# Petition — Shell Oil Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1804%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 439 U.S. 1114 ## Text IN THE MIGHAM RODAK, JR. CLERK Supreme Court of the Rnited States OctosperR TERM, 1978 No.7. 83 5 Tue SHett Or Company, Petitioner, wa 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 ‘ = 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 re ie 4 5 eee ss - IN THE Supreme Court of the United States OcroBerR TERM, 1978 No. 78- THE SHELL O11 Company, Petitioner, We 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’’). 2 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. 3 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 4 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. 5 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- 6 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. 7 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 s 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, 9 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 10 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. ll 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- 12 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). 13 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. 14 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 la 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. ee 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 2a 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., 3a 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) 4a 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 : 5a 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 6a 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- 7a 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, Sa 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. 9a 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). — i “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. 1) 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. (c) Ohio Edison Co. — Lorain 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). 2) 3) 4) 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 3) (c) Ohio Edison Co. — Lorain County facilities only. (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. ‘(op 9% s9uIUTeHY ‘eappary “sig Jo Wodaz) (F161) EL68T OF ONOD OGI o6esese suy>uosg “ebeseae jenuue -w/6n 0SZ % OO! yeruue -w/6n OZ 4 SI “- "yen wt @swezzu! pweosed OS ~ sh Oy 04 dm 205 pw /6n g1 9% OF DMwOsY>? 204 FS S8OITZ ‘wospeypP “1 eseenp *eBeseae jenuue -w/6n 0S7 9} 00! ebeseae penuue -w/6n oz sen a ~----- "gh yespaes 205 -us/Bn ¢; Asopendses somo] eynze Ser] “ay pz 204 sed OS “--seBuoy 20 24 97 sy pus/Bn & Suni pure peey yo wos "ay yZ 205 -w/6" 009 44 Z +04 cs /5" BF Ayep wt eswessu; yuersed 7/7 ~ -s96u0j 10 sy yz 205 ws /En sz “Ayyejsow Apep wt eseesu quejeainbe eprxoip snging joaey woueyeg wouesnp esnsodze eye yyeey etseapy $z ~~ "gu6n O91 ea greta ~~ -wonppegur 05 Appqudessms peseessuy “= «OP beans -*** “eua76m oz °°” “syuepmo Jernwmey>ojoyg 7Bee “- "gun Op © “-----*"Spuqued g280q Ul S2UB28/O4 OSIDIETe PeysiurEnG i rs pe ee cw/bn EZ Of les c/ syueyed pPey UI S2UeI0/04 eSIDJEZe PeYysiuTC] anoy 8 en SS eee a epovow woque> Or cw/5nr 00 wespyry> sseuy: Asopesdses eynoe yo Ayueses peseeouy beece a aiaraal agi’ cube OF epaorp vebosyiy Se. (Ya haath ods. wespyry? ul sucwregu: Asozendses somo] peseesu} earn Clacton ates yer cw 5n si a @uo) oth " S2OUIYESE UI TWOLjIeZUE Pesees>u] ae w/b 9 seyeyins pepuedsns et cw/bn gz sysyowosg 2wosy> yo Aouenbey peseescu) a cast jenuuy c@/6r oo ouon ee eee eee 7, “* “gt /Bm QE 04 O5Z ~ SeEINDYZe popsedsns v1 cw/bn og eseesip Asoyesdses eynae yo Aouenbe.y peseesou “ponuuy ~~~ ~~~ * gw/6n tid Ouon cu/6n s9 a cooso oss = qsmeuaes Ayyepoyy snoy pz ¢#/B" COW 4 ODE @paoNp anying {;ue2s0d) pep pPeye yey esuenpy oun; Burberry ¥Oues4Ue2UOD sURNYOS eApozes Ayyen yo ur Asewud SjPA9] FSU Ue? ~yruBys 205 er104> 450q Pur Proysouys 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. © Twenty other counties contain no point sources of SO, 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 S 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 2 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 si 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 we 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 vita ei ©) wanata Anton 5 neinnati AN tose j (#079) , Wilmington-Chillicotho cnaren” Cia 7 Logan (#182) t i ‘i e 1, enown [rooms a _— mee FIGURE IV L 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 re i @; a fe) e om = [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1804%3A1. Public record. Not legal advice.