# Appendix — Cleveland Electric Illuminating Co. v. Williams

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 865

## Text

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

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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

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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

A20

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.

A22

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.

A33

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,

——————————————
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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
obe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1432%3A2. Public record. Not legal advice.