Petition — Shell Oil Co. v. Environmental Protection Agency

Supreme Court brief1979

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IN THE MIGHAM RODAK, JR. CLERK

Supreme Court of the Rnited States

OctosperR TERM, 1978

No.7. 83 5

Tue SHett Or Company, Petitioner,

Untrep States ENVIRONMENTAL PROTECTION

AGency, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Of Counsel: C. Ranpotpx LIcHT

BarBpara D Lovis E. Tost

ARBARA LitTtLe Evans ‘ =

< . - ) . : 4 N ‘oo

THe SHELL Or Company MICHAEL E. McConneLy |

One Shell Plaza 1200 Edison Plaza

P.O. Box 2463 300 Madison Avenue

Houston, Texas 77001 P. O. Box 2088

era Toledo, Ohio 43603

(419) 255-8220

Futier, Henry, Hopce

& SNYDER Attorneys for Petitioners

1200 Edison Plaza

300 Madison Avenue

P.O. Box 2088

Toledo, Ohio 43603

— — ——

Passes of Breen S. Adams Patntine, Inc. Wasnineton, D.C

TABLE OF CONTENTS

Page

EM 8 ee oe 2

Nee ec icebesbe coéeabes 2

en ec bands eedadecnes eet 2

Constrrutionat Provisions, Statutes anp RecuLations

en fe Pi oe none veséccsbéeces 3

ns oe ce cectebecebecece 3

SEE EE 3

EE wnceccceedvccscsescecce a

C. Petitioner’s Rulemaking Comments .......... 5

D. EPA Response to Shell’s Comments ......... 7

ee I ac cc ccsccccccccecccces 8

Reasons ror Grantineo THE Writ ................--. 9

A. The Decision Below Deprives Petitioner of

those Fundamental Rights and Procedures

Which are Requirements of Rulemaking and

Conflicts with Decisions of this Court and

Ne Ses Cac kecacccsess 9

B. The Opinion Below Conflicts With Those of this

Court and Other Circuits in that the Sixth

Cireuit Failed to Engage in the Proper Review

of Administrative Action ................-.- ll

C. This Case Presents Important Awe Questions

That Should be Reviewed by This Court ..... 13

i eee keen Gb baGescetsaccasccvesses 14

ii Table of Contents Continued

Page

Appendix A: Opinion of the United States Court of

Appeals for the Sixth Circuit in Cincinnati Gas &

Electric Co. v. Environmental Protection Agency,

Gre Fe Gee (GIR Cir. BOTS) nce ceccscccncves: la

Appendix B: Order of the United States Court of Ap-

peals for the Sixth Cireuit in Cincinnati Gas &

Electric Co. v. Environmental Protection Agency 13a

Appendix C: Decision of the United States Court of

Appeals for the Sixth Cireuit in Cleveland Electric

Illuminating Co. v. Environmental Protection

Agency, 572 F.2d 1150 (6th Cir. 1978), @ related

decision by the Sixth Cireuit ..............0008: 17a

Appendix D: Judgment of the United States Court of

Appeals for the Sixth Cireuit ..............006. 66a

Appendix E: The Fifth Amendment to the Constitu-

ee er OE on bok ec ennsweses'seene 68a

Appendix F: Relevant Provisions of the Administra-

tive Procedure Act, 5 U.S.C. §§ 553 and 706 ..... 69a

Appendix G: Relevant Provisions of the Clean Air Act,

as amended by the Clean Air Act Amendments of

1970, 91 Pub. L. No. 604, 84 Stat. 1676, formerly

codified at 42 U.S.C. §§ 1857 et seq. ............. 72a

Appendix H: Relevant Provisions of the Clean Air

Act, as amended by the Clean Air Act Amendments

of 1977, 95 Pub. L. No. 95, 91 Stat. 685, 42 U.S.C.

MO, pc kv chck aspen tacncdvcccaiareedss 78a

Appendix I: Relevant provisions of the regulations be-

ing reviewed, 40 C.F.K. §§ 52.1875, 1881 and 1882

DEE. bccentuadedddansestsihsetdeceanenconnes 89a

TABLE OF AUTHORITIES ili

CasEs: Page

American Public Gas Association v. Federal Power

Commission, 567 F.2d 1016, 1039 (D.C. Cir. 1977) 11

Cincinnati Gas & Electric Co. v. Environmenta! Pro-

tection Agency, 578 F.2d 660 (6th Cir. 1978) .... 2

Citizens to Preserve Overton Park, Ine. v. Volpe, 401

Se SE SEE cakae Uae nk> Kenpo ekeeee ne p/ecs 11

Ethyl Corp. v. Environmental Protection Agency, 504

ee ee BUD bic ak beens SRA Nes cesces li

International Harvester Corp. v. Ruckelshaus, 478

F.2d 615, 647-648 (D.C. Cir. 1973) ............. 11

Portland Cement Association v. Ruckelshaus, 486 F.2d

375, 394 (D.C. Cir. 1973), cert. denied 417 U.S.

OEE Vata Cd. Gudanounss obs nav he Wa won hens 10

South Terminal Corp. v. Environmental Protection

PE, Te ae GE UD ov ck pevesnesvas'esoncc’ 11,12

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., Us. —

(1978) (SS S.Ct. 1597, TSIG-1Z17) 2... cccceess 10

STATUTES:

eka ce cake wcaécepeceseseseveess 9

ES Ge sc cabinianehessoeneésceess 2

ee Sets IIIS Sek cnccscivccovecvnevedss 4

ee ce erence ccccesceseue 4

ss wile wa teens se eeee 13

ee anc ccc cen bdicenksrrccecedes 4

ee ee ds cits sed ecccs tees se 10

A NS oe cil dis 10

eee

IN THE

Supreme Court of the United States

OcroBerR TERM, 1978

No. 78-

THE SHELL O11 Company, Petitioner,

UnNItep STATES ENVIRONMENTAL PROTECTION

AGENCY, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

f THE SIXTH CIRCUIT

Petitioner, The Shell Oil Company (‘‘Shell’’), re-

spectfully prays that a writ of certiorari issue to re-

view the judgment and opinion of the United States

Court of Appeals for the Sixth Cireuit (‘‘Sixth Cir-

cuit’’) entered in this proceeding on June 29, 1978 in

which the Sixth Circuit upheld the sulfur dioxide

(‘*SO2’’) implementation plan for the State of Ohio

and its emission limitations applicable to Shell pro-

mulgated by the United States Environmental Pro-

tection Agency (‘‘Agency’’ or ‘‘EPA’’).

OPINION BELOW

The Sixth Circuit’s opinion is officially reported as

Cincinnati Gas & Electric Co. v. Environmental Pro-

tection Agency, 578 F.2d 660 (6th Cir. 1978), and

appears as Appendix A. It is unofficially reported at

2 CCH PCG { 40,157.’

JURISDICTION

The judgment of the Sixth Circuit was, entered on

June 29, 1978, and is appended hereto as Appendix D.

This petition for writ of certiorar? was filed within

90 days of that date. This court’s jurisdiction is in-

voked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Sixth Circuit violated the standard

of judicial review and contravened the Clean Air Act

when it: (a) upheld EPA’s use of an air quality model

which improperly accounted for the effect of hilly

terrain in caleulating emission limitations for Shell’s

plant; (b) failed to address Shell’s comment that

EPA’s model utilized a shortcut equation to predict

air quality concentrations, when use of the full form

of that equation would eliminate the need for emis-

sion reductions for Shell; and (¢c) on the basis of in-

formation not found in the record, upheld EPA’s re-

jection of Shell’s alternative, more economical ap-

proach for establishing emission limitations?

'A related order addressing a motion for clarification, officially

reported at 578 F.2d 666, is appended as Appendix B. An earlier,

related opinion of the Sixth Circuit in this proceeding, Cleveland

Electric Illumwmating Co. v. Environmental Protection Agency,

572 F.2d 1150 (6th Cir. 1978), is appended as Appendix C.

2. Whether EPA deprived Shell of its statutory

right of comment in a rulemaking proceeding and due

process of law by. failing to respond to material com-

ments submitted by Shell?

3. Whether EPA acted arbitrarily and capriciously

and in contravention of the Clean Air Act when it

used, without appropriate consideration of available

air quality monitor data, an air quality dispersion

model not shown to be reliable or realistic to determine

SO:2 emission limitations for Shell’s plant?

4. Whether it is arbitrary and capricious and in vio-

lation of the Clean Air Act for EPA to reject less

costly alternative emission control strategies when

such alternatives are shown to be available?

CONSTITUTIONAL PROVISION, STATUTES,

AND REGULATIONS INVOLVED

This case arises under the Clean Air Act. The perti-

nent provisions of it, as well as the constitutional pro-

vision and other statutory provisions involved and the

regulations being reviewed, are appended hereto as

Appendices E through I, pp. 68a-105a.

STATEMENT OF THE CASE

A. Nature of the Case

This case presents clear and exceedingly important

questions impacting upon those fundamental rights

and procedures which are necessary to assure the

integrity of the notice and comment rulemaking process

and to provide for adequate judicial review of the

rules resulting from that process. These procedures

are uniquely important in this case since § 307(b) (2)

of the Clean Air Act potentially bars further judicial

consideration of the questions presented below. 42

U.S.C. § 7607(b) (2).

B. History of the Case

This is a review of EPA’s regulations establishing

SO:z emission limitations for Shell’s plant as part

of EPA’s promulgation of an SO2z implementation

plan for Ohio.

EPA’s plan was first proposed in November, 1975,

and promulgated in August, 1976, under 42 U.S.C.

\ 1857¢-5(¢)(1) (reeodified at 42 U.S.C. (7410(e)(1)).

In November, 1976, in response to petitions for review

and motions for stay of Shell and others, the Sixth

Cireuit stayed EPA’s August 1976 regulations and

sua sponte remanded them to the Agency for further

comments. Shell submitted comments pursuant to this

order.

On May 31, 1977, EPA repromulgated its plan with-

out modification applicable to Shell. Therefore, Shell

again filed a petition for review with the Sixth Circuit

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

§ 1857h-5(b)(1) (reeodified at 42 U.S.C. § 7607(b)

(1)). Its case was ultimately decided on June 29, 1978.

EKPA’s plan limits the amount of SOz that may be

emitted from the boilers supplying steam and heat

essential for the operation of Shell’s chemical manu-

facturing plant located in the hills of rural south-

eastern Ohio. Compliance with the plan will force

Shell to burn low sulfur coal, thereby expending

hundreds of thousands of dollars annually.

EPA’s exclusive basis for the imposition of these

SO2 emission limitations is an air quality dispersion

model called MAXT-24. Dispersion models are com-

puterized equations intended to predict the way in

which SO: disperses after it is emitted from the stack

of a source. If the model overpredicts actual ambient

SO2 concentrations, it will result in the setting of

emission limitations more stringent than necessary to

meet ambient air quality standards. Such unneces-

sarily restrictive limitations are costly and bear no

relation to the protection of public health.

C. Petitioner's Rulemaking Comments

During the rulemaking comment period, Shell sub-

mitted detailed written comments founded upon mon-

itoring and modeling studies of its plant’s emissions.

These comments made the following four basic points.

First, Shell commented that both the State’s moni-

tor data and its own monitor data measured at points

of expected highest SO2 concentration in the vicinity

of its plant did not show violations of ambient SO:

standards. Thus, actual monitor data did not indicate

a need for any further reduction of SOz emissions

from Shell’s plant.

Second, Shell commented that EPA used a short-

ened version of the Gaussian Plume Equation in

applying MAXT-24. The Gaussian Plume Equation is

the key equation in the model used to represent plume

dispersion and thus to predict ambient concentrations.

Shell, supplying supporting data, calculations, and

analysis, informed EPA that, for Shell’s plant (i.e.,

a source with stack heights nearly equal to or less

than the heights of surrounding hills), this ‘‘short-

cut’’ in the Gaussian Plume Equation predicted con-

centrations twice as high as if the full form were used.

Utilizing the full form of this equation, the MAXT-24

model predicts no ambient air quality violations attri-

butable to Shell.

Third, Shell commented that MAXT-24 was not

valid for sources, such as its plant, located in hilly

terrain. The original model (called MAX-24) was de-

signed for use on flat land and could not accurately

predict concentrations in hilly areas. EPA’s own

documents confirm this. EPA made a change in the

original model in an attempt to adjust for this de-

ficiency, but the record demonstrates that EPA had

neither theoretical support nor empirical justification

for its change. In arguinent before the Sixth Circuit,

counsel for EPA admitted that the statement in the

record that EPA’s adjustment had been validated by

empirical data was incorrect. (Appendix A, p. 12a.)

Shell offered EPA a sound alternative adjustment.

Shell’s suggestion was supported by expert opinion

and its comparison of MAXT-24 predicted concen-

trations to observed concentrations at points of ex-

pected highest concentration. Shell’s suggestion was

also founded on the simple law of physies that wind

and air cannot blow through hills, but blow over and

around them.

With the terrain corrections suggested by Shell in-

corporated in MAX T-24, but with no other changes or

adjustments to it, MAXT-24 predicts ambient SO:

concentrations of one-half that predicted using EPA’s

methods. It predicts no violations of ambient air stand-

ards by Shell’s plant.

Fourth, independent of the foregoing issues related

to modeling, Shell requested that EPA express emis-

sion limitations applicable to the Shell plant in pounds

of SO: per hour as opposed to pounds of SO: per mil-

lion British thermal unit heat input. This change

would allow Shell to burn higher sulfur content fuels

at low operating rates while assuring ambient air

standards were not violated under EPA’s own pre-

diction results, Thus, Shell proposed a more economi-

eal, yet equally effective, alternative to insure ambient

air quality.

In the early proceedings in the case, EPA ex-

pressed the general concern that a pounds-per-hour

emission rate would cause violation of ambient air

standards due to the loss of plume dispersion capabili-

ties at lower operating rates. Shell answered this con-

cern in the comment period following the Sixth Cir-

cuit’s remand order of November, 1976, explaining to

EPA that the heat exchangers in its stacks keep plume

dispersion capabilities equalized at all operating rates.

Thus, Shell demonstrated that EPA’s earlier, general

concern did not apply to its plant.

D. EPA Response to Shell’s Comments

EPA did not adequately respond to Shell’s com-

ments that actual measured air quality data around

its plant did not demonstrate a need for emission

reductions.

EPA did not address, in any manner, Shell’s com-

ment that it used an erroneously shortened version

of the Gaussian Plume Equation.

EPA’s response to Shell’s terrain adjustment sug-

gestions reduces to a statement that it could not tell

whether its adjustment or Shell’s was better. (Appen-

dix A, p. 12a.) This response ignores the empirical and

expert support in the record for Shell and amounts

to an excuse that is truly nonresponsive to the sub-

stantial material presented by Shell.

Finally, EPA rejected Shell’s alternative pounds

per hour strategy in silence. When Shell explained

why EPA’s earlier expressed fears concerning this

alternative were baseless, EPA did not respond, re-

jeeting the alternative based on its previous, general-

ized position.

E. Sixth Circuit Opinion

The Sixth Cireuit failed to remedy EPA’s lack

of response to Shell’s comments regarding the key

technical issues in this case. The Sixth Cireuit reso-

lution of Shell’s case is an example of wuat ‘judicial

review must not be.

The Sixth Cireuit did not address Shell’s comments

that its ambient air data demonstrated no need for

emission reductions.

More striking, the Sixth Circuit did not address

the fact that by merely using the full Gaussian Plume

Equation, EPA’s model gave results that compared

more favorably to ambient measurements, predicted

only one-half the SO2 concentrations predicted by the

short version, and predicted no ambient violations

by Shell.

The Sixth Cireuit did give minimal consideration

to Shell’s argument that EPA’s adjustment for hilly

terrain was arbitrary. However, it declined to hold

EPA’s action arbitrary and capricious (Appendix A,

p. 12a). The Court reached this conclusion by ap-

parently overlooking studies by Shell in the record

which confirmed the propriety of Shell’s suggested

change, and by accepting EPA’s unsupported adjust-

ment in the light of overwhelming theoretical criticism.

Finally, based on a finding of administrative con-

venience in monitoring compliance, the Sixth Cir-

cuit brushed aside Shell’s comment than an emission

limit expressed in pounds per hour would maintain

ambient air standards in a more cost-effective man-

ner. The Sixth Circuit’s reason, however, is entirely

that of the court and is not to be found expressed

by EPA in the record. The record simply does not

show, and EPA did not state, that ic is more difficult

to monitor compliance under Shell's alternative.

REASONS FOR GRANTING THE WRIT

A. The Decision Below Deprives Petitioner of Those Fundamental

Rights and Procedures Which Are Requirements of Rulemaking

and Conflicts With Decisions of This Court and Other Circuits.

This case presents questions going to the heart of

the rulemaking process—the right to comment and

response. It does not invole a request for procedures

in addition to those assumed by the Administrative

Procedure Act (*‘APA’’) or the Clear Air Act as

amended. Rather, Shell merely seeks to have assured

those statutory minimums essential to the integrity of

the process and to its review.

The APA, 5 U.S.C. § 553, guaranteed Shell the right

to comment on EPA’s proposed SO: plan and required

EPA to consider all ‘‘relevant matter presented.’’ The

right to comment includes both the right to submit

comments and the right to have EPA respond to those

comments. EPA is obligated to articulate a response

on the record to material matters presented to it.

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., — UB. — (1978)

(98 S. Ct. 1197, 1216-1217); Portland Cement Asso-

ciation Vv. Ruckelsha:s, 486 F.2d 375, 394 (D.C. Cir.

1973), cert. denied, 417 U.S. 921 (1974). Not only

was EPA response an obligation etched into the APA,

but § 307 of the Clean Air Act, as amended in 1977,

reaffirms that obligation to respond ‘‘to each of the

significant comments, criticisms, and new data sub-

mitted.’’ 42 U.S.C. §§ 7607(d)(3) and (6)(B). As

this court and others have stated, material comments

are those comments which show ‘‘that a particular

mistake was made’’ and ‘‘why the mistake was of

possible significance in the results.’’ Vermont Yankee

Nuclear Power Corp. y. Natural Resources Defense

Council, Inc., -— U.S. — (98 S. Ct. at 1216-1217);

Portland Cement Association v. Ruckelshaus, 486 F.2d

at 394.

All of Shell’s comments met this test of ‘‘material-

ity’’. Shell’s ambient air data showed no need for emis-

sion reduction. EPA did not respond. Shell’s analysis

of the Gaussian shortcut showed that merely expand-

ing EPA’s own equation to its original form would

result in no need for emission reductions. EPA did not

respond. Shell’s terrain adjustment comment was sup-

ported by both data and theory to which EPA did not

adequately respond. Finally, Shell’s specifie explana-

tion of why its pounds-per-hour alternative would

meet ambient standards was not addressed by EPA.

B. The Opinion Below Conflicts With Those of This Court and

Other Circuits in That the Sixth Circuit Failed to Engage in

the Proper Review of Administrative Action.

EPA’s error in failing to articulate a response to

Shell’s comments was compounded by the Sixth Cir-

cuit’s misapplication of Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971). That case

requires courts to engage in a searching inquiry of

the administrative record to determine if the action

was rational. It requires courts to consider whether the

action was based upon all the relevant factors and

whether it reflected a clear error of judgment. The

Circuits have uniformly applied this standard to EPA

rulemaking. For example, see Ethyl Corp. v. Environ-

mental Protection Agency, 541 F.2d 1 (D.C. Cir. 1975),

cert. denied, 426 U.S. 941 (1976); South Terminal

Corp. v. Environmental Protection Agency, 504 F.2d

646 (1st Cir. 1974).

Since models are no more than computerized proxies

for real data, the Overton Park test of rationality in

cases such as this turns on the rationality or relia-

bility of the model itself. In applying Overton Park

to cases involving prediction, courts have required

that the prediction methodology be shown in the record

to be reliable, and that, in the absence of empirical con-

firmation, the agency involved provide a gomplete

analytical defense of its model. American Public Gas

Association v. Federal Power Commission, 567 F.2d

1016, 1039 (D.C. Cir. 1977); South Terminal Corp.

v. Environmental Protection Agency, 504 F.2d at 655;

International Harvester Corp. v. Ruckelshaus, 478

F.2d 615, 647-648 (D.C. Cir. 1973). As the Sixth Cir-

cuit opinion shows, the court approved EPA’s regula-

tion without such showings. While the Sixth Circuit

paid lip service to Overton Park, it simply did not

engage in a searching inquiry.

EPA made no adequate showing why its MAXT-24

should be accepted over Shell’s monitor data, EPA

made absolutely no showing why the shorteut version

of its own equation was more accurate than the full

expression, EPA made no showing that Shell's ad-

justment was not sound, and gave absolutely no

empirical’ or theoretical explanation fér its charge.

EPA finally gave no specific reason why Shell’s unique

alternative control plan was not acceptable.

Additionally, the court’s refusal to remand EPA’s

rejection of Shell’s request for an emission limit on

a pounds per hour basis is contrary to a decision of

the Court of Appeals for the First Circuit, That court

stated that it is arbitrary and capricious for EPA to

reject control strategy alternatives shown to be avail-

able that are less wasteful or more economical than its

own, South Terminal Corp, v. Environmental Protec-

tion Ayeney, 504 F.2d at 655-656,

Shell established the availability of a less costly

alternative: expressing emission limitations in pounds

per hour rather than pounds per million Btu heat

input. The court failed to review the record sufficiently

on this point. The court's implicit rejection of this

suggestion coustitutes an approval of EPA’s refusal

to adopt a reasonable, less burdensome means to the

same end,

“The Sixth Cireuit recognized that EPA withdrew, during

briefing, its previous statement that it had ‘‘validated’’ or em-

pirically justified its adjustment. (Appendix A, p, 12a).

C. This Case Presents Important Policy Questions That Should

Be Reviewed By This Court.

This case involves more than one plant and one

petitioner, Since the Clean Air Act has an enormous

impact and ever increasing impact on the growth of

this country, the approval of unreliable modeling tech-

niques will have continuing adverse effects across the

nation,

EPA has elected to carry out significant programs

through the use of dispersion models. Modeling will

govern licensing and development of new and existing

sources under EPA’s program for prevention of sig-

nifieant deterioration, thereby substantially impacting

upon growth in our economy. The same model at issue

in this case has also been used by EPA to designate

areas of Ohio as nonattainment for SOs under § 107

of the Clean Air Act, 42 U.S.C. § 7407,

The growing use of modeling, in connection with

this Court’s recent action in Vermont Yankee, man-

dates that the comment-rulemaking process in this

and other EPA air regulatory programs be carefully

protected, The Sixth Cireuit opinion represents a

significant retreat from the protection guaranteed by

the APA and this Court’s requirement that the Cir-

cuits engage in searching inquiries.

CONCLUSION

The importance of the integrity of the notice and

comment rulemaking procedures, combined with the

pervasive impact of administrative regulation in gen-

eral, and environmental regulation in particular, as

well as the intensifying effect of the use of environ-

mental modeling upon the citizens of Ohio and this

country, provide important reasons that this peti-

tion for a writ of certiorari be granted. Since EPA’s

action and the Sixth Cireuit’s review thereof fail to

meet even the minimal requirements of the APA and

Vermont Yankee, Petitioner suggests that, upon grant-

ing this petition, this Court summarily vacate the

Sixth Cireuit judgment and remand with orders to

remand the matter to EPA,

Respectfully submitted,

(. RANDOLPH LIGHT

) ; SCt? ’ :

Of Counsel Louvrs EB, Tost

Barbara D, Livres Evans Micuarnt BE. McConnenn

THe Suet, Or, Company = 1200 Edison Plaza

One Shell Plaza 300 Madison Avenue

P.O. Box 2463 ’?. O. Box 2088

Houston, Texas 77001 Toledo, Ohio 43603

» i

uncer, Henny, Honar (419) 255-8220

& SNYDER Attorneys for Petitioners

1200 Edison Plaza

300 Madison Avenue

2.0. Box 2088

Toledo, Ohio 48608

APPENDIX A

Opinion of the United States Court of Appeals for

the Sixth Circuit in Cincinnati Gas & Electric Co. v.

Environmental Protection Agency, 578 F.2d 660 (6th

Cir. 1978)

a ee

APPENDIX A

Nos. 76-2090, 77-1367; 76-2232, 77-1361;

76-2241, 77-1357; 76-2278

UNITED STATES COURT OF APPEALS

} FOR THE SIXTH CIRCUIT

| Cincinnati Gas & Exectrric Co,;

| Co._umsus & SOUTHERN On10 ELEc-

| tric Co.; Dayron Power & LIGHT

Co.; Ouro Epison Co.; On10 Power

Co.; Suet, Om Co.; Austin Pow-

per Co., E. I. duPont de Nemours| Petrrions for review of

& Co., action of the Admin-

Petitioners, istrator of the En-

Vv. vironmental Protec-

tion Agency.

ENVIRONMENTAL PROTECTION AGENCY

and Dovuc tas M, Costie, ApMIN-

ISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

Decided and Filed June 29, 1978.

Before: Puruirs, Chief Judge, Epwarps and Peck, Circuit

Judges. “9,

Epwarps, Circuit Judge. This opinion deals with certain

additional issues presented in 23 industry petitions covering

32 major power and industrial companies in Ohio objecting to

the United States EPA’s plan for control of SO, pollution in

Ohio. These additional issues concern only point sources of

SO, pollution in Ohio’s rural areas or areas with complex

terrain. This opinion should be read as supplementary to the

2 Cinti. Gas & Elec., et al. v. EPA, et al. Nos. 76-2090, etc.

opinion of this court dated February 13, 1978, Cleveland

Electric Illuminating Co., et al. vy. Environmental Protection

Agency, et al., 572 F.2d 1150 (6th Cir. 1978).

Our focus herein is upon the following petitioners and the

designated facilities belonging to them, These petitioners

protest certain features of the United States EPA Model

(MAXT-24) employed for predicting plant pollution in rural

and complex terrain areas;

Nos. 76-2090, 77-1367:

Cincinnati Gas & Electric Co., all facilities (Hamilton &

Clermont Counties ).

Columbus & Southern Ohio Electric Co., all facilities

(Athens, Coshocton, Pickaway Counties),

Dayton Power & Light Co., all facilities not covered by

opinion dated February 13, 1978 (Adams County).

Ohio Edison Co. (Jefferson County) Sammis.Plant only.

Ohio Power Co., all facilities (Washington and Morgan

Counties ).

No. 76-2278:

E. I. duPont de Nemours & Co., all facilities (Hamilton

County).

Nos. 76-2232, 77-1361:

Shell Oil Co., all facilities (Washington County).

Nos, 76-2241, 77-1357:

Austin Powder Co., all facilities (Vinton County).

The MAXT-24 model (Second Maximum 24-Hour Dispersion

Model with Terrain Adjustments) is designed for use in pre-

dicting SO, pollution resulting from single sources located in

rural areas. Unlike the RAM model employed in urban areas,

which we dealt with in Cleveland Electric Illuminating Co.,

Nos. 76-2090, etc. Cinti. Gas & Elec., et al. v. EPA, etal. 3

supra, MAXT-24 does not provide estimates of comparative

contributions to total SO, pollution from a number of point

sources. The MAXT-24 model treats each point source as an

isolated problem, and only general background SO, pollution

data are added into the formula.

In other respects the MAXT-24 model strongly resembles

the RAM model.'' Thus, like RAM, MAXT-24 starts with a

solid ascertainable data base, namely, the established design

capacity of the power or steam generating plants in question

related to the sulfur content of the fuel used by such plants.

Emissions data are developed from these factors. Subsequently,

stack height, wind, weather, and terrain data are added. Like

RAM, MAXT-24 employs a Gaussian plume formula and as-

sumes vertical and horizontal dispersion of the pollution plume.

It employs the Pasquill-Gifford stability classifications and co-

efficients.

Like RAM, the MAXT-24 model was designed by United

States EPA largely as a result of industry criticism of the use

of rollback modeling. As was true in relation to the RAM

results, the results of use of MAXT-24 were generally less

strict than those contemplated by the 1972 and 1974 Ohio

EPA SO, regulations.?

1 See Cleveland Electric Illuminating Co., supra, Section 3, 572 F.2d

at 1160-64.

2The following summary is drawn from Cleveland Electric II-

luminating Co., supra, Appendix A, 572 F.2d at 1165-74:

US EPA 1976-77 Ohio EPA Ohio EPA

MAX regs are: 1972 1974

regs for: regs for:

1. less strict than 19 16 of petitioners’

facilities

stricter than 1 5 ”

ambiguous»

compared with 3 2 ”

2. less strict than 31 27 of Ohio counties

modeled entirely

with MAX

stricter than 3 6 ”

ambiguous»

compared with 5 6 ”

(Continued on next page)

4 Cinti. Gas & Elec., et al. v. EPA, et al. Nos. 76-2090, etc.

Indeed, the comments this court made in Cleveland Electric

Illuminating Co., supra, in Section 3 of the opinion are largely

applicable to EPA’s adoption of MAXT-24 and we cite and

rely on said Section 3 in holding that in general (and with one

exception noted below) the EPA’s adoption and use of the

MAXT-24 model is not arbitrary or capricious and, like the

use of the RAM model, must be affirmed by this court.

Despite the discussion above, we are not certain that any

of the petitions we deal with in this opinion seriously disputes

the general validity of the MAXT-24 model. What these peti-

tioners clearly do contend is that the MAXT-24 model results

are badly skewed to their great economic disadvantage by 1)

the Class A assumption employed to estimate pollution dis-

persion in the least stable wind condition, and 2) the failure

of EPA to employ the half ground displacement theory in esti-

mating pollution impact on hilly terrain.

I THE CLASS A ASSUMPTION ISSUE

The MAXT-24 model makes use of a set of six coefficients

for determining plume dispersal. The classes of coefficients

employed were based upon six different weather conditions.

US EPA 1976-77 Ohio EPA Ohio EPA

MAX regs are: 1972 1974

regs for: regs for:

3. less strict than 38 32 of Ohio counties

in which

was employed

stricter than 3 6 w"

ambiguous»

compared with 12 15 ”

PP saa facilities to the regulation of which petitioners do not

object.

> /.e., stricter for some stacks or facilities and less strict for others; or

employing different units of measurement, rendering comparison im-

possible.

The 1972 Ohio EPA plan was submitted to United States EPA

on January 30, 1972, but was “withdrawn” by the Governor of Ohio

on August 27, 1972. The 1974 Ohio EPA plan was submitted to

United States EPA on September 22, 1974, and was withdrawn on

te A. 1975. See Cleveland Electric Illuminating Co., supra, 572 F.2d

a :

Nos. 76-2090, etc. Cinti. Gas & Elec., et al.v. EPA, etal. 5

The term Class A is employed to describe both the least stable

weather condition and the set of assumptions which is based

on the most direct and quickest impact of the pollution plume

upon ground level with the least prior dispersal.

The six Pasquill-Gifford coefficients employed in MAXT-24

are derived from a Nebraska study made in the 1950’s and

are referred to by United States EPA as “time-tested.” What

this defense appears to ignore, however, is that petitioners in

this instance (contrary to the general attack upon the six

coefficients employed in RAM) are not objecting to the use

of the coefficients, they are attacking the accuracy of one set of

them — the Class A set associated with “gusty winds.” Spe-

cifically they claim that the Class A assumption is fallacious in

that it assumes a longer period of downward draft than occurs

in fact and fails to make allowance for the lateral dispersal

which would accompany such a vertical wind at the point of

impact.

The lead brief for the utilities presents the case thus:

In all modeling of rural power plants, EPA utilized

dispersion coefficients under Class A stability conditions

which have no support in data, which have been repudi-

ated by most modelers and which are demonstrated in-

accurate by this record. As applied to this rulemaking,

this seemingly simple assumption is exceedingly im-

portant because, for almost 1/3 of the power plants in

Ohio, it was the determining factor in establishing emis-

sion limits.

The meaning of “Class A.”

Diffusion models can account for thousands of bits of

data. Most important are meteorological data of which

stability classes are an aspect.

Specifically, stability classes are categorizations of the

atmosphere’s ability to disperse plumes. These classes

are divided into six categories ranging from extreme dis-

persion of plumes (Class A) to minimum dispersion

(Class F). Under Class A, a plume is assumed to dis-

perse very rapidly to the ground level before there is any

6 Cinti. Gas & Elec., et al. v. EPA, et al. Nos. 76-2090, etc.

substantial dilution. This, in turn, leads to predictions

of high ground level concentrations. The fundamental

issue, therefore, is whether the Class A assumption de-

scribes the manner in which plumes disperse at rural

power plants and whether the phenomena it depicts

really occur.

Brief of Utility Petitioners at 31-32 (emphasis in or-

iginal ).

Petitioners then detail the results of three ‘separate studies

which they claim attack and undermine the validity of the

Class A coefficients, and generally urge substitution of Class

B coefficients. These studies are the privately financed study

by Enviroplan, Inc., a similarly produced study by Smith-

Singer Meteorologists, and a strongly critical report resulting

from the Specialists’ Conference of February 22-24, 1977, spon-

sored by United States EPA itself through the Argonne Na-

tional Laboratory. 5

To this argument the EPA’s response is as follows:

EPA properly determined that the “Class A” stability

factors should continue to be used until new field data

proved them incorrect.

Petitioners argue that EPA should have changed the

dispersion coefficients used in the rural MAX (CRSTER)

model for analyzing ground level concentrations caused

by a source in very unstable weather, known as “Class

A” conditions. In the remand comment period, the utility

petitioners presented various theories that the model did

not accurately reflect the way wind patterns in such

weather conditions affect dispersion patterns and that

therefore the model might be overestimating ground level

concentrations for a 3-hour analysis. Petitioners argue

that it was arbitrary or capricious for EPA not to accept

theories presented in their comments.

EPA recognized in the STSD [Supplemental Technical

Support Document] at 55 that there was a growing con-

Nos. 76-2090, etc. Cinti. Gas & Elec., et al. v. EPA, et al. 7

cern among atmospheric modeling scientists about the

issue. EPA determined, however, that until further

studies could be done to substantiate the theories, there

was no experimental or field data to justify changing the

dispersion curves or to determine how the dispersion

equations should be changed. And since petitioners did

not submit any data, no change could be made in the

equations used. Id.

EPA Brief at 48-49.

We are, of course, aware that decision-making (particularly

in this highly technical area) is the primary responsibility of

the agency and not the responsibility of this court. See Ver-

mont Yankee Nuclear Power Corp. v. NRDC, 98 S.Ct. 1197

(1978). As we said in Cleveland Electric Illuminating Co.,

supra:

Our standard of review of the actions of United States

EPA is whether or not the action of the agency is “arbi-

trary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” Clean Air Act Amendments of

1977, Pub. L. No. 95-95, § 305(a), 91 Stat. 775 (to be

codified as 42 U.S.C. § 7607(d)(9)(A)). Thus, we are

required to affirm if there is a rational basis for the agency

action and we are not “empowered to substitute [our]

judgment for that of the agency.” Citizens to Preserve

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

572 F.2d at 1161.

On this present record we conclude that United States EPA’s

employment of the Class A assumption in determining pollu-

tion dispersion under “least stable” wind conditions in rural

areas and areas of complex terrain is not a rational decision

and is arbitrary and capricious.

As we read EPA’s position on this point, it is that no better

solution has been proposed. This answer, however, ignores

the Enviroplan and Smith-Singer studies. More importantly,

8 Cinti. Gas & Elec., et al. v. EPA, et al. Nos. 76-2090, etc.

it ignores the conclusions of the experts’ conference convened

by Argonne National Laboratory at United States EPA’s own

request.? The report of that conference suggested “elimination

of the A curve and the use of the B curve for both A and B

stability categories.” See Report of the Specialists’ Conference

on the EPA Modeling Guideline, Feb. 22-24, 1977, Chicago,

Illinois, at § 2.7.5: “Vertical Dispersion Estimates.”

By pointing out this proposed solution, we do not mandate

its acceptance by United States EPA. Our tiltimate action on

this score is simply to remand this issue to United States EPA

for further study, This might result in the writing of a new

record which supplics the now missing support for the use

of Class A coefficients for the least stable wind condition in

rural counties, or it might result in United States EPA's adop-

tion of use of the Class B coefficients for the two least stable

wind conditions, or it might result in a new record which sup-

ports a wholly new solution.

II THE TERRAIN ADJUSTMENT PROBLEM

The original MAXT-24 model assumed that the pollution

plume moves downwind in a straight line from a point de-

termined by the height of the smoke stack plus plume rise

(“effective stack height”), Under that assumption, if effective

stack height is 600 feet and there is a hill 800 feet high

downwind, a receptor site located 600 feet up that hill will

therefore in theory receive the full impact of the pollutants

in the center of the plume.

Petitioners’ attack upon this set of assumptions is, we be-

lieve, best stated by the Shell Oil Co. brief:

3 This conference was initiated by United States EPA and one of

the participants was the Director of EPA Region V, which Region

includes Ohio, The conference occurred during the remand period

of this litigation, and three months before the finally amended regula-

tions were renee. We consider the Conference Report to be

properly a part of the appellate record.

Nos. 76-2090, etc. Cinti. Gas & Elec., et al. v. EPA, et al. 9

The reference to “the effect of the terrain on the plume”

is an easily understood concept. Since the wind which

blows the plume toward a hill (terrain) cannot blow

through the hill, it must blow up and over the hill. This

effect causes all the layers of air above the wind at ground

level, and hence the plume itself, to be carried up and

over the hill rather than hitting directly into its side.

A widely recognized means of accounting for such a situa-

tion, and one which EPA has used, is to incorporate

mathematical changes in the model which reduce the

receptor height by the one-half difference between stack

base and receptor elevation and limit the approach of

the center line of the plume to ten meters above the

receptor,

Shell and its consultant, Enviroplan, recommended this

change to U.S. EPA. Moreover, this change was sup-

ported in the modeling literature by two other inde-

pendent experts — Briggs and Egan. Also, another con-

sultant, Environmental Research & Technology, Inc.

(“ERT”), recommended the same adjustment in a report

submitted to EPA during the comment period for Colum-

bus & Southern Ohio Electric Co. See “A Technical

Review of the U.S. EPA Ohio State Implementation Plan

for Sulfur Dioxide,” January 1977, prepared for C&SOE.

(App. 210-213.) Indeed, this approach is so well recog: |

nized that EPA, Region II, approved its \ :e in sustaining

a revision of the implementation plan for Puerto Rico.

See 40 Fed. Reg. 52410 (1975).

Brief of Shell Oil Co., at 19-20.

As to this argument, the EPA brief contains this comment

and admission:

Contrary to petitioners’ claims, EPA utilized available

monitoring data wherever possible. As set forth in detail

in both the Final and the Supplemental Technical Sup-

port Documents, EPA conducted validation studies of

the dispersion model used to set emission limitations for

10a

10 Cinti. Gas & Elec., et al. v. EPA, et al. Nos. 76-2090, etc.

isolated, rural power plants. See STSD at 53-55, and

the FTSD at 27-34. The validation studies compared

model predictions of SO, ground level concentrations to

actual air quality monitor data. These comparisons in-

dicated that for sources located on flat terrain, the corre-

lation between monitor data and predictions was quite

good with the model tending to underpredict, but that

for power plants located on hilly terrain, the comparisons

showed consistent overpredictions.

EPA Brief at 45-46 (footnote omitted ).

The EPA brief then goes on to assert that certain adjustments

have been made in the model “so that it could handle disper-

sion in hilly terrain more accurately,” and then cited the

Supplemental Technical Support Document at page 55. The

STSD material referred to follows:

The validation studies which compared model pre-

dictions of SO, ground level concentrations to actual air

quality monitor data indicated that in certain situations

the model overpredicted and needed modification. The

problem usually occurred when air quality monitors were

at elevations higher than the top of the stack. To correct

this, terrain data used in the model was limited in such

a way that terrain features were always assumed to be

no higher than the stack height of the source stack in

question, This was deemed to be an appropriate adjust-

ment because the validation study showed a high degree

of correlation between model predictions and sample

readouts from monitors positioned on terrain lower than

stack height in elevation. When this assumption was

mathematically incorporated into the model, the vali-

dation studies showed that the model accurately predicted

the ground level concentrations observed by the monitors.

Petitioners proposed a different method for modifying

the model to account for complex terrain situations, but

the proposal is not based on any validation studies of the

CRSTER model. The Agency has no way of determining

lla

Nos. 76-2090, etc. Cinti. Gas & Elec., et al. v. EPA, et al. 11

if the proposal is a better modification to the model than

the modification made by the Agency after the validation

studies. The Agency, therefore, has determined that

the model does not need further modifications because of

any information presented by the petitioners.

EPA Brief at 54-55.

While the record does not establish conclusively that this

adjustment made by United States EPA in the remand period

will prove a satisfactory solution to the problem posed, neither

does the record offer evidence to the contrary. We note, of

course, that United States EPA had disowned the apparent

implication in its brief that it had made validation studies of

this latest adjustment for hilly terrain. And, in fact, our hold-

ing on this issue should not be read as this court’s rejection of

petitioners’ half ground displacement theory in favor of the

United States EPA adjustment outlined above. There may well

be occasion for the agency to continue to review this issue.

All we hold is that on the present record, we cannot find

that United States EPA’s present terrain adjustment in MAXT-

24 is “arbitrary or capricious.”

For the reasons indicated above, the petitions of Dayton

Power & Light Co. (Adams County facilities only), Ohio

Power Co. (all facilities), Columbus & Southern Ohio Electric

Co. (Coshocton County facility only), and Austin Powder Co.

(all facilities) are remanded to the United States EPA for re-

consideration of the employment of Class A coefficients in

least stable wind conditions in rural counties.

All petitions referred to at the beginning of this opinion are

denied to the extent that they attack the MAXT-24 model as

to the terrain adjustment feature.

Ill OTHER ISSUES

We also hold that there is no merit to objections based on

failure to calibrate the MAXT-24 model (or failure to reject its

results because of claims of overprediction as demonstrated by

12a

12 Cinti. Gas & Elec., et al. v. EPA, et al. Nos. 76-2090, etc.

some monitor readings). See Cleveland Electric Illuminating

Co., supra, 572 F.2d at 1163-64, numbered paragraph 7.

Shell contends that its emission limitation should be ex-

pressed in terms of pounds SO, per hour rather than pounds

SO, per million British Thermal Units. The Shell proposal

would require the EPA either to assume that stack gas temper-

ature and exit velocity (the important factors bearing on plume

rise and thus ultimately on ground level SO, concentration )

are relatively constant, or alternatively to monitor stack gas

temperature and exit velocity. Clearly, EPA considers policing

such a system to be an impossible task. EPA’s formula, by

contrast, requires only the use of fixed, easily ascertainable

data — the plant's design-rated capacity. We regard EPA's

choice of formula, which minimizes administrative costs while

obeying the Clean Air Act’s command to “insure attainment

and maintenance” of national ambient air standards, 42 U.S.C.

§$ 1857c-5(a)(2)(B) (1970),4 to be within the range of the

agency's discretion. a

We have considered the other issues raised by Shell and find

them to be without merit.

Disputes between petitioners and EPA concerning appropri-

ate SO, background levels, emission data, or other fact issues

will not be decided by this court until completion of the ad-

ministrative review of such issues which was suggested by this

court and agreed upon by the parties.

Based upon what has been said by this court in Cleveland

Electric. Illuminating Co. v. EPA, supra, and in this opinion,

and finding no other material issues, we dismiss the following

petitions in toto: Cincinnati Gas & Electric Co., Shell Oil Co.

Final dispositions in the petitions of Columbus & Southern

Ohio Electric Co., Ohio Edison Co., and E. I. du Pont de

Nemours & Co. will be entered on resolution of the remaining

issues therein.

4 Newly recodified as 42 U.S.C.A. § 7410(a) (2) (B) (1977 Pamphlet).

—

“7 oa

ee eee ;

APPENDIX B

Order of the United States Court of Appeals for

the Sixth Circuit in Cincinnati Gas & Electric Co. v.

Environmental Protection Agency

13a

APPENDIX B

Nos. 76-2090, 77-1367

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Tue CrnciInNATI Gas AND ELECTRIC

ComPANY, et al.,

Petitioners,

ii | ORDER

ENVIRONMENTAL PROTECTION AGENCY

and Dovucuias M, CosTtLe, ADMINIS-

TRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY,

Respondents. |

Decided and Filed June 29, 1978.

Before: Puitiies, Chief Judge, Epwarps and Peck, Circuit

Judges.

On receipt and consideration of a motion for clarification

of this court’s opinion, dated February 13, 1978; and

Believing that said opinion is self-explanatory, but under-

standing petitioners’ desire for certainty, we reprint below

the specific dispositive paragraphs of Cleveland Electric

Illuminating Co. v. EPA, —— F.2d —— (6th Cir. 1978) (Nos.

76-2090 et al.), numbered in sequence of their appearance in

the opinion.

l4a

2 The C.G&E. Co., et al. v. EPA, et al. Nos. 76-2090, etc.

The cases dealt with in this opinion' present the

major general issues. Other individual cases, in addition

to presenting one or more of the general issues, also

present specific issues of fact. These are reserved pend-

ing a review of and reports on the factual disputes be-

tween the United States EPA and the individual peti-

tioners.

1 This decision dismisses the objections to the regulations that

apply to the following facilities: °

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

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

facilities only.

(d) Toledo Edison Co. — all facilities.

(e) The Timken Co. — all steam generating units.

(f) White-Westinghouse Corp. — all facilities. (Al-

though there was some confusion on this point

in the briefs, the record makes clear that White-

Westinghouse’s Franklin County facility is subject

to the RAM model. See EPA Final Technical

Support Document at IV-57. .

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

generating units.

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

(i) a Chemical Corp. — all steam generating

units.

Id., slip opinion at 2 (emphasis added).

oO oO oO

No other material issues are presented.

One petition pending before this court from the North-

ern Ohio Lung Association attacks United States EPA’s

failure to promulgate a separate implementation plan for

the “secondary standards” for the ambient air. This

petition will be the subject of separate consideration.

Similarly, this opinion does not govern any petitions

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

any specific fact disputes raised by any petitioner as to

plants other than those treated in this opinion.* Decision

of these cases will follow.

6 See note 1, supra.

15a

Nos. 76-2090, etc. The C.G.&E. Co., et al.v. EPA, etal. 3

5) For the reasons stated above, the decision of the Ad-

ministrator in imposing the SO, control plan is affirmed

subject to the reservations indicated above.

Id., slip opinion at 30-31 (emphasis added).

The petitioners’ Motion to Clarify, filed February 27, 1978,

states accurately that this court’s opinion disposed of five

issues, which it stated as follows:

(1) The appropriateness of the use of RAM (raised

in the joint RAM brief and incorporated by refer-

ence in the utilities’ brief),

(2) The claims for needed procedural safeguards of

cross examination on remand (raised in the utility

brief),

(3) The economic and technical arguments (raised in

the utility brief), and

(4) The urban/rural designation issue (raised in the

utility brief).

(5) The urban dispersion coefficients used in RAM

(raised in the joint RAM brief).

Subsequently, said petition lists the following five issues as

unresolved:

(1) Failure of U.S. EPA to utilize monitor data in

regulation development (utility brief),

(2) Improper use of Class A Assumption in the rural

model (utility brief),

(3) Improper terrain adjustment features to the rural

model (utility brief),

(4) Failure of EPA to correct background and data

errors (utility brief), and

(5) Invalidity of the plan for vagueness, and failure

to consider sulfur-in-coal variability (utility reply).

Issues 2 and 3 are disposed of by this court’s opinion issued

this date in Cincinnati Gas & Electric Co. vy. EPA, —— F.2d

—— (6th Cir. 1978).

l6a

4 The C.G.&E, Co., et al. v. EPA, et al. _Nos. 76-9090, etc.

Issues numbered 1 and 5 above we deem disposed of by

affirmance of EPA’s employment of the RAM and MAXT-24

models and the discussion in Cleveland Electric Illuminating

Co. v. EPA, and Cincinnati Gas & Electric Co. v. EPA.

Issue number 4 we consider to be fact questions which are

subject to agreed on administrative review. See Cincinnati

Gaz & Electric Co. v. EPA.

For the information of these petitioners, and others, we

call attention to the fact that by order, dated February 9,

1978, the petition of the Northern Ohio Lung Association (No.

76-2282) was remanded to the United States EPA for further

consideration. Additionally, as of today, an order is being

entered denying the petition of the Ohio Mining & Reclama-

tion Association and the Ohio Coal: Operators’ Association,

Inc. (No. 77-3290) because it seeks relief which can only be

had from the Congress of the United States.

As of this present date, this court considers that the United

States EPA control plan for all Mahoning and Summit County

facilities belonging to certain petitioners in these cases is

under voluntary re-evaluation by United States EPA due to

factual disputes. As these and other fact disputes are resolved,

stipulations for dismissal should be submitted promptly to this

court. When factual disputes cannot be resolved, the parties

should make every effort promptly to stipulate the disputed

issue, or, failing that, to stipulate the opposing positions of

the parties on the issue or issues.

Entered by order of the Court

/s/ JOHN P. HEHMAN

Clerk

—

APPENDIX C

Decision of the United States Court of Appeals for the

Sixth Circuit in Cleveland Elecrric Illuminating Co. v.

Environmental Protection Agency, 572 F.2d 1150 (6th

Cir. 1978), a related decision by the Sixth Circuit

17a

APPENDIX C.

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

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

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

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Tue CLEVELAND ELectric [LLUMINAT- |

ING CoMPANY, THE DayTon PowER

& Licut Co., THe Onto Epison Co.,

THe Torepo Epison Co., THE

Timken Co., WuHITE-WESTINGHOUSE

Corp., THe STANDARD Om Co. oF

Onto, INTERLAKE, INC., THE CouL-

TON CHEMICAL Corp.,

Petitioners, :

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

and Dovuc tas M. Cost.Le, ADMIN-

ISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

Petitions for Review

of Action of the Ad-

ministrator of the En-

vironmental Protec-

tion Agency.

Decided and Filed February 13, 1978.

Before: Puitires, Chief Judge, Epwarps and Peck, Circuit

Judges.

Epwarps, Circuit Judge. This court now has before it 23

petitions involving 32 companies filed against the United States

Environmental Protection Agency which levy a variety of

complaints against the federal agency’s imposition of a sulfur

1Sa

2 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

dioxide (SO,) pollution control plan for industrial discharges

into Ohio’s ambient air. The issues, which have been extensive-

ly briefed and argued, divide into general legal and procedural

complaints which might be applicable to any one of the

petitioners and a wider variety of specific complaints about

the application of the EPA controls to particular power-gen-

erating or industrial plants. The cases dealt with in this opinion’

present the major general issues. Other individual cases, in

addition to presenting one or more of the general issues, also

present specific issues of fact. These are reserved pending a

review of and reports on the factual disputes between the

United States EPA and the individual petitioners.

The major issues dealt with in this opinion are: 1) in-

tervenor, the State of Ohio, claims that this court should

disapprove the federal plan as irrational and arbitrary and

rely upon Ohio to come forward with a more rational plan

sometime in the future; 2) petitioners claim that the EPA

SO, plan should be remanded for hearings because the in-

formal rulemaking hearings employed by EPA under 5 U.S.C.

§ 553 (1970 & Supp. V 1975) were inadequate; and 3) peti-

itoners claim that the major model employed by the United

States Environmental Protection Agency in establishing spe-

1 This decision dismisses the objections to the regulations that apply

to the following facilities:

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

(b) ~— Power & Light Co. — Montgomery County facilities

(d) Toledo Edison Co. — all facilities.

(e) The Timken Co. — all steam generating units.

(f) White-Westinghouse Corp. — all facilities. (Although there

was some confusion on this point in the briefs, the record

makes clear that White-Westinghouse’s Franklin County

facility is subject to the RAM model. See EPA Final

Technical Support Document at IV-57.

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

units.

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

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

19a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA 3

cific emission limitations for particular plans is invalid both

intrinsically and as applied. This model is termed the “Real-

Time Air-Quality-Simulator Model” (hereinafter RAM).

THE HISTORY OF THIS LITIGATION

The United States Congress has been wrestling with the

problem of pollution of the ambient air since 1955. See Act

of July 14, 1955, Pub. L. No, 84-159, 69 Stat. 622. The original

act has now been amended many times. It now is cited

as the Clean Air Act and has been codified in 42 U.S.C.

§§ 1857-1857(1) (1970 & Supp. V 1975).?

The prior history of litigation concerning sulfur dioxide

emission controls in this court is set forth in Buckeye Power,

Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973) ( Buckeye Power #1)

and Buckeye Power, Inc. v. EPA, 525 F.2d 80 (6th Cir. 1975)

(Buckeye Power #2).

National air quality standards for sulfur dioxide, one of the

most important pollutants of the ambient air, were set by

EPA in 1973 as follows:

§ 50.4 National primary ambient air-quality standards

for sulfur oxides (sulfur dioxide).

The national primary ambient air quality standards for

sulfur oxides measured as sulfur dioxide by the reference

method described in Appendix A to this part, or by an

equivalent method, are:

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

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

times during the following six years. Pub. L. No. 89-272, 79 Stat. 992

(1965); Pub. L. No. 89-675, 80 Stat. 954 (1966); Pub. L. No. 90-148, 81

Stat. 485 (1967).

The Act's present form, however, is derived from amendments

adopted in 1970 and subsequently. Clean Air Act Amendments of

1970, Pub. L. No. 91-604, 84 Stat. 1676, as amended, Pub. L. No. 92-157,

85 Stat. 464 (1971); Pub. L, No. 93-319, 88 Stat. 2486 (1974); Pub. L’

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

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

20a

4 Cleveland Elec. Illum., et al. vy. EPA Nos. 76-2090 etc.

(a) 80 micrograms per cubic meter (0.03 p.p.m.)—

annual arithmetic mean.

(b) 365 micrograms per cubic meter (0.14 p.p.m.)—

Maximum 24-hour concentration not to be exceeded more

than once per year.

§ 50.5 National secondary ambient air quality standards

for sulfur oxides (sulfur dioxide).

The national secondary ambient air quality standard for

sulfur oxide measured as sulfur dioxide by the reference

method described in Appendix A to this part, or by any

equivalent method is 1,300 micrograms per cubic meter

(0.5 p.p.m.) maximum 3-hour concentration not to be

exceeded more than once per year.®

Ambient Air Standards (Primary & Secondary), 40 C.F.R.

§§ 50.4, 50.5 (1976).

The federal Clean Air Act program which produced these

standards is based primarily upon the adverse effect which air

pollution has upon human life and health.

Acute episodes of high pollution have clearly resulted

in mortality and morbidity. Often the effects of high

pollutant concentrations in these episodes have been

combined with other environmental features such as low

temperatures or epidemic diseases (influenza) which may

in themselves have serious or fatal consequences. This

has sometimes made it difficult to determine to what

extent pollution and temperature extremes are responsi-

ble for the effects. Nevertheless, there is now no longer

any doubt that high levels of pollution sustained for

periods of days can kill. Those aged 45 and over with

chronic diseases, particularly of the lungs or heart, seem

3 The EPA plan for Ohio presently under consideration contains no

separate implementation plan for py d air quality standards.

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

tion and will be considered and decided subsequently.

2Qla

Nos. 76-2090 etc. Cleveland Elec. Illym., et al. v. EPA 5

to be predominantly affected. In addition to these acute

episodes, pollutants can attain daily levels which have

been shown to have serious consequences to city dwellers.

There is a large and increasing body of evidence that

significant health effects are produced by long-term ex-

posures to air pollutants. Acute respiratory infections in

children, chronic respiratory diseases in adults, and de-

creased levels of ventilatory lung function in both chil-

dren and adults have been found to be related to con-

centrations of SO, and particulates, after apparently suf-

ficient allowance has been made for such confounding

variable as smoking and socioeconomic circumstances.

Rall, Review of the Health Effects of Sulfur Oxides, 8

Env'taL HeaLtu Perspectives 97, 99 (1974).

It appears that present national air quality standards have

been set with little or no margin of safety. Adverse health

effects are set forth in the two following charts; and the

minimal or nonexistent margins of safety are vividly por-

trayed below:

6 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 ete.

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23a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA 7

The major source of sulfur dioxide pollution of the ambi-

ent air are coal-fired plants — exemplified by power plants

operated by some of the petitioners in this case.

Two other facts should be added from the extensive tech-

nical record in this case before we turn to the specific legal

issues. The first is that sulfur dioxide emitted from plant

stacks reacts with other elements in the atmosphere to form

sulfuric acid mist and various suspended sulfates which are

in fact the irritants which adversely affect human health. T.

Lewis, M, Amour, M. FritzHanp & K, CAMPBELL, TOXICOLOGY

or ATMOSPHERIC SULFUR Dioxine Decay Propucts 17 (1972).

The second important fact is that these derivatives from

sulfur dioxide tend to be airborne for days. They affect areas

at great distances downwind, even when in the original sulfur

dioxide form they were emitted from a high power plant stack.

Rall, Review of the Health Effects of Sulfur Oxides, 8 Env’Tau

Hea.tu Perspectives 97, 106 (1974).

The cases considered in this opinion represent the fourth

time this sulfur dioxide control problem has been before this

court. In the instant cases a hearing was held November 14,

1976, at which numerous arguments were advanced concern-

ing petitioners’ claims that they had been deprived of an

adequate opportunity to comment upon the EPA sulfur dioxide

standards, In particular they complained about not having an

opportunity in advance to comment upon the EPA’s use of

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

order by this court remanding all of these petitions to the

EPA for reopening of the record to allow presentation of ad-

ditional objections, corrections, and comment. The order pro-

vided in part as follows:

On receipt and consideration of the thirty-six (36)

above-styled petitions for review attacking the emission

standards for the State of Ohio applicable to sulphur di-

oxide (SO,) promulgated by respondents Environmental

24a

8 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

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

and

On receipt and consideration of respondent's motion

to consolidate such petitions for hearing — and certain

petitioners’ objections thereto — and said motion to con-

solidate having been granted by this Court; and

On receipt and consideration of certain petitioners’

motions for stay of the respondent's orders pending this

Court’s review; and »

On receipt and consideration of respondent EPA’s mo-

tion to hold a prehearing conference and certain con-

currences therein, and such prehearing conference having

been held after due notice to all parties; and

On inspection and consideration of petitioners’ motions,

briefs, and oral arguments and noting that many of

them deal with claims of due process violations in re-

spondent EPA’s closing of the administrative record with-

out further opportunity on the part of petitioners to pre-

sent comment or evidence deemed by them to be essen-

tial to a just result,

Now therefore this Court, in the interest of as ex-

peditious judicial disposition of this complex litigation

as possible, hereby, sua sponte, extends to all petitioners

in this consolidated proceeding a stay of enforcement of

said orders of respondents EPA and Train, subject to the

following conditions:

No petitioners shall be permitted to submit any new

emission, process or air quality data. Comments relating

to clerical or computational errors shall be permitted.

Whenever possible, petitioners shall make consolidated

submissions to the Agency.

All submissions shall be made by petitioners no later

than January 14, 1977, and the Agency shal! prepare an

appropriate response and shall amend the subject regu-

25a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al. v. EPA 9

lations if and as necessary within an additional 60 days

therefrom.

The stay granted herein will terminate twenty-one (21)

days after respondent EPA files with this Court the re-

sponse called for above, unless otherwise directed by

this Court.

Pursuant to the order of this court, the effective date of

the SO, regulations was June 17, 1977. EPA has advised this

court, however, that it has not begun enforcement proceedings

in relation to any sources involved directly in this litigation.

Although this court’s order allowed the petitioners 60 days

for presentation of additional evidence and comment, EPA

sua sponte extended the remand period briefly. Promptly upon

notice that EPA had filed its response to petitioners’ objec-

tions and comments resulting from the remand, this court

scheduled two full days of hearings on these cases for pur-

poses of as quick an adjudication at the appellate level as might

be achieved.

DISPOSITION OF THE GENERAL ISSUES

1. The State of Ohio’s Petition

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

leave to intervene in this proceeding. Its motion attacked the

EPA sulfur dioxide emission control plan as having an ad-

verse impact on the Ohio coal industry, and the Ohio economy

as a whole. The motion also asserted that the State was

developing a sulfur dioxide plan which would eliminate ex-

cessive abatement requirements which Ohio perceived to ex-

ist in the federal regulations. This court granted the mo-

tion for leave to intervene and has considered the brief and

the reply brief filed by Ohio. Under this first disposition

heading we consider only Ohio’s suggestion that this court

reject the United States Environmental Protection Agency’s

26a

10 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

sulfur dioxide control plan and rely upon Ohio's implied

promise to promulgate a state sulfur dioxide plan sometime

in the future.

We reject this suggestion on the basis of a record of delay

and default which has left Ohio in the position of being the

only major industrialized state lacking an enforceable plan

for control of sulfur dioxide.

It was clearly the intention of Congress to have a plan for

control of sulfur dioxide emissions in place in all states in

need of such control by the year 1972. Clean Air Act §§ 109

(a), 110(a), 42 U.S.C. §§ 1857c-4(a), 5(a) (1970 & Supp.

V 1975). It was equally clearly the intention of Congress

that the preferred mechanism for establishment of such a

plan was through the establishment and operation of a state

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

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

for approval by the Administrator of the United States En-

vironmental Protection Agency under Section 110 of the Act

and the Administrator approved that plan. That approval,

however, was challenged in this court on the ground that such

approval required a federal rulemaking hearing prior to the

required approval by the federal Administrator. Among other

claims laid before this court in that petition was an attack

on the sulfur dioxide control scheme contained in the Ohio

plan, claiming “there is presently no technologically feasible

method of removing from their coal burning emissions an

amount of sulfur sufficient to meet the standards.” See Buck-

eye Power, Inc. v. EPA, 481 F.2d 162, 167 (6th Cir. 1973).

It was also petitioners’ contention in that same litigation that

they had not been allowed to document these claims of

impossibility before the federal Administrator prior to his

approval of the state plans. On analysis of these argu-

ments, this court vacated the approval of the Ohio state

plan and remanded the case to the Agency for compliance

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

27a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 11

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

informal rulemaking procedures.

Before the hearing could be held which was called for in

Buckeye Power #1, supra, the governor of Ohio, on August 27,

1972, “withdrew” the sulfur dioxide portion of the state EPA

plan. At that point Ohio began work on a new plan for sulfur

dioxide control. On May 30, 1974, the second plan was sub-

mitted to the United States EPA for approval. It had, how-

ever, been challenged at the state level and was partially

vacated on procedural grounds by the Ohio Environmental

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

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

Ohio plan to control sulfur dioxide.

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

(c)(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation

plan for any national ambient air quality primary or

secondary standard within the time prescribed... .

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

(Supp. V 1975).

Clearly, the State of Ohio has failed to submit an imple-

mentation plan for sulfur dioxide for which a national ambient

air quality primary standard has been prescribed. Equally

clearly, five years have now elapsed beyond the date when

such an implementation plan was called for under the Clean

Air Act. Under these circumstances, we find no warrant,

consistent with the purposes of the federal legislation, for

giving heed to Ohio’s petition for further delay.

Intervenor Ohio's other objections to the United States EPA’s

28a

12 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

sulfur dioxide control plan will be considered under Part 3

of the disposition section of this opinion.

2. The Additional Remand and Cross-Examination Issue

The leading brief in this series of cases filed on behalf of

the utilities opens its argument for remand as follows:

The Most Appropriate Manner To Resolve The

Multitude Of Issues Raised Is A Remand To

The EPA With Directions To Hold Further

Hearings To Reconsider The Significant Issues;

Given The Nature Of This Rulemaking, Any

Remand Should Incorporate Procedural Safe-

guards Such As Right To Cross-Examine Or

Question EPA.

Admittedly, there is no statutory requirement that EPA

afford the regulated the opportunity to confront its de-

cision makers through adjudicative-type hearings. See

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

481 F.2d 162 (1973)].

However, this EPA promulgation contains so many

specific findings and actions that the norme! comment

period has not been sufficient to expose and evaluate

all of the important facts before this Court. EPA has

promulgated emission limits specific to a plant, has ap-

plied specific diffusion models specific to a plant, and has

reached specific conclusions regarding economics specific

to a plant. Each decision is based on fact upon fact

and conclusion upon conclusion. In essence and in op-

eration, this plan and its formulation smack of the issu-

ance of an order as defined by EPA.

In Buckeye Power #1, a panel of this court, prior to

the first remand of the sulfur dioxide problem for federal

hearings, considered the question as to whether or not ad-

judicatory hearings (including cross-examination) were re-

29a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 13

quired. The opinion rejected this suggestion with the fol-

lowing reasoning:

However, as heretofore noted, the petitioners herein do

not simply request a remand with instructions to adhere

to the informe! rulemaking dictates of Section 553 of

the APA; they also request a full-scale evidentiary hear-

ing before the Administrator to adjudicate their complex

and intricate claims of high cost-benefit, technological in-

feasibility and resource unavailability. We cannot accept

this position.

Administrative rulemaking which is to be preceded by

extensive hearings where “[a] party is entitled to present

his case or defense by oral or documentary evidence,

to submit rebuttal evidence, and to conduct such cross-

examination as may be required for a full and true dis-

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

required only when the last sentence of Section 553(c)

of the APA applies. This section provides:

“When rules are required by statute to be made

on the record after opportunity for an agency hear-

ing, sections 556 and 557 of this title apply instead

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

§ 553(c) (1967)).

(Sections 556 and 557 of the APA outline the require-

ments for extensive, adjudicatory-type hearings. )

Thus, when a statutory provision directing certain

agency action states that such action shall be “made on

the record after opportunity for an agency hearing,” then,

and only then, is the agency required to have full-scale

adjudicatory hearings prior to rulemaking. ° ° °

There is no provision that, in approving or disap-

proving proposed state pollution-abatement plans pur-

suant to 42 U.S.C. § 1857c-5(a)(2) (1973 Supp.), the

Administrator shall make a determination “on the rec-

ord after an opportunity for an agency hearing.” Further-

30a

14 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

more, when Congress intended that actions of the Ad-

ministrator of the EPA be preceded by adjudicatory-type

hearings it either specifically outlined the type of hear-

ings, (42 U.S.C. § 1857f-5a(c)(1) (1973 Supp.) ), or in-

voked the determination “on the record” provision of

5 U.S.C. § 553(c) (1967). See 42 U.S.C. § 1857c-5( f) (2)

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

Supp.). On these grounds alone we would reject the

petitioners’ argument that the Administrator is required to

have full-scale adjudicatory-type hearings prior to ac-

ceptance of the state plans.

Buckeye Power, Inc. v. EPA, 481 F.2d 162, 172-73 (6th

Cir. 1973). (Footnote omitted. )

More importantly, we note the following discussion of

the issue now before us in the unanimous opinion in United

States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 (1972),

wherein the Supreme Court of the United States said:

This Court has held that the Administrative Procedure

Act applies to proceedings before the Interstate Com-

merce Commission. Minneapolis & St. Louis R. Co. v.

United States, 361 U. S. 173, 192 (1959). Appellees claim

that the Commission’s procedure here departed from the

provisions of 5 U. S. C. §§ 556 and 557 of the Act. Those

sections, however, govern a rulemaking proceeding only

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

dealing generally with rulemaking, makes applicable the

provisions of §§ 556 and 557 only “[w]hen rules are re-

quired by statute to be made on the record after op-

portunity for an agency hearing... .” The Esch Act,

authorizing the Commisison “after hearing, on a com-

plaint or upon its own initiative without complaint, [to]

establish reasonable rules, regulations, and practices with

respect to car service. . . ,” 49 U.S. C. $1 (14) (a), does

not require that such rules “be made on the record.” 5

U. S. C. § 553. That distinction is determinative for this

case. “A good deal of significance lies in the fact that

some statutes do expressly require determinations on the

3la

Nos. 76-2090 etc. Cleveland Elec. Illum., zi al.v. EPA 15

record.” 2 K. Davis, Administrative Law Treatise § 13.08,

p. 225 (1958). Sections 556 and 557 need be applied

“only where the agency statute, in addition to providing

a hearing, prescribes explicitly that it be ‘on the record.’”

Siegel v. Atomic Energy Comm'n, 130 U. S. App. D. C.

307, 314, 400 F. 2d 778, 785 (1968); Joseph E. Seagram

& Sons, Inc. v. Dillon, 120 U. S. App. D. C. 112, 115

n. 9, 344 F. 2d 497, 500 n. 9 (1965). Cf. First National

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

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

only the precise words “on the record” in the applicable

statute will suffice to make §§556 and 557 applicable

to rulemaking proceedings, but we do hold that the

language of the Esch Car Service Act is insufficient to in-

voke these sections.

Because the proceedings under review were an exer-

cise of legislative rulemaking power rather than adju-

dicatory hearings as in Wong Yang Sung v. McGrath,

339 U. S. 33 (1950), and Ohio Bell Telephone Co. v.

Public Utilities Comm’n, 301 U. S. 292 (1937), and be-

cause 49 U. S. C. $1 (14)(a) does not require a deter-

mination “on the record,” the provisions of 5 U. S. C.

§§ 556 and 557 were inapplicable.

This proceeding, therefore, was governed by the pro-

visions of 5 U. S. C. $553 of the Administrative Pro-

cedure Act, requiring basically that notice of proposed

rulemaking shall be published in the Federal Register, that

after notice the agency give interested persons an op-

portunity to participate in the rulemaking through ap-

priate submissions, and that after consideration of the

record so made the agency shall incorporate in the rules

adopted a concise general statement of their basis and

purpose. The “Findings” and “Conclusions” embodied in

the Commission’s report fully comply with these re-

quirements, and nothing more was required by the Ad-

ministrative Procedure Act.

United States v. Allegheny-Ludlum Steel Corp., supra

at 756-58. (Footnote omitted. )

32a

16 Cleveland Elec. Illum., et al. vy. EPA Nos. 76-2090 etc.

Further, in United States v. Florida East Coast R. Co., 410

U.S. 224, 238 (1973), the Supreme Court reiterated and re-

inforced its decision in United States v. Allegheny-Ludlum

Steel Corp., supra. In the Florida Coast R. Co. case the Court

Section 553 excepts from its requirements rulemaking

devoted to “interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice,” and rulemaking “when the agency for good

cause finds . . . that notice and public procedure there-

on are impracticable, unnecessary, or contrary to the

public interest.” This exception does not apply, however,

“when notice or hearing is required by statute”; in those

cases, even though interpretative rulemaking be irivolved,

the requirements of §553 apply. But since these re-

quirements themselves do not mandate any oral presenta-

tion, see Allegheny-Ludlum, supra, it cannot be doubted

that a statute that requires a “hearing” prior to rule-

making may in some circumstances be satisfied by pro-

cedures that meet only the standards of § 553. The Court's

opinion in FPC v. Texaco, Inc., 377 U. S. 33 (1964),

supports such a broad definition of the term “hearing.”

Similarly, even where the statute requires that the

rulemaking procedure take place “on the record after op-

portunity for an agency hearing,” thus triggering the

applicability of § 556, subsection (d) provides that the

agency may proceed by the submission of all or part of

the evidence in written form if a party will not be

“prejudiced thereby.” Again, the Act makes it plain that

a specific statutory mandate that the proceedings take

place on the record after hearing may be satisfied in

some circumstances by evidentiary submission in written

form only.

We think this treatment of the term “hearing” in the

Administrative Procedure Act affords a sufficient basis

for concluding that the requirement of a “hearing” con-

tained in § 1 (14)(a), in a situation where the Commis-

33a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 17

sion was acting under the 1966 statutory rulemaking au-

thority that Congress had conferred upon it, did not

by its own force require the Commission either to hear

oral testimony, to permit cross-examination of Commission

witnesses, or to hear oral argument.

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

240-41,

Taking those precedents into account, it seems clear to us that

the legislative-type hearings conducted by the United States

EPA concerning the Ohio SO, control plan were consistent

with the provisions of the Clean Air Act and the Administrative

Procedure Act, and we further conclude that the hearings are

not inconsistent with the due process clause of the Fourteenth

Amendment. As pointed out in the quotation from Buckeye

Power #1, supra, Congress did not insert iato the Clean Air

Act the language requiring the Administrator to make deter-

minations “on the record after an opportunity for an agency

hearing” which the Supreme Court has held to trigger the

requirement of an adjudicative hearing. And if there was

a legitimate due process complaint arising from the fact that

petitioners had not had a chance to comment upon the RAM

model as employed by United States EPA in its Ohio SO, con-

trol plan, we believe it was surely cured by this court’s re-

mand for reopening of the administrative record and United

States EPA’s reconsideration thereafter.

We note, as petitioners encourage us to, that some cases

in other circuits hold that it is the importance and com-

plexity of the issues decided by the administrative agency

which should determine the kind of hearing procedures re-

quired rather than any formal classification of the process

as either rulemaking or adjudicatory. See Appalachian Power

Co. v. EPA, 477 F.2d 495, 500-01 (4th Cir. 1973); Walter Holm

& Co. v. Hardon, 449 F.2d 1009, 1015 (D.C. Cir. 1971).

Typically, however, it is important and complex problems

which Congress assigns to administrative agencies. Thus far

34a

18 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

neither Congress nor the Supreme Court has elected to adopt

such a flexible standard or to assign exclusive responsibility for

the choice of agency hearing procedures to the federal courts.

Several petitioners also argue that this Circuit should follow

the example of the Ninth Circuit in Bunker Hill Co. v. EPA,

~— F.2d —— (9th Cir. 1977) (decided July 5, 1977), to the

extent of remanding the proposed sulfur dioxide control stand-

ards to allow cross-examination of United States EPA's ex-

perts and additional comment thereafter.

In contrast to our remand order of November 12, 1976, the

Ninth Circuit did provide for cross-examination pertaining

to what it termed a highly complex and technical issue con-

cerning the technological feasibility of the use of sulfur burn-

ers to effect control of Bunker Hill’s lead smelter emissions.

While we believe that cross-examination of an administrative

agency's experts is not a required or normal part of informal

rulemaking under Section 553, we do not exclude the possi-

bility that a case may be presented to this court wherein

remand for cross-examination about disputed facts will prove

both logical and necessary.

We do not, however, find any legal requirement or practical

need for any more hearings, with or without cross-examination,

in order to answer the three major general issues posed in

the instant cases. Petitioners have had ample opportunities to

present their views to the agency. A full record has been

written. There has already been an inordinate delay of five

years longer than Congress contemplated.

3. The RAM Model

The petitioners in these cases center most of their criticisms

upon the United States EPA’s use of the Real-Time Air-Quality-

Simulation Model (“RAM”) which was employed by the

agency in preparation of the Ohio sulfur dioxide control plan.

RAM is a dispersion model which evaluates the interaction

35a

Nos, 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 19

of a variety of facts in order to make predictions concerning

the contribution to the pollution of the ambient air by spe-

cific plants. Its formula takes into account the capacity of

each plant on a stack-by-stack basis and adds thereto smoke-

stack height, surrounding terrain, and weather conditions.

The model is operated on the assumption that the plants con-

cerned operate 24 hours a day at full capacity and predic-

tions are made for every day of the year. The ultimate

standards are set according to the predicted second-worst day

in terms of pollution results shown.

In comparison to all other prior methods of controlling pollu-

tion, RAM starts with a solid, ascertainable data base. This

is the established design capacity of the power plants in ques-

tion related to the sulfur content of the fuel used by each.

From these factors the “emissions data” for each plant is

developed.

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

are figured in, the RAM model has the additional value of

allowing its user to predict with considerable accuracy the

relative contributions of specific power plant stacks to the

points of maximum concentration of pollution of the ambient

air,

The RAM model was actually developed as a result of

United States EPA’s public hearings on the proposed plan for

Ohio after five days of hearings on said proposed plan in Co-

lumbus, Cleveland, Cincinnati, and Steubenville at which pe-

titioners involved in this current litigation were given an

opportunity (which most accepted) to appear, testify, or

submit comments, At those hearings the major source of

criticism from industries, including sqme of the present peti-

tioners, was that the plan then under consideration did not

determine limitations by individual stacks to a sufficient degree.

EPA in its brief in this case compares the “rollback” model

employed in the preparation of the first Ohio plan to dispersion

36a

20 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

models like RAM, which is now the source of present con-

troversy:

Unlike the rollback model, the dispersion models used

in developing the promulgated plan allow a determina-

tion of the cause-effect relationship between the SO,

emissions of the pollution sources in an area and the

resulting ambient air quality, Therefore, it is possible to

determine the proportion by which each source must re-

duce emissions to meet ambient standards. With the

use of the rollback model, in contrast, eaeh source's emis-

sions in the region, whether or not they contributed to

a pollution problem, were required to be reduced.

Through dispersion modeling, emission limitations can

now be set with increased precision. Overcontrol is

minimized, so that the plan will still insure attainment

and maintenance of the air quality standards, but at a

much reduced cost to the sources, This is most clearly

demonstrated by comparing emission limitations for power

plants under the various plans, Power plants account for

approximately 80% of the sulfur dioxide emisisons in the

State,

However, achievement ut this added precision requires

a massive analytical task. Tremendous amounts of data

are required for each source analyzed. In addition to the

emissions data for each source, dispersion modeling re-

quires detailed information on all the factors that affect

the dispersion of emissions. These include the height

of the source’s stack (or usually stacks), the spatial ori-

entation of the sources to each other, the topography of

the area and the effects it will have on dispersion, and,

of crucial importance, detailed weather data for the area.

All this information is needed so that the computer an-

alysis reflects actual conditions. For example, a

pollutant emitted over a grassy field will disperse much

differently than if the pollutant is emitted over a large

urban area. There the dispersion will be affected not only

by the local weather conditions but also by the greater

37a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 21

turbulence caused by the different types of surface areas

and heat sources throughout a city,

EPA goes on to point out that there are more than 1,000

point sources in the State of Ohio and more than 2,000 area

sources, and that in relation to emission data, United States

EPA utilized (among other sources) the data base on sulfur

dioxide required to be reported to the State of Ohio under

Ono Rev, Cope ANN. §§ 3704.03(1), 3704.05(c) (Page 1971

& 1976 Supp. ).

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

to determine whether the RAM model represents the best

possible approach to determining standards for the control of

sulfur dioxide emissions. Our standard of review of the ac-

tions of United States EPA is whether or not the action

of the agency is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, § 305(a), 91 Stat.

775 (to be codified as 42 U.S.C, § 7607(d)(9)(A)). Thus,

we are required to affirm if there is a rational basis for the

agency action and we are not “empowered to substitute [our]

judgment for that of the agency.” Citizens to Preserve Overton

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

Our review of this record convinces us that we cannot prop-

erly hold that '/nited States EPA’s adoption of the RAM model

for predicting sulfur dioxide emissions and for fixing maxi-

mum levels of sulfur dioxide emissions by specific sources was

arbitrary and capricious or beyond the agency's authority un-

der the Clean Air Act. The factors cited below support EPA’s

argument that the RAM model is supported by sufficient evi-

dence so that EPA’s adoption cannot be held arbitrary and

capricious:

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

principal basis of its first plan on which five days of public

hearings were conducted in Ohio — was strenuously objected

38a

22 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

to by representatives of many of the present petitioners be-

cause it was not source-specific and, as a consequence, tended

to require more stringent sulfur dioxide controls than would

be required if plant capacity, fuel, population, smokestack

height, wind and climate were all taken into account. Thus

John R. Martin, of Smith & Singer Meterologists, Inc., com-

mented on behalf of Ohio utilities on the first United States

EPA plan as follows:

More sophisticated modeling is necessary in all seven

of the urban counties that use the proportional roll-

back. In this way, the Federal air quality standarcs

can be attained without unnecessary SO, emission re-

strictions being imposed upon sources that do not con-

tribute to an SO, problem.

We recommend that new strategies be tested which

will more fairly identify and control SO, sources that

create SO, problems.

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

on behalf of Ohio power plants:

[I]n developing an SO, control program for this plant,

Region V did not consider economically efficient alterna-

tives to constant uniform emission standards — alterna-

tives such as utilizing a supplementary control system

to achieve air quality standards or using separate SO,

emission standards by stack in accordance with each

stack’s contribution to ground-level SO, concentrations.

Separate emission standards by stack can reduce consid-

erably the cost of achieving air quality standards... .

2) EPA responded to these arguments favorably by de-

vising and adopting the RAM model which did employ all

of these source-specific factors.

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

39a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 23

States EPA 1976-1977 SO, control plan (principally based

upon the RAM and MAX-24 models ) shows less stringent regu-

lation on a county-by-county basis when compared to the

Ohio SO, control plans originally promulgated in 1972 and

1974. In addition, when the comparison is limited to peti-

tioners involved in this litigation, but including all of their fa-

cilities which were subjected to RAM modeling (and which

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

strict on a facility comparison basis than the Ohio 1972 plan

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

Ohio 1974 plan by a count of 23 to 20.

These comparisons do not, of course, necessarily demon-

strate RAM’s accuracy. Rather, the comparison with Ohio’s

previous plans (based upon the earlier rollback model which

was used and accepted nationwide) tends simply to show

that the choice of RAM modeling lay within administrative

discretion.

RELATIVE STRINGENCY OF US EPA REGULATIONS

AND PREVIOUSLY PROMULGATED REGULATIONS

Ohio EPA Ohio EPA

1. US EPA 1976-77 1972 1974

urban RAM regsare: regsfor: regs for:

stricter than 14 20 of petitioners’

facilities*

less strict than 21 17 "

the same as 1 1 .

ambiguous” compared with 6 4 “

2. US EPA 1976-77

rural RAM regs are:

stricter than 3

less strict than 3

the same as 0

ambiguous” compared with 0

”

ooWwW WwW

40a

24 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

3. US EPA 1976-77

regs (all models) are:

stricter than 4 7 Ohio counties*®

less strict than 40 35 ca

the same as 0 0 a

ambiguous” compared with 24 26 vy

4. US EPA 1976-77

regs (all models) are:

stricter than 22 32° of petitioners’

facilities*

less strict than 50 43 ”

the same as 1 1 .

ambiguous” compared with 14 11 os

* Including facilities to the regulation of which petitioners

do not object.

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

others; or employing different units of measurement, render-

ing comparison impossible; or insufficient data available for

meaningful comparison.

emissions.

All comparisons are based on the data set out in Appendices

A, B and C,

4la

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 25

4) While this court has currently before it some 32 pe-

titioners protesting the United States EPA’s plan for SO, emis-

sion control for Ohio, it must be remembered that Ohio is

estimated to have over 1,000 point sources and over 2,000

area sources of SO, pollution.

5) The RAM model is a general formula which can be ap-

plied to many individual sources of pollution to derive spe-

cific estimates of SO, emission rates for each. It employs a

wider, more complete and more accurate data base than any

prior model yet employed in devising a sulfur dioxide control

strategy for a state or county. The crucial data with which

the RAM model starts is the design capacity figure, plus the

fuel sulfur content, from which is computed the SO, emis-

sion rate for each of the heating or power plants sought to be

controlled. Thus at the outset the RAM model starts with

ascertainable specific figures for each source where disputes

can be resolved by inspection of the equipment or fuel con-

cerned. Many of the additional components such as stack

height, wind direction, physical relationship of sources to each

other, and topography of the area are similarly ascertainable

as matters of fact. With the enormous financial stakes involved

in this litigation, every effort to avoid disputes about the ac-

curacy of the data base should be made. This record shows

that United States EPA’s design of the RAM model was

brought about at least in large part by Ohio industry’s re-

quests for greater specificity and hence lower costs of com-

pliance with National Air Quality Standards.

6) While there may yet be developed (and hopefully will

be) a better method of establishing a control strategy for

sulfur dioxide emissions than the RAM model, no one has

yet come forward with such. Nor do petitioners point to

any such,

This is not to ignore that’ petitioners do cite Enviroplan’s

claims of a superior model termed Air Pollution Evaluation

42a

26 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

System. This record shows, however, that United States EPA

asked for the Enviroplan model and was refused, and is now

refused the operative details of that model on the grounds of

proprietary interest. While such withholding may be both

defensible as a matter of law, and understandable as a matter

of economics, this court cannot consider Enviroplan’s model

as available technology until and unless it is fully disclosed

and evaluated by United States EPA — the agency charged

by Congress with making these decisions. ’

7) We recognize that this record does not present posi-

tive proofs of the accuracy of RAM’s predictions. Thus far

technology has not developed foolproof methods for validating

predictions concerning pollution of the ambient air absent

years of collection of monitoring data with far more monitors

and far more personnel than have thus far been available. Ob-

viously, also, the monitor locations and the receptor sites

for the RAM predictions must correspond.

We find such identity of monitor locations and receptor

sites available in this administrative record for the City of

Dayton.

The EPA Appendix contains:

1) RAM model computer printouts showing predicted

second-highest 24-hour concentrations of sulfur dioxide for

several receptor sites, and the location of those sites. (EPA

Appendix, Vol. IV, at 85-94, Certified Index XIII. EEE.1.a.3.);

2) Air quality data for 1972-76 at several Dayton sulfur

dioxide monitors (EPA Appendix, Vol. IV, at 61, 79, Certified

Index XV.K.2.r. and s.); and

3) The locations for the Dayton monitors (EPA Appendix,

Vol. IV, at 95-96, Certified Index XII.B.4.a.(1)(d)).

The following chart displays the data contained in these

documents:

43a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 27

Second-Highest

24-hr Concen- Actual Monitor Readings

tration Predicted (micrograms per cubic meter )

Site by RAM (micrograms

No. per cubic meter) 1972 1973 1974 1975 1976

1 195 a ee oe

2 201 73 438 181 163° 81

3 83 > *¢ 17 @ &

4 109 ‘. * ee

5 161 sy hes Cl fllCOBséd

6 207 Je oe oe

Our analysis of these data* shows that the yearly second-

highest concentration of SO, pollution (for a 24-hour average )

actually recorded on available monitors exceeded the RAM

model prediction for each location once in a five-year period

at five out of six locations. This analysis certainly falls short

of showing RAM’s predictive perfection. But it certainly tends

to show that the EPA’s use of RAM, if conservative, cannot

be held to be arbitrary and capricious. See Sierra Club v. EPA,

540 F.2d 1114, 1136 (D.C. Cir. 1976), cert. granted on dif-

ferent issues, 97 S.Ct. 1597 (1977). See also Mision Industrial,

Inc. v. EPA, 547 F.2d 123, 128-29 (1st Cir. 1976).

We recognize that petitioners presented Enviroplan’s study

on RAM predictions and existing monitor results for the three

counties in which Akron, Toledo and Canton are located, and

that they contend that the study’s results show gross over-

predictions by RAM. Reevaluation of RAM predictions, how-

ever, showed that most discrepancies were occasioned by data

4 Petitioners object with vehemence to EPA’s reference in its brief

to its discussion of these data as a “study,” calling our attention to

the fact that the com m was made by EPA attorneys after

the closing of the record. Clearly, however, the raw data to which we

have referred and which we have inspected were and are available

in the administrative record of this case.

44a

28 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

errors factored into the original RAM predictions for these

three counties.

We have also considered the argument based on the Hamill

study of RAM’s application to St. Louis and Enviroplan’s

subsequent study thereof. While this latter commentary

must be taken into account, when weighed against all other

record evidence it fails to convince us that United States

EPA's use of RAM was arbitrary and capricious.

8) Finally, as we pointed out at the beginning of this

opinion, SO, emissions have a direct impact upon the health

and the lives of the population of Ohio — particularly its

young people, its sick people, and its old people. If the

RAM model did overpredict emission rates, such a conserva-

tive approach in protection of health and life was apparently

contemplated by Congress in requiring that EPA plans con-

tain “emission limitations . . . necessary to insure attainment

and maintenance” of national ambient air standards. 42 U.S.C.

§ 1857c-5(a)(2)(B) (1970). (Emphasis added. )

In summary, we hold that United States EPA’s adoption and

employment of the RAM model as its general working tool was

based upon informal rulemaking which satisfied both the re-

quirements of the Clean Air Act, the Administrative Procedure

Act, and the due process requirements of the United States

Constitution. Further, the record indicates that the Administra-

tor's action in promulgating the sulfur dioxide control regula-

tions for Ohio through use of the RAM model was a rational

choice which was well within the discretion committed to him

and his agency. We decline petitioners’ requests to set the

disputed orders aside on the ground that they are arbitrary

and capricious.

45a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 29

OTHER ISSUES

Somewhat half-heartedly the leading brief for the utilities

attacks the United States EPA plan for SO, controls in Chio

as excessively costly and asserts that the satisfactory opera-

tion of Flue Gas Desulfurization machinery (“scrubbers”) has

not been demonstrated.

We note that the United States EPA control strategy for

Ohio does not rely heavily upon Flue Gas Desulfurization.

(EPA estimates — and petitioners do not dispute — that only

six utilities will choose this compliance route.) Alternatives to

installation of “scrubbers” are the purchasing and use of low

sulfur coals or the employment of coal cleaning or blending

techniques. There is no doubt, of course, that SO, controls will

indeed be costly. EPA estimates capital costs for Ohio in-

dustry of well over half a billion dollars and annual costs of

171 million dollars. It also projects these costs as requiring a

3% increase in annual electric bills for the consumers who

will ultimately pay them — and who will also breathe the less

polluted air. Basically the choice of economic burden versus

continued deterioration of the air we breathe was made by

Congress. In this li gation no issue is raised concerning Con-

gress’ power to do so.

We have genuine doubt that this court has the power to

review what we regard as petitioners’ slightly disguised eco-

nomic and technological infeasibility arguments. See generally

Union Electric Co. v. EPA, 427 U.S. 246, 265-66 (1976).5 Since

this issue does not appear to be definitely resolved as to a

United States EPA-designed implementation plan (such as

we deal with here), see Union Electric Co. v. EPA, supra at

261 n.7, we observe that if we did have such power, we

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

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

to exceed them. See Note, The Clean Air Act: “Taking a Stick to the

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

46a

30 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

would conclude that the technical record compiled in the

agency proceeding provides ample support for the economic

and technological feasibility of the SO, control strategies which

United States EPA has promulgated for Ohio.

Petitioners, Cleveland Electric [uminating Co. and Dayton

Power & Light Co., enter objections to the classification of

three power plants as “urban.” Inspection of the geographic

location of these plants and of the population distribution in

the near vicinity convinces us that the United States EPA

classification cannot properly be termed arbitrary and ca-

pricious. Power plant pollution of the ambient air is no re-

specter of municipal boundary lines.

We note petitioners’ objection to the use of the urban disper-

sion coefficients employed in the RAM model. EPA defends

their use by citing the St. Louis study and by noting that

no better or more accurate coefficients are available. Since

to this observation petitioners reply by asking for more study,

we conclude that study should progress while the purposes

of the Clean Air Act were being served rather than by in-

definite postponement of EPA’s mandated task of reducing SO,

pollution in Ohio.

No other material issues are presented.

One petition pending before this court from the Northern

Ohio Lung Association attacks United States EPA’s failure

to promulgate a separate implementation plan for the “sec-

ondary standards” for the ambient air. This petition will be

the subject of separate consideration.

Similarly, this opinion does not govern any petitions where

the RAM model was not used. We do not decide any spe-

cific fact disputes raised by any petitioner as to plants other

than those treated in this opinion. Decision of these cases

will follow.

6See note 1, supra.

47a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 31

For the reasons stated above, the decision of the Admin-

istrator in imposing the SO, control plan is affirmed subject to

the reservations indicated above.

No costs are allowed since important public questions are

involved.

48a

32 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

APPENDIX A

COMPARISON OF PROMULGATED REGULATIONS

CONCERNING SULFUR DIOXIDE EMISSION

LIMITATIONS FOR THE STATE OF OHIO

Footnote list:

a. Source: Ohio Environmental Protectiofi Agency Reg.

EP-11-14 (AP-3-14), effective July 17, 1972 (available from

Anderson Publishing Co., Cincinnati, Ohio), See Appendix B.

b. Source: Ohio Environmental Protection Agency Reg.

EP-11-13, effective Feb. 1, 1974 (available from Anderson

Publishing Co., Cincinnati, Ohio). See Appendix C.

c. Source: 41 Fed. Reg. 36,324-40 (Aug. 27, 1976); 41

Fed. Reg. 42,455-56 (Nov. 30, 1976); 42 Fed. Reg.. 27,588-93

(May 31, 1977).

d. All figures represent lbs. SO, per million British Thermal

Units (mBTU) heat input, unless otherwise specified.

e. Located in Morgan and Washington Counties.

f. Optional compliance equation omitted from chart.

g. No present objection to regulation of this facility.

h. Not regulated.

i. Excluding sources subject to New Source Performance

Standards.

j. Subject to New Source Performance Standards.

k. Additional limitations, specified in units other than Ibs.

SO,/mBTU heat input, omitted from chart.

m. Information not available.

49a

Nos, 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 33

County; Ohio |Ohio | Current US EPA

Model (ae) EPA | EPA

employed Petitioner; facility 1972" 1974” Reg.° Model

Adame (MAX) 3.27 /4.8 | 3.16

Dayton Power & Light, Stuart plant 3.16" MAX

Allen(Rural RAM; MAX) 1.0 |1.0 | 0.13-5.39*

Standard Oil, Lima refinery Rural RAM

Claus unit 100 lbs. SO,

1000 Ibs.5

Catalytic cracker/CO boiler .30 lbs. 80,

1000 Ibs. product

Trolumen unit 11 lbs. S80,

ton production

Iso stabilizer, split heaters 0.71

Vac I heater 0.21

All other units 0.13

Standard Oil, Vistron plant® 1.27 Rural RAM

Ohio Power, Woodcock plant® 4.38 MAX

Ashland(no sources) 1.6 {4.8 h -

Ashtabula(SCIM) 1.6 1.0 1.30-9.10

Cleveland Elec. Illum.,

Ashtabula plant® SCIM

Stacks 1-3 2.40

Stack 4 9.10

Stack 5 8.20

Atheas(MAX; SCIM) 1.6 [4.0 | 3.72+7.50*

Columbus & So. Ohio Power,

Poston. plant MAX

Stacks 1 & 2 3.72°

Stack 3 1.207»

Auglaize(SCIM) 1.0 |4.0 4.20

Goodyear Tire andi Rubber® 4.20 SCIM

50a

34 =Cleveland Elec. Illum., et al. v. EPA Nos, 76-2090 etc.

County; Ohio |Ohio |Current US EPA

Model(s) EPA |EPA

employed Petitioner; facility 1972 |1974 | Reg. Model

Belmont (MAX; modified rollback) 1.0 |1.6 2.60

Wheeling-Pitteburgh Steel,

Martine Ferry 2.60 rollback

Ohio Edison, Burger plant h

Brown(no sources) 3.2 14.8 h -

Butler(Rural RAM) 1.6 [1.6 |0.50-3.43*

Armco, Hamilton coke plant 0.73 Rural RAM

Armco, Middletown plant Rural RAM

Boilers Bl-B4 2.11

Boilers B7-B10 1.79

General Motors, Hamilton

Pisher Body 1.40 Rural RAM

Carroll(no sources) 1.0 [4.0 h- -

Champaign(no sources) 1.0 [4.8 h -

Clark (MAX) 1.6 4.8 1,00-4,62

Ohio Edison, Mad River plant® MAX

Stacks 1-3 4.62°

Stacks 4 & 5 1.00

Clermont (MAX) 1.6 [4.8 2.02

Cincinnati G. & B.,Beckjord plant 2.02 MAX

Clinton(no sources) 3.2 14.0 h -

Columbiana(MAX) 1.0 {1.0 4.40

Ohio Edison, Bast Palestine plant® 4.40 MAX

Coshocton(MAX) 1.0 [1.6 5.66*

Columbus & So. Ohio Elec.,

Conesville MAX

Stacks 1-3 5.66%

Stack 4 1.204

alt

4 5la

Nos, 76-2090 ete. , Cleveland Elec. Illum., et al.v. EPA 35

County; Ohio] Ohio] Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972] 1974] Reg. Model

Orawford (MAX) 1.6 | 4.8 9.60

Quyahoga(RAM) 1.0 | 1.0 | 0.50=4,60%

Allied Chemical 4.8 lbs. SO

ton of acid RAM

Republic Steel RAM

Oxygen furnace, open hearth,

blast furnaces,

foundry, etc. 1.20

84" slab furnaces 1.24%

Boilers 1.00

Cleveland Blec. Illuminating,

Lakeshore RAM

Unit 18 1.30

Units 91-94 1.90

Cleveland Elec. Illumination,

Hamilton Ave. 1.00 RAM

U. &. Steel, Cuyahoga-Lorain

works 0.50 RAM

U. S&S. Steel, Cuyahoga works 1.30 RAM

Dupont RAM

Boiler 18 0.50

Sulfuric acid units 10 lbs. SO

Tone? sth

Standard Oil, Cleveland Asvhalt

plant 0.50 RAM

General Motors, Fisher Body

plant 2.10 RAM

Darke(no sources) 1.6} 48 | h -

Defiance (MAX) 1.0} 4.0 | h

Delaware (MAX) 3.2:| 4.8 | 4.00

Erie(MAX) 3.2 ]1.6 | 1.60%

Pairfield(Max) 3.2 | 4.0 6.90-7.00

36 Cleveland Elec. Illum., et al. vy. EPA Nos. 76-2090 etc.

County; Ohio| Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972] 1974 | Reg. Model

Fayette(no sources) 3.2 | 4.0 h -

Franklin(RAM) 3.2 | 3.2 | 1.06-4.80%

White-Westinghouse 2.20 RAM

General Motors, Fisher Body

plant - 1.50 RAM

Fulton(no sources) 1.0 | 4.8 h -

Gallia(MAX; SCIM) 3.2 | 4.8 8.20-9.50

Ohio Power, Gavin plant® 9.50 MAX

Geauga(MAX) 1.0 | 4.8 h

Greene(MAX; Rural RAM; SCIM) 1.6 | 4.0 | 0.30-6.20*

Guernsey (MAX) 1.0 | 4.8 h

Hamilton(modified rollback; MAX; SOIM) 1.6 }1.6 | 0.30-5.50*

Cincinnati G. & BE., Miami Port

plant MAX

Stack 2 0.30

Stacks 3 & 4 3.30

Stack 5 5.50

Stack 6 1.204

Dupont, Fort Hill plant 21 lbs. 80,

ton of acid MAX

Hancock(MAX; SCIM) 1.0 | 3.2 2.50-5.20

Harrison(no sources) 1.0 | 4.0 h -

Henry(MAX) 1.0 |1.6 2.10

Highland(no sources) 3.2 | 4.0 h -

53a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 37

County; Ohio | Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972 | 1974 | Reg. Model

Hocking(no sources) 3.2 | 3.2 h -

Holmes (MAX) 1.6 3.2 h

Huron(MAX) 3.2 | 4.0 8.00

Jackson(no sources) 3.2 | 4.0 h -

Jefferson(MAX; modified rollback) 1.0 1.0 0.80-8.10*

Wheeling-Pittsburgh Steel,

Yorkville 4.20 rollback

Wheeling-Pittsburgh Steel,

Steubenville (2 plants)® 50 gr. HS

100 dscf gas rollback

Ohio Edison, Sammis plant 2.917 MAX

Ohio Edison, Toronto plant® 8.10 MAX

Ohio Power, Cardinal plant® 4.76% MAX

Ohio Power, Tidd plant® 1.58* MAX

Knox (MAX) 1.6 3.2 h

Lake (RAM) 1.0 11.6 | 0.55-6.00%

Cleveland Elec. Illum.,

East Leake plant 1.437 RAM

Republic Steel lime plant® 4.21 lbs. SO,

ton input RAM

Lawrence(MAX; Rural RAM) 3.2 11.6 | 1.22-5.52 .

Allied Chemical, Semet-Solvay 5.52 Rural RAM

Logan(no sources) 1.0 |4.8 h ~

Lorain(RAM) 21.0 11.6 | 0.17-3.40*

Cleveland Elec. Illun.,

Avon Lake plant. 1.157 RAM

Onio Edison, Edgewater plant 3.40 RAM

B. F. Gceodrich 1.70 RAM

54a

38 Cleveland Elec. Illum., et al.v. EPA Nos.

76-2090 etc.

County; Ohio | Ohio | Current US EPA

Model(s) EPA | EPA

employed Petitioner; facility 1972 |1974 | Reg. Model

Lorain(RAM) (cont.) 1.0 |1.6 | 0.17-3.40*

General Motors, Fisher Body

Elyria plant RAM

Boilers 1 & 2 0.80

Boiler 4 0.90

Other units , 1.80

U. S. Steel RAM

Boilers 1-9 1.20

Boilers 10-13 0.50

Processes PO33 & PO39 0.17"

All other processes 0.40%

Lucas(RAM) 1.0 |1.0 | 0.04-4.99*

Toledo Edison, Bayshore station 0.50-1.20 RAM

Toledo Edison, Acme power plant 1.00-3.00 RAM

Toledo Edison, Water St.

steam plant® 1.06 RAM

Standara 0118 0.29-1.00 RAM

Coulton Chemical 0.80% RAM

Gulf Oil 0.04-0.81% RAM

Interlake Steel 0.10* ‘RAM

General Motors, Chevrolet plant 1.30 RAM

Madison (MAX) 3.2 14.8 h

Mahoning(modified rollback) 1.6 |1.6 |0.50-2.00%

Ohio Edison, North Ave. plant 2.00 rollbac}

Koppers Co. 2.00 rollbac!

Youngstown Sheet & Tube (2 plants) 0.50-0.68* rollbac!

Republic Steel 0.50-0.68" rollbac!

Marion(Rural RAM) 1.6 14.0 4.20~6.10

Medina(MAX) 1.0 |4.8 8.00

Meigs(other modelling strategy) 1.6 |4.8 11 lbs. SC

ton input

55a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 39

County; Ohio | Ohio | Current US EPA

Model (s) EPA | EPA

employed Petitioners; facility 1972 | 1974 | Reg. Model

Mercer(MAX) 1.0 | 4.0 8.00

Miami (MAX) 1.6 |4.0 | 3.20-4.78"

Monroe(no sources) 1.0 [1.6 h -

Montgomety(RAM) 1.6 |1.6 | 0.65-1.60%

Dayton P. &L., Tait plant 0.65=1.25 RAM

Dayton P. &L., Hutchings plant 0.65-1.20* RAM

Dayton P. &1., Yankee & Monument 0.65 RAM

Morgan (MAX) a8 45.2 6.48

Ohio Power, Muskingum R. plant® 6.48* MAX

Morrow(no sources) 1.6 |4.8 h -

Muskingum(MAX) 1.0 | 4.0 1.148

Ohio Power, Philo plant® 1.14 MAX

Noble(no sources) 1.0 |4.8 h -

Ottawa(MAX) 3.2 14.8 5.90%

Paulding(MAX) 1.0 4.0 43 lbs. 50,

ton input

Perry(no sources) 3.2 |4.8 h ~

Columbus & So. Ohio Elec.,

Picway plant 6.04" MAX

Pike (MAX) 3.2 14.8 7.00

Portage (MAX) 1.0 |4.8 h

Preble(MAX) 1.6 {4.8 h

56a

40 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

County; Ohio] Ohio |] Current US EPA

Model(s) BPA | EPA

employed Petitioners; facility 1972 1974 Reg. Model

Putnam(MAX) 1.0 4.8 h

Richland(MAX; SCIM) 1.6 |1.6 | 3.10-9.30%

White-Westinghouse® 4.50 MAX; SCIM

Generel Motors, Fisher Body® 3.10 MAX; SCIM

Rose(MAX) 3.2 | 3.2 4.9 lbs. 80>

ton input

Sandusky(MAX; SCIM) 3.2 | 4.0 7.00%

Seioto(MAX) 3.2 |4.8 | 0.60-6.90%

Seneca(MAX; SCIM) 3.2 |3.2 | 1.20-8.20%

Shelby(no sources) 1.0 | 3.2 h -

Stark(RAM) 1.0 | 4.8 | 0.47-5.20*

Republic Steel, Massillon plant® 4.40 RAM

Timken, Gambrinus plant RAM

Boilers 1 & 2 3.08

Boiler 3 0.93

Timken, Canton No. 5 plant 0.67 RAM

Hoover 2.50 RAM

Summit (RAM) . 1.0 |1.0 | 0.70-6.10"

Firestone Tire & Rubber 1.78 RAM

Firestone, Seiberling division 1.33 RAM

B. F. Goodrich 2.71 RAM

Goodyear Tire & Rubber, Plant I 1.80-3,96" RAM

Goodyear Tire & Rubber, Plant II 1.84% RAM

Ohio Edison, Beech St. station 2.71 RAM

Ohio Edison, Gorge power plant 2.56 RAM

PPG Industries 1.78 RAM

57a

Nos. 76-2090 ete. Cleveland Elec. Ium., et al.v. EPA 41

County; Ohio |Ohio | Current US EPA

Model(s) EPA |EPA

employed Petitioner; facility 1972 {1974 | Reg. Model

Trumbull (MAX; modified rollback) 1.6 |1.0 |0.50-5.41*

Republic Steel® 1.00-1.60" rollback

Ohio Edison, Niles plant% 5.41% MAX

U. S. Steel, McDonald mills 0.50 rollback

GM, Packard Electric Warren plants

(2) n rollback

Tuscarawas (MAX) 1.0 {1.6 4. 60*

Union(no sources) 3.2 14.0 h -

Van Wert(MAX) 1.0 14.8 h

Vinton(MAX) 3.2 4.0 4.80

Austin Powder 4.80 MAX

Warren (MAX) 1.6 [4.8 h

Washington(MAX) 1.6 |1.6 2.50-6.48

Shell Oil 2.50 MAX

Ohio Power, Muskingum R. plant® 6.48 MAX

Wayne(MAX; SCIM) 1.6 1.6 7.00

Williams (MAX) 1.0 4.0 h

Wood(RAM) 1.0 4.0 1.10

Wyandot(no sources) 1.6 |/.8 h

58a

42. Cleveland Elec. Illum., et al. v. EPA Nos. 76-2090 etc.

APPENDIX B

OHIO EPA 1972 REGULATIONS

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

from the use of fuel.

(B) Emission limitations.

(1) No person shall cause, suffer, allow, or permit the

emission of sulfur compounds caused by the combustion of

fuel in fuel-burning equipment from any stack or chimney

in excess of the quantity set forth in Figure III.

(2) All persons located within air control regions classified

as Priority 1 Regions shall attain or exceed that degree of

emission reduction specified by Curve P-1 by the effective

date of this regulation.

(3) All persons located within air quality control regions

classified as Priority I] Regions shall attain or exceed that

degree of emission reduction specified by Curve P-2 by the

effective date of this regulation.

(4) All persons located within air quality control regions

classified as Priority III Regions shall attain or exceed that

degree of emission reduction specified by Curve P-3 by the

effective date of this regulation.

(5) All persons located within air quality control regions

classified as Priority II or III Regions shall attain or exceed,

no later than July 1, 1975, that degree of emission reduction

specified by Curve P-1.

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

Nos. 76-2090 etc.

S - MAXIMUM ALL‘

i $3)hi"1

BEM

epstiyit:

arp

€t-tt &&

Ill 221i

YNOH Wid N1LG SNOITIIN “LOdNI LVZH IVLOL - H

TTT thes

Peli bali

arash

eae

sit Ht

Hite th 1H)

an iif BW

ens

fei

CATERED

Pall

earn

59a

JWABLE MASS RATE OF EMISSION CF id

(AS SULFUR DIOXIDE) - IN POUNDS PER MILLION bT'

lod * *# &4ee

boii "

spear

aie! He oli

Titi

Seerete

On8d4 \a!'!

eseeri true

rt hy Pie

Cleveland Elec. Illum., et al.v. EPA 48

60a

44 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

EP-11-06 (AP-3-06) Classification of regions.

CLASSIFICATION BY REGIONS (See Figure IV at end of EP-11)

FEDERAL PRIORITY CLASSIFICATION — BY POLLUTANT —

FEDERAL REGISTER, MAY 31, 1972

AIR QUALITY FEDERAL PARTI-

CONTROL REGION NUMBER CULATES SOx CO NOx Phtox

Cincinnati (Ky.-ind.) 079 1 i TT ! |

Cleveland (Akron,

Canton, etc.) 174 | i TT { "

Columbus 176 ! il it | |

Dayton 173 | TT TT t

Mansfield-Marion 175 I i it it it

Marietta (W. Va.) 179 | " HT TT i

Northwest Ohio 177 W | TT i it

Portsmouth-lronton

(Ky.-W.Va.) 103 | Wh wn Hl itl

Sandusky 180 HT HT iW TT it

Steubenville (W. Va.) 181 | | tT i HT

Toledo (Michigan) 124 | | i | |

Wilmington-

Chillicothe-Logan 182 ih TT TT TT it

Youngstown 178 | T TT TT Wi

Zanesville 183 Ut 7 tL WN

Nos. 76-2090 etc.

6la

Cleveland Elec. Illum., et al.v. EPA 45

peas Tse a co | Northwest

| Toledo | i bo Penna.

aie ca ] - hima SCS

‘ital aad By 24) Toran ‘pe Youngstown

| | 5 oo (#178)

aan a — Cmca [eo |

1 a semcea al : ' .

| | Rin" — aaa Sandusky col Cleveland “wien a

: ==; ~~ Northwest Ohio — (m1 a jaa

vin weer (4s l 77) wrencot Chaat ne rrr) | warne eae stare 71.

Saaa Bs Mansfield-Marlon | aaa |

mica oy te #175) ) ‘ Garros

Co) | manion fr Eas res Tircaravas | =

Set ——— 4 —— ; | TUERION

: eo — | [coznccton | loaasane’*

re | ce { a) eee ne

1} ounces Linn ESS je +oee

: oe. ert mviKinooe |

Dayton | wianen >! Steubenville

(#173) Columbus a 1 Weirton-

(4176) sere Trae

wid | ey ey

raasmar —f a

) Ome H

neinnati AN tose j

(#079) , Wilmington-Chillicotho

cnaren” Cia 7 Logan (#182)

t i ‘i e 1,

enown [rooms a

_— mee

FIGURE IV

EP 11-06 (AP 3-06)

CLASSIFICATION BY REGIONS

(ettwncvon

Parhkersburg-

Marietta

( #179)

~~ = Wheeling

(#181)

62a

48 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

APPENDIX C

OHIO EPA 1974 REGULATIONS

EP-11-13 Restrictions on emission of sulfur dioxide from use

of fuel.

(B) Emission limitations.

(1) No person shall cause, permit, or allow the emission

of sulfur oxides from any facility as defined in subsection (A)

(2) of this regulation in excess of the quantity set forth in

Table II (Figure V following EP-11) for the county in which

the source is located.

(2) No person shall cause, permit, or allow the emission

of sulfur oxides in excess of 1.0 pounds per one million BTU

of heat input from any new facility made up of, one or more

new sources with a combined capacity of 100 million BTU

per hour or more for which a Permit to Install or Permit to

Construct was not obtained before February 1, 1974. New

sources with a combined capacity of less than 100 million BTU

per hour shall comply with the emission limitations in para-

graph (1) of this subsection.

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

TABLE Il (See Figure V at end of EP-11)

COUNTY SULPHUR DIOXIDE ALLOWABLE

EMISSIONS

Allen 1.0 pounds of sulfur dioxide

Ashtabula per million BTU of heat input

Columbiana

Cuyahoga

Jefferson

Lucas

Summit

Trumbull

Nos. 76-2090 etc.

COUNTY

63a

Cleveland Elec. Illum., et al.v. EPA 47

SULPHUR DIOXIDE ALLOWABLE

EMISSIONS

Belmont

Butler

Coshocton

Erie

Hamilton

Henry

Lake

Lawrence

Lorain

Mahoning

Monroe

Montgomery

Pickaway

Richland

Tuscarawas

Washington

Wayne

1.6 pounds of sulfur dioxide

per million BTU of heat input

Franklin

Hancock

Hocking

Holmes

Knox

Licking

Morgan

Ross

Seneca

Shelby

3.2 pounds of sulfur dioxide

per million BTU of heat input

48 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2090 etc.

COUNTY

SULPHUR DIOXIDE ALLOWABLE

EMISSIONS

Athens

Auglaize

Carroll

Clinton

Defiance

Fairfield

Fayette

Greene

Hardin

Harrison

Highland

Huron

Jackson

Marion

Mercer

Miami

Muskingum

Paulding

Sandusky

Union

Vinton

Williams

Wood

4.0 pounds of sulfur dioxide

per million BTU of heat input

All other counties:

4.8 pounds of sulfur dioxide

per million BTU of heat input

65a

Nos. 76-2090 etc. Cleveland Elec. Illum., et al.v. EPA 49

wrenoce

: >

CP @ |

mona NY | bent 1825 OF Pasi

Ore'H LOL t OOO!

= —™

Aan

fe)

om =

had

‘a

Ol’

Oty

lof

han

©!

[

|@)

ath

ieee.

2 OP

XK)

i £

‘ >;

| ae

1.0) » 1.0 pouncs of sulfur dioxide ~ 4.0 pounds of sulfur dioxide

per million BTU of heat input per million BTU of heat input

1.6) @ 1.6 pounds of sulfur dioxide 4.8) = ..8 pounds of sulfur dioxide

per million BTU of heat input ver million BTU of heat input

3.2) = 3.2 pounds of sulfur dioxide

per million BTU of heat input

FIGURE V (Table II)

EP 11-13

SULFUR DIOXIDE EMISSION LIMITATIONS

oe ee ee

APPENDIX D

Judgment of the United States Court of Appeals

for the Sixth Circuit

66a

APPENDIX D

Nos. 76-2090, 77-1367, 76-2232, 77-1361

76-2241, 77-1357, 76-2278

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Crxctnnatt Gas & Exectric Co., CoLtumsus & SouTHERN

Outro Evectric Co., Dayton Power & Liaut Co., Ont0

Epison Co., Onto Power Co., Saett Ow Co., Austin

Powper Co., E. I. puPont peNemours & Co., Petitioners,

ENVIRONMENTAL Prorection Acency AnD Dovauias M.

CostLe, ADMINISTRATOR OF THE FE.NVIRONMENTAL PROTEC-

tion Acency, Respondents.

Filed June 29, 1978

Judgment

Before: Puturps, Chief Judge, Enwarps and Peck, Circuit

Judges.

On petition to review certain regulations promulgated

by the Administrator of the Environmental Protection

Agency,

These causes came on to be heard on the record of pro-

ceedings before the Environment Protection Agency and

were argued by counsel.

Upon consideration, it is now ordered, adjudged and

decreed by this Court that the petitions in the following

cases are remanded to the United States EPA for recon-

sideration of the employment of Class A coefficients in

least stable wind conditions in rural counties:

67a

Nos. 76-2090, 77-1367 :

Dayton Power & Light Company

(Adams Count facilities only) ;

Ohio Power Company

(all facilities) ;

Columbus & Southern Ohio Electric Co.

(Coshocton County facility only) ;

Nos, 76-2241, 77-1357 :

Austin Powder Company

(all facilities)

It is also ordered, adjudged and decreed that the peti-

tions of Cincinnati Gas & Electric Co. in 76-2090 and 77-

1367 and Shell Oil Co. in 76-2232 and 77-1361 are dismissed.

No costs are to be taxed.

Enrerep By Orper or THE Court.

/s/ Joun P, Henman

John P. Hehman

Clerk

APPENDIX E

The Fifth Amendment to the Constitution of the

United States

68a

Amendment V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use

without just compensation.

DE ee A Sa

APPENDIX F

Relevant provisions of the Administrative Procedure

Act, 5 U.S.C. §§ 553 and 706

§ 553. Rule making

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the

United States; or

(2) a matter relating to agency management or per-

sonnel or to publie property, loans, grants, benefits,

or contracts.

(b) General notice of proposed rule making shall be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have actual notice thereof in accordance with law.

The notice shall include—

(1) a statement of the time, place, and nature of

public rule making proceedings ;

(2) reference to the legal authority under which the

rule is proposed; and

(3) either the terms or substance of the proposed

rule or a description of the subjects and issues in-

volved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements

of policy, or rules of agency organization, proce-

dure, or practice; or

(B) when the agency for good cause finds (and

incorporates the finding and a brief statement of

reasons therefor in the rules issued) that notice

and public procedure thereon are impracticable,

unnecessary, or contrary to the public interest.

70a

give interested persons an opportunity to participate in

the rule making through submission of written data, views,

ov arguments with or wit opportunity for oral presen-

tation. After consideration of the relevant matter present-

ed, the agency shall incorporate in the rules adopted a

concise general statement of fheir basis and purpose. When

rules are required by statute to be made on the record

after opportunity for an agency hearing, sections 556 and

557 of this title apply instead of this subsection.

(d) The required publication or service of a substantive

rule shall be made not less than 30 days before its effective

date, except—

(1) a substantive rule which grants or recognizes

an exemption or relieves a restriction;

(2) interpretative rules and statements of policy;

(3) as otherwise provided by the agency for good

cause found and published with the rule.

(e) Each agency shall give an interested person the right

to petition for the issuance, amendment, or repeal of a rule.

§706. Scope of review

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

7la

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privi-

lege, or immunity;

limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(EK) unsupported by substantial evidence in a case

subject to sections 556 and 557 of this title or otherwise

reviewed on the record of an agency hearing provided

by statute; or

(F) unwarranted by the facts to the extent that the

facts are subject to trial de novo by the reviewing

court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of pre-

judicial error.

APPENDIX G

Relevant provisions of the Clean Air Act, as amended

by the Clean Air Act Amendments of 1970, 91 Pub.L.

No. 604, 84 Stat. 1676, formerly codified at 42 U.S.C.

§§ 1857 ef seq.

72a

APPENDIX G

§ 1857c—5. [§ 110.] State implementation plans for national primary

and secondary ambient air quality standards—Submission to Ad-

ministrator; time for submission: State procedures; required con-

tents of plans for approval by Administrator: approval of revised

plan by Administrator

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

public hearings, adopt and submit to the Administrator,

within nine months after the promuigation of a national

primary ambient air quality standard (or any revision

thereof) under section 1857c—4 of this title for any air

pollutant, a plan which provides for implementation, main-

tenance, and enforcement of such primary standard in each

air quality control region (or portion thereof) within such

State. In addition, such State shall adopt and submit to

the Administrator (either as a part of a plan submitted

under the preceding sentence’ or separately) within nine

months after the promulgation of a national ambient air

quality secondary standard (or revision thereof), a plan

which provides for implementation, maintenance, and en-

forcement of such secondary standard in each air quality

control region (or portion thereof) within such State. Un-

less a separate public hearing is provided, each State shall

consider its plan implementing such secondary standard

at the hearing required by the first sentence of this para-

graph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under paragraph

(1), approve or disapprove such plan or each portion

thereof. The Administrator shall approve such plan, or

any portion thereof, if he determines that it was adopted

after reasonable notice and hearing and that—

(A)(i) in the case of a plan implementing a national

primary ambient air quality standard, it provides for

the attainment of such primary standard as expedi-

73a

tiously as practicable but (subject to subsection (e)

of this section) in no case later than three years from

the date of approval of such plan, or any revision

thereof to take account of a revised primary stand-

ard); and (ii) in the case of a plan implementing a

national secondary ambient air quality standard, it

specifies a reasonable time at which such secondary

standard will be attained;

(B) it ineludes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure

attainment and maintenance of such primary or sec-

ondary standard, including, but not limited to, land-

use and transportation controls;

operation of appropriate devices, methods, systems,

and procedures necessary to (i) monitor, compile, and

analyze data on ambient air quality and, (ii) upon

request, make such data available to the Administra-

tor;

(D) it ineludes a procedure, meeting the require-

ments of paragraph (4), for review (prior to con-

struction or modification) of the location of new soure-

es to which a standard of performance will apply;

(E) it contains adequate provisions for inter-gov-

ernmental cooperation, including measures necessary

to insure that emissions of air pollutants from sources

located in any air quality contro] region will not inter-

fere with the attainment or maintenance of such pri-

mary or secondary standard in any portion of such

region outside of such State or in any other air quality

control region;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and

authority to carry out such implementation plan, (ii)

74a

requirements for installation of equipment by owners

or operators of stationary sources to monitor emissions

from such sources, (iii) for periodic reports on the

nature and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency with

any emission limitations or standards established pur-

suant to this chapter, which reports shall be available

at reasonable times for public inspection; and (v) for

authority comparable to that in section 1857h—1 of this

title, and adequate contingency plans to implement

such authority;

(G) it provides, to the extent necessary and prac-

ticable, for periodic inspection and testing of motor

vehicles to enforce compliance with applicable emission

standards; and

(H) it provides for revision, after public hearings,

of such plan (i) from time to time as may be necessary

to take account of revisions of such national primary

or secondary ambient air quality standard or the avail-

ability of improved or more expeditious methods of

achieving such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis of in-

formation available to him that the plan is substantially

inadequate to achieve the national ambient air quality

primary or secondary standard which it implements.

(3)(A) The Administrator shall approve any revision

of an implementation plan applicable to an air quality

control region if he determines that it meets the require-

ments of paragraph (2) and has been adopted by the State

after reasonable notice and public hearings.

75a

Preconditions for preparation and publication by Administrator of

proposed regulations; promulgation of regulations by Adminis-

trator: transporiation regulations study and report; parking sur-

charge; suspension authority

(c)(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation

plan for any national ambient air quality primary or

secondary standard within the time prescribed,

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in sub-

section (a)(2)(E) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing withim such State on

any proposed regulation. The Administrator shall, within

six months after the date required for submission of such

plan (or revision thereof), promulgate any such regulations

unless, prior to such promulgation, such State has adopted

and submitted a plan (or revision) which the Administra-

tor determines to be in accordance with the requirements

of this section.

76a

Applicable implementation pian

(d) For purposes of this chapter, an applicable imple-

mentation plan is the implementation plan, or most recent

revision thereof, which has been approved under subsection

(a) of this section or promulgated under subsection (c) of

this section and which implements a national primary or

secondary ambient air quality standard in a State.

§ 1857d—1. Retention cf State authority

Except as otherwise provided in sections 1857e—10(c),

(e), and (f), 1857f—6a, 1857—6e(c) (4), and 1857f—11 of

this title (preempting certain State regulation of moving

sources) nothing in this chapter shall preclude or deny the

right of any State or political subdivision thereof to adopt

or enforce (1) any standard or limitation respecting emis-

sions of air pollutants or (2) any requirement respecting

control or abatement of air pollution; except that if an

emission standard or limitation is in effect under an ap-

plicable implementation plan or under section 1857¢e—6 or

section 1857c—7 of this title, such State or political sub-

division may not adopt or enforce any emission standard

or limitation which is less stringent than the standard or

limitation under such plan or section.

77a

§ 1857h—5. Administrative proceedings and judicial review

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

tor in promulgating any national primary -or secondary

ambient air quality standard, any emission standard under

section 1857¢—7 of this title, any standard of performance

under section 1857e-—6 of this title, any standard under

section 1857f—1 of this title (other than a standard re-

quired to be prescribed under section 1857f—1(b)(1) of

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

of this title, any control or prohibition under section 1857f

—6e of this title, or any standard under section 1857f——9 of

this title may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for review

of the Administrator’s action in approving or promulgating

any implementation plan under section 1857e—5 of this

title or section 1857e-—6(d) of this title, or his action under

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

under regulations thereunder, may be filed only in the

United States Court of Appeals for the appropriate cir-

cenit, Any such petition shall be filed within 30 days from

the date of such promulgation, approval, or action, or after

such date if such petition is based solely on grounds arising

after such 30th day.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement,

APPENDIX H

Relevant provisions of the Clean Air Act, as amended

by the Clean Air Act Amendments of 1977, 95 Pub.L.

No. 95, 91 Stat. 685, 42 U.S.C. §§ 7410 ef seq.

78a

APPENDIX H

§ 7410. State implementation plans for national primary and

secondary ambient air quality standards—Adoption of plan by

State; submission to Administrator: content of plan: revision: new

sources; indirect source review program; supplemental or inter-

mitten! control systems

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

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision

thereof) under section 7409 of this title for any air pollu-

tant, a plan which provides for implementation, mainte-

nance, and enforcement of such primary standard in each

air quality control region (or portion thereof) within such

State. In addition, such State shall adopt and submit to

the Administrator (either as a part of a plan submitted

under the preceding sentence or separately) within nine

months after the promulgation of a national ambient air

quality secondary standard (or revision thereof), a plan

which provides for implementation, maintenance, and en-

forcement of such secondary standard in each air quality

control region (or portion thereof) within such State. Un-

less a separate public hearing is provided, each State shall

consider its plan implementing such secondary standard

at the hearing required by the first sentence of this para-

graph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under paragraph

(1), approve or disapprove such plan or each portion

thereof. The Administrator shall approve such plan, or any

portion thereof, if he determines that it was adopted after

reasonable notice and hearing and that—

(A) except as may be provided in subparagraph

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

79a

primary ambient air quality standard, it provides for

the attainment of such primary standard as expedi-

tiously as practicable but (subject to subsection (e)

of this section) in no case later than three years from

the date of approval of such plan (or any revision

thereof to take account of a revised primary stand-

ard); and (ii) in the case of a plan implementing a

national secondary ambient air quality standard, it

specifies a reasonable time at which such secondary

standard will be attained;

(B) it ineludes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure

attainment and maintenance of such primary or sec-

ondary standard, including, but not limited to, trans-

portation controls, air quality maintenance plans, and

preconstruction review of direct sources of air pollu-

tion as provided in subparagraph (D);

operation of appropriate devices, methods, systems,

and procedures necessary to (i) monitor, compile, and

analyze data on ambient air quality and, (ii) upon

request, make such data available to the Administrator;

(D) it includes a program to provide for the enforce-

ment of emission limitations and regulation of the

modification, construction, and operation of any sta-

tionary source, including a permit program as required

in parts C and D of this subchapter and a permit or

equivalent program for any major emitting facility,

within such region as necessary to assure (i) that

national ambient air quality standards are achieved

and maintained, and (ii) a procedure, meeting the

requirements of paragraph (4), for review (prior to

construction or modification) of the location of new

sources to which a standard of performance will apply;

80a

(E) it contains adequate provisions (i) prohibiting

any stationary source within the State from emitting

any air pollutant in amounts which will (I) prevent

attainment or maintenance by any other State of any

such national primary or secondary ambient air quality

standard, or (II) interfere with measures required to

be included in the applicable implementation plan for

any other State under part C of this subchapter to

prevent significant deterioration of air quality or to

protect visibility, and (ii) insuring compliance with

the requirements of section 7426 of this title, relating

to interstate pollution abatement ;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and

authority to carry out such implementation plan; (ii)

requirements for installation of equipment by owners

or operators of stationary sources to monitor emissions

from such sources; (iii) for periodic reports on the

nature and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency with

any emission limitations or standards established

pursuant to this chapter, which reports shall be avail-

able at reasonable times for public inspection; (v) for

authority comparable to that in section 7603 of this

title, and adequate contingency plans to implement

such authority; and (vi) requirements that the State

comply with the requirements respecting State boards

under section 7428 of this title;

(G) it provides, to the extent necessary and prac-

ticable, for periodic inspection 4nd testing of motor

vehicles to enforce compliance with applicable emis-

sion standards;

(H) it provides for revision, after public hearings,

of such plan (i) from time to time as may be necessary

to take account of revisions of such national primary

or secondary ambient air quality standard or the avail-

ability of improved or more expeditious methods of

achieving such primary or secondary standard; or (ii)

except as provided in paragraph (3)(C), whenever the

Administrator finds on the basis of information avail-

able to him that the plan is substantially inadequate

to achieve the national ambient air quality primary or

secondary standard which it implements or to other-

wise comply with any additional requirements estab-

lished under the Clean Air Act Amendments of 1977;

(1) it provides that after June 30, 1979, no major

stationary source shall be constructed or modified in

any nonattainment area (as defined in section 7501 (2)

of this title) to which such plan applies, if the emis-

sions from such facility will cause or contribute to

concentrations of any pollutant for which a national

ambient air quality standard is exceeded in such area,

unless, as of the time of application for a permit for

such construction or modification, such plan meets the

requirements of part D of this subchapter (relating

to nonattainment areas) ;

(J) it meets the requirements of section 7421 of

this title (relating to consultation), section 7427 of this

title (relating to public notification), part C of this

subchapter (relating to prevention of significant de-

terioration of air quality and visibility protection) ;

and

(KX) it requires the owner or operator of each major

stationary source to pay to the permitting authority

as a condition of any permit required under this chap-

ter a fee sufficient to cover—

(i) the reasonable costs of reviewing and acting

upon any application for such a permit, and

(ii) if the owner or operator receives a permit

for such source, whether before or after August

82a

7, 1977, the reasonable costs (incurred after Au-

gust 7, 1977) of implementing and enforcing the

terms and conditions of any such permit (not in-

cluding any court costs or other costs associated

with any enforcement action).

(3)(A) The Administrator shall approve any revision

of an implementation plan applicable to an air quality con-

trol region if he determines that it meets the requirements

of paragraph (2) and has been adopted by the State after

reasonable notice and public hearings.

Preparation and publication by Administrator of proposed regula-

tions setting forth implementation plan: transportation regulations

study and report; parking surcharge; suspension authority: plan

implementation

(c)(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation

plan which meets the requirements of this section.

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in sub-

section (a) (2)(H) of this section.

If such State held no public hearing associated with re-

spect to such plan (or revision thereof), the Administrator

83a

shall provide opportunity for such hearing within such

State on any proposed regulation. The Administrator shall,

within six months after the date required for submission

of such plan (or revision thereof), promulgate any such

regulations unless, prior to such promulgation, such State

has adopted and submitted a plan (or revision) which the

Administrator determines to be in accordance with the

requirements of this section. Notwithstanding the preced-

ing sentence, any portion of a plan relating to any measure

described in the first sentence of section 7421 of this title

(relating to consultation) or the consultation process re-

quired under such section 7421 shall not be required to be

promulgated before the date eight months after such date

required for submission.

Applicable implementation plan

(d) For purposes of this chapter, an applieable imple-

mentation plan is the implementation plan, or most recent

revision thereof, which has been approved under subsection

(a) of this section or promulgated under subsection (c) of

this section and which implements the requirements of this

section.

§ 7416. Retention of State authority

Except as otherwise provided in sections 119(e), (e), and

(f) (as in effect before August 7, 1977), 7543, 7545(¢) (4),

and 7573 of this title (preempting certain State regulation

of moving sources) nothing in this chapter shall preclude

or deny the right of any State or political subdivision there-

of to adopt or enforce (1) any standard or limitation re-

specting emissions of air pollutants or (2) any requirement

respecting control or abatement of air pollution; exeept

that if an emission standard or limitation is in effect under

an applicable implementation plan or under section 7411

Sta

or section 7412 of this title, such State or political sub-

division may not adopt or enforce any emission standard

or limitation which is less stringent than the standard or

limitation under such plan or section.

§ 7607. Administrative proceedings and judicial review

Judicial review

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

tor in promulgating any national primary or secondary

ambient air quality standard, any emission standard or

requirement under section 7412 of this title, any standard

of performance or requirement under section 7411 of this

title, any standard under section 7521 of this title (other

than a standard required to be prescribed under section

7521(b)(1) of this title) any determination under section

7521(b)(5) of this title, any control or prohibtion under

section 7545 of this title, any standard under section 7571

of this title, any rule issued under section 7413, 7419, or

7420 of this title, or any other nationally applicable regula-

tions promulgated, or final action taken, by the Administra-

tor under this chapter* may be filed only in the United

States Court of Appeals for the District of Columbia. A

petition for review of the Administrator’s action in approv-

ing or promulgating any implementation plan under section

7410 of this title or section 7411(d) of this title, any order

under section 7411(j) of this title, under section 7412(c)

of this title, under section 7413(d) of this title, under sec-

tion 7419 of this title, or under section 7420 of this title, or

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

effect before August 7, 1977) or under regulations there-

under, or any other final action of the Administrator under

this chapter (including any denial or disapproval by the

85a

Administrator under subchapter I of this chapter) which

is locally or regionally applicable may be filed only in the

United States Court «f Appeals for the appropriate circuit.

Notwithstanding the preceding sentence a petition for fe-

view of any action referred to in such sentence may be filed

only in the United States Court of Appeals for the District

of Columbia if such action is based on a determination of

nationwide scope or effect and if in taking such action the

Administrator finds and publishes that such action is based

on such a determination. Any petition for review under

this subsection shall be filed within sixty days from the

date notice of such promulgation, approval, or action ap-

pears in the Federal Register, except that if such petition

is based solely on grounds arising after such sixtieth day,

then any petition for review under this subsection shall be

filed within sixty days after such grounds arise.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement.

Rulemaking

(d)(1) This subsection applies to—

(3) In the case of any rule to which this subsection ap-

plies, notice of proposed rulemaking shall be published in

the Federal Register, as provided under section 553(b) of

Title 5, shall be accompanied by a statement of its basis

and purpose and shall specify the period available for

public comment (hereinafter referred to as the ‘‘comment

period’’), The notice of proposed rulemaking shall also

state the docket number, the location or locations of the

docket, and the times it will be open to public inspection.

86a

The statement of basis and purpose shall ineiude a sum-

mary of—

(A) the factual data on which the proposed rule is

based;

(B) the methodology used in obtaining the data and

in analyzing the data; and

siderations underlying the proposed rule. a

The statement shall also set forth or summarize and pro-

vide a reference to any pertinent findings, recommenda-

tions, and comments by the Scientific Review Committee

established under section 7409(d) of this title and the Na-

tional Academy of Sciences, and, if the proposal differs in

any important respect from any of these recommendations,

an explanation of the reasons for such differences. All data,

information, and documents referred to in this paragraph

on which the proposed rule relies shall be included in the

docket on the date of publication of the proposed rule.

(6)(A) The promulgated rule shall be accompanied by

(i) a statement of basis and purpose like that referred to

in paragraph (3) with respect to a proposed rule and (ii)

an explanation of the reasons for any major changes in

the promulgated rule from the proposed rule.

(B) The promulgated rule shall also be accompanied by

a response to each of the significant comments, criticisms,

and new data submitted in written or oral presentations

during the comment period.

87a

whole) on any information or data which has not been

placed in the docket as of the date of such promulgation.

(9) In the ease of review of any action of the Adminis-

trator to which this subsection applies, the court may re-

verse any such action found to be—

(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law;

(B) contrary to constitutional right, power, privi-

lege, or immunity;

limitations, or short of statutory right; or

(D) without observance of procedure required by

law, if (i) such failure to observe such procedure is

arbitrary or capricious, (ii) the requirement of para-

graph (7)(B) has been met, and (iii) the edndition of

the last sentence of paragraph (8) is met.

§ 7620, Standardized air quality modeling

Conferences

(a) Not later than six months after August 7, 1977, and

at least every three years thereafter, the Administrator

shall conduct a conference on air quality modeling, In con-

ducting such conference, special attention shall be given to

appropriate modeling necessary for carrying out part C

of subchapter | of this chapter (relating to prevention of

significant deterioration of air quality).

—

88a

Conferees

(b) The conference conducted under this section shall

provide for participation by the National Academy of

Sciences, representatives of State and local air pollution

control agencies, and appropriate Federal agencies, includ-

ing the National Science Foundation; the National Oceanic

and Atmospheric Administration, and the National Bureau

of Standards.

APPENDIX I

Relevant provisions of the regulations being

reviewed, 40 C.F.R. §§ 52.1875, 1881 and

1882 (1977)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.