

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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

4

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

ei

5

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

6

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.

=

7

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

8

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

9

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.

10

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.

11

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

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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

13

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.

14

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

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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

16

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.

17

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. »«- 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)

(c) Ohio Edison Co. — Lorain County facilities only.
(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.

21

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.

22

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,

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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

24

levels would be 100 percent for the & hour stand-

otf. 2.
4

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
in

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.

yr

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).

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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

26

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

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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.

28

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

29

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.

30

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

(c) (1) The Administrator shall, after
consideration of any State hearing record,
promptly prepare and publish proposed
regulations setting forth an implementation plan,
or portion thereof, for a State if —

(A) the State fails to submit an
implementation plan for any national

ambient air quality primary or secondary
standard within the time prescribed. . . .

Clean Air Act § 110(c) (1), 42 U.S... § 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

31

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

32

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

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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

34

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

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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

36

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

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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

38

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

Ww
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

39

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

40

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

41

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.).

42

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,

43

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)

44

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

rm

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) *

45

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.

46

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

47

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)).

48

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.

49

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

50

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

;
i
Bs
;
}
a
a
4
i
3
3
4
3

51

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).

52

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

53

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;

54

neat a =a Current US EPA
A
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
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

62

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

63

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

ce

3. yy" M ALLOWABLE MAS RATE T EMISSIO}

ND,
te he
“ > ¥ be. -«
ee " Tt .

64

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

ne

HE

pH mm
Lat Hid ti nd ma th
nit

fs ;
ul
r lig ne

65

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)
an

66
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 @

67

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

68

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

69

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

71

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)

72

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
t
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

73

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

(C) for which air quality criteria had not
been issued before December 31, 1970, but for
which he plans to issue air quality criteria
under this section.

74

(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

(C) any known or anticipated adverse
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

75

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

76

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

77

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;

(C) it includes provision for establishment
and operation of appropriate devices,

78

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;

79

(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

(c) (1) The Administrator shall, after
consideration of any State hearing record,
promptly prepare and publish proposed regu-

80

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

(C) the State fails within 60 days after
notification by the Administrator or such
longer period as he may prescribe, to revise
an implementation plan as required pursuant
to a provision of its plan referred to in
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

81

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

82

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;

83

(B) contrary to constitutional right, power,
privilege, or immunity;

(C) in excess of statutory jurisdiction,
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

84

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-

85

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);

(C) it includes provision for establishment
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

86

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

ce A ss

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fa
tla
‘hy
4
f
yi
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*

87

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-

88

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.

* *. *. *

89

Preparation and publication by Administrator of
proposed regulations setting forth implementation
plan; transportation regulations study and report;
parking surcharge; suspension authority; plan
implementation

(c) (1) The Administrator shall, after
consideration of any State hearing record,
promptly prepare and publish proposed
regulations setting forth an implementation plan,
or portion thereof, for a State if —

(A) the State fails to submit an
implementation plan which meets the
requirements of this section.

(B) the plan, or any portion thereof,
submitted for such State is determined by the
Administrator not to be in accordance with
the requirements of this section, or

(C) the State fails, within 60 days after
notification by the Administrator or such
longer period as he may prescribe, to revise
an implementation plan as required pursuant
to a provision of its plan referred to in
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

90

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

91

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

92

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-

93

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 sourc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1364%3A1. Public record. Not legal advice.