Appendix — Cleveland Electric Illuminating Co. v. Williams

JUL 27 1978

ROBAK, JRCLERK

Supreme Court of the Unit

October Term, 1978

No. WSr1 5 2

THE CLEVELAND ELECTRIC ILLUMINATING

COMPANY,

Petitioner,

VS.

NED. E. WILLIAMS, DIRECTOR

OHIO ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

APPENDIX

GuREN, Merritt, Socc & COHEN

650 Terminal Tower

Cleveland, Ohio 44113

By: MicuHAe. L. HARDY

Davin A. SCHAEFER

and

DonaLp H. HAuseEr, General Attorney

THE CLEVELAND ELECTRIC ILLUMINAT-

ING Co.

P.O. Box 5000

Cleveland, Ohio 44101

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

APPENDIX A

Decision of the Ohio Supreme Court Denying

Petitioner’s Motion for Rehearing

(Dated May 5, 1978)

No. 78-135

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO,

Ciry or COLUMBUS.

CLEVELAND ELECTRIC ILLUMINATING CO.,

Appellant,

vs.

NED. E. WILLIAMS, Dir.,

Appellee.

REHEARING

It is ordered by the court that rehearing in this case is

denied.

A2 A3

No. 78-135

APPENDIX B THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO,

Decision of the Ohio Supreme Court Dismissing Crry or CoLumBuUS

Petitioner’s Appeal and Denying Its Motion

to Certify

(Dated April 7, 1978)

CLEVELAND ELECTRIC ILLUMINATING CO.,

Appellant,

No. 78-135 ve.

THE SUPREME COURT OF OHIO NED E. a Dir., et al.,

THE STATE OF OHIO, ppellees.

City oF COLUMBUS.

MOTION FOR AN ORDER DIRECTING

THE COURT OF APPEALS

FOR FRANKLIN COUNTY

CLEVELAND ELECTRIC ILLUMINATING CO.,

— TO CERTIFY ITS RECORD

VS.

It is ordered by the Court that thi ion i

NED. E. WILLIAMS, Dir., et al., y urt that this motion is overruled

Appellees.

APPEAL FROM THE COURT OF APPEALS

FOR FRANKLIN COUNTY

This cause, here on appeal as of right from the Court

of Appeals for Franklin County, was heard in the manner

prescribed by law, and, no motion to dismiss such appeal

having been filed, the Court sua sponte dismisses the appeal

for the reason that no substantial constitutional question

exists herein.

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APPENDIX C

Decision of the Franklin County Court of Appeals

(Rendered December 8, 1977)

IN THE

COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

CLEVELAND ELECTRIC ILLUMINATING Co.,

Appellant-Appellant,

NORTHERN OHIO LuNG ASSOCIATION,

Appellant-Appellee,

v.

Nep E. WILLIAMs, Director,

Appellee-Appellee,

NORTHERN OHIO LUNG ASSOCIATION,

Appellant-Appellant,

CLEVELAND ELEcTRIC ILLUMINATING Co.,

Appellant-Appellee,

v.

Nep E. WILLIAMs, DIREcTOR,

Appellee-Appellee.

No. 76AP-929

No. 76AP-938

5

DECISION

Rendered on December 8, 1977

GuREN, Merritt, Socc & Conen,

Mr. MIcHAEL L. HARDY and

Mr. James M. FRIEDMAN, of Counsel

650 Terminal Tower,

Cleveland, Ohio 44113,

and

’

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Mr. DonaLp H. HAusSEr, General Attorney,

The Cleveland Electric Illuminating Co.,

Post Office Box 5000,

Cleveland, Ohio 44101,

For Cleveland Electric IIlluminating

Co.

SeGcRETI & TouseEy,

Mr. A. MARK SEGRETI,

169 East Livingston Avenue,

Columbus, Ohio,

For Norther. Ohio Lung Assn.

Mr. WILLIAM J. Brown, Attorney General,

Mr. Davin E. Norturop, Assistant,

State Office Tower,

30 East Broad Street,

Columbus, Ohio,

For Ned E. Williams, Director.

McCormac, J.

This case involves the control of air pollution from

boilers owned and operated by the Cleveland Electric

Illuminating Company (hereinafter called CEI) and the

city of Cleveland at the Lakeshore Electric Generating

Station, located in the metropolitan Cleveland area. In

late 1972, CEI applied for variances permitting them to

continue to operate their boilers in violation of applicable

emission limitations. The Director of the Environmental

Protection Agency (hereinafter called Director) issued

proposed variances to CEI in May 1973, allowing con-

tinued operation in violation of emission limitations to

July 1, 1975. In June 1973, the CEI requested adjudica-

tion hearings on the terms of the variance. In addition,

certain citizens, including the Northern Ohio Lung Asso-

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ciation (hereinafter called NOLA), filed objections to the

applications. The Director consolidated hearings for thir-

teen Ohio utilities and the objectors into one hearing which

commenced on March 4, 1974, nine months after the pro-

posed variances were issued. The hearings were conducted

by attorney examiners, who permitted the utilities by

stipulation with the Director and over objection of NOLA

to present testimony going into the issue of whether Ohio’s

ambient air quality standards and emission limitations were

properly adopted.

The hearings were concluded on July 25, 1975, after

which the hearing examiners submitted their recommen-

dations to the Director. “Objections were filed by the par-

ties and the Director issued his determination on Decem-

ber 12, 1974, setting forth orders with schedules for the

achievements of compliance with emission limitations for

particulate pollutants, There was no order issued for com-

pliance with the emission limitations for sulfur dioxide pol-

lutants, Variances were neither issued nor denied,

CEI and NOLA appealed to the Environmental Board

of Review in January 1975. By order of October 22, 1976,

the Board held that the Director had to issue or deny vari-

ances, and that the Director could not ignore emission

limitations requirements for sulfur dioxide, The Board

further ordered the Director to issue within one month

variances to CEI allowing violations of emission limitations

for particulate pollutants and for SO, pollutants. How-

ever, the Board directed that the variance be effective for

36 more months after its issuance to allow compliance with

SO, emission standards and specified that the Director's

order be modified to give CEI a variance from the particu-

late limitations. Both CEI and NOLA have appealed to

this court from the Board’s order,

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NOLA asserts that the Board erred in granting a vari-

ance to operate a source of air pollution in violation of ap-

plicable air pollution emission standards and regulations

for a period longer than one year and for any time after

April 15, 1977.

CEI asserts that the Board erred in holding that un-

conditional variances cannot be granted. CEI also asserts

that the Board erred in holding that Ohio’s particulate and

sulfur dioxide standards were beyond attack in adjudica-

tion hearings, contending that the Board erred in examin-

ing the Director’s regulations to determine whether they

are reasonable, CEI further contends that the Board ap-

plied incorrect standards of review of the Director’s actions.

The Director asserts that an adjudication hearing is

not a proper forum to challenge the validity of the Direc-

tor’s regulations and that the Board exceeded its power in

granting a variance for more than one year or for a time

extending beyond April 15, 1977.

The first issue is to what extent the Director may issue

or deny variances from his regulations, In this instance,

the Director had promulgated ambient air regulations per-

taining to particulate and SO, emissions. CEI sought a

variance from these regulations.

R. C. 3704.03, pertaining to the powers of the Director

of Environmental Protection, provides in this respect as

follows:

“The director of environmental protection may:

“(H) Issue, revoke, modify, or deny variances

from his regulations, including variances for emissions

in excess of the applicable emission standards, In

issuing, revoking, modifying, or denying such vari-

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ances the director shall hear and give consideration to

evidence that:

“(1) Compliance with such standards and other

regulations is impractical because of conditions beyond

the control of the applicant.

(2) Compliance with such standards and other

regulations would be technically infeasible or econom-

ically unreasonable.

“(3) The emissions of the applicant for which a

variance is requested have little effect on ambient air

quality and do not endanger or threaten to endanger

human health, due to topography, direction and veloc-

ity of prevailing winds, height of emission source, or

other factors,

“(4) Compliance with the standards or other

regulations from which variance is sought would pro-

duce serious hardship without equal or greater benefit

to the public.

“(5) The emissions of the applicant from which

a variance is requested were in conformity with the

emission standards in force at the time a permit was

issued to the applicant under division (F) of this sec-

tion.

“In issuing such variances, the director may also

order the person to whom the permit is issued to fur-

nish plans and specifications and such other informa-

tion and data as the director may require, and to pro-

ceed to take such action within such time as the

director may determine to be appropriate and reason-

able to prevent, control, or abate his existing emissions

of air contaminants. The director shall specify in such

variances that the variance is conditioned upon the

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right of his authorized representatives to enter upon

the premises of the person to whom the variance has

been issued, at any reasonable time and subject to

safety requirements of the person in control of the

premises for the purpose of determining compliance

with this chapter, the rules adopted thereunder, and

the conditions of any permit, variance, or order issued

thereunder.

“The director may hold a public hearing on an ap-

plication for a variance or renewal thereof, at a loca-

tion in the county where the variance is sought. The

director shall give not less than twenty days’ notice

of the hearing to the applicant by certified mail and

cause at least one publication of notice in a newspaper

with general circulation in the county where the vari-

ance is sought. The director shall keep available for

public inspection at the principal office of the environ-

mental protection agency a current schedule of pend-

ing applications for variances and a current schedule

of pending variance hearings. The director shall make

a complete stenographic record of testimony and other

evidence submitted at the hearing. Within ten days

after the hearing the director shall make a written

determination to issue, renew, or deny the variance,

and shall enter his determination and the basis there-

for into the record of the hearing. The director shall

issue, renew, or deny an application for a variance or

renewal thereof within six months of the date upon

which the director receives a complete application with

all pertinent information and data required by the

director.

“No variance shall be issued, revoked, modified,

or denied until the director has considered the relative

interests of the applicant, other persons and property

Ai0

affected by the discharge, and the general public. Any

variance granted pursuant to this section shall be for

a period specified by the director and may be renewed

from time to time on such terms and for such periods,

not to exceed one year each, as the director determines

to be appropriate. No application shall be denied or

variance revoked or modified without a written order

stating the findings upon which denial, revocation, or

modification is based. A copy of the order shall be

sent to the applicant or variance holder by certified

mail.”

To implement R. C. 3704.03(H), the Director has prom-

ulgated regulation EP-32-03, which, effective July 28, 1975,

reads as follows:

“EP-32-03 Variances.

“(A) General Rule. No person shall cause, per-

mit, or allow the operation or other use of any air

contaminant source that emits any air pollutant in

violation of any applicable law, unless a variance in-

cluding an approved compliance schedule has been

applied for and obtained from the Director for such

source, pursuant to the provisions of this rule.

“(B) Applications for Variances

“(1) Applications for variances shall be signed

by the corporate President, Vice President reporting

directly to the President, or highest ranking corporate

officer with offices located in the state; or by an equi-

valently responsible officer in the case of organizations

other than corporations; or, in other cases, by the

source owner or operator; or, in the case of political

subdivision, the highest elected official of such sub-

division. Such signature shall constitute affirmation

All

that the statements made in the application are true

and complete, and shall subject the responsible official

to liability under state laws forbidding false or mis-

leading statements. By his signature, the responsible

officer shall assume responsibility for operating and

maintaining the source and control equipment in a

manner designed to assure compliance with applicable

law and the terms and conditions of any variances

issued to such source.

“(2) Applications for variances shall be submit-

ted to the Ohio EPA within six months of the effective

date of these regulations for existing air contaminant

sources not in compliance with applicable law on that

date. Failure to file a timely application shall be

cause for the Director to issue an order immediately

prohibiting all emissions from the source.

“(3) Applications for variances shall be made

in a form and manner prescribed by the Ohio EPA.

“(4) A separate application for a variance shall

be made for each air contaminant source to which this

rule, EP-32-03, applies.

“(5) Any variance application that fails to con-

tain a compliance schedule or that, on its face, fails to

provide the Ohio EPA with requested information

needed to provide a factual basis for ascertaining com-

pliance with each of the requirements of EP-32-03

(C)(1) may be considered defective and be treated

as if it had not been filed. No hearing need be granted

with respect to such improper applications, which shall

be returned to the applicant without further processing

with an indication of the deficiency.

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“(C) Standards for Granting Variances.

“(1) No variance to operate an air contaminant

source shall be granted unless:

“(a) Such source is not a new source; and

“(b) There is an approvable compliance schedule

for such source. A compliance schedule shall be ap-

provable where it shows to the satisfaction of the

Director that:

“(i) The plan and schedule provide for the

earliest possible compliance by the source; and

“(ii) Any available alternating operating pro-

cedures and interim control measures have reduced or

will reduce the impact of such source on the public

health; and,

“(iii) Good faith efforts have been and will be

made to reduce emissions, or otherwise comply with

any state or local laws, ordinances or regulations; and,

“(iv) The proposed control strategy will bring

the source into compliance with applicable laws, rules

and regulations; and,

“(v) The continued operation of the source does

not endanger or threaten to endanger human health;

and,

“(vi) The compliance schedule contains a date

on or before which the source shall be operated in

compliance with applicable law, rules and regulations.

“(2) Except as provided in Section 3704.12 of the

Ohio Revised Code, no variance shall be granted from

the provision of Rule AP-3-08 governing open burn-

ing.

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“(D) Action on Applications for Variances.

“(1) Prior to taking any action on an application

on a variance, the Ohio EPA may hold a public meet-

ing on the proposed compliance schedule in the man-

ner specified in the Rules of Procedure of the Ohio

EPA, Chapter EP-40.

“(2) In granting, revoking, denying, or modify-

ing any variance, the Director shall state his reasons

therefor in writing. The decision and reasons there-

for shall be made publicly available at the cost of re-

production and handling.

“(3) The Director shall act on an application for

a variance within six months of filing a complete ap-

plication.

“(4) Variances under this rule shall be issued

or denied and may be challenged in accordance with

the provisions of the Rules of Procedure of the Ohio

EPA, Chapter EP-40.

“(E) Interim Reporting. In addition to the other

registration and reporting requirements of all air con-

taminant sources, the holder of a variance shall file

reports every two months or as required by the Ohio

EPA which shall be signed by the applicant for the

variance. These reports shall demonstrate, to the sat-

isfaction of the Director that the source for which the

variance was issued is making consistent progress

and has met all interim deadlines specified in the com-

pliance schedule or specified by the Ohio EPA. If the

responsible official fails to file an interim report, or

if such report fails to satisfy the Director that the

source is making satisfactory progress, then he shall

revoke the variance. The variance holder shall as-

sume full personal responsibility for the completeness

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and accuracy of statements made in the interim report.

False, or misleading statements in an interim report

shall be grounds for revocation of the variance, and

shall subject the variance holder to the sanctions avail-

able under state laws.

“(F) Terms and Conditions

“(1) An approved compliance schedule shall be

incorporated into any variance granted and shall be

a term and condition thereof.

“(2) Variances shall be effective for whatever

period the Director deems appropriate, not to exceed

one year. A variance may be renewed only when the

Ohio EPA is satisfied that the source for which the

variance was granted is making satisfactory progress

toward achievement of the program specified in its

compliance schedule. No variance to operate an air

contaminant source is an air quality control region

designated as Priority I, II or III, in violation of an

emission standard applicable to such region and source

shall be effective after April 15, 1977, except as pro-

vided in the following sentence. No variance to oper-

ate an air contaminant source in an air quality control

region designated as Priority II or Priority III in vie-

lation of AP-3-11(B) (4) or AP-3-12(B) (5) or AP-3-14

(B) (5) shall be effective after July 1, 1978.

“(3) The possession of a variance to operate in

excess of any emission standard, limitation, or regula-

tion of the Ohio EPA shall not relieve the holder of

responsibility to comply with all other applicable law

and regulations of the Ohio EPA,

“(4) Any variance issued by the Director shall

be subject to revision in response to changes in ap-

plicable rules and regulations or other factors affecting

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the compliance of the source or control facility with

the standards or conditions of the original variance.

“(5) The transferee of any variance shall, per-

sonally, assume the responsibilities of the original

variance holder-transferor. The Ohio EPA must be

notified in writing of any transfer of a variance.

“(6) Such air pollution emergency episode plans

as are submitted and approved shall become terms

and conditions of the variance and shall have full

force and effect as a part thereof.

“(7) The Director may include such other terms

and conditions as are necessary to ensure compliance

with applicable law or to gather information about

ambient air quality emissions levels, or other aspects

of the source operation.

“(G) Variance No Defense to Violations. Pos-

session of a variance relieving an air contaminant

source from having immediately to comply with any

requirement of applicable law shall not relieve any

such source of the responsibility to comply with all

other requirements of applicable law.

“(H) Revocation.

“(1) The Director shall revoke a variance if he

determines that any of the terms, conditions, stan-

dards, or requirements of Sections (C), (E), or (F)

of this rule have been or will be violated.

“(2) A variance that has been revoked shall

forthwith be surrendered to the Ohio EPA.”

The first issue is whether the regulations of the Di-

rector are inconsistent with R. C. 3704.03(H). CEI argues

that they are inconsistent since the regulations absolutely

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prohibit variances after April 15, 1977, thus effectively

eliminating the Director’s discretionary power, under R. C.

3704.03(H), to issue, revoke, modify, or deny variances

only after exercising his mandatory duty to consider evi-

dence specified in (H).

At first blush, CEI’s argument appears to be valid.

However, to properly interpret and apply R. C. 3704, we

believe it is necessary to refer to the Federal Clean Air

Act, 42 U.S.C. 1857 et seq., as the Ohio General Assembly

amended R. C. Chapter 3704 in 1971 to bring it into con-

formity with the Federal Clean Air Act. Amended Sub-

stitute Senate Bill No. 370, providing for the Ohio’s amend-

ments, stated that the enactment “is necessary in order

to comply the 1970 Amendments te the Federal Clean

Air Act.” 134 Laws of Ohio, page 650.

In 1970, Congress enacted the Federal Clean Air Act

to compel the states to more aggressively address the per-

vasive problem of poor air quality. For each air pollutant

primary and secondary ambient air quality standards were

to be established. Section 110, 42 U.S.C. Section 1857(c)

(5), required states within nine months thereafter to de-

velop and submit to the administrator of the United States

Environmental Protection Agency an “implementation

plan” which shall result in attainment of primary standards

within three years after approval of the plan, and attain-

ment of more stringent secondary standards within a “rea-

sonable time” thereafter. The expense of not submitting

an approvable plan is to have the Federal Administrator

promulgate federal regulations enforceable by the United

States EPA against sources of air pollution in the state.

As stated by the United States Supreme Court in Train

v. Natural Resources Defense Counsel (1975), 421 US.

60, “a state’s plan must include * * * measures that

may be necessary to insure both timely obtainment and

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subsequent maintenance of national ambient air stan-

dards.” Thus, any state plan or portion thereof is to

be interpreted consistently with the national requirement

of timely attainment of ambient air standards, and with

this end in mind, R. C. 3704.03 was adopted. R. C. 3704.03

(d) authorizes the Director to adopt regulations “prescrib-

ing ambient air quality standards,” which include prescrib-

ing emission standards for air contaminants. By R. C.

3704.03(E), the Director was granted broad authority to

adopt a “plan” which insures attainment of federal and

state ambient air quality standards.

Even though a state, by regulation, may lawfully au-

thorize variances beyond a date for attainment for federal

primary ambient air standards, the Supreme Court has

ruled that such a regulation is lawful only insofar as

such post-attainment variances do not prevent attainment

or maintenance of ambient air quality standards in the

area impacted by the pollution source, and only if such

variance has been approved by the administrator of the

United States EPA as a revision to the state plan. Train

v. Natural Resources Defense Counsel, supra.

R. C. 3704.05(A) flatly prohibits emission of air con-

taminants in violation of applicable regulations unless the

operator of the source has obtained a variance from such

regulations, pursuant to R. C. 3704.03 (H). » 3704.03

(H) authorizes, but does not require, the Director to issue

variances from his regulations to sources of air pollution

which have attained compliance with the applicable emis-

sion standard regulations. Considering the entire context

of R. C. Chapter 3704. and the manner in which it was

enacted, it is reasonable to interpret R. C. 3704.03 (H)

to prohibit issuance of a variance that is in conflict with

the Federal Clean Air Act, in particular, where the vari-

ance defers compliance beyond the time established for

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national enactment, or which prevents timely attainment

of the air quality standards of the act.

Ambient air quality standards were originally to be

obtained by July 1, 1970, but were later extended to

April 15, 1975, and thereafter extended to April 15, 1977.

The regulation adopted by the Director places the Ohio

act in compliance with the national standards giving rise

to adoption of the law in Ohio. Thus, the regulation

of the Board prohibiting any variances beyond April 15

1977, is lawful in accordance with the mandates of Ohio

law, as set forth in R. C. 3704.03, which was promulgated

for the purpose of achieving and maintaining compliance

with national ambient air quality standards. The regula-

tion is not in conflict with the enabling statute and is

not unreasonable on its face, nor has there been a showing

that the regulation pertaining to variances has not been

properly formulated. Thus, the regulation must be applied

until properly amended or repealed. See Kroger Grocery

& Baker Co. v. Glander (1948), 149 Ohio St. 120.

The action of the Board in ordering a variance for

ambient air quality standards to extend for a period longer

than one year or for any time after April 15, 1977, is

contrary to law and erroneous.

Although the question is now moot, since it is after

April 15, 1977, and no further variances are lawful, the

Director acted within the authority of R. C. 3704.03 and

his regulations in attaching conditions to an application

for a variance and in requiring a compliance schedule

therewith. R. C. 3704.03(H) specifically refers to condi-

tions of a variance.

The fact that a variance is denied or is not in force,

either for particulate or SO, emissions, does not leave

CEI or the Director without other remedies that are fair

Alg

and equitable to CEI or to the public. It does not mean

that CEI must be immediately shut down, even if in viola-

tion of applicable ambient air quality standards. The Di-

rector is given discretionary enforcement options and need

not request that an injunction be brought pursuant to

R. C. 3704.06, even though there is a violation of his regula-

tions. Nor is the Attorney General required to proceed

with a prosecution, resulting in a penalty pursuant to

R. C. 3704.99. The Director, however, is given a great

deal more effective enforcement weapon by a holding that

no further variance is possible, which means that the opera-

tor is acting illegally if the emission from his plant exceeds

the applicable air quality regulations. More prompt and

effective measures can be taken for enforcement under

penalty of severe monetary fines or threat of shut down

to achieve, at the earliest possible time, attainment of

properly adopted air quality standards.

NOLA’s four assignments of error are sustained.

The next issue is whether the Board may amend the

Director’s regulations or establish new regulations in an

appeal from an adjudication hearing in relation to an ap-

plication for a variance from those regulations. The Di-

rector contends that a challenge to an administrative reg-

ulation is beyond the scope of an adjudication hearing.

We agree with the Director in this respect.

Persons adversely affected by the promulgation of

a regulation by the Director may appeal to the Board,

pursuant to R. C. 3745.04. Since, in that situation, no

adjudicatory hearing has been conducted by the Director,

but, rather, a legislative proceeding; the hearing before

the Board is de novo pursuant to R. C. 3745.05. In this

case, no appeal was taken to the Board from the Director’s

promulgation of particulate and SO, regulations. On the

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other hand, CEI and other utilities sought a variance from

the regulations. The Director’s hearing was adjudicatory

or quasi-judicial, rather than rulemaking or quasi-legis-

lative. An appeal then was taken to the Board from

the Director’s ruling on the application for variances.

In the variance hearing, evidence may be adduced

by the parties concerning the unreasonableness of the stan-

dards or regulations as applied to the applicants, as set

forth in R. C. 3704.03(H). However, the adjudication hear-

ing, upon the application for a variance, cannot be used

as a vehicle for amendment or revision of the regulations

or for the purpose of establishing new regulations. More-

over, the Board cannot use the appeal from the variance

order of the Director to adopt new rules or regulations,

or to modify the rules and regulations adopted by the

Director. The regulations are not so subject to attack

in a variance proceeding either before the Director or

on appeal therefrom to the Board. Regulations may be

adopted, modified or amended only in a quasi-legislative

or rulemaking proceeding.

CEI sought variances on the basis that they would

be unable to attain compliance with the emission regula-

tions within the time prescribed in the regulations, and

further contended that the emission regulations were un-

reasonable, unlawful and, in some cases, unnecessary.

An issue posed by the appeal of CEI is whether the

sulfur dioxide or particulate regulations are subject to

challenge in the variance proceeding, which is adjudicatory

in nature. The Director held and the Board concurred

that the regulations were not so subject to challenge. The

Board further held that the Director’s order requiring

compliance with particulate emission standards by April

15, 1977, is reasonable and lawful. We agree with that

holding.

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As to sulfur dioxide standards, all parties apparently

agree that the regulations adopted by the Board are out

of date and should no longer be applicable to Ohio indus-

tries and that new sulfur dioxide regulations need to be

adopted. However, as previously stated, administrative

regulations cannot be attacked in an adjudicatory hearing.

R. C. 119.11, which is relied upon by CEI, has been repealed

effective September 30, 1976, following holdings of uncon-

stitutionality by the Supreme Court. Fortner v. Thomas

(1970), 22 Ohio St. 2d 13.

Thus, the Director should promptly promulgate sulfur

dioxide regulations that are reasonable, rather than leaving

in effect unenforceable standards that will be, as a practical

matter, subject to successful challenge in adjudicatory pro-

ceedings although not subject to modification or amend-

ment by that method.

CEI’s first assignment of error is overruled.

CEI’s fourth and fifth assignments of error are also

overruled. The issue of a compliance schedule is now

moot as no further variance can be granted after April

15, 1977. Moreover, the Director is required to follow

his regulations, which require a compliance schedule to

be submitted with an application for a variance.

CEI’s second, third and sixth assignments of error

are sustained. The Board did improperly substitute its

judgment for the Director. Furthermore, it failed to con-

fine its hearing to the record as certified by the Director,

as required by R. C. 3745.05, since an adjudication hearing

had been conducted by the Director. The Board was a

reviewing body in the appeal herein and not a de novo

fact finder. Its function was to determine whether the

Director’s order was lawful and reasonable.

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NOLA’s four assignments of error are sustained. A

variance to operate a source of air pollution in violation

of applicable emission standards can be for a period of

time not to exceed one year, and in no instance can extend

beyond April 15, 1977. CEI’s first, fourth and fifth assign-

ments of error are overruled, and its second, third and

sixth assignments of error are sustained.

The order of the Board is reversed, and the case is

remanded to the Board for further procedure consistent

with this decision.

STRAUSBAUGH, P.J., and HoLMEs, J., concur.

A23

APPENDIX D

Decision of the Ohio Environmental Board

of Review

(Issued October 22, 1976)

Case No, EBR 75-7

BEFORE THE ENVIRONMENTAL BOARD OF REVIEW

STATE OF OHIO

NORTHERN OHIO LUNG ASSOCIATION

and

THE CLEVELAND ELECTRIC

ILLUMINATING COMPANY

Appellants,

v.

NED E. WILLIAMS, DIRECTOR OF

ENVIRONMENTAL PROTECTION

Appellee.

FINDINGS OF FACT AND FINAL ORDER

I.

On January 13, 1975 several appeals were filed with

the Environmental Board of Review concerning the Find-

ings and Orders of the Director of Environmental Protec-

tion which were issued on December 12, 1974. Prior to

addressing the appeal before this Board a brief description

of the proceedings before the Director and his resulting

order are appropriate. The Director’s Order concerned

numerous stationary sources owned by various electric

po\er companies.

A24

The proceeding below resulting in the Director’s De-

cember 12, 1974 Order was an adjudication hearing held

in response to the applications filed by the various utility

companies for an adjudication hearing to contest certain

conditions imposed by the Director in the variances and

operating permits issued to the utilities in May of 1973.

In addition to thirteen utilities, four citizens filed objections

to the Director’s Order pursuant Section 3745.07 of the

Revised “ode. Among these citizens were Mrs. Patricia

Smith representing the Air Conservation Committee of

the Northern Ohio Lung Association who objected to vari-

ances issued CEI and the City of Cleveland. The hearings

in this consolidated proceeding commenced on March 4,

1974, and concluded on July 25, 1974. The transcript of

the testimony is contained in approximately 7,000 pages.

And there was submitted another several thousand pages

of exhibits and briefs by the various parties. These hear-

ings were presided over by a panel of three hearing exam-

iners who issued their report and recommendations on

September 6, 1974.

The issues raised by the utility applicants at the hear-

ings were: (1) whether or not Ohio’s ambient air quality

standards and emissions regulations take into account con-

siderations such as health effects, dispersion of pollutants,

and other considerations mandated by state and federal

law; (2) whether or not the measured ambient sulfur

dioxide levels indicate a need for emission control in many

parts of the states; (3) whether or not flue gas desulfuriza-

tion systems have been adequately demonstrated; (4)

whether or not sufficient quantities of limestone are avail-

able to permit widespread operation of flue gas desulfuriza-

tion systems; (5) whether or not sludge disposal makes

flue gas desulfurization systems unreasonable and environ-

mentally unsound; and (6) whether or not tall stacks

A25

are a reasonable means of achieving compliance with state

and federal air pollution control statutes. The Hearing

Panel included in its approximately 420-page report find-

ings of fact and conclusions of law. The following recom-

mendations were also given:

1. The Hearing Panel recommends that the Director

adopt the present Federal primary annual average

and twenty-four hour maximum ambient air qual-

ity standards for sulfur dioxide and particulate mat-

ter and repeal Ohio’s existing ambient standards

for those pollutants.

2. The Hearing Panel recommends that the Director

adopt a county by county classification and realis-

tic emission limitations upon emissions of sulfur

dioxide and particulate matter based upon accurate

ambient data for each county and the most sophis-

ticated diffusion modeling techniques presently

available. Existing priority classifications and

emission regulations for these pollutants should be

repealed.

3. The Hearing Panel recommends that Regulation

AP-7-06 be repealed.

4. The Hearing Panel recommends that the Director

repeal Regulation EP-10-06 and adopt a new regula-

tion clearly expressing the means for attaining the

objectives which the present regulation seeks to

attain.

5. Recommendations 1-4 should be implemented

through utilization of ORC Chapter 119 rule-mak-

ing procedures.

6. The Hearing Panel recommends that no compliance

orders be issued as a result of this proceeding until

Recommendations 1-4 have been implemented,

A26

7. In the event that the Director should determine

that installation of FGD systems appears necessary

at any plant involved herein, the Hearing Panel

recommends that the Director obtain information

regarding the Bruce Mansfield and NIPSCO scrub-

ber systems in 1976 before issuing the draft order

attached hereto.

8. In the event that the Director determines that par-

ticulate control measures must be implemented

now, the Hearing Panel recommends issuance of

the draft order attached hereto.

The Director issued on December 12, 1974, “Findings

and Orders” which consisted of four parts plus another

fifth part captioned “Orders”. The first part dealt with

the history of the case. The second part was concerned

with whether or not there was an adequate demonstration

of control technology; included in this part is a discussion

of the criteria the Director used to ascertain whether or

not there is adequate control technology and also given is

the bases for these criteria. Part Two of the Director's

“Findings and Orders” also contains the rejection of what

is called a conclusion of law, No. 15 in the Hearing Panel’s

report (Director’s Record, Item 3, at 410). This conclusion

states:

15. Flue gas desulfurization is not a presently

available, technologically feasible method of SO, con-

trol which may be employed by the Ohio electric

utilities,

The Director also rejected the Hearing Panel’s Recom-

mendation 7 which is given above. Part Three of the

Director’s Order contains a discussion of the Director’s

conception of the scope of the adjudication hearings, a

discussion of the applicability of certain of his regulations

A27

and a statement that Recommendation 8 of the Hearing

Panel is accepted in general terms. Part Four contains

a lengthy argument with several citations from case law

and statutes supporting the proposition that the Director

must enforce the regulations for particulate emission limi-

tations. The last portion of the Director's “Findings and

Orders” entitled ORDER will be discussed in Section VII.

II.

Appeals from the Director's Order were filed before

this Board by the Northern Ohio Lung Association con-

cerning the Cleveland Electric Illuminating Company and

the City of Cleveland, Division of Light and Power. (Case

Numbers 73AP-120 and 73-A-V-127 respectively). Appeals

were also brought by the Cleveland Electric Illuminating

Company, Buckeye Power, Inc., the Cincinnati Gas & Elec-

tric Company, Columbus and Southern Ohio Electric Com-

pany, Dayton Power and Light Company, Ohio Edison

Company, Ohio Power Company, Ohio Valley Electric Cor-

poration and the Toledo Edison Company (Case No. EBR

75-5), by the City of Painesville (Case No. EBR 75-3),

and by East Palestine Light and Power Company and

Dover Municipal Power Plant (Case No. EBR 75-6). Since

there was one Record of Proceedings out of which all

of these appeals arose and since the Cleveland Electric

Illuminating Company was named Appellant in one case

and Appellee in another case, the Board pursuant to Reg-

ulation EBR-§3-22 ordered the cases consolidated into

one appeal, Case No. EBR 75-3-5-6-7.

The Board received the following motions for volun-

tary dismissal: on March 25, 1975 from Appellant, Dover

Municipal Power Plant (Board’s Record Item UU); on

April 2, 1975 from Appellant, Columbus and Southern Ohio

Electric Company referring to 73-AV-137 ( Picway Gener-

28

ating Station), 73-AV-138 (Conesville Generating Station),

and 73-AV-139 (Poston Generating Station) (Board’s Rec-

ord Item VV); on April 3, 1975 from Buckeye Power,

Inc., The Cincinnati Gas and Electric Company, Dayton

Power and Light Company, Ohio Power Company, Ohio

Valley Electric Corporation, and the Toledo Edison Com-

pany, and the Cleveland Electric Illuminating referring

to 73-AV-146 (Ashtabula Plant), 73-AV-147 (Avon Lake

Plant) and 73-AV-148 (Eastlake Plant) (Board’s Record,

Item ZZ); on April 11, 1975 from the City of Painesville

(Board’s Record Item RRR). The Board pursuant to EBR-

§3-24 granted the above motions for voluntary dismissal

with prejudice, (Board’s Record, Items YY, QQQ and TTT).

Both the City of Cleveland and the Cleveland Electric

Illuminating Company, named party-Appellees by the

Northern Ohio Lung Association, moved to be dismissed

stating as their grounds for dismissal that they did not

substantially support the Director of Environmental Pro-

tection (Board’s Record, Items C and NN). Section 3745.04

of the Revised Code states that “[t]he person so appealing

to the Board shall be known as Appellant, and the Direc-

tor and any party to a proceeding substantially supporting

the findings from which the appeal is taken shall be known

as Appellee ...”. Finding that the City of Cleveland

and the Cleveland Electric Illuminating Company did not

support the Director, the Board ordered that these two

parties be dismissed as party-Appellees, (Board’s Record,

Items QQQ and SSS). Thus, the remaining parties-Appel-

lants to the consolidated appeal are Northern Ohio Lung

Association (hereinafter NOLA), Cleveland Electric Ilu-

minating Company with regard to its Lake Shore Plant

(hereinafter CEI) and Ohio Edison. The Board separated

Ohio Edison’s appeal (Case No. EBR 75-5) from the consoli-

dated case on August 31, 1976 because there were hearings

A29

to be had concerning the Ohio Edison appeal which did

not concern the CEI and NOLA appeal.

When giving consideration to the assignments of error

presented by NOLA it is appropriate to note that although

the City of Cleveland did dismiss itself as an Appellee,

that portion of the Director’s Order of December 12, 1974,

which deals with City of Cleveland, Division of Light

Power, Case No. 73-AV-127 had been timely appealed to

the Board by NOLA. In the City’s motion to be dismissed

it is stated that:

The essence of the appeal by the Northern Ohio Lung

questions the duties and discretion of the Director.

In no manner whatsoever does the City of Cleveland

have an interest in this matter as an Appellee. The

Appellant here states that he has been aggrieved by

the actions of the Director. No reference is made

of any aggravation caused by the City of Cleveland,

and the Appellant’s notice of appeal is devoid of any

reason which would necessitate this Board in joining

the City of Cleveland as a party Appellee.

However, as NOLA has pointed out in its statement of

clarification as to the City of Cleveland (Board’s Record,

Item AAAAAA), “. . . the City cannot be relieved from

the legal requirements of this Board’s ruling, or the Direc-

tor’s Order, merely by not participating in the appeal

of an order relating to its authority to operate its boilers.”

In other words, the Board can at this time rule whether

or not the Director’s order concerning the City of Cleve-

land’s plant is lawful and reasonable. Although CEI was

dismissed as an Appellant, the Board’s ruling with respect

to NOLA’s assignment of erro: will affect the CEI plant

as well as the City of Cleveland pliant.

A30

Looking again to the Director’s Order, with respect

to CEI’s Lake Shore Plant, the order states:

Pursuant to Chapters 119 and 3704(S) of the Ohio Re-

vised Code the Director makes the following orders:

(A) By April 15, 1975, submit a program and

schedule for compliance with the particulate

regulations of Chapter AP-3 that demon-

strates compliance as quickly as possible and

before April 15, 1977.

(B) By June 15, 1975, submit signed contracts

for the purchase and delivery as quickly as

possible of all necessary control equipment

for those sources needing control equipment

under the programs and schedules submitted

under the requirement of paragraph (2)

above.

(C) By April 15, 1977, attain final compliance

with all particulate regulations of Chapter

AP-3 of the Regulations of the Ohio Environ-

mental Protection Agency. (Director’s Rec-

ord, Item 2 at 33)

As to the control of sulfur oxide emissions which may

be applicable to the Lake Shore Plant of CEI and the City

of Cleveland plant the Director stated that because there

is an absence of ambient air quality data in the record

showing widespread and serious violations of the ambient

air quality standards for sulfur oxides, the applicants have

shown unreasonableness in the application of the regula-

tions. Until new ambient air quality data is collected and

analyzed showing violations of the regulations by these

sources, the Director said he will not require the Electric

A31

Utility Companies to implement sulfur oxide control. (See

Director’s Record, Item 2 at 21)

III

As mentioned above, the object of both CEI’s and

NOLA’s appeals is the Director’s order of December 12,

1974. There are three assignments of error listed in

NOLA’s Notice of Appeal (Board’s Record, Item 75-7(A));

(1) The Director failed to issue orders or a variance

with a compliance schedule for the sources in question

which would result in attaining the degree of reduction

of sulfur oxide emissions required by applicable law;

(2) The action of the Director was not supported by

reliable probative and substantial evidence and is unrea-

sonable; and

(3) The action of the Director was not in accordance

with state and federal law.

The utilities, including CEI, filed a Joint Notice of

Appeal which presented fourteen assignments of error.

(Board’s Record, Item 75-5(A)). These assignments of

error, as they apply to CEI may be broken down into four

categories: (1) The Director acted arbitrarily, unreason-

ably, in violation of Regulation EO-40-26 and Sec. 119.09

of the Revised Code, and otherwise unlawfully by failing

to include findings of fact and conclusions of law and the

reasons therefore with respect to all the hearing exam-

iner’s findings, conclusions and recommendations which

were rejected; (2) the Director erred and acted arbitrarily,

unreasonably and unlawfully in rejecting the hearing ex-

aminer’s recommendation for the rescission and amend-

ment of AP-3-02 (prescribing emission limitations for

sulfur dioxide), and the Director erred and acted arbi-

v4

A32

trarily, unreasonably and unlawfully by issuing orders

requiring compliance with the particulate emission limi-

tations prescribed by AP-3-11 prior to the rescission and

amendment of said regulation; (3) the Director acted arbi-

trarily, unreasonably and in violation of Section 3704.03

(H) of the Ohio Revised Code by failing to issue CEI an

appropriate variance from the sulfur oxide emission regu-

lations based on the record and the hearing examiner’s

findings and conclusions; and (4) the Director acted arbi-

trarily, unreasonably, and in violation of Section 3704.03

(S) and otherwise unlawfully in issuing compliance orders

with respect to Regulation AP-3-11 and in failing to issue

appropriate variances therefrom. (See also Board’s Record,

Items MM and AAAA).

CEI stated, that while not wishing to waive the issues

raised in the Joint Notice of Appeal or raised both in the

hearings and briefs before the Director, that it wished to

address the following issues:

1. Whether, in the light of the extensive evi-

dence in the record supporting the Hearing Panel’s

findings and recommendations for revision of the

State’s sulfur oxide and particulate ambient air quality

standards and emission limitations, it is lawful or rea-

sonable for the Director to fail to initiate appropriate

and proper rulemaking to revise said standards and

limitations consistent with the overwhelming evidence

in the record.

2. Whether, in view of the extensive evidence

demonstrating compliance with the criteria of Section

3704.03(H), it is lawful or reasonable to fail to issue

to The Illuminating Company appropriate uncondi-

tional variances from the sulfur oxide emission regu-

lations.

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3. Whether, in light of the extensive evidence

supporting the Hearing Panel’s recommendation that

the particulate emission regulations should be repealed,

it is reasonable or lawful to require compliance with

the particulate emission regulations by April 15, 1977.

4. Whether, in light of the extensive evidence of

the record warranting and mandating issuance of

variances from the particulate emission regulations, it

is lawful or reasonable to refuse to issue to The Il-

luminating Company appropriate variances therefrom

and compliance orders with respect thereto. (Board’s

Record, Item MM)

IV

The proceeding before the Board was a record hear-

ing. During the proceedings before the Board, CEI had

argued that the Director violated, inter alia, Section 119.09

of the Revised Code and therefore the Director’s Order

should be vacated and remanded “. . . for his expeditious

findings of fact and conclusions of law preparatory to

issuance of final orders in accordance with law on Appel-

lants’ variance applications, including those of The Cleve-

land Electric Illuminating Company for the Lake Shore

Plant.” (Board’s Record, Item AAAA at 2). The Board

conducted a hearing concerning the issue of whether or

not the Director complied with Section 119.09 of the Re-

vised Code and the possible consequence of his alleged non-

compliance. (Board’s Record, Item CCCC).

The compliance with Section 119.09 of the Revised

Code by the Director can, by law, determine whether or

not the hearing to be held before the Board is to be de novo.

Section 3745.05 of the Revised Code states in pertinent

part:

ea St re

A34

In hearing the appeal, if an adjudication hearing

was conducted by the director of environmental pro-

tection in accordance with sections 119.09 and 119.10

of the Revised Code, the board is confined to the

record as certified to it by the director. The board

may grant a request for the admission of additional

evidence when satisfied that such additional evidence

is newly discovered and could not with reasonable

diligence have been ascertained prior to the hearing

before the director. If no adjudication hearing was

conducted in accordance with sections 119.09 and

119.10 of the Revised Code, the board shall conduct

a hearing de novo on the appeal.

To be noted in the above portion of the statute is the em-

phasis upon the requirement that the hearing must be in

accordance with Section 119.19 of the Revised Code. Sec-

tion 119.09 of the Revised Code, provides that for the pur-

pose of conducting an adjudication hearing an agency may

require the attendance of witnesses and the production

of documents, it may take depositions of witnesses, can

upon the request of a party who must be given timely law-

ful notice according to section 119.06 and 119.07 O.R.C.,

issue subpoenas; and agency may postpone or continue

the hearing and during the adjudication hearing, if the

record may be the basis of an appeal to court, a steno-

graphic record of the hearing shall be made. Section 119.09

of the Revised Code also allows the appointment of a hear-

ing examiner to conduct the hearing and to prepare a

report which contains findings of fact, conclusions of law

and recommendations; a copy of the written report and

recommendation is to be served upon the parties, if the

agency does not accept the recommendations, the reasons

for such nonacceptance must be included in the record of

proceedings. In the present context, the two most im-

A35

portant aspects of Section 119.09 of the Revised Code are

the requirement for a hearing with proper notice, with

the opportunity to be heard and the requirement that the

agency enter into the record of proceedings the reasons

for rejecting the hearing examiner’s recommendations.

It is evident on the face of Section 3745.05 of the Ohio

Revised Code that only those aspects of Section 119.09

dealing with the attributes of a lawful adjudication hear-

ing; notice and opportunity to be heard, are determinative

as to whether or not the Board is confined to the record

as certified to it by the Director. Based on the evidence

and record before the Board, it is the opinion of the Board

that the present proceedings are confined to the record

certified by the Director and such additional evidence

which the Board may have allowed under Section 3745.05.

V

The three assignments of error given by NOLA in

its Notice of Appeal are interrelated and have been com-

bined in the quotation from their brief given below.

The Northern Ohio Lung Association submits the fol-

lowing Assignment of Error for review by the Board:

The Director of. Environmental Protection erred

in failing to apply Regulation AP-3-14 which provides

sulfur dioxide emission standards to the utilities’ fuel

burning equipment and in permitting continued oper-

ation of such equipment without compliance with said

Regulation, and, therefore, his action is unlawful and

should be modified by the Board. (Board’s Record,

Item SS).

There is no doubt that the order of December 12, 1974,

does not call for the application of Regulation AP-3-14.

The Director stated in his Order as follows:

A36

In most cases, the evidence presented by the Joint

Applicants and the discussion of it by the Hearing

Examiners is quite complete as to the application of

sulfur oxides emissions limitations to particular fa-

cilities. Because there is an absence of ambient air

quality data in the record showing widespread and

serious violations of the ambient air quality standards

for sulfur oxides, the requirement that applicants must

show unreasonableness in the specific application of

regulations has been met. Until new ambient air qual-

ity data is collected and analyzed showing violations

of the regulations by these sources, it is inappropriate

to require use of sulfur oxide control by these sources,

Thus, for the above reasons, the Director will not

require the Electric Utility Companies to implement

sulfur oxide control. (Director’s Record, Item 2 at 21)

NOLA’s contention was that “. .. [u]nless the rule is

unreasonable on its face or in clear conflict with the en-

abling statutes, the agency must apply it as formulated

until it is properly amended or repealed. The Kroger

Grocery & Bakery Co. v. Glander, . . .” 149 Ohio St. 120,

77 N.E.2d 921, 924 (1948). Therefore, in order to deal the

assignment of error presented by NOLA, it is necessary to

examine the record to ascertain if the regulations in ques-

tion conform with the above conditions,

It is to be noted that there are two types of regulations

which are explicitly concerned with sulfur dioxide (here-

inafter SO,). The first type of regulation dealing with

SO, is that which sets ambient air quality standards,

Regulation AP-3-02. The second type of regulation which

explicitly refers to SO, are emission standards, Regulations

AP-3-13 and AP-3-14. The Board will be concerned only

with the latter of these two regulations insofar as Regula-

tion AP-3-14 controls the emission of SO, from the fuel-

burning facilities of CEI and the City of Cleveland. The

A37

phrase “ambient air’ means the air that is outside—the

air which surrounds the buildings and people—but does

not refer to air inside buildings or other structures. To be

distinguished from ambient air standards are emission

standards which set the allowable rates at which a given

source may emit pollutants into the air. The emission

standard ir most often stated in terms of a quantity per

unit time. For example, Regulation AP-3-14, is written

such that when the capacity of the fuel-burning source is

taken into account, only a certain number of pounds of

sulfur dioxide per hour may be emitted.

Regulation AP-3-02 states in pertinent part:

(B) Ambient air quality standards for sulfur

dioxide applicable throughout the area shall be as

follows:

(1) The maximum annual arithmetic mean con-

centration shall not exceed sixty (60) micrograms per

cubic meter (0.02 parts per million by volume).

(2) The maximum twenty-four (24) hour con-

centration not to be exceeded more than once per year

shall be two hundred and sixty (260) micrograms per

cubic meter (0.10 parts per million by volume).

(Adopted January 28, 1972; effective February 15,

1972).

The term “area” in the above regulation means the State

of Ohio as defined in Regulation AP-2-01 (I).

Prior to the adoption of the regulation in the above

form by the Air Pollution Control Board on the date

indicated, the Air Pollution Control Board had adopted a

much more stringent standard of the maximum annual

arithmetic mean concentration which would not exceed

forty (4) micrograms per cubic meter. The corresponding

federal ambient air quality standards is eighty micrograms

A38

per cubic meter. Thus it is evident that the present state

standard are a compromise between the much more strin-

gent standards originally adopted and those adopted by

the federal EPA. That there were rational and lawful

reasons for the state to adopt more stringent standards

than those adopted by the federal EPA can be shown by

the following analysis.

The Director, and the Air Pollution Control Goard

before him, were obligated to comply with the Federal

Clean Air Act Amendments of 1970 because Senate Bill 370

which became effective December 23, 1971, and which

amended Chapter 3704 of the Ohio Revised Code, stated in

part:

SECTION 4. This act is hereby declared to be an

emergency measure necessary for the immediate pres-

ervation of the public peace, health, and safety. ‘T'ne

reason for such necessity lies in the fact that imme-

diate action is necessary in order to comply with the

1970 amendments to the Federal Clean Air Act.

Therefore this act shall go into immediate effect,

Among the various provisions of the Federal Act is Section

109 which provides for the adoption of national ambient

air quality standards and Section 116 which provides the

power for the states to adopt more stringent ambient air

quality standards and emission standards than those adopted

by the Administrator of the U.S. EPA. Section 109 of the

Clean Air Act states in pertinent part:

SEC. 109. (a)(1) The Administrator—

(A) within 30 days after the date of enactment

of the Clean Air Amendments of 1970, shall publish

proposed regulations prescribing a national primary

ambient air quality standard and a national secondary

ambient air quality standard for each air pollutant for

which air quality criteria have been issued prior to

such date of enactment; and

A39

(B) after a reasonable time for interested per-

sons to submit written comments ... shall by regula-

tion promulgate such proposed national primary and

secondary ambient air quality standards with such

modifications as he deems appropriate.

(b)(1) National primary ambient air quality

standards, prescribed under subsection (a) shall be

ambient air quality standards the attainment and

maintenance of which in the judgment of the Admin-

istrator, based on such criteria and allowing an ad-

equate margin of safety, are requisite to protect the

public health. Such primary standards may be re-

vised in the same manner as promulgated.

The important point in this statute is that the ambient air

quality standards are to be “.. . based on such criteria and

allowing an adequate margin of safety...” and “... are

requisite to protect the public health.”

The Criteria Document referred to above is authorized

by Section 108(a) of the Clean Air Act which says in part:

. . . 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 pres-

ent in the atmosphere, may interact with such pollutant

to produce an adverse effect on public health or wel-

fare; and

(C) any known or anticipated adverse effects on

welfare.

A40 A4l

The Federal Criteria Document for SO, concluded with

the following summary or resume:

~ fl A COMPARISON OF TIE AIR QUALITY CRITERIA FOR SULFUR OXIDES

SUMMARY WLITIl THE STATE AND FEDERAL STAIDAYDS AND CORRFES-

In addition to health considerations, the economic PONDING MARGINS OF SAFETY, I! MICROGRAM PFR CUBIC METER.

and aesthetic benefits to be obtained from low ambient

concentrations of sulfur oxides as related to visibility,

soiling, corrosion, and other effects should be consid-

24 Hour Stendards

ered by organizations responsible for promulgating Crtvesth Federal Margin State Margin

ambient air quality standards. Under the conditions Docurent Standard © alesis ri

ey: . . Summary Safety Safety

prevailing in areas where the studies were conducted,

adverse health effects were noted when 24-hour average (a) (b) (<)

levels of sulfur dioxide exceeded 300 ug/m* (0.11 ppm) : we iil

for 3 to 4 days. Adverse health effects were also _ —

noted when the annual mean level of sulfur dioxide

exceeded 115 ug/m* (0.04 ppm). Visibility reduction

to about 5 miles was observed at 285 ug/m* (0.10 ppm);

adverse effects on materials were observed at an

annual mean of 345 ug/m* (0.12 ppm); and adverse arenas. AvrRace

effects on vegetation were observed at an annual mean

of 85 ug/m* (0.03 ppm). It is reasonable and prudent Crienets Fedéral Margin State Margin

to conclude that, when promulgating ambient air Docuzent Standard: of stentees el

. ° ‘ . Summary Safety Safety

quality standards, consideration should be given to

requirements for margins of safety which would take 35 80 35/302 60 55/482

into account long-term effects on health, vegetation,

and materials occurring below the above levels. (Air

Quality Criteria for Sulfur Oxides, February, 1969,

National Air Pollution Control Administration, at 10-

22) (a) These values were talzen from the Résuné of che Air Quality Criteria for Sulfur

Oxides (Vetruary, 1969) National Air Pollution Control Administration ot 10-22

and these values pertain only to health effects and not to the lower Values

where visibility is reduced or adverse effects on vegetation occur.

(ug/m*® means micrograms per cubic meter, ppm means

parts per million.) The following table summarizes in

numerical fashion a comparison between the data given in

the criteria document and the state and federal standards.

The table also indicates the margin of safety, if any, both

in terms of absolute values and percentages.

SEE TABLE ATTACHED

(b) 4OC.F.R. §50.4.

(c) Ohio EPA Regulation AP-3-02.

Ad42

The quotation from the Criteria Document and the table

above clearly show that the promulgation of the state

standards was both lawful and reasonable witixin the con-

text of the federal law. In fact, it can be argued that

the requirement of a margin of safety is fulfilled by the

state standards but is not fulfilled by the federal standards.

Developments since the promulgation of the state am-

bient air standards have not detracted from the basis of

these standards but rather have tended to bolster them.

From a legal basis, the United States Supreme Court has

ruled that on the basis of Section 116 of the Clean Air

Act that the States may promulgate more stringent stan-

dards than the federal standards. Union Electric Company

v. EPA, 96 Sup. Ct. 2518, 2528 (1976). Also, the evidence

presented before the Hearing Panel by the Director sup-

ports the reasonableness of the judgment of the Ohio Air

Pollution Control Board in promulgating state standards

with larger margins of safety than those associated with

the federal standards. Some examples of this evidence

are as follows. Dr. Stephen Ayres, Physician-in-Chief at

St. Vincent Hospital in Worchester, Massachusetts, and

Professor of Medicine at the University of Massachusetts

School of Medicine, testified that a study done in Barber-

ton, Ohio, indicated that sulfur oxide levels between 70

to 100 micrograms per cubic meter on an annual basis

resulted in adverse health effects for children. (Transcript

of the hearing before the Hearing Panel at 5989, 5990).

(The transcript before the Hearing Panel will hereinafter

be denoted as Tr.) Dr. Ayres was asked if he agreed

with the conclusion in OEPA Exhibit 14 at 8, that, “A pres-

ent knowledge of health effects appears to afford no com-

pelling basis for suggestions to either raise or lower the

current mandated primary air quality standards at this

time.” Dr. Ayres’ answer was:

A43

Not only do I agree, it is the opinions expressed

by the National Academy of Science are very similar

to previously held opinions of my own and confirm

the opinions of other respected scientists that I have

conversed with. I would like to emphasize that they

said in their report that there is no compelling basis

to lower the standards at the present time. I think

it is very important to stress, because we really do

not know if the level of 80 micrograms per cubic

meter is an adequately safe standard. I have some

reservations personally and would feel that perhaps

additional work will suggest the standards should be

somewhat lower, but I think in their report they

handle that by the phrase “at this time”. (Tr. 6022)

Dr. Ayres also testified concerning the nature of a margin

of safety:

By Mr. Fielding:

Q. Dr. Ayres, I wonder if you could define for

us what a margin of safety is and what the necessity

for setting margins of safety are for toxic compounds?

A. I mentioned this morning some of the uncer-

tainties which have to do with the uncertainty of

the type of effect and the uncertainty of the technique

of monitoring and also the various new human re-

sponses. For this reason, a safety factor is just that.

Now, let me demonstrate it by an example.

There are many of us that think that 100 micrograms

per cubic meter is not really a no-effect point, but

it is a point where effects have been clearly demon-

strated above.

Now, we have to, if we accept the fact that 100

is a bad spot, we have to pick some level below that

as a standard. One of the problems is that that value

A44

of 100 is an average kind of value with its own varia-

tion, if you will. It is a mean observation with a

standard deviation and some variability, so even

though we pick 80, we have to accept the fact that

there will be certain situations in which some people

will be harmed by a lower level, say 60 or 70 or

50, so it is basically a best view of the current data.

Now, we build in a margin of safety in a sense

to admit that we don’t have an extremely precise

notion of what the exact level is.

Q. In connection with that, what is the relevance

of finding a no-effect for one toxic response to another

possibly toxic response?

A. The problem with that is that we may con-

tinue to find no effective levels for different responses,

and if we find, for example, that the no-effect level

for vital capacity is one number and then the next

year find that the no effect level for airway resistance

is another number, as we refine our tests, we are

going to find lower and lower no response levels.

This leads most people to believe, and this is my

own view, that there is no cut-off point, that there

is a continuum of response, a kind of stepwise response

and the only safe level, of course, is zero. Since

that is impracticable, we then settle on a compromise

which is a standard that includes a sizeable safety

margin. (Tr. 6029-6031)

Thus clearly the determination of an adequate margin

of safety must at this time involve a certain degree of

judgment and cannot be done with the rigor of the proof

of a theorem in geometry. Testimony which had bearing

on health effects in the State of Ohio was also presented

by Dr. John Finklea, Director of the National Environ-

A45

mental Research Center of the Environmental Protection

Agency located in Research Triangle Park, North Carolina.

Dr. Finklea testified that:

. . . We can also give you some statistical estimates

to give you an order as the size of the problem you

are working with. For the metropolitan areas in the

State of Ohio, they exceed 100,000 in population. When

we do this, we would think that by not meeting the

standards that you would be caught somewhere be-

tween greater than 100, but less than 250 deaths each

year; that you would probably cause somewhere be-

tween a quarter of a million and 400,000 asthmatic

episodes per year, roughly two to three episodes per

asthmatic; that one might expect somewhere around

half a million, between 800,000 and 900,000 more days

in which your senior citizens would feel symptoms

such as heart and lung disease were detectably wors-

ened. This would mean the average senior citizen

with one of these diseases would feel worse 68 days

a year. You might expect somewhere between 150

and 300,000 more severe acute lower respiratory dis-

eases in children each year, and this would mean

that maybe one child in every three or every four

would have one more severe illness each year. These

would be children under twelve.

We would expect over a period of several years

in your State of Ohio here that somewhere between,

oh, forty and sixty thousand extra people would de-

velop the symptoms of chronic lung disease. So, these

are not estimates given to you as precise figures, but

to give you the magnitude of the health problems

with which we are dealing.

Q. Now, did you attempt to determine whether

there would be effects if the Federal standards were

met?

A46

A. Yes, if you meet the standards, we would

not expect an increase in death or chronic lung dis-

ease in adults or children. There would be roughly

maybe somewhere around 10,000 extra asthmatics a

year, 10,000 days on which elderly people would be

bothered, but this is far less than one such attack

per day per person. In other words, there would

be some adverse effects in the most susceptible pop-

ulations, but the relative effects would be much less.

(Tr. 6380-6382)

Dr. Finklea upon cross-examination further testified that:

By Mr. Snyder:

Q. Going on with your estimate as to the effects

in Ohio, is this exceeding the Federal sulfur dioxide

ambient air levels?

A. I am glad you brought that up, sir. The

estimates I gave to you were associated with the in-

creased levels of the sulfates. We also are in the

process of making levels, estimates which would relate

to the fumigation phenomena that one sees around

power plants which include both sulfur dioxide and

sulfur trioxide acid aerosols. This would be an addi-

tional effect on top of those I have just discussed.

(Tr. 6386)

Upon further cross-examination Dr. Finklea was asked

to give the bases for his statements:

Q. Iam still not certain what was your hypothe-

sis for the possibility of adverse effects in Ohio. Were

you talking about the results if the Federal ambient

air standards for sulfur dioxide were exceeded?

A. Yes. We worked with the National Power

Survey people who have worked together with the

A47

Federal Power Commission and utilities have made

estimates what they will have to do to meet standards

and what they will not be able to do to meet both

emission standards and national standards. We also

have a present loading of suspended sulfates in Ohio.

For example, in most of your metropolitan regions

you exceed the threshold for edverse effects between

one and two hundred days each year.

* * * * *

Q. I keep getting lost. Is your prediction for

Ohio based on the ambient Federal sulfur dioxide

levels being exceeced? Can you say just yes or

no to that?

A. I don’t think that is a question I can answer

yes or no.

Q. Can you answer yes or no and give some

explanation?

A. No, sir. I can say what . is based on for

you.

Q. Vv all, would you—

A. Based on present emissions of sulfur oxides,

present levels of sulfur oxides and acid sulfates as

measured by their proxy, water soluble sulfates, and

on a predicted change in sulfate levels that will ac-

company changes in sulfur dioxide emissions. (Tr.

6386-6388 )

Thus the estimates of adverse health effects are based

in part upon emission data and levels of acid sulfates

in the air as well as sulfur oxide. Finally, upon cross-

examination when Dr. Finklea was asked if he agrees

with the statement of another scientist, Dr. Higgins of

the School of Public Health, University of Michigan, Dr.

Finklea responded:

A48

Q. Dr. Higgins concludes that the present pri-

mary standards for sulfur dioxide and particulates

are adequate to protect public health. It is conceivable

that further reduction of these standards might help

to protect a few people with pre-existing disease, but

it is very unlikely.

A. I would agree with Dr. Higgins that a number

of susceptible people with pre-existing diseases are

Possibly adversely. affected by aerosols exposure that

occur when the primary standards are met. Whether

or not two percent of the population were asthmatic

and the 27 percent of older people were chronic heart

and lung disease are a significant part of the population

would be up to your decision. This is to try to pre-

vent, to fully protect their health.

I can give you an idea of about how man

y people

that would be in Ohio, if you like. —

Q. You have already testified to that thank

(Tr. 6399-6400) Aig

In summary, the evidence before the Air Pollution

Control Board when it promulgated the ambient air stan-

dards and the evidence presented before the Hearing Panel

is such that a rational person with the responsibility to

set ambient air standards when acting in a prudent and

reasonable manner could conclude that an adequate margin

of safety required more stringent standards than those

promulgated by the Administrator of the Federal EPA and

Pe agi would opt for the Ohio State ambient air stan-

rds.

The Ohio Environmental Protection Agency’s Regula-

tion AP-3-02 was adopted in accordance with section 119.03

and section 3704.03(D) of the Ohio Revised Code. (Tr. 162

164, 183). It has been testified by Mr. Jack Wunderle, ie

A49

sistant Division Chief, Division of Waste Management and

Engineering of the Ohio Environmental Protection Agency,

that he was the engineer in charge of the Air Pollution

unit of the Ohio Department of Health when the Ohio Air

Pollution Control Board adopted the regulations in Chapter

AP-3 (Tr. 73, 74) and that, although he was not privy to

the exact thought process of the Air Pollution Control

Board, they did consider the federal criteria documents.

Mr. Wunderle also stated that the statutory standards in

section 3704.03 of the Ohio Revised Code were considered.

(Tr. 182-185). These statutory standards are set out in

section 3704.03(D) of the Ohio Revised Code, for ambient

air standards and section 3704.03(E) of the Ohio Revised

Code for emission standards. The former statute requires

that consideration be given to evidence relating to:

(1) The character and degree of any injury to

human health or welfare, plant or animal life, or prop-

erty, or any unreasonable interference with the com-

fortable enjoyment of life or property as the result of

air pollution;

(2) Conditions calculated to result from com-

pliance with such standards and their relation to bene-

fits to the people of the state to be derived from such

compliance;

(3) The quantity and characteristics of air con-

taminants and the frequency and duration of their

presence in the ambient air;

(4) Topography, prevailing wind directions and

velocities, physical conditions, and other factors which

may or may combine to affect air pollution.

When promulgating ambient air standards, section 3704.03

(E) requires, that consideration be given to evidence re-

lating to:

A350

(1) Conditions calculated to result from com-

pliance with such regulations and their relation to bene-

fits to the people of the state to be derived from such

compliance;

(2) The quantity and characteristics of air con-

teminants, the frequency and duration of their presence

in the ambient air, and the dispersion and dilution of

such contaminants;

(3) Topography, prevailing wind directions and

velocities, physical conditions, and other factors which

may combine to affect air pollution,

The emission regulations associated with the ambient

air standard for SO, are AP-3-13 and AP-3-14. The former

regulation sets emission limitations from the various indus-

trial sources, while the latter regulation provides for emis-

sion limitations for fuel burning sources such as those at

CEI’s Lakeshore Plant and the City of Cleveland Plant.

However, the testimony before the Hearing Panel (Tr. 166,

181-181A) and those sections of the Ohio Implementation

Plan of which the hearing panel took official notice (Tr.

199-200), indicate that these regulations were expected to

be used simultaneously to achieve the ambient air quality

standards. Therefore, although the rollback model, or

Straight proportional reduction was used (wherein the

emissions are reduced by the percentage difference be-

tween the ambient air concentrations and the ambient air

standard), the two regulations allow varying emissions

limitations for the different kinds of sources (Tr. 120-121),

Indications based on the testimony of Mr. Wunderle

are that, although he was not privy to the specific reasoning

of the Ohio Air Pollution Control Board, they did give

consideration to the type of evidence described in section

3704.03 (E) (1)-(3) and that this was done in the context of

A51

using the rollback modeling technique in conjunction with

the air quality display emissions modeling which in turn

took into consideration in a general way the meteorology,

topography and wind direction and velocities (Tr. 78-81).

Furthermore, an examination of the sections of the Ohio

Implementation Plan of which official notice was taken,

and the testimony given before the hearing panel shows

that the rollback model used as part of the basis for Regula-

tion AP-3-14 incorporated population, commercial and in-

dustrial growth factors. By the use of these growth

factors the resulting emission standards are such that the

location of new industry and new sources of air contam-

inates could be accommodated in the various air quality

control regions of the state. The fact that consideration

was given to what reductions of emissions were necessary

in the most polluted area of the state in determining the

emission standards was compensated by the use of growth

factors which indicated that the rate of emission would

increase due to growing industrial and commercial activity,

(Tr. 108-111).

As we set the regulation to a point where it will

achieve the air quality standard. Given that fact and

the fact that other priority one regions are lumped

with that example region, there is some overkill in the

other regions because we will be achieving an air

quality less than the air quality standard, so there is

room, then, in the other priority one regions along

with that example region for additional sources of

emission to locate in the other air quality control

regions, so there is a growth potential there for addi-

tional sources. That overkill accommodates the addi-

tion of more sources. (Tr. 110)

The use of the word “overkill” is ironic because it refers

to the situation where a given area of the state obtains air

A52

which is of a higher quality, and therefore more healthy

and safer than required by the ambient air standards.

According to the testimony of Dr. Finklea, given above, an

“overkill” area has the potentially of protecting the two

percent of the population which are asthmatics and the

twenty-seven percent of the elderly people who have

chronic heart or lung conditions,

The alternative to the use of the rollback model is to

use the diffusion model. This kind of modeling was dis-

cussed before the hearing panel by Dr. Howard M. Ellis, a

founder of Environ-Plan, Inc., an environmental planning

and consulting company. Dr. Ellis was questioned about

the report prepared by the Walden Research Corp., joint

applicant's exhibit 26A-J, his testimony was in part:

Now, the procedure used to carry out predictions

was a quite detailed recently developed air pollution

diffusion model that—it was my understanding—was

developed by the Division of Meteorology within the

Federal Environmental Protection Agency.

* * * * *

This model used basic Caussian plume diffusion

equations, It used the Briggs Plume Rise Formula.

It used dispersion coefficients based on Pasquill, pub-

lished by the Turner Workbook of the Federal Environ-

mental Protection Agency and it used various other

model details which were a very sound effort to repre-

sent as accurately as possible what the largest max-

imum 24-hour concentrations would be and what the

largest annual average concentrations would be from

each individual power plant. (Tr. 2028, 2029)

The Turner “Workbook” referred to above is “Workbook

of Atmospheric Dispersion Estimates” U. S. Dept. of HEW,

PHS Pub. No. 992-AP2-26 (Rev. 1970). This model and its

A53

limitations and great uncertainties has been discussed pre-

viously by the Board in Buckeye Power, Inc., et al. v.

Whitman, EBR 74-6, September 12, 1974 at 158-162 Slip Op.,

therefore the “Workbook” will only be briefly quoted and

paraphrased;

Because of a multitude of scientific and technical

limitations the diffusion computation method presented

in this manual may provide best estimates but not

infallible predictions, In the unstable and stable cases,

severalfold errors in estimate of [the dispersion pa-

rameter] can occur for the longer travel distances. In

some cases the [parameter] may be expected to be

correct within a factor of 2, however. These [cases]

are: (1) all stabilities for distance of travel out to a

few hundred meters; (2) neutral to moderately un-

stable conditions for distances out to a few kilometers;

and (3) unstable conditions in the lower 1000 meters

of the atmosphere with a marked inversion above for

distances out to 10 kilometers or more. ... The ground-

level centerline concentrations for these three cases

(where [the parameter] can be expected to be within a

factor of 2) should be correct within a factor of 3... .

Estimates of II, the effective height of the plume,

may be in error because of uncertainties in the estima-

tion of Delta II, the plume rise. Also, for problems that

require estimates of concentration at a specific point,

the difficulty of determining the mean wind over a

given time interval and consequently the location of

the x-axis can cause considerable uncertainty. (Work-

book at 7, 10)

In other words, unless something more is added to the

model, the calculated concentrations can be expected to be

associated with uncertainties of the order of 300 percent.

The method used to overcome this great uncertainty is to

A54

calibrate the model using measured ambient air quality

data; that is the parameters in the model are adjusted so

that the model calculates back the known concentrations at

known locations and therefore is assumed to calculate rea-

sonable accurate concentrations at those locations where

there are no known data. However, with respect to what

Dr. Ellis described as “. . . a very sound effort to represent

accurately as possible the largest maximum number 24-

hour concentration . . .”, the Walden report states;

Since only power plant operations were being

modeled, it was not possible, in general, to calibrate

the model using measured air quality data. The cal-

culated values of concentration are considered to be

reasonable estimates of anticipated concentrations using

best available modeling techniques. (Joint Applicants

Exhibit 26-I at 1-6).

On the basis of the statement given in the “Workbook”

and the above statement from Exhibit 26-I the best avail-

able diffusion model calculations are expected to be highly

uncertain. And therefore diffusion model calculations are

not significantly more reasonable, if at all, than rollback

calculations. That is to say, that there is no reliable sub-

stantial and probative evidence to prefer the more com-

plex but greatly uncertain diffusion model results over

those of the simple but uniform rollback model.

Recently, the United States Supreme Court, 44 Law-

Week 3746, refused to review a Fifth Circuit Court of Ap-

peals opinion which had ruled that the use of the rollback

model was not arbitrary or capricious. Since portions of

this Fifth Circuit Opinion had been quoted by the various

parties in this appeal, it is appropriate at this time to

examine a rather lengthy quotation in order to properly

evaluate the relation of this holding to the present case.

A55

We must now consider the EPA’s use of a straight

rollback model, which model it acknowledges to be

based upon a simplistic assumption rather than ex-

perimental data or proven theory. While we are un-

easy that such an unreliable construct should be the

basis of wide-ranging government action, we do not

consider the use of the straight rollback model to be

arbitrary and capricious.

The statute requires implementation plans which

will insure attainment of the national air quality stan-

dards. To design such plans it is necessary to utilize

some model relating reductions in antecedent emissions

to resulting reductions in pollutant concentrations. In

the absence of sophisticated information, the EPA has

been forced to rely on crude assumptions. We cannot

object, for it is not our role to judge whether the

EPA’s projections are accurate, but only whether they

represent arbitrary or capricious exercises of its au-

thority. Necessity, which has mothered the EPA’s

invention of this model, also protects it from a judicial

insistence on greater reliability.”®

‘6 Decisions which are not arbitrary and capricious in

the light of existing knowledge may become so by

dint of scientific advances. By its use of estimations

and sparse data, the EPA creates a continuing respon-

sibility to develop, review, and apply updated and more

sophisticated information. ]

Further, we think it significant that the straight

rollback model is, in an important sense, neutral, in that

it establishes as a starting point the commonsensical

proposition that pollutions will be reduced propor-

tionally to reductions in their chemical precursors.

Deviations from this assumption are to be permitted or

required only when supported by empirical data or

A oe ee

A56

sound theory. Such a stance is not arbitrary and ca-

pricious,...

To summarize, we conclude that the EPA was not

arbitrary or capricious in its decisions to reject Texas’

proposed reduction model and to substitute a straight

rollback model. State of Texas v. EPA, 499 F.2d 289,

6 ERC 1897, 1903, 1904 (5th Cir, 1974).

The Board can only add to the above statement that at this

time the evidence in the Record before the Environmental

Board of Review is such that the more complicated dif-

fusion model cannot be truly considered an advance over

the rollback model, yielding highly more accurate and re-

liable results. In view of the fact that the diffusion model

calculations are uncalibrated and that these calculations

are highly uncertain, the use of the rollback model cannot

at this time be considered to be unreasonable or arbitrary.

On the basis of the testimony and exhibits in the Record,

which was before the Director, there is reliable substantial

and probative evidence that a rational administrative of-

ficial exercising reasonable prudence could base emission

standards upon a rollback model and decline to amend said

standards.

IV.

These regulations have never been repealed. When

the Director adopted Chapter EP-11 of his regulations on

January 21, 1974, which were intended to replace Chapter

AP-3 of the Ohio Air Pollution Control Board, the ambient

air standards given in Regulation AP-3-02 were unchanged

and Regulation AP-3-14 as it applied to boilers with a

capacity greater than 250 million BTU’s per hour was also

unchanged. When the Environmental Board of Review

vacated the Director’s order of January 1, 1974 (which had

adopted EP-11), there was no substantive effect on the

A57

state ambient air quality standards nor on the validity of

Regulation AP-3-14 with respect to the boilers with capac-

ity greater than 250 million BTU’s per hour. The emission

standards given in Regulation AP-3-14 were approved by

the Administrator of the Federal EPA as part of the Ohio

Implementation Plan, 37 Fed. Reg. 10886 (May 31, 1972).

This approval by the Administrator was vacated and re-

manded by the Sixth Circuit Court of Appeals in order

that the procedures of the Administrator cemply with the

Administrative Procedure Act, which required that in-

terested persons be allowed to comment on the Implemen-

tation Plan before the Administrator approved or disap-

proved of the Plan. Buckeye Power, Inc., et al v. EPA,

481 Fed.2d 162, 5 ERC 1611 (6th Cir. 1973). Shortly

thereafter the Governor withdrew from the Federal EPA

the Ohio Implementation Plan; the Board knows of no

state or federal law or regulation which allows the with-

drawal of a state implementation plan. When the Imple-

mentation Plan was finally reapproved by the Admin-

istrator, 39 Fed. Reg. 13542 (April 15, 1974), the Imple-

mentation Plan did not contain a strategy to obtain the

ambient air standards for sulfur dioxide (40 C.F.R. §52.

1881). However, as correctly pointed out by Appellant

NOLA, Regulation AP-3-14 although not part of the fed-

erally approved implementation plan is indeed a legitimate

emission limitation under Ohio law. (Board’s Record, Item

GGGGGG at 5, 7).

The fact that the Director has an obligation to put into

execution a plan to achieve the state ambient air standarus

is not dependent on federal law has been pointed out and

discussed in detail in a previous concurring opinion, Tri-

State Air Committee v. Whitman, 70 0.0.2d 281, 292, 293

(1973):

Notwithstanding the Federal and State statutes

referred to above, there is also a basis for the Director

A58

to develop plans to achieve the State (as differentiated

from the Federal) ambient air standards (i.e. AP-5-02)

and follow the State compliance time schedule. This

basis rests entirely on Ohio law. R. C. $3745.011

States: |

“It is the intent of the General Assembly that

the Environmental Protection Agency shall:

“(A) Promulgate and put into execution a long

term comprehensive plan and program to conserve

protect and enhance the air, water and other natural

resources of this State;

“(B) Prevent and abate pollution of the environ-

ment for the protection and preservation of the health,

ig welfare and property, of the people of the

eee via

* * * * *

R. C. §3704.03 provides the Director, independently

of any Federal laws, a complete array of State powers

and prerogatives to “develop programs for the pre-

vention, control and abatement of air pollution”. Divi-

sion D of this statute says that “the Director may

adopt, modify and repeal regulations _ . . prescribing

ambient air quality standards for the state as a whole

or for various areas of the state.” Division E of this

Statute states that emission standards may be adopted

by the Director which are necessary for achieving and

maintaining compliance with the ambient air quality

standards. Divisions F and G allow the Director to

set up a program of permits for the purpose of attain-

ing the ambient air standards, and Division II provides

for the issuance of variances from the emission stan-

dards.

Once there have been adopted ambient air quality

standards for the State pursuant to R. C. §3704.03(D),

A59

the rest of R. C. §3704.03 is triggered and the Director

must perform the types of actions set out in the other

divisions of R. C. §3704.03. . ..

It has been shown above that the Director did not

require the utilities to control sulfur dioxide emissions

“because there is an absence of ambient air quality

data in the record showing widespread and serious viola-

tions of the ambient air quality standards for sulfur oxides,

the requirement that the applicants must show unreason-

ableness in the specific application of regulations has been

met.” On the basis of the Director’s statement in his order

of December 12, 1974, it is not surprising that Regulation

AP-3-14 is not being enforced. (Board’s Record, Item

BBBBB at 2). Furthermore, Mr. Jack A. Wunderle now

Chief of the Office of Air Pollution Control of the Ohio

EPA, testified at a hearing before the Board that if a

given source does not object to the application of Regula-

tion AP-3-14 then it must comply with this regulation, but

if there is an objection then the Agency tries to separate

the application of the emission regulations for particulate

matter frorn that of the regulation for SO,. (Board’s Record,

Item JJJJJ at 91, 92).

When considering the lawfulness and reasonableness

of the position of the Director, it is very important to

realize that the application of the emission regulations to

a particular source via an enforcement order issued pur-

suant Section 3704.03(S) of the Revised Code or via a

variance issued pursuant Section 3704.03(H) of the Revised

Code depends upon several more factors than just ambient

air quality data. When the Director issues an order pur-

suant Section 3704.03(S) of the Revised Code, he must

take into consideration “. . . evidence relating to the tech-

nical feasibility and economic reasonableness of compliance

with such orders, and their relation to benefits to the people

A60

of the state to be derived from such compliance.” When

the Director issues a variance according to Section 3704.03

(H) of the Revised Code he must give consideration to

evidence that among other things:

(1) Compliance with such standards and other

regulations is impractical because of conditions beyond

the control of the applicant.

(2) Compliance with such standards and other

regulations would be technically infeasible or econom-

ically unreasonable.

(3) The emissions of the applicant for which a

variance is requested have little effect on ambient air

quality and do not endanger or threaten to endanger

human health, due to topography, direction and veloc-

ity of prevailing winds, height of emission source, or

other factors.

(4) Compliance with the standards or other

regulations from which variance is sought would pro-

duce serious hardship without equal or greater benefit

to the public.

This statute also states “no variance shall be issued, ...

until the Director has considered the relative interest of

the applicant, other persons and property affected by the

discharge, and the general public.” All three parties in

their respective briefs recognize that these statutes involve

a certain balancing of evidence (Board’s Record, Item LLL

at 13, Item XXXX at 18, Item GGGGG at 9).

When examining the air quality data given in the

Record before the Director, it is extremely important to

recognize that the ambient air quality standards to which

this data are to be compared are those given in Regulation

AP-3-02. These standards are to be used because, as shown

A61

above, they have been lawfully adopted pursuant Section

3704.03(D) of the Revised Code by the Ohio Air Pollution

Control Board pursuant the procedures given in Chapter

119 of the Revised Code and that these standards are rea-

sonable. Therefore these standards have the force and

effect of law. Kroger v. Glander, Supra. During the

hearings before the Hearing Panel, the Agency first pre-

sented air quality data and then declined to support said

data. (Tr. 6554, 6555). The reason given for the failure to

support the data was that there were some discrepancies

in the data retrieval system. In an effort to obtain air

quality data from the Agency the Board considered whether

or not to take official notice of a compilation of data pre-

pared by the Agency at a later date, however the Agency

still declined to support this later listing of data (Board’s

Record, Item KKKKKK) and therefore the Board will not

take official notice of any air quality data unless said data

are in the Certified Record of Proceedings or in the Ohio

Implementation Plan of which the Hearing Panel took

official notice. Appellant CEI did submit air quality data

during the hearing before the Hearing Panel, CEI Exhibit

No. 4, and CEI still supports said data.

Now, the order of the Director below was that

there was no ambient data warranting application of

AP-3-14. That is not to say there was no ambient

data in the record. There, in fact, was ambient data

in the record. I know, on behalf of Cleveland Electric

Illuminating, we submitted the ambient data collected

by the City of Cleveland, Division of Air Pollution

Control, and I know other parties submitted data on

their behalves from other agencies or wherever they

got the data, maybe from their own monitors, ....

With respect to the Lake Shore plant and the

implications we drew from that data, Northern Ohio

Lung Association did not challenge that data. In fact,

——————————————

—

Ne

owe

veep ae

nace deg Deen ope ae ne le ana

A62

it offered its own ambient air quality data on partic-

ulates, so it vouched, in a sense, for the accuracy of

that data that we put in which we felt supports the

Director’s order that there is no sulfur dioxide data

warranting application of the AP-3-14 regulation that

is at issue in these proceedings. (Board’s Record, Item

KKKKKK at 33-34)

Presumably this data did not get mixed up in the State’s

data retrieval system.

An examination of CEI Exhibit No, 4 shows that of

the 18 sampling sites reported for the City of Cleveland

from January 1 to December 31, 1973, ten of these sites

exhibit an annual average in excess of the State standard

of 60 micrograms per cubic meter and three sampling sites

exhibit exactly this value therefore leaving only five of

the eighteen sites reporting annual averages below the

state standard. Essentially the same data are reported

in the joint applicants’ Exhibit No. 24. The Walden Re-

port, joint applicants’ Exhibit No. 26-I, which does not

report directly measured air quality data but rather values

obtained from diffusion model calculations, predicts that

for maximum load the combined effects of the Lake Shore

Plant and the Cleveland Municipal Plant would result in

a maximum 24-hour concentration of 715 micrograms per

cubic meter with a contribution of 308 micrograms per

per cubic meter from the Lake Shore Plant and 407 micro-

grams per cubic meter from the municipal plant; for

nominal load power the corresponding predicted values

are 407 micrograms per cubic meter as the combined

effect, with contributions of 207 micrograms per cubic

meter for the Lake Shore Plant and 137 micrograms per

cubic meter for the municipal plant. (Director’s Record

Joint Applicants’ Exhibit 26-I at 2-9, 2-10) The joint

applicants’ Exhibit No. 28, a study of the Walden Reports

A63

indicates that the 24-hour maximum concentration reported

by these studies should be less but does not state how

much less (Director’s Record, Joint Applicants’ Exhibit 28

at 3-39, 3-40). Table No. 4.32 in the Ohio Implementation

Plan shows that for the year 1970 eighteen out of nineteen

sampling stations reported annual averages for sulfur

dioxide greater than the state standard and ten of these

sampling stations reported maximum 24-hour readings

greater than the state standard. Therefore, although it

is recognized that the ambient air data are uncertain,

these data do show consistent and widespread violation

of the state ambient air quality standards. There is in

the record another type of data, OEPA Exhibit 22-3 which

indicates that the State of Ohio is in that region of the

country where the concentration of airborne sulfates is

the highest. The significance of these relatively high con-

centration of sulfates is discussed rather extensively in

the record.

As shown by the testimony of Dr. Finklea, quoted

Supra. adverse health effects are related to sulfur dioxide

emissions in a rather complicated manner which involves

the formation of sulfates. (Tr. 6386). Dr. William Wilson,

Chief of the Atmospheric Aerosol Research Section of the

United States Environmental Protection Agency, National

Environmental Research Center, at Research Triangle

Park, North Carolina, testified as to the source and nature

of these sulfates. Sulfur oxides which are emitted into

the atmosphere from various sources of air pollution are

converted into sulfates in the presence of sunlight and

other pollutants such as particulate matter. These sulfates

occur in the form of very fine particles (aerosols) such as

sulfuric acid, ammonium bisulfate and ammonium sulfite.

(Tr. 6310-6313, 6320-6327). These fine sulfate particles

remained in the atmosphere for a long time and if inhaled

A64

also remain in the lungs for a lors; time. (Tr. 6318-6320).

Once the sulfate particles are inhaled into the moist res-

piratory tract, their tendency is to grow and be retained

by the body. (Tr. 6341).

Studies of the rate of sulfur dioxide emissions and the

change in the distribution of the sources emitting sulfur

dioxide, compared with the change in concentration of

sulfate particles as a function of time and geographic

location, indicate that the sulfate particles are transported

over great distances and that it is plausible that sulfur

dioxide emitted in one area can affect the sulfate concen-

tration in another area. (Tr. 6328-6329). These sulfates

are more toxic than the compound from which they are

derived, sulfur dioxide. (OEPA Exhibit 14 at 20, Tr. 6389,

5991-5996). Dr. Finklea has testified that adverse health

effects occur at very low concentrations of sulfates (Tr.

6889). Dr. Ayres has testified that a linear relationship

exists between the level of bronchitis and sulfate concen-

tration, and that there is no threshold value of the con-

centration of sulfate below which no adverse health effects

occur. (Tr. 5983). A very similar conclusion was reached

by Dr. Bertram W. Carnow, Division of Environmental

Health, University of Illinois, College of Medicine, Chicago

who has concluded that it is conceivable that all concen-

trations of sulfur dioxide or its reaction products have

some adverse health effects. Dr. Carnow also concluded

that the combination of the various pollutants at concen-

trations that had been considered safe were causing res-

piratory and possibly cardiac effects. (OEPA Exhibit 14

at 22).

Dr. Ayres also discussed studies on animals and human

beings which indicated that sulfur dioxide and sulfates

may indeed have an adverse effect on more than just the

lungs but it could be affecting other organs of the body.

A65

This data has, of course, some bearing upon what may be

a reasonable margin of safety for ambient air standards

and what is a reasonble enforcement policy concerning

emission regulations.

.. . Most of the people who died in the air pol-

lution episodes died from lung diseases or heart dis-

eases, but recently there has been suggested evidence

that sulfur does more than merely involve the lung.

Some of the monkey studies and some of the

guinea pig studies have shown liver involvement fol-

lowing sulfur dioxide inhalation and a group at the

New York University, Institute of Environmental

Health, are using blood samples obtained from Dr.

Weir’s exposure data and have been available to show

concentrations of sulfate in the blood.

* * * * *

The implication of this is that sulfur may have

a general body effect that is in addition to its lung

effect and these investigators feel rather strongly that

there may be a whole new group of toxicologic prob-

lems relating to body sulfate burned in addition to

lung sulfate.

The reason I bring this up, it has a good deal

to do with what are called margins of safety. We

base our standards on what is observable at this

moment, but we have to be prudent enough to con-

sider possible unknown ramifications that may be

quite serious. (Tr. 5997-5998).

The joint applicants had presented before the Hearing

Pane! a witness Dr. Charles Hine, Professor of Medicine

at the School of Medicine, University of California, San

Francisco, who testified that epidemiological studies such

A66

as those relied upon by Dr. Finklea and Dr. Ayres do not

also provide an adequate connection between cause and

effect. (Tr. 1666-1667). Dr. Hine testified that epidemio-

logical studies must be supported by toxicological studies

wherein a substance is administered under the controlled

conditions of a laboratory setting and in this fashion what-

ever effect the substance may have is ascertained. Toxi-

cological studies have been criticized by Dr. Finklea be-

cause such studies occur over too short an interval of time

and do not take into consideration the age, health and

behavioral differences found in the general population.

(Tr. 6370-6371). Dr. Hine on the other hand testified

that in order for an epidemiological study to be valuable

it must meet several criteria of statistical and logical rigor.

(Tr. 1667-1669). Dr. Finklea has also testified that the

epidemiological studies relating adverse health effects to

sulfate concentrations requires corroboration with labora-

tory studies involving human volunteers and animals (Tr.

6376) and that on the basis of laboratory work and theoret-

ical work “. . . one has to be concerned about the sys-

tematic effect of sulfur oxide exposure including acid

sulfate aerosol exposures as well as the lung effects—heart

and lung effects. . .”. (Tr. 6378). Finally it is to be noted

that toxicological studies indicating that sulfates are signif-

icantly more toxic than sulfur dioxide have been reported

by Dr. Mary O. Amdur, Harvard School of Public Health,

(OEPA Exhibit 14 at 20). The evidence thus indicates

that sulfate concentrations in the ambient air “threaten

to endanger” the health and welfare of the people of Ohio

and that these sulfates are formed from sulfur dioxide

in the atmosphere and that this evidence is based not only

on ambient air concentrations of SO, but also on emission

data and the concentrations of the sulfates themselves.

(Tr. 6388).

A67

The fact that the Agency refuses to stand by its own

air quality data does not preclude the enforcement of the

state emission standards for the following reasons. First,

there are data in the record which have been presented

by the other parties which indicate widespread serious

violations of the state ambient air standards; secondly,

the Director is obligated to enforce the state laws and

regulations so long as they do not conflict with the federal

law, and the more stringent state standards are expressly

allowed by federal law; thirdly, secs. 3704.03(H) and (S)

require that the Director balance several factors when

issuing variances or compliance orders and not just con-

sider air quality data; and lastly, the Director when con-

sidering these various factors must give the most weight

to factors which “threaten to endanger” the health and

welfare of the people. In the next sections a discussion

of these factors which are given in sec. 3704.03(H) will

be presented and the reasons why consideration of health

effects is paramount will be shown.

VII

The Director has pointed out that the Hearing Panel

used an overly restrictive definition of technical feasibil-

ity. (Director’s Record, Item 2 at 11). This definition

was deemed overly restrictive because it would obligate

the enforcement agency to depend upon the willingness

of operators of the sources of air pollution to install and

test the abatement equipment for at least one year at

their own discretion. The Director states that a more

adequate criteria to judge the available technology was

that given by the Court of Appeals for the District of

Columbia Circuit in Essex Chemical v. Ruckelshaus, 5

ERC 1820, 1825 (D.C. Cir. 1973) which states and which

is partially quoted by the Director as follows:

AG8

... An adequately demonstrated system is one which

has been shown to be reasonably reliable, reasonably

efficient, and which can reasonably be expected to

serve the interests of pollution control without becom-

ing exorbitantly costly in an economic or environ-

mental way. An achievable standard is one which

is within the realm of the adequately demonstrated

system’s efficiency and which, while not at a level

that is purely theoretical or experimental, need not

necessarily be routinely achieved within the industry

prior to its adoption.

The various techniques used to abate sulfur dioxide

emissions, using either physical or chemical methods to

remove the SO, from the gas streams are called flue gas

desulfurization (FGD) systems. One such FGD system,

lime/limestone scrubbing, has a long history of develop-

ment in operating in various parts of the world. OEPA

Exhibit 1-D-H indicates that about twelve such systems

are being operated at American plants presently, with

many more on order. There are several companies which

offer such systems and guarantee their performance. (Tr.

1209, 1243, 1345-1346). One such system which has been

demonstrated to successfully remove the sulfur dioxide

contaminant from the emissions of an American power

plant is the Paddy’s Run Station of Louisville Gas and

Electric Company. (Tr. 315, 427-430, 1434, 1451). Concern

has been expressed by the utilities’ witnesses, Richard

Engdahl, Senior Research, Batelle Laboratories; Jeffrey

W. Bradstreet, Senior Air Pollution Analyst, NUS Corpo-

ration; and A. V. Slack, President of the SAS Corporation,

a consulting firm, that the calcium hydroxide, carbide

sludge, which is used at the Paddy’s Run Plant has some

special properties and that this calcium hydroxide is not

generally available. (Tr. 2215, 2377, 3076-3077). And for

A69

this reason the Hearing Panel felt that the Paddy’s Run

FGD system was not generally available. (Director’s Rec-

ord, Item 3 at 164-165). However OEPA Exhibit 2, dis-

cusses briefly how calcium oxide is used to generate cal-

cium hydroxide and states that there are several types

of limestone which would be suitable as the starting mate-

rial and that these types of limestone occur in and near

Ohio. Another example of a successful use of FGD is

the Mitsui Aluminum Company operation (Tr. 297, 314,

431) and the utilities’ witness agreed (Tr. 2961, 3144-3145).

However there was criticism of the Mitsui operation which

is summarized by the Hearing Panel’s report as being

the use of the carbide sludge, lack of fluctuations in the

load on the FGD system which would be typical of Amer-

ican electric utilities operation, and the concern that there

may be water pollution problems (Director’s Record, Item

3 at 167). However as mentioned above there is no proof

in the Record that a special type of calcium hydroxide

is needed in fact the implication is the opposite; there

is also testimony in the Record that the Mitsui operation

does indeed experience fluctuation due to the scrubber

operation itself (Tr. 426-427) and there also is testimony

that for the most part the Mitsui operation is a closed

loop which does not cause water pollution (Tr. 420-421).

Examining the Record and taking into consideration the

standard of sufficient demonstration given in Essex Chem-

ical v. Ruckelshaus, Supra, the Director’s discussion given

in his order of December 12, 1974 (Director’s Record, Item

2 at 12-15) is indeed reasonable and the Director’s ruling

that Recommendation 7 of the Hearing Panel is rejected

(Ibid. at 15) is lawful and reasonable and is affirmed

by the board. Also the Director’s rejection of the Hearing

Panel’s conclusion (No. 15) as to the technical feasibility

of FGD is affirmed by the Board. Technical feasibility

A70

is therefore not a bar to the enforcement of the state

emission standards.

The Hearing Panel’s report stated, in the context of

discussing several federal cases, that the concepts such

as “economic reasonableness and technical feasibility” may

be considered “. . . so long as the conclusions dictated

by consideration of such factors do not conflict with the

primary purpose of protecting the public health.” (Direc-

tor’s Record, Item 3 at 78). That the factors relating

to health effects are to be given great weight when con-

struing the State regulations is stated directly and unam-

biguously in the Director’s own Regulations:

AP-2-02

It is the purpose of all air pollution regulations to

set forth such requirements as shall be necessary to

secure and maintain those levels of air quality which

are consistent with the protection of health and the

prevention of injury to plant, animal life, and property

in the State of Ohio, and to provide for the comfor-

table enjoyment of the natural attractions of the State

to the greatest extent practical. All regulations of

the Board [Director] shall be construed in such man-

ner as to effectuate this purpose.

Former regulation AP-2-02 adopted January 28, 1972,

and effective February 15, 1972, is repealed. 3333 3

July 24, 1972; effective August 7, 1972.)

Thus the clear intent of the General Assembly, as stated

in Section 3704.04 and 3745.011 of the Revised Code, is

that permits and variances be issued, modified or denied

in such a fashion that the Environmental Protection

Agency acts in accordance with and to the furtherance

of the goals and objectives stated in Section 3745.011 of

the Revised Code.

A7l1

As established above, state law must be complied with;,.

even in those circumstances where the Director has failed

to fulfill his obligations under federal law he is still bound

by state statutes and state regulations which do not conflict

with the federal law. Thus when the Director issues a

variance pursuant Section 3704.03(H) of the Revised Code

or an abatement order pursuant Section 3704.03(S) of the

Revised Code, this action must be done in a manner con-

sistent with regulation AP-2-02 and Section 3745.011 of

the Revised Code. The Hearing Panel has argued that

the terms “technical feasibility”, “economic reasonable-

ness” and the “benefits to the people of the State to be

derived from the compliance with the applicable emission

standards,” as set forth in Section 3704.03(S) of the Re-

vised Code include all the specific considerations set forth

in Section 3704.03(H) of the Revised Code. This interpre-

tation of these two statutes leads to the conclusion that

when the entire Chapter 3704 is read in conjunction with

the Director’s regulations, including AP-2-02, and Section

3745.011 of the Revised Code, as required, the considera-

tions of technical feasibility and economic reasonableness

must be subordinated to those benefits to the people of

this State which concern health and welfare. That is

to say the primary consideration in acting upon a variance

pursuant Section 3704.03(H) or an abatement order pursu-

ant Section 3704.03(S) of the Revised Code is that:

The emissions . . . have little effect on ambient air

and do not endanger or threaten to endanger human

health. ...

The term “endanger” in the context of environmental

federal law has been discussed at great lengths in Reserve

Mining v. U. S., 514 Fed.2d 492, 7 ERC 1618 (8th Cir.

1975). This case dealt with the question whether or not

an injunction should be issued prohibiting the emissions

A772

of an asbestos-like material into the air and into the waters

of Lake Superior.

In the context of this environmental legislation,

we believe that Congress used the term “endangering”

in a precautionary or preventive sense, and, therefore,

evidence of potential harm as well as actual harm

comes within the purview of that term. We are forti-

fied in this view by the flexible provisions for injunc-

tive relief which permit a court “to enter such judg-

ment and orders enforcing such judgment as the public

interest and the equities of the case may require.”

33 U.S.C. §1160(c) (5).

We deem pertinent the interpretation given to

the term “endanger” by Judge Wright of the District

of Columbia Circuit in his analysis of the congressional

use of the word “endanger” in the context of a provi-

sion of the Clean Air Act. 42 U.S.C. §1857f-6c(c)

(1) (A) (1970).

Judge Wright observed:

The meaning of “endanger” is, I hope, beyond

dispute. Case law and dictionary definition agree

that endanger means something less than actual

harm. When one is endangered, harm is threat-

ened; no actual injury need ever occur.

** *

“Endanger,” * * * is not a standard prone to fac-

tual proof alone, Danger is a risk, and so can only

be decided by assessment of risks, * * *

[A] risk may be assessed from suspected, but

not completely substantiated, relationships be-

tween facts, from trends among iacts, from the-

oretical projections from imperfect data, or from

A73

probative preliminary data not yet certifiable as

“fact.” [Ethyl Corporction v, Environmental Pro-

tection Agency, No. 73-2205 [7 ERC 1353] (D.C.

Cir.,, Jan, 28, 1975) (dissenting op. at 11, 31-33

(emphasis in original) (footnote omitted).]

Although the Supreme Court has not interpreted

the concept of “endangering” in the context of an

environmental lawsuit, it has emphasized the impor-

tance of giving environmental legislation a ‘“common-

sense” interpretation. Mr. Justice Douglas, writing

for the Court, said:

This case comes to us at a time in the Nation’s

history when there is greater concern than ever

over pollution—one of the main threats to our

free-flowing rivers and to our lakes as well.

* * * [Whatever may be said of the rule

of strict construction, it cannot provide a substi-

tute for common sense, precedent, and legislative

history. [United States v, Standard Oil Co., 384

U.S. 224, 225 [1 ERC 1033] (1966).]

The Ohio law may be interpreted to give even greater

weight to the potential for harm than does the federal

law. Ohio law requires, as well as a finding that emis-

sions do not endanger human health, that the emissions

must not “threaten to endanger human health” or in Judge

Wright's terms “threaten to threaten.” This requires the

Director under State law to be even more cautious in

considering possible risks to human health than is required

under federal law. It is important to note that Ohio law

defines the phrase “air pollution” itself in such terms

as threatening to be injurious to human health or welfare

as well as threatening to be injurious to other environ-

mental factors. Section 3704.01 states:

A74

As used in sections 3704.01 to 3704.11, inclusive,

of the Revised Code:

(A) “Air contaminant” means particulate matter,

dust, fumes, gas, mist, smoke, vapor or odorous sub-

stances, or any combination thereof.

(B) “Air pollution” means the presence in the

ambient air of one or more air contaminants or any

combination thereof in sufficient quantity and of such

characteristics and duration as is or threatens to be

injurious to human health or welfare, plant or animal

life, or property, or which unreasonably interfere with

the comfortable enjoyment of life or property.

Furthermore, it is to be pointed out that in the present

case no injunction is being considered, but rather variances

or compliance orders. Since the remedy is so much less

harsh, the reasons for giving great weight to the health

effects are even more compelling.

In the order of December 12, 1974, at 33 the Director

States:

Pursuant to Chapters 119 and 3704(S) of the Ohio

Revised Code the Director makes the following orders:

It is not clear whether the Director intended his order

to be pursuant Chapter 119 and only that portion of Chap-

ter 3704 which is Section 3704.03(S) or whether the Direc-

tor intended to make his order pursuant the entire Chapter

3704. In any case it has been shown above that whether

the Director considered his order to be an order issuing

a variance or whether the Director considered his order

to be an enforcement order he must give consideration

to evidence relating to several factors and preeminent

among these factors is whether the emissions have little

A75

effect on the ambient air quality and do not endanger

or threaten to endanger human health. Moreover, with

regard to sulfur dioxide emissions the Director did not

issue any compliance orders at all nor did he issue vari-

ances, in spite of the fact that Section 3704.05 of the

Revised Code states in part:

(A) No person shall cause, permit, or allow einis-

sion of an air contaminant in violation of any regu-

lation adopted by the director of environmental protec-

tion under division (E) of section 3704.03 of the Re-

vised Code, unless such person is the holder of a

variance issued under division (H) of section 3704.03

of the Revised Code, permitting the emission of such

contaminant in excess of that permitted by such regu-

lation.

(B) No person who is the holder of a variance

issued under division (H) of section 3704.03 of the Re-

vised Code shall cause, permit, or allow emission of

an air contaminant or contaminants listed therein in

violation of the conditions of such variance or fail to

obey an order of the director issued under authority

of such division.

It has been established above that the Director has adopted

regulation AP-3-14 under Division (E) of 3704.03 in compli-

ance with Chapter 119 of the Revised Code and that this

regulation is reasonable. Therefore it is the opinion of

the Board that the Director must issue variances or en-

forcement orders for those sources which are in violation

of regulation AP-3-14. Furthermore section 3704.03(H)

and Regulation EP-32-03 require that the variances may

not exceed one year without being renewed; Regulation

EP-32-03(C) requires each variance to contain a date upon

which compliance with all applicable statutes and regula-

tions will be achieved.

A76

The assignments of error of NOLA are thus sustained

insofar as the Director failed to issue a variance with

a compliance schedule for the abatement of sulfur dioxide

for the sources in question and that this failure was not

in accordance with State law and regulations.

VIII

The first assignment of error presented by CEI to

be considered next is that the Director acted arbitrarily,

unreasonably and in violation of Regulation EP-40-26 and

Section 119.09 of the Revised Code. The issue raised is

whether or not the Director reasonably and lawfully re-

sponded to the report of the Hearing Panel. The pertinent

part of the statute states:

. . . The recommendation of the referee or examiner

may be approved, modified, or disapproved by the

agency, and the order of the agency based on such

report, recommendation, transcript of testimony and

evidence, or objections of the parties, and additional

testimony and evidence shall have the same effect

as if such hearing had been conducted by the agency.

No such recommendation shall be final until confirmed

and approved by the agency as indicated by the order

entered on its record of proceedings, and if the agency

modifies or disapproves the recommendations of the

referee or examiner it shall include in the record

of its proceedings the reasons for such modification

or disapproval.

It is evident upon the face of the statute that the Director

only had a responsibility to respond to the recommenda-

tions of the Hearing Panel and that there was no express

obligation to respond to any findings of fact or conclusions

of law. Even if the circumstances were such that it was

AT77

reasonable for the Director to state the reasons for rejecting

the Hearing Panel’s conclusion No. 15, Part II of the Di-

rector’s order of December 12, 1974 not only gives the

reasons in detail for the rejection of this conclusion, but

also lists the reasons for rejecting Recommendation 7 of

the Hearing Panel. (Director’s Record, Item at 10-15).

Similarly, Part III of the Director’s order of December

12, 1974, states the reasons for the rejection of Recom-

mendations 1 through 6 of the Hearing Panel. (Ibid., at

16-20). Finally, with respect to the last recommendation

of the Hearing Panel, Recommendation 8, the Director

stated, “Recommendation 8 of the Hearing Panel is ac-

cepted in general terms, the specific orders appearing at

the end of this report.” This is interpreted by the Board

to mean that the Director intended to modify Recommenda-

tion 8. A comparison of the orders appearing at the end

of the Director’s report and that appearing at the end

of the Hearing Panel report indicates that, with respect

to the Lake Shore plant and the City of Cleveland plant,

both orders require the same final compliance date, but

that the Director’s order also includes intermediate dates

by which certain acts shall be accomplished by the ap-

plicants. The reasons for this modification of the Hearing

Panel’s Recommendation 8 are given in detail on pages

21-22 and 23-32 of the order of December 12, 1974. It

is the opinion of the Board that the Director did not

violate Section 119.09 of the Revised Code, because ample

reasons were given by the Director for disapproving or

modifying the recommendations of the Hearing Panel.

The Director’s Regulation EP-40-26 states in pertinent

part:

(B) The written decision of the Director may

adopt the report of the Hearing Examiner, or parts

thereof. When the decision of the Director disap-

A78

proves or modifies the recommendations of the Hearing

Examiner in whole or in part, the Director’s written

decision shall include:

(1) The reasons for rejecting the recom-

mendations of the Hearing Examiner.

(2) Findings of fact and conclusions of law

together with the reasons therefor with respect

to all matters where the Director does not adopt

the recommendations of the Hearing Examiner.

Taking into consideration the discussion in the above para-

graph with regard to Section 119.09 of the Revised Code,

the on'y possible violation of the above portion of Regula-

tion EP-40-26 could be that the Director failed to give

his findings of fact and conclusions of law in some sort

of numerical list. Parts I-IV of the order of December

12, 1974, contains extensive findings of fact and conclusions

of law, therefore it is the opinion of the Board that the

Director has substantially complied with Regulation EP-

40-26 and the first assignment of error of CEI is overruled.

The second assignment of error of CEI alleges that

the Director acted arbitrarily, unreasonably and unlawfully

in rejecting the Hearing Panel’s recommendation that Reg-

ulations AP-3-02, AP-3-11, which prescribes emission lim-

itations for particulate matter, and AP-3-14 should be

amended and that the Director acted unreasonably and

unlawfully by issuing compliance orders with respect to

Regulation AP-3-11 prior to the amendment of said regula-

tion. As indicated above the Director rejected the Hearing

Panel’s Recommendations 1 through 6 which called for

rulemaking on the basis of the reasons stated in his order

of December 12, 1974 (Director’s Record, Item 2 at 16-

20). The Director stated:

A79

In determining the scope of questions which could

be raised at the consolidated hearing the Hearing Ex-

aminers misinterpreted (1) the principles set down

in Battles v. The Ohio Racing Commission, 52 Ohio

App. 2d 530, 230 N.E. 2d [662] (1967) and (2) the

intent of the Director regarding the scope of the hear-

ing. (Ibid., at 17)

The Battles case stands for the proposition that the Com-

mon Pleas Court cannot hear during an adjudication a

challenge to the general reasonableness of a regulation.

In a more recent case, Blue Cross of Northwest Ohio

v. Superintendent of Insurance, 40 Ohio App. 2d 285, 319

N.E. 2d 212, the Franklin County Court of Appeals held

that rulemaking by an administrative agency must be done

by the adoption of rules in accordance with the proper

statutory procedures and it must not be done indirectly

by an adjudicatory procedure. The Court stated:

We find no instance in the law of the State of Ohio

supporting the principle of rulemaking by adjudica-

tion.... To the contrary, we believe that law should

provide like treatment under like circumstances. .

Adjudications are the result of a law or rule being

applied to a fact situation by a tribunal which is

usually considered rigid and unchanging. However,

if there be no rule, then the result becomes as flexible

as the grass and a breeze. It is important to the

democratic process that commissions say what they

are doing, and adhere to what they have said unless

and until a change is clearly indicated. (319 N.E. 2d

216, 217)

The last part of the above quotation is repeated and fol-

lowed in Provens v. Ohio Real Estate Commission, 45

Ohio App. 2d 45, 341 N.E. 2d 329, 332 (1975). The Record

A80

clearly indicates that the proceeding before the Hearing

Panel was an adjudication pursuant Chapter 119 (Director’s

Record, Item 3 at 3-4, Item 33, Item 34). Furthermore,

the Director, in his order of December 12, 1974, makes

it clear that it was always his intention that the proceed-

ing before the Hearing Panel should be an adjudication

(Director’s Record, Item 2 at 18).

Since the Record is clear that the proceeding before

the Director was and had to be an adjudicatory proceeding,

the Director’s rejection of the Hearing Panel’s Recom-

mendations 1 through 6 is affirmed by the Board. The

Board also concurs with the Director’s statement that the

only procedure which he can use to amend, rescind or

adopt rules and regulations is that given in Section 119.03

of the Revised Code. The second assignment of error

of CEI is overruled.

The third assignment of CEI is the contention that

the Director acted unreasonably and unlawfully in that

he did not issue in accordance with Section 3704.03 (H)

of the Revised Code an appropriate variance from the

sulfur dioxide emission regulations, and that the variance

should be unconditional. Once again the Board emphasizes

that with respect to SO, emissions the relevant standards

are those given in Regulations AP-3-02 and AP-3-14 not-

withstanding the less stringent federal ambient air quality

standards. These state standards are to be complied with

because they were promulgated by an administrative body

which had been duly delegated such power, the promulga-

tion was in accordance with law and the regulations are

reasonable. The contention of CEI is at least partially

correct in that the Director should have issued an appropri-

ate variance from the SO, emission of regulations; how-

ever, there is nothing in Ohio law or in the Director’s

regulations which would permit an unconditional variance

to be issued.

A81

On the contrary, the Ohio statutes expressly require

that any source which may cause or contribute to air

pollution must be operated under a permit or be issued

a variance. See Section 3704.05, supra. Also 3704.03(G)

empowers the Director to promulgate regulations requiring

that all sources be operated pursuant a permit or a vari-

ance. Section 3704.99 of the Revised Code provides for

penalties for the violation of Section 3704.05 of the Revised

Code.

The regulations in Chapter EP-32 of the Ohio Environ-

mental Protection Agency Table of Regulations are the

regulations which are referred to in Section 3704.03(G)

and which set out the procedures and requirements for

issuing permits to operate and variances. Regulation EP-

32-03(A) requires as part of a variance an approved compli-

ance schedule and Regulation EP-32-03(C) includes the

detailed requirements of such a compliance schedule,

among which is “a date on or before which the source

shall be operated in compliance with applicable law, rules

and regulations.” Both Regulation EP-32-03(F) and Sec-

tion 3704.03(H) of the Revised Code limit the duration

of the variance to one year after which it is necessary

to obtain annual renewals. Therefore, there is no basis

in state law or in state regulations which could allow

the issuance of an unconditional variance and, accordingly,

the Board overrules that part of the third assignment

of error of CEI which requests such an unconditional vari-

ance.

CEI’s fourth assignment of error states that the Direc-

tor acted unlawfully and unreasonably in issuing compli-

ance orders with respect to Regulation AP-3-11, which

sets out the state’s emission standards for particulate mat-

ter, and failing to issue an appropriate variance. Section

3704.03(S) of the Revised Code provides for the issuance,

A&2

modification or revocation of enforcement orders in order

that certain sources may be brought into compliance with

emission standards. This section is not a loophole for

Section 3704.03(H) of the Revised Code. Orders issued

pursuant Section 3704.03(S) are to be complied with im-

mediately or in a reasonably short time. There is no

provision for the issuance of permits or variances given

in this section of the statute. There is no mention of

3704.03(S) in Section 3704.05 of the Revised Code, thus

clearly indicating that the intention of the General Assem-

bly was such that there be compliance with orders issued

under 3704.03(S) in a very short time and no continued

operation of polluting source in violation of any regulation

is allowed under this statute because no permit or variance

can be issued pursuant to 3704.03(S).

It is understandable that Appellant CEI might have

concluded that the Director’s order of December 12, 1974,

was pursuant to Section 3704.03(S) of the Revised Code,

because of the ambiguous wording of the Director’s order

(Director’s Record, Item 2 at 33), which has been noted

above. However, since the order does contain a compliance

schedule covering a time interval of several years, the

order has the attributes of a variance. Also, a variance

is appropriate in view of the evidence in the Record show-

ing that there are violations of the emission standards

(CEI Exhibit No. 6-B) and in view of the fact that it

is reasonable to assume that it will take some time to

modify the source or to install abatement equipment. As

in the case of SO, abatement, Section 3704.05 requires

compliance with the emission standards for particulate

matter or that the operator of the source be a holder

of a variance issued pursuant Section 3704.03(H) of the

Revised Code. The only way the Lake Shore plant could

lawfully remain in operation is to be operating under

A83

a variance with an appropriate compliance schedule which

is in conformity with the conditions of Section 3704.03 (L)

and Regulation EP-32-03.

It is to be noted that Counsel for Appellant CEI has

Stated that an agreement in principle has been reached

between CEI and the U.S. EPA - Region V calling for

the conversion of some of the boilers of the Lake Shore

plant to oil. The agreement calls for the achievement

of compliance with Regulation AP-3-11 by December, 1977.

(Board’s Record, Item FFFFFF at 2). The other portion

of the Lake Shore plant, which is not being converted

to oil, is already in compliance with Regulations Ap-3-

11 (Tr. 3544, 4188). Also noted is a statenent by the

counsel for CEI that there are two plants where Regula-

tion AP-3-14 have been applied, the Canal Road and the

East 20th Street plants. These two plants are using low

sulfur fuel in an effort to comply with Regulation AP-

3-14. (Board’s Record, Item GGGGG at 14). The fourth

assignment of error of CEI is overruled insofar as the

contention that an unconditional variance from Regulation

AP-3-11 may be appropriate.

IX

During the proceedings before the Hearing Panel, the

City of Cleveland presented a control strategy to partially

abate particulate and SO, emission during adverse meteoro-

logical conditions. (City of Cleveland Exhibit No. 1). The

Hearing Panel correctly concluded that this proposal was

not an appropriate response to the issues in question. The

Hearing Panel also concluded on the basis of joint appli-

cants’ Exhibit No. 24 that the ambient air quality with

respect to SO, did not justify the installation of FGD

equipment at the City of Cleveland plant. However, the

Hearing Panel did not find that the installation would

A84

be economically unreasonable. (Director’s Record, Item 3

at 369-372). The air quality data which appear in joint

applicants’ Exhibit No. 24 is the same as that which appear

in CE”= Exhibit No. 4 and has been discussed above.

These data show widespread violations of the state ambient

air quality standards, for SO, in the Cleveland area. Also,

NOLA’s Exhibit No. 2 shows that the emission of sulfur

dioxide by the City plant is in violation of Regulation

AP-3-14. It is the opinion of the Board that a variance

should be issued to the City requiring compliance with

Regulation AP-3-14 within a reasonable time.

Estimates of what may be considered a reasonable

time are given in OEPA Exhibit No. 7. This document

is the record of hearings conducted by the U.S. EPA con-

cerning power plant compliance with sulfur oxide emission

regulations. It is stated in that document that witnesses

with experience in the actual installations of FGD sys-

tems testified that it took from 27 to 36 months to com-

plete such an installation; estimates by the vendors ranged

from 30 to 36 months and estimates by the utilities and

their consultants ranged from 36 to 48 months, (OEPA

Exhibit No. 7 at 63). These estimates do not apply to

the time it may take to switch from one type of fuel

to another, i.e. from coal to oil, nor do the estimates apply

to the time it may take to switch to a low sulfur fuel.

Therefore, on the basis of the evidence in the Record

the Board concludes that a reasonable time to comply

with the sulfur dioxide emission regulations, starting from

no compliance program at all, should be no more than

36 months and very preferably shorter.

x

If the main issue of this appeal could be summed

up in one phrase it would be as follows. If there is a

A85

Significant probability that a great number of the people

of Ohio are being placed in a position of being endangered

by air pollution, the health of the people of the State

of Ohio must be given the supreme consideration.

XI

The Board makes the following finding of fact:

(1) The Northern Ohio Lung Association (NOLA) was

a party to the proceedings before the Director

and therefore had standing to bring the present

appeal pursuant Section 3745.04 of the Revised

Code for the review of the Director’s order of

December 12, 1974, as said order applies to the

Lake Shore plant of the Cleveland Electric II-

luminating Company (CEI) and the City of Cleve-

land Lake Road plant.

(2) The Cleveland Electric Illuminating Company had

joined several other utility companies in a joint

appeal of the Director’s order of December 12,

1974, however CEI voluntarily dismissed itself

from this appeal, except with respect to the Lake

Shore plant which NOLA was also appealing,

Since CEI did not substantially support the find-

ings of the Director, this party could not be de-

noted as an appellee therefore CEI was retained

as an appellant in this appeal.

(3) Although the City of Cleveland did dismiss itself

as an appellee, because it did not substantially

support the findings of the Director, NOLA did

perfect its appeal with respect to the City of Cleve-

land’s plant and therefore the City cannot be re-

lieved from the legal requirements of the Board’s

ruling or the Director’s order merely by not par-

ticipating in the appeal.

(4)

(9)

(6)

A86

Section 3745.05 of the Revised Code says that if

an adjudication hearing was conducted by the Di-

rector in accordance with Sections 119.09 and

119.10 of the Revised Code then the Board is con-

fined to the Record, as certified to it by the Di-

rector, unless a request for additional evidence

has been granted. In order for the Director to

conduct an adjudication hearing in accordance

with Section 119.09 of the Revised Code it is neces-

sary for him to fulfill the requirements with re-

spect to notice and opportunity to be heard for

all the appropriate parties. The processing of the

Hearing Examiner’s report is not determinative

as to whether or not the Board is confined to the

Record as certified to it by the Director. In the

present appeal the Board was confined to the cer-

tified record and such additional evidence as could

be properly put before it.

Unless a regulation is in clear conflict with its

enabling statute or has not been properly adopted

or is unreasonable on its face, the agency must

apply this rule as formulated until it is properly

amended or repealed.

Section 4 of Amended Substitute Senate Bill No.

370, effective December 21, 1971, states that it

is the intention of the General Assembly that

the Director comply with the 1970 Amendments

to the Federal Clean Air Act. Section 108 of

this Act provides for the publishing of Criteria

Documents which include all available information

or adverse effects upon public health and welfare

due to a given air pollutant. Section 109 of this

Act provides for the adoption of primary national

ambient air quality standards based upon such

(7)

(8)

A87

criteria and allowing an adequate margin of safety

as is necessary to protect the public health. Sec-

tion 116 of the Act provides the power for the

states to adopt more stringent standards.

A comparison of the state ambient air quality

standards for sulfur dioxide (SO,) with the cor-

responding federal standards and the values given

in the federal Criteria Document indicate that

the more stringent state standards are lawful and

provide a reasonable margin of safety with respect

to adverse health effects. This comparison also

shows that the federal standards may not even

include a reasonable margin of safety.

Dr. Steven Ayres, Physician-in-Chief at the St.

Vincent Hospital and Professor of Medicine at

the University of Massachusetts testified that a

study indicated that adverse health effects for

children occur at sulfur dioxide levels below the

national ambient air standard; that it is really

not known if the national ambient air standard

provides an adequate margin of safety; and that

there is no known concentration below which

there are no adverse health effects. (Tr. 5989-

5990, 6029-6031). Dr. John Finklea, Director of

the National Environmental Research Center of

the Environmental Protection Agency testified

that there will be hundreds of excess deaths and

hundreds of thousands of excess cases of illness

if the national ambient air standards are not met

in Ohio; that even if the national standards are

met there will be about 10,000 extra asthmatic

episodes and about 10,000 days out of which elderly

people will be bothered by respiratory distur-

bances, in other words there will be some adverse

(9)

(10)

A88

effects on the most susceptible people, the two

percent of the population who are asthmatic and

twenty-seven percent of older people who have

chronic heart or lung disease; these estimates do

not include the effect due to fumigation phenom-

ena; and these estimates are based not only upon

air quality data for SO, but also upon emission

data and the concentration of sulfates in the atmo-

sphere of Ohio. (Tr. 6380-6382, 6386-6388, 6399-

6400).

The evidence before the Air Pollution Control

Board when it promulgated the state ambient air

quality standards and the evidence presented be-

fore the Hearing Panel is such that a rational

person with a responsibility to set ambient air

quality standards when acting in a prudent and

reasonable manner would conclude that an ade-

quate margin of safety required more stringent

standards than the national ambient air quality

standards and would therefore opt for the Ohio

ambient air quality standards.

The state ambient air quality standards given in

Regulation AP-3-02 and the emission standards

given in Regulation AP-3-11 (specifying emission

regulations of particulate matter from fuel burn-

ing equipment) AP-3-13 (specifying emission reg-

ulations for sulfur compound from industrial pro-

cesses), and AP-3-14 (specifying emission regula-

tions for sulfur dioxide from fuel burning equip-

ment) have been adopted in accordance with sec-

tion 119.03 and sections 3704.03(D) and (E) of

the Revised Code. These regulations have never

been lawfully repealed or amended as they apply

to the sources of which are the subject of this

appeal.

(11)

(12)

(13)

(14)

A89

The state emission regulations were developed

using the rollback model wherein the emissions

are reduced by the percentage difference between

the ambient’ air concentrations and the ambient

air quality standard. Although the rollback model

is very simple, the testimony before the Hearing

Panel indicated that this model was used in con-

junction with an air quality display emissions

model and incorporated population, commercial,

and industrial growth factors such that the result

was the location of new industry and new sources

of air contaminants could be accommodated in

the various air quality control regions of the state.

One alternative to the rollback model is the diffu-

sion model which assumes that the distribution of

the pollutants in the atmosphere can be described

by a Caussian function, however due to the un-

certainties in the various parameters which must

be used in this function the resulting numerical

values if uncalibrated by comparison to actual

ambient air data, may be in error by as much as

300 percent. There are no calibrated numerical

values given in the Record. The more complicated

diffusion model cannot be considered an advance

over the simple rollback model and the use of the

rollback model is not unreasonable or arbitrary.

On the basis of the testimony and exhibits in the

Record there is reliable, probative and substantial

evidence that a rational administrative official ex-

ercising reasonable prudence could base emission

standards upon a rollback model and decline to

amend said regulations at this time.

Although the Board knows of no law or regulation

which would permit a state implementation plan

(15)

(16)

A90

to be withdrawn from the Administrator of the

Federal EPA, the presently approved Ohio Imple-

mentation Plan does not contain a strategy de-

veloped by the State to achieve and maintain the

national ambient air standard for sulfur dioxide.

Nevertheless, Regulation AP-3-14 is a lawful and

enforceable emission limitation under Ohio law.

Since this regulation is not in conflict with en-

abling statutes, has been lawfully promulgated and

is reasonable, the Director must enforce the regu-

lation as long as it is not less stringent than any

corresponding federal law or regulation.

Although the Ohio Environmental Protection

Agency is either unable or does not wish to provide

any air quality data-to be used in these proceed-

ings, there has been air quality data for the Cleve-

land Air Quality Control Region presented by

other parties and accepted into evidence. Am-

bient air quality data for SO, in CEI Exhibit No. 4

shows widespread violations of the state ambient

air standard of 60 micrograms per cubic meter as

an annual average; Joint Applicant’s Exhibit No.

26-I are diffusion model calculations which pre-

dict great violations of the state 24-hour ambient

air standard, however these values are highly

uncertain; and the data given in the Ohio Imple-

mentation Plan also shows violations of both the

annual average standard and the 24-hour standard

for the year 1970; OEPA Exhibit 22-3 indicates

that the State of Ohio is in that region of the

country where the concentration of sulfates in the

atmosphere is the highest.

Testimony of experts before the Hearing Panel

showed that sulfur dioxide emitted into the atmo-

(17)

(18)

A91

sphere is converted to fine sulfate particles which

remain in the atmosphere a long time and travel

over great distances; these particles if inhaled re-

main in the lungs for a long time; though toxicol-

ogical studies and epidemiological studies show

that sulfates are more injurious to health than

sulfur dioxide. There is testimony and evidence

in the Record which indicate that there may be

no threshold value for the concentration of sul-

fates below which no adverse health effects occur,

The evidence shows that the sulfate concentrations

in the ambient sir thieaten to endanger the health

and welfare of the people of Ohio and that these

sulfates are formed from sulfur dioxide which

is emitted into the atmosphere and that this evi-

dence is based not only on ambient air concentra-

tions of sulfur dioxide but also on emission data

and concentrations of the sulfates themselves.

The Director statec m his Order of December

12, 1974 that the Penis * Panel used an overly

restrictive defi: “ chnical feasibility and

that the appro -nition is that “an ade-

quately demon’ sed system is one which has

been shown to b* reasonably reliable, reasonably

efficient, and which can be reasonably expected

to serve the interest of pollution control without

becoming exorbitantly costly in an economic or

environmental way.” Essex Chemical v. Ruckels-

haus, 5 ERC 1820, 1825 (D.C, Cir., 1973). In view

of the evidence presented concerning the Paddy’s

Run Station and the Mitsui Aluminum Company

operation and the other evidence in the Record,

and taking into consideration the above definition

of technical feasibility, the Director’s holding that

(19)

(20)

(21)

A92

the availability of scrubber systems for the use

on some of the Ohio Utility boilers is not an

obstacle to proceeding with enforcement action

is reasonable and lawful.

The Hearing Panel concluded that when consid-

ering such concepts as “economic reasonableness

and technical feasibility” as required by Section

3704.03(H) and (S) of the Revised Code the con-

clusion reached by such consideration must not

conflict with the primary purpose of protecting

the public health.

The Director’s Regulation, AP-2-02 states that all

his regulations shall be construed in such a man-

ner as to maintain levels of air quality which

are consistent with the protection of the health

and welfare of the people of the State of Ohio.

Section 3704.04 of the Revised Code requires that

actions on permits and variances must be in ac-

cordance with, among other statutes, Chapter 3745

of the Revised Code. Section 3745.011 provides

in part that it is the intent of the General Assem-

bly that the Ohio Environmental Protection

Agency shall, prevent and abate pollution for the

protection and preservation of the health, safety,

welfare, and property of the people of the state;

administer the air and other natural resources

of the state for the benefit of the people of the

state; operate the state government in ways de-

signed to minimize environmental damage; and

provide for the enforcement of the right of the

people to environmental quality consistent with

human health and welfare.

(22)

(23)

(24)

(25)

A93

When Chapter 3704 is read in conjunction with

Regulation AP-2-02 and Section 3745.011 of the

Revised Code as required, the considerations of

technical feasibility and economic reasonableness

must be subordinated to those benefits to the peo-

ple of the State which concern health and welfare,

namely, whether the “emissions . . . do not en-

danger or threaten to endanger human health, . . .”

(3704.03(H) of the Revised Code).

In the context of environmental law, the term

“endangering” is to be used in a precautionary

or preventative sense; evidence of potential harm

as well as actual harm comes within the scope

of this term; “endanger” means harm is threatened

no actual injury need occur; danger is a risk and

can only be decided by an assessment of risk;

risk may be assessed from suspected but not com-

pletely substantiated relationships and trends

among facts. Reserve Mining v. U. S., 514 Fed.2d

492, 7 ERC 1618 (8th Cir. 1975). Since Ohio law

requires consideration that emissions do not

“threaten to endanger human health’—threaten

to threaten—the Director is required by State law

to give the utmost consideration to possible risk

to human health.

The term “air pollution” is defined in terms of

threat to be injurious to human health. Section

3704.01(B).

Section 3704.05 prohibits any: person from emitting

air pollution in violation of any lawfully adopted

emission standard without being a holder of a

variance issued according to State law. Section

3704.03(H) and Regulation EP-32-03 require that

(26)

(27)

A94

no variance shall be for a period that exceeds

one year; and Regulation EP-32-03(C) requires

that each variance contain a date upon which

compliance with all applicable statutes and regula-

tions will be achieved. The Director failed in

his Order of December 12, 1974 to issue variances

with compliance schedules for the abatement of

sulfur dioxide for those sources which are the

object of this appeal, therefore, the assignments

of error of NOLA are sustained.

Section 119.09 of the Revised Code requires that

the Director state in an Order the reasons why

the Hearing Panel’s recommendations where ei-

ther modified or disapproved. The Order of De-

cember 12, 1974 gives ample and sufficient reasons

why the Director rejected Recommendations 1

through 7 of the Hearing Panel and why Recom-

mendation 8 was modified. There is no expressed

requirement in Section 119.09 of the Revised Code

that the Director respond to any Findings of Fact

or Conclusions of Law which the Hearing Panel

may have presented. Therefore, the Director did

not violate this statute.

Regulation EP-40-26 requires that if the Director

disapproves or modifies the recommendation of

the Hearing Panel he shall state in writing find-

ings of fact and conclusion of law together with

the reasons for not adopting the recommendations

of the Hearing Panel. An examination of the

Order of December 12, 1974 shows that extensive

and detailed reasons are given for rejecting and

modifying the Hearing Panel’s recommendation.

However, these reasons are not arranged in some

sort of numerical list of findings of fact and con-

(28)

(29)

A95

clusions of law. Nevertheless, Parts I-IV of the

Order of December 12, 1974 do contain what can

be reasonably and lawfully considered findings

of fact and conclusions of law therefore the Direc-

tor has substantively complied with Regulation

EP-40-26, The first assignment of error of CEI

is overruled.

There is no basis in Ohio law for rulemaking

by adjudication; in fact adjudications are the re-

sult of the application of laws or rules to a par-

ticular fact situation by a tribunal where such

laws and rules are usually considered to be rigid

and unchanging. Blue Cross of Northwest Ohio

v. Superintendent of Insurance, 40 Ohio App. 2d,

285, 319 N.E.2d 212, 216, 217. The record clearly

indicates that the proceeding before the Director

was always intended to be an adjudication, there-

fore, the Director’s rejection of the Hearing Pan-

el’s call for rulemaking in Recommendation 1

through 6 is lawful and reasonable. CEI’s second

assignment of error is overruled.

There is no basis in state law or in the Direc-

tor’s regulations for an unconditional variance. To

the contrary, both statute and regulations require

that variances contain certain conditions among

which are the limitation to a duration of the

variance to no more than one year after which

renewals are necessary and the inclusion of a com-

pliance date by which the emission will be in

conformance with all applicable laws and regula-

tions. The third assignment of error of CEI in-

sofar as it is contended that an unconditional vari-

ance be issued is overruled.

——— EE EE EE

A96

(30) Section 3704.03(S) of the Revised Code provides

(31)

(32)

(33)

for the issuance of compliance orders so that cer-

tain sources may be brought into compliance with

applicable emission standards. This section is not

a loophole for Section 3704.03(H) of the Revised

Code and orders issued pursuant Section 3704.-

03(S) are to be complied with immediately or

in a reasonably short time. This section has no

provision for the issuance of permits or variances

and does not allow for the continued operation

of a source in violation of any applicable statute

or law.

Notwithstanding the ambiguous wording on Page

33 of the Director’s Order of December 12, 1974

this Order does contain a compliance schedule

and therefore have the attributes of a variance.

The variance is appropriate in view of the evi-

dence in the Record showing violations of the

emission standards for the Lake Shore Plant (CEI

Exhibit No. 6-B). The fourth assignment of error

of CEI is overruled insofar as the contention that

an unconditional variance from Regulation AP-

11 may be appropriate.

Evidence in the Record shows that the omission

of sulfur dioxide from the City of Cleveland plant

is in violation of Regulation AP-3-14 (NOLA Ex-

hibit No. 2) also evidence in the Record shows

that the CEI Lake Shore Plant is in violation

of the state emission regulations for sulfur dioxide.

(CEI Exhibit No. 6-B,C).

On the basis of hearings conducted by the Federal

EPA where testimony was taken from witnesses

with experience and actual installation of flue

A97

gas desulfurization (FGD) systems, from vendors

of these systems, and from utilities and their con-

sultants it is concluded that a reasonable time

to install sulfur dioxide abatement equipment

should be no more than 36 months.

XII

Based on the findings reached by the Board in this

appeal, the Board makes the following order:

Within thirty (30) days of receipt of this Order the

Director is to modify the Order of December 12, 1974

such that;

(1)

(2)

(3)

A variance is issued to the Cleveland Electric

Illuminating Company whereby the Lake Shore

Plant is to be brought into compliance with Reg-

ulation AP-3-14 as soon as is expeditious and in

no case later than 36 months from the issuance

of said variance;

The City of Cleveland is to be issued a variance

whereby the Lake Road Station Plant is to be

brought into compliance with Regulation AP-3-

14 as expeditious as possible but in no case later

than 36 months after the issuance of said variance.

The Director’s Order of December 12, 1974, Page

33 et seq. is to be modified such that it is clear

that the Cleveland Electric Illuminating Company

has been granted a variance for the Lake Shore

Plant to compliance with the particulate regula-

tions of Chapter AP-3.

The Board, in accordance with Section 3745.06 of the

Revised Code and EBR-§7-01(A) informs the parties that:

Any party adversely affected by an order of the En-

vironmental Board of Review may appeal to the Court

A98

of Appeals of Franklin County, or, if

This text is long and has been trimmed here. Open the source document for the complete record.