Petition — Cincinnati Gas & Electric Co. v. Environmental Protection Agency (Nos. 78-536, 78-535)

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Supreme Court, U. $

FILED

SEP 27 1978

eee CLERK |

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No.78- 59 6

CINCINNATI Gas & ELEcTRIC Co., et al., Petitioners,

UnitTep STATES ENVIRONMENTAL PROTECTION

AGENCY, et al., Ruspondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Of Counsel: C. RANDOLPH LIGHT

Louis E. Tost

MICHAEL E. McCoNnNELL

; 1200 Edison Plaza

1200 Edison Plaza } ; :

S60 Windinnn Acemne 300 Madison Avenue

P. 9. Box 2088

P.O. Box 2088 Toledo, Ohio 43603

Toledo, Ohio 43603 nares Reger

’ (419) 255-8220

Attorneys for Petitioners

FULLER, Henry, Hopce

& SNYDER

Press or Byron S. ADAMS PRINTING, INc., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

SE SS a EE 1

Elo 2

QuEsTION PRESENTED ............ PRL ek e> 66-6000 2

STATUTES AND REGULATIONS INVOLVED .............6-- 2

EE 3

ee eae ae cbse scccccccccceses 4

eek s be ccscececescoeccces 5

Reasons ror GRANTING THE WRIT ...............005- 9

By Failing to Vacate and Remand Administrative

Action Not Supported By the Administrative Rec-

ord, The Sixth Circuit Rendered a Decision Con-

flicting with Decisions of This Court and Other

Nee tec occeccocces g

EI TN Se 12

APPENDICES:

Appendix A: Opinion of the United States Court of

Appeals for the Sixth Circuit in Cincinnati Gas &

Electric Co. v. Environmental Protection Agency,

De ND | la

Appendix B: Judgment of the United States Court of

Appeals for the Sixth Circuit. .................. 13a

Appendix C: Relevant provisions of the Clean Air Act,

as amended by the Clean Air Act Amendments of

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

codified at 42 U.S.C. §§ 1857 et seg. ............. l4a

Appendix D: Relevant provisions of the Clean Air Act,

as amended by the Clean Air Act Amendments of

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

EE EEE 20a

ii Table of Contents Continued

Page

Appendix E: Relevant provisions of the Administra-

tive Procedure Act, 5 U.S.C. $§ 553 and 706. ..... 3la

Appendix F: Relevant provisions of the regulations

being reviewed, 40 C.F.R. §§ 52.1875, 1881 and 1882

COT sib si 0Gbd aSowecad Caounbooeeenethenstens 34a

Appendix G: Decision of the United States Court of

Appeals for the Sixth Circuit in Cleveland Electric

Illuminating Co. v. Environmental Protection

Agency, 572 F.2d 1150 (6th Cir. 1978), a related de-

cision by the Sixth Circuit. .......... 2 RR oe 5la

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

peals for the Sixth Circuit in Cincinnati Gas &

Electric Co., v. Environmental Protection Agency. 100a

TABLE OF AUTHORITIES

Cases:

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

is Se Pt 5k Perret Perr Sided ds

International Harvester Corp. v. Ruckelshaus, 478 F.2d

GAS CRA Ce. TOPE vicenctvaatenrsvacesdietrrs 10-11

South Terminal Corp v. Environmental Protection

Agency, 504 F.2d 646 (1st Cir. 1974) ............ 11

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc., —— U.S. ——

CIOTGA CER es BER bcos Kae enceenscvssetacdas 10

Statutes:

Bik tS Be rer ey ne Pree Ter 3

S WEG. CIE kn csacccnsvnncssleccuvecchnsteiesa 3

GB URAL Bi Bee OER. co vidines Hava ewcarscevetionses 2

43 UBS, STN ois iis iick he dn dt adbeeiiaseess 4

OB UB. BE FUR ONE vo be ea tvabesancevadeuaseens 3

OS TES, See as Wo Canes bees eid cae censabadecn 8

46 GERD. STL, 5.56 Vs areca 4

8 UB SURION Bo ho cadecens 9

Table of Authorities Continued iii

Page

REGULATIONS:

40 C.F.R. §§ 52.1875, 52.1881 and 52.1882 (1977) ...... 3

40 C.F. $ SB.18GB(B) (1977) 2... ccccccccccccccccs 8

MISCELLANEOUS:

Supplemental Technical Support Document: Sulfur

Dioxide Control Strategy for the State of Ohio,

May, 1977, Supp. Cert. Index to Rec. ...........

+: > Ae

rics

7 ¥ pea 2

IN THE

Supreme Court of the United States

Ocroser TERM, 1978

No. 78-

Cincinnati Gas & Exectric Co., et al., Petitioners,

Vv.

UnitTep States ENVIRONMENTAL PROTECTION

Agency, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

Petitioners, The Cincinnati Gas and Electric Com-

pany, Columbus and Southern Ohio Electric Company

and Ohio Edison Company, respectfully pray that a

writ of certiorart issue to review the judgment and

opinion of the United States Court of Appeals for the

Sixth Circuit (‘‘Sixth Circuit’’) entered in this pro-

ceeding on June 29, 1978.

OPINION BELOW

The opinion of the Sixth Circuit is officially reported

at 578 F.2d 660, appears as Appendix A and is unoffi-

cially reported at 2 CCH PCG 1 40,157.

JURISDICTION

The judgment of the Sixth Circuit appears as Ap-

pendix B and was entered on June 29, 1978. This peti-

tion for writ of certiorari was filed within 90 days of

that date. This court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the Sixth Cireuit disregarded the “arbi-

trary and capricious’’ judicial review standard when

it approved use by the United States Environmental

Protection Agency of an air quality dispersion model

for the restricting of sulfur dioxide emissions from the

rural, fossil fuel-fired electric generating plants of Pe-

tioners even though the Agency conceded that the model

was not validated on the basis of empirical, monitored

air quality data as it had stated in its Supplemental

Technical Support Documents for using the model;

the concession of the Agency rendered the administra-

tive rulemaking record devoid of any supporting rea-

son for the model; on its face the model is contrary to

physical reality in failing to account for the dispersive

effect of hilly terrain on plumes; and the Petitioners

had shown that an alternative, appropriate method

correcting the model existed ?

STATUTES AND REGULATIONS INVOLVED

The Clean Air Act, as amended by the Clean Air

Act Amendments of 1970, 91 Pub. L. No. 604, 84 Stat.

1676 (formerly codified at 42 U.S.C. §§ 1857 et seq.),

was in effect at the time the regulations being reviewed

were promulgated and petitions for review were filed.

Relevant provisions of 42 U.S.C. §§ 1857 et seq. are set

forth in Appendix C. Relevant provisions of the Clean

Air Act, as amended by the Clean Air Act Amendments

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

§§ 7401 et seq.) are set forth in Appendix D. Relevant

provisions of the Administrative Procedure Act, 5

U.S.C, §§ 553 and 706, are set forth as Appendix E.

Pertinent provisions of the regulations being reviewed,

40 C.F.R. §§ 52.1875, 52.1881 and 52.1882 (1977), are

set forth in Appendix F.

STATEMENT OF THE CASE

A. Nature of the Case

This case presents a redefinition of the ‘‘arbitrary

and capricious” standard of judicial review. Specifi-

cally, the error below is the approval by the Sixth Cir-

cuit of EPA action which is not sustainable on the ad-

ministrative record. Although significantly prejudicing

Petitioners, the ruling of the Sixth Circuit adversely

affects all parties who could conceivably be impacted

by future informal rulemaking of EPA and other ad-

ministrative agencies.

Petitioners are electric utilities operating the major

power plants located in the rural, hilly areas of the

State of Ohio. Under authority of the Clean Air Act,

EPA promulgated a sulfur dioxide implementation

plan for the State of Ohio. When proposing the plan,

EPA utilized an air quality dispersion model to set

emission limitations on the amount of sulfur dioxide

which Petitioners may emit from the fossil fuel-fired

boilers at their facilities. EPA later concluded, though,

that the model was inapplicable to plants situated in

hilly terrain.

During the subsequent relevant rulemaking proceed-

ings, Petitioners suggested to EPA that the model

should be adjusted by the widely recognized half-

ground displacement theory in order to reflect plume

dispersion in complex terrain (Appendix A, p. 10a).

EPA, however, chose to disregard this adjustment,

utilizing instead a newly designed change of its own

making, which on its face conflicts with physical re-

ality. EPA gave only one reason for its action and later

admitted to the appellate court that this reason was

false (Appendix A, p. 12a), leaving the final admin-

istrative record devoid of any supporting empirical

data or theory for the change. Despite the concession

of error by EPA and the resulting lack of record sup-

port and although acknowledging the reasonableness

of Petitioners’ offered adjustment, the Sixth Circuit

upheld EPA’s use of its modeling change (Appendix

A, p. 12a).

In issuing its ruling, the Sixth Circuit has aban-

doned the accepted scope of the applicable judicial re-

view standard of informal agency action, The court, in

examining EPA rulemaking, has removed any burden

on the Agency in the future to come forward with a

reasoned presentation in support of the rationality of

its own developed and employed methodology.

B. History of the Case

EPA promulgated in August, 1976 the regulations in

dispute. Petitioners filed petitions for review with the

Sixth Circuit pursuant to § 307(b)(1) of the Clean

Air Act, 42 U.S.C. § 7607(b)(1) (formerly 42 U.S.C,

§ 1857h-5(b)(1)) and requested a stay of the regula-

tions pending judicial review. On November 12, 1976

the Sixth Circuit granted the stay and sua sponte re-

manded the regulations to the Agency for further com-

ments. On May 31, 1977, EPA repromulgated the regu-

lations without relevant modification. Petitioners again

filed petitions for review with the Sixth Circuit under

§ 307(b) (1).

The Sixth Circuit consolidated these petitions with

the earlier petitions for review of Petitioners. On Feb-

ruary 13, 1978 the court rendered an opinion address-

ing ‘‘the major general issues’’ involving the regula-

tions under review (Appendix G). On June 29, 1978

the court entered a supplemental opinion addressing

additional issues concerning the regulations, and on the

same date the court entered an order (Appendix H) de-

lineating the issues covered in each of its two decisions

in response to a motion for clarification of its Febru-

ary 13, 1978 opinion filed by the Petitioners and others.

Petitioners with five other utility companies filed a

petition for writ of certiorari on July 15, 1978 seeking

review of the February 13, 1978 opinion of the Sixth

Circuit. Petitioners file the present petition for writ of

certiorari, seeking review of the June 29, 1978 decision

of the Sixth Circuit as it impacts on the modeling

change of EPA which affects their electric generating

facilities located in the rural, hilly terrain areas of

Ohio.

C. Rulemaking Issue

An air quality dispersion model is a set of mathe-

matical equations adapted for computer use. The model

is designed to predict the manner in which a plume

disperses from the stacks, for example, of power plants.

On the basis of these predictions, EPA has established

limitations on the emissions from power plant stacks in

order to attain and maintain the National Ambient

Air Quality Standards provided for by the Clean Air

Act. When the model overpredicts plume concentra-

tions, the resulting emission limitations set by EPA

will be more stringent than necessary to achieve and

preserve the national standards and are therefore not

required to protect the public health.

In developing SO: emission limitations for Petition-

ers’ rural facilities, EPA initially used an air quality

dispersion model called MA X-24. This particular model

was intended to predict emissions from isolated non-

urban power plants located on flat terrain. When com-

paring SO: concentrations predicted by the model

against concentrations actually measured by air qual-

ity monitors, EPA found that the model substantially

overpredicted SO: concentrations resulting from rural

power plants in hilly terrain. Designed for flat land

surfaces, the model was incorrectly concluding: that a

plume would directly strike a hill lying in its path

instead of being blown by the wind either over or

around the hill with a vertical and horizontal lessening

of its density (Appendix A, p. 10a).

In order to correct its inapplication to complex ter-

rain, EPA made an adjustment to the model and re-

named it MAXT-24, EPA then used this revised model

as the exclusive basis for imposing emission limitations

upon Petitioners’ rural, hilly terrain facilities,

EPA’s adjustment to MAX-24 to create MAXT-24,

however, did not correct the deficiency of the original

model. The change consisted on an assumption built

into the model that the terrain surrounding a power

plant would be no higher than its shortest stack. This

adjustment does not comport with either common sense

or physical reality and falls short of correcting the de-

fect of the initial model. The flaw of the adjustment

is that it still represents a twentieth century version

of the ‘‘world is flat’’ belief; it fails to account for the

dilution effect which rising irregular slopes of hills

have on plumes passing either over or around them.

Absent a proper change for this effect of hilly terrain,

the revised model of EPA still improperly overpredicts

SO: concentrations and results in the setting of un-

necessarily restrictive emission limitations upon Pe-

titioners.

As an alternative to EPA’s model adjustment, Pe-

titioners suggested the hali-ground displacement the-

ory (Appendix A, pp. 10a-12a). This principle is a gen-

erally accepted means, which EPA itself had previ-

ously used elsewhere, for recognizing the impact of

hilly terrain on plume dispersion. EPA, however, re-

jected the solution offered by Petitioners on the justi-

fication stated in its Supplemental Technical Support

Document: Sulfur Dioxide Control Strategy for the

State of Ohio, May, 1977, that ‘‘it would not be appro-

priate to change the adjustment procedure followed

by the Agency which was validated with recorded air

quality monitored data’’. Supp. Cert. Index to Ree.

K. 1, p. 41 (May 27, 1977). The record contains no

other articulated reason or justification by EPA for

its continued reliance on its own model adjustment and

for the rejection of Petitioners’ suggested change.

Before the Sixth Circuit and as stated in its appel-

late brief (EPA Brief, p. 47 n. 62) and as acknowl-

edged in the June 29, 1978 decision of the court, EPA

disavowed its asserted justification for adhering to its

model revision (Appendix A, p. 12a).* It admitted

* Amazingly, and in utter disrespect of its obligation to respond

to the comments of Petitioners, EPA in footnote 63 of its appellate

that it had not conducted any validation studies of the .

adjustment. Thus, the only scintilla of evidence in the

record supporting the adjustment disappeared.

In its opinion, the Sixth Circuit expressly refused to

reject the half-ground displacement theory presented

by Petitioners in favor of the model adjustment of

EPA. The court, though, upheld EPA’s application of

its revised model to Petitioners even though it lacked,

after the Agency’s admission of error, any foundation

in the record. The court said that while there may be

occasion for the Agency to continue to review the ter-

rain issue, it could not find EPA’s action to be arbi-

trary and capricious ‘‘on the present record’’ (Appen-

dix A, p. 12a).

The ruling of the Sixth Circuit ignores the fact that

the emission limitations based on the defective revised

model of the Agency are immediately effective. Under

the sulfur dioxide implementation plan promulgated by

the Agency for the State of Ohio, Petitioners must

certify compliance with the limitations or initiate com-

pliance schedules, 40 C.F.R. § 52.1882(b) (1977) (Ap-

pendix F), which require costly commitments either

to the purchases of low sulfur coal or to the use of

unreliable flue gas desulfurization systems in order to

meet the limitations. Breach of these compliance cer-

tifications or schedules expose Petitioners to the severe

civil and criminal penalties of the Clean Air Act, 42

U.S.C. § 7413(¢).

In addition, § 307(b)(2) of the Clean Air Act may

preclude any later judicial review of the erroneous

brief rejects the model adjustment recommended by Petitioners on

the very same rationale which it had conceded to be untrue in the

immediately preceding footnote of its brief.

modeling change of EPA and associated emission limi-

tations in an enforcement action by the Agency against

Petitioners. 42 U.S.C. § 7607(b) (2).

The ruling of the Sixth Circuit imposes a new, un-

tenable dimension on the arbitrary and capricious

standard of judicial review. By its ruling, the Sixth

Circuit has: concluded that an administrative agency,

and EPA in particular, need not produce a reasoned

presentation of the reliability of its methodology. The

court has determined that any methodology employed

by an administrative agency, regardless of its lack of

record support, will be deferred to unless the affected

party can prove that it is arbitrary and capricious.

Moreover, in the absence of the affected party proving

the negative, the methodology of the Agency will be

upheld even though it may be defective on its face and

the affected party has presented a reasonable method-

ological alternative. In short, the Sixth Circuit has

created an ominous precedent for future judicial re-

view of informal agency action.

REASON FOR GRANTING THE WRIT

By Failing to Vacate and Remand Administrative Action Not

Supported by the Administrative Record, the Sixth Circuit

Rendered a Decision Conflicting with Decisions of This Court

and Other Circuits,

This Court endorsed in Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971) the arbitrary

and capricious standard of judicial review. As recently

as Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., —— U.S. -—— (1978)

(98 S.Ct. 1197, 1214), it has indicated that this test re-

quires the dismissal of informal] agency action noi sup-

portable by the record. There, this Court said:

There remains, of course, the question of whether

the challenged rule finds sufficient justification in

the administrative proceedings that it should be

upheld by the reviewing court. * * * We accord-

ingly remand so that the Court of Appeals may re-

view the rule as the Administrative Procedure Act

provides. We have made it abundantly clear before

that when there is a contemporaneous explanation

of the agency decision, the validity of that action

must ‘‘stand or fall on the propriety of that find-

ing, judged, of course, by the appropriate stand-

ard of review. If that finding is not sustainable on

the administrative record made, then the Comp-

troller’s decision must be vacated and the matter

remanded to him for further consideration.’’ Camp

v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36

L.Ed.2d 106 (1973). See also SEC v. Chenery et

318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

* *# #9)

Appellate court decisions are also present that em-

phasize the importance of agency rulemaking factually

resting on the record. In International Harvester Co. v.

Ruckelshaus, 478 F.2d 615 (D.C, Cir. 1973), the Court

of Appeals for the District of Columbia said:

The underlying issue is the reasonableness and

reliability of the Administrator’s methodology,

* * * Tt is the Administrator who must bear the

burden on this matter, because the development

and use of the methodology are attributable to his

knowledge and expertise. When certain material

‘lies particularly with in the knowledge’”’ of a party

he is ordinarily assigned the burden of adducin

the pertinent information. This assignment o

burden to a party is fully a when the

other party is confronted with the often-formid-

able task of establishing a ‘‘negative averment.”’

United States v. Denver & R.G.R. Co., 191 U.S. 84,

92, 24 S.Ct. 33, 48 L.Ed. 106 (1903). In the con-

text of this proceeding, this requires that EPA

bear a burden of adducing a reasoned presentation

supporting the reliability of its methodology.

* + 7 *

** * It is up to EPA, * * * to support its method-

ology as reliable, and this requires more than re-

liance on ‘he unknown, either by speculation, or

mere shifting back of the burden of proof.

(478 F.2d 615, at pp.

643 and 645.)

In South Terminal Corp. v. EPA, 504 F.2d 646 (1st

Cir. 1974), the Court of Appeals for the First Circuit

stated :

* * * While reviewing courts are not to substitute

their judgment for an agency’s, they are to estab-

lish parameters of rationality within which the

agency must operate. A court would abdicate its

function were it, when confronted with important

and seemingly plausible objections going to the

heart of a key technical determination, to presume

that the agency could never behave irrationally.

It has a duty to see that the objections are faced

in a proper procedural setting and satisfactory

answers provided demonstrating careful agency

consideration. * * * ~

(504 F.2d 646, at p. 665.)

In not remanding the terrain adjustment issue to EPA

for its further consideration, and certainly after the

Agency had admitted that its justification for its model

adjustment was incorrect, the Sixth Circuit has estab-

lished parameters for determining the rationality of

informal rulemaking which go beyond the limits drawn

by this and other courts.

CONCLUSION

The issue in this case strikes at the heart of appellate

court review of EPA and other administrative agency

rulemaking. It involves an expanded definition of the

arbitrary and capricious standard of judicial review.

The Sixth Circuit has redrawn the standard far be-

yond its usual and accepted boundaries. The court has

held that administrative rulemaking is not arbitrary

and capricious even though it lacks any support in the

record and its underlying rationale has been conceded

by the Agency to be erroneous. If this ruling is allowed

to stand as an accurate statement of the arbitrary and

capricious judicial review standard, then administra-

tive agencies will be able to regulate by whim and guess-

work and to impose whatever solutions politically and

privately please them without outside scrutiny. These

consequences are unacceptable.

Reviewing courts are increasingly facing adminis-

trative rules of a more technical nature. They are ex-

periencing a general reluctance to decide scientific is-

sues which often lie beyond their normal expertise.

Blind deference to administrative decision-making

based on a presumption of governmental infallibility

should not be allowed to govern this unsettled situa-

tion. Reviewing courts are most often the only protec-

tion between irrational administrative action and the

public. Contrary to the decision of the Sixth Circuit,

some burden must be placed on an administrative

agency of adducing a reasoned presentation support-

ing the reliability of its key technical determinations.

Accordingly, the time is ripe for this Court to sharpen

further the arbitrary and capricious standard of ju-

dicial review and, thereby, insure judicial control of

ne a eK ee ee we es me ee + ee +

administrative action. This case presents that oppor-

tunity.

The egregious impact of the lower court’s ruling on

Petitioners and their many residential, commercial and

industrial rate-paying customers in the State of Ohio

and the appellate court’s gross misapplication of the

judicial review standard constitute compelling reasons

that this petition for writ of certiorari be granted and

that the Sixth Circuit be directed to vacate and remand

to EPA for further consideration its regulations in-

volving the terrain adjustment issue.

Respectfully submitted,

Of Counsel: C. ae LIGHT

Louis E. Tost

Fuuter, Henry, Hopae MIcHAEL E. McCoNnNELL

& SNYDER -

: 1200 Edison Plaza

1200 son Plaza :

: 300 Madison Avenue

300 Madison Avenue

. O. Box 2088

P.O. Box 2088 :

oledo, 0 43603

Toledo, Ohio 43603 (419) 255-8220

Attorneys for Petitioners

ny -

~ a . veal

ay ee Pe ee ' ee ‘at ee |S

APPENDIX A

Opinion of the United States Court of Appeals for the

Sixth Circuit, Cincinnati Gas & Electric Co. v. Environ-

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

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 & Etvectric Co.;)

Co_umBus & SOUTHERN OHI0 ELEc-

tric Co.; Dayton Power & LIGHT

Co.; Onto Epison Co.; On10 Power

Co.; SHett Om Co.; Austin Pow-

DER Co., E. I. duPont de Nemours} Petitions for review of

& Co., action of the Admin-

Petitioners,{ istrator of the En-

v. vironmental Protec-

ExvInoNMENTAL ProrscTion Acency| "" “8*9Cy:

and Doucias M. Coste, ADMIN-

ISTRATOR OF THE ENVIRONMENTAL

PaOTECTION AGENCY,

Respondents.

Decided and Filed June 29, 1978.

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

Judges. © :

Epwarps, Circuit Judge. This opinion deals with certain

additional issues presented in 23 industry petitions covering

32 major power and industrial companies in Ohio objecting to

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

Ohio. These additional issues concern only point sources of

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

terrain. This opinion should be read as supplementary to the

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

opinion of this court dated February 13, 1978, Cleveland

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

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

Our focus herein is upon the following petitioners and the

designated facilities belonging to them. These petitioners

protest certain features of the United States EPA Model

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

and complex terrain areas: ;

Nos. 76-2090, 77-1367:

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

Clermont Counties).

Columbus & Southern Ohio Electric Co., all facilities

(Athens, Coshocton, Pickaway Counties).

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

opinion dated February 13, 1978 (Adams County).

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

Ohio Power Co., all facilities (Washington and Morgan

Counties ),

No. 76-2278:

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

County).

Nos. 76-2232, 77-1361:

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

Nos. 76-2241, 77-1357:

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

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

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

dicting SO, pollution resulting from single sources located in

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

which we dealt with in Cleveland Electric Illuminating Co.,

Nos. 76-2090, etc. Cinti. Gas & Elec., et al. vy. 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 Il-

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

US EPA 1976-77. Ohio EPA Ohio EPA

MAX regs are: 1972 1974

regs for: regs for:

1. less strict than 19 16 of petitioners’

facilities®

stricter than 1 5 ”

ambiguous»

compared with 3 2 ”

2. less strict than 31 27 of Ohio counties

modeled entirely

with MAX

stricter than 3 6 ”

ambiguous»

compared with 5 6 ”

(Continued on next page)

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

Indeed, the comments this court made in Cleveland Electric

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

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

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

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

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

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

Despite the discussion above, we are not certain that any

of the petitions we deal with in this opinion seriously disputes

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

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

are badly skewed to their great economic disadvantage by 1)

the Class A assumption employed to estimate pollution dis-

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

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

mating pollution impact on hilly terrain.

I THE CLASS A ASSUMPTION ISSUE

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

for determining plume dispersal. The classes of coefficients

employed were based upon six different weather conditions.

US EPA 1976-77 Ohio EPA Ohio EPA

MAX regs are: 1972 1974

regs for: regs for:

3. less strict than 38 32 of Ohio counties

in which

was employed

stricter than 3 6 ”

ambiguous>

compared with 12 15 ”

aa facilities to the regulation of which petitioners do not

object.

» I.e., stricter for some stacks or facilities and less strict for others; or

me ing different units of measurement, rendering comparison im-

po e.

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

+e A ie, 1975, See Cleveland Electric Illuminating Co., supra, 572 F.2d

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

dispersian coefficients under Class A stability conditions

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

ated by most modelers and which are demonstrated in-

accurate by this record. As applied to this rulemaking,

this seemingly simple assumption is exceedingly im-

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

Ohio, it was the determining factor in establishing emis-

sion limits.

The meaning of “Class A.”

Diffusion models can account for thousands of bits of

data. Most important are meteorological data of which

stability classes are an aspect.

Specifically, stability classes are categorizations of the

atmosphere’s ability to disperse plumes. These classes

are divided into six categories ranging from extreme dis-

persion of plumes (Class A) to minimum dispersion

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

perse very rapidly to the ground level before there is any

6 Cinti. Gas & Elec., et al. vy. 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’ Conicrence of February 22-24, 1977, spon-

sored by United States EPA itself through the Argonne Na-

tional Laboratory.

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 verious theories that the model did

not accurately reflect the way wind patterns in such

weather conditions affect dispersion patterns and that

therefore the model might be overestimating ground level

concentrations for a 3-hour analysis. Petitioners argue

that it was arbitrary or capricious for EPA not to accept

theories presented in their comments.

EPA recognized in the STSD [Supplemental Technical

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

Nos. 76-2090, etc. Cinti. Gas & Llec., 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 mode in the

equations used. Id.

EPA Brief at 48-49,

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

in this highly technical area) is the primary responsibility of

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

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

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

supra:

Our standard of review of the actions of United States

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

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

in accordance with law.” Clean Air Act Amendments of

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

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

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

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

judgment for that of the agency.” Citizens to Preserve

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

572 F.2d at 1161.

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

employment of the Class A assumption in determining pollu-

tion dispersion under “least stable” wind conditions in rural

areas and areas of complex terrain is not a rational decision

and is arbitrary and capricious.

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

solution has been proposed. This answer, however, ignores

the Enviroplan and Smith-Singer studies. More importantly,

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

it ignores the conclusions of the experts’ conference convened

by Argonne National Laboratory at United States EPA’s own

request.? The report of that conference suggested “elimination

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

stability categories.” See Report of the Specialists’ Conference

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

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

By pointing out this proposed solution, we do not mandate

its acceptance by United States EPA. Our ultimate 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 supplies 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 promulgated. We consider the Conference Report to be

properly a part of the appellate record.

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

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.

III OTHER ISSUES

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

tailure 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.

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).

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APPENDIX B

Judgment of the United States Court of Appeals

for the Sixth Circuit

aie 4 eG a avy oP et

[ 7 7 bit, r es 2%.

-. a ca TE

13a

APPENDIX B

{Caption deleted in printing]

Filed June 29, 1978

Judgment

Before: Puriiips, Chief Judge, Epwarps and Prcx, Circuit

Judges.

On petition to review regulations promulgated by the

Administrator of the Environmental Protection Agency.

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

ceedings before the Environment Protection Agency and

were argued by counsel.

Upon consideration, it is now ordered, adjudged and de-

creed by this Court that the petitions in the following cases

are remanded to the United States EPA for reconsideration

of the employment of Class A coefficients in least stable

wind conditions in rural counties:

Nos. 76-2090, 77-1367 :

Dayton Power & Light Company

(Adams Count facilities only) ;

Ohio Power Company

(all facilities) ;

Columbus & Southern Ohio Electri Co.

(Coshocton County facility only) ;

Nos. 76-2241, 77-1357:

Austin Powder Company

(all facilities)

It is also ordered, adjudged and decreed that the petitions

of Cincinnati Gas & Electric Co, in 76-2090 and 77-1367 and

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

No costs are to be taxed.

Enrerep sy Ornper or THE Court.

/s/ Joun P. Henman

Clerk

APPENDIX C

Relevant provisions of the Clean Air Act, as amended

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

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

§§ 1857 ef seq.

l4a

APPENDIX C

§ 1857c—5. State implementation plans for national primary and

secondary ambient air quality standards—Submission to Adminis

trator; time for submission; State procedures; required contents

of plans for approval by Administrator; approval of revised plan

by Administrator

(a) (1) Each State shall, after reasonable notice and

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national pri-

mary ambient air quality standard (or any revision there-

of) under section 1857c—4 of this title for any air pollutant,

a plan which provides for implementation, maintenance,

and enforcement of such primary standard in each air qual-

ity control region (or portion thereof) within such State. In

addition, such State shall adopt and submit to the Admin-

istrator (either as a part of a plan submitted under the pre-

ceding sentence or separately) within nine months after the

promulgation of a national ambient air quality secondary

standard (or revision thereof), a plan which provides for

implementation, maintenance, and enforcement of such sec-

ondary standard in each air quality control region (or por-

tion thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan im-

plementing such secondary standard at the hearing re-

quired by the first sentence of this paragraph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under paragraph

(1), approve or disapprove such plan or each portion

thereof. The Administrator shall approve such plan, or any

. portion thereof, if he determines that it was adopted after

reasonable notice and hearing and that—

(A) (i) in the case of a plan implementing a national

primary ambient air quality standard, it provides for

the attainment of such primary standard as expedi-

tiously as practicable but (subject to subsection (e) of

this section) in no case later than three years from the

l5a

date of approval of such plan (or any revision thereof

to take account of a revised primary standard); and

(ii) in the case of a plan implementing a national sec-

ondary ambient air quality standard, it specifies a rea-

sonable time at which such secondary standard will be

attained ;

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure at-

tainment and maintenance of such primary or second-

ary standard, including, but not limited to, land-use

and transportation controls;

ation of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and

analyze data on embient air quality and, (ii) upon

request, make such data available to the Adminis-

trator; ‘

(D) it includes a procedure, meeting the require-

ments of paragraph (4), for review (prior to construc-

tion or modification) of the location of new sources to

which a standard of performance will apply;

(E) it contains adequate provisions for intergovern-

mental cooperation, including measures necessary to in-

sure that emissions of air pollutants from sources lo-

cated in any air quality control region will not interfere

with the attainment or maintenance of such primary or

secondary standard in any portion of such region out-

side of such State or in any other air quality control

region ;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and au-

thority to carry out such implementation plan, (ii) re-

quirements for installation of equipment by owners or

operators of stationary sources to monitor emissions

l6a

from such sources, (iii) for periodic reports on the na-

ture and amounts of such emissions; (iv) that such re-

ports shall be correlated by the State agency with any

emission limitations or standards established pursuant

to this chapter, which reports shall be available at

reasonable times for public inspection; and (v) for

authority comparable to that in section 1857h—1 of this

title, and adequate contingency plans to implement such

authority ;

(G) it provides, to the extent necessary and practi-

cable, for periodic inspection and testing of motor ve-

hicles to enforce compliance with applicable emission

standards; and

(H) it provides for revision, after public hearings,

of such plan (i) from time to time as may be necessary

to take account of revisions of such national primary

or secondary ambient air quality standard or the avail-

ability of improved or more expeditious methods of

achieving such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis of infor-

mation available to him that the plan is substantially

inadequate to achieve the national ambient air quality

primary or secondary standard which it implements.

(3)(A) The Administrator shall approve any revision of

an implementation plan applicable to an air quality control

region if he determines that it meets the requirements of

paragraph (2) and has been adopted by the State after

reasonable notice and public hearings.

17a

Preconditions for preparation and publication by Administrator of

proposed regulations setting forth an implementation plan; hear

ings for proposed regulations; promulgation of regulations by

Administrator; transportation regulations study and report: parking

surcharge; suspension authority

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

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation

plan for any national ambient air quality primary or

secondary standard within the time prescribed,

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in sub-

section (a)(2)(H) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing within such State on

any proposed regulation. The Administrator shall, within

six months after the date required for submission of such

plan (or revision thereof), promulgate any such regulations

unless, prior to such promulgation, such State has adopted

and submitted a plan (or revision) which the Administra-

tor determines to be in accordance with the requirements of

this section.

18a

Applicable implementation plan

(d) For purposes of this chapter, an applicable imple-

mentation plan is the implementation plan, or most recent

revision thereof, which has been approved under subsection

(a) of this section or promulgated under subsection (c) of

this section and which implements a national primary or

secondary ambient air quality standard in a State.

§ 1857d—1. Retention of State authority

Except as otherwise provided in sections 1857c—10(c),

(e), and (f), 1857f—6a, 1857—6ce(c)(4), and 1857f—11 of

this title (preempting certain State regulation of moving

sources) nothing in this chapter shall preclude or deny the

right of any State or political subdivision thereof to adopt

or enforce (1) any standard or limitation respecting emis-

sions of air pollutants or (2) any requirement respecting

control or abatement of air pollution; except that if an

emission standard or limitation is in effect under an appli-

cable implementation plan or under section 1857c—6 or sec-

tion 1857c—7 of this title, such State or political subdivi-

sion may not adopt or enforce any emission standard or

limitation which is less stringent than the standard or limi-

tation under such plan or section.

§ 1857h—5. Administrative proceedings and judicial review

(b)(1) A petition for review of action of the Adminis-

trator in promulgating any national primary or secondary

ambient air quality standard, any emission standard under

section 1857c—7 of this title, any standard of performance

under section 1857c—6 of this title, any standard under

section 1857f—1 of this title (other than a standard re-

quired to be prescribed under section 1857—1(b) (1) of this

19a

title), any determination under section 1857f—1(b)(5) of

this title, any control or prohibition under section 1857f—-

6c of this title, or any standard under section 1857f—9 of

this title may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for review

of the Administrator’s action in approving or promulgating

any implementation plan under section 1857c—5 of this title

or section 1857c-—6(d) of this title, or his action under sec-

tion 1857e—10(c)(2)(A), (B), or (C) of this title or under

regulations thereunder, may be filed only. in the United

States Court of Appeals for the appropriate circuit. Any

such petition shall be filed within 30 days from the date of

such promulgation, approval, or action, or after such date

if such petition is based solely on grounds arising after

such 30th day.

_ (2) Action of the Administrator with respect to which re-

view could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement.

APPENDIX D

Relevant provisions of the Clean Air Act, as amended

by the Clean Air Act Amendmenis of 1977, 95 Pub.L.

No. 95, 91 Stat. 685, 42 U.S.C. §§ 7401 ef seq.

= vat

20a

APPENDIX D

§ 7410. State implemeniation plans for national primary and

secondary ambient air quality standards—Adoption of plan by

State; submission to Administrator; content of plan: revision: new

sources; indirect source review program; supplemental or inter-

mittent control systems

(a)(1) Each State shall, after reasonable notice and

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision

thereof) under section 7409 of this title for any air pollu-

tant, a plan which provides for implementation, mainte-

nance, and enforcement of such primary standard in each

air quality control region (or portion thereof) within such

State. In addition, such State shall adopt and submit to the

Administrator (either as a part of a plan submitted under

the preceding sentence or separately) within nine months

after the promulgation of a national ambient air quality

secondary standard (or revision thereof), a plan which pro-

vides for implementation, maintenance, and enforcement

of such secondary standard in each air quality control re-

gion (or portion thereof) within such State. Unless a sep-

arate public hearing is provided, each State shall consider

its plan implementing such secondary standard at the

hearing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months after the

date required for submission of a plan under paragraph

(1), approve or disapprove such plan or each portion

thereof. The Administrator shall approve such plan, or any

portion thereof, if he determines that it was adopted after

reasonable notice and hearing and that—

(A) except as may be provided in subparagraph (1)

(i) in the case of a plan implementing a national pri-

mary ambient air quality standard, it provides for the

attainment of such primary standard as expeditiously

2la

as practicable but (subject to subsection (e) of this

section) in no case later than three years from the

date of approval of such plan (or any revision thereof

to take account of a revised primary standards); and

(ii) in the case of a plan implementing a national sec-

ondary ambient air quality standard, it specifies a rea-

sonable time at which such secondary standard will be

attained ;

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure at-

tainment and maintenance of such primary or second-

ary standard, including, but not limited to, transpor-

tation controls, air quality maintenance plans, and pre-

construction review of direct sources of air pollution as

provided in subparagraph (D);

eration of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and

analyze data on ambient air quality and, (ii) upon

request, make such data available to the Adminis-

trator;

(D) it includes a program to provide for the en-

forcement of emission limitations and regulation of

the modification, construction, and operation of any

stationary source, including a permit program as re-

quired in parts C and D of this subchapter and a per-

mit or equivalent program for any major emitting fa-

cility, within such region as necessary to assure (i)

that national ambient air quality standards are achieved

and maintained, and (ii) a procedure, meeting, the re-

quirements of paragraph (4), for review (prior to con-

struction or modification) of the location of new

sources to which a standard of performance will apply ;

(E) it contains adequate provisions (i) prohibiting

any stationary source within the State from emitting

any air pollutant in amounts which will (I) prevent

22a

attainment or maintenance by any other State of any

such national primary or secondary ambient air quality

standard, or (II) interfere with measures required to

be included in the applicable implementation plan for

any other State under part C of this subchapter to

prevent significant deterioration of air quality or to

protect visibility, and (ii) insuring compliance with

the requirements of section 7426 of this title, relating

to interstate pollution abatement;

(F) it provides (i) necessary assurances that the

State will have adequate personnel, funding, and au-

thority to carry out such implementation plan; (ii)

requirements for installation of equipment by owners

or operators of stationary sources to monitor emissions

from such sources; (iii) for periodic reports on the

nature and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency with

any emission limitations or standards established pur-

suant to this chapter, which reports shall be available

at reasonable times for public inspection; (v) for au-

thority comparable to that in section 7603 of this title,

and adequate contingency plans to implement such au-

thority; and (vi) requirements that the State comply

with the requirements respecting State boards under

section 7428 of this title;

(G) it provides, to the extent necessary and prac-

ticable for periodic inspection and testing of motor ve-

hicles to enforce compliance with applicable emission

standards ;

(H) it provides for revision, after public hearings,

of such plan (i) from time to time as may be necessary

to take account of revisions of such national primary

or secondary ambient air quality standard or the avail-

ability of improved or more expeditious methods of

achieving such primary or secondary standard; or (ii)

except as provided in paragraph (3) (C), whenever

23a

the Administrator finds on the basis of information

available to him that the plan is substantially inade-

quate to achieve the national ambient air quality pri-

mary or secondary standard which it implements or to

otherwise comply with any additional requirements

established under the Clean Air Act Amendments of

1977;

(I) it provides that after June 30, 1979, no major

stationary source shall be constructed or modified in

any nonattainment area (as defined in section 7501 (2)

of this title) to which such plan applies, if the emis-

sions from such facility will cause or contribute to

concentrations of any pollutant for which a national

ambient air quality standard is exceeded in such area,

unless, as of the time of application for a permit for

such construction or modification, such plan meets the

requirements of part D of this subchapter rs to

nonattainment areas) ;

(J) it meets the requirements of section 7421 of this

title (relating to consultation), section 7427 of this title

(relating to public notification), part C of this sub-

chapter (relating to prevention of significant deterio-

ration of air quality and visibility protection) ; and

(K) it requires the owner or operator of each major

stationary source to pay to the permitting authority as

a condition of any permit required under this chapter

a fee sufficient to cover— .

(i) the reasonable costs of reviewing and acting

upon any application for such a permit, and

(ii) if the owner or operator receives a permit

for such source, whether before or after August 7,

1977, the reasonable costs (incurred after August

7, 1977) of implementing and enforcing the terms

and conditions of any such permit (not including

any court costs or other costs associated with any

enforcement action).

24a

(3) (A) The Administrator shall approve any revision of

an implementation plan applicable to an air quality control

region if he determines that it meets the requirements of

paragraph (2) and has been adopted by the State after

reasonable notice and public hearings.

Preparation and publication by Administrator of proposed regula-

tions setting forth implementation plan: transportation regulations

study and report: parking surcharge; suspension authority: plan

implementation

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation

plan which meets the requirements of this section.

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in sub-

section (a)(2)(H) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing within such State on

any proposed regulation. The Administrator shall, within

six months after the date required for submission of such

plan (or revision thereof), promulgate any such regula-

tions unless, prior to such promulgation, such State has

- adopted and submitted a plan (or revision) which the Ad-

25a

ministrator determines to be in accordance with the re-

quirements of this section. Notwithstanding the preceding

sentence, any portion of a plan relating to any measure

described in the first sentence of section 7421 of this title

(relating to consultation) or the consultation process re-

quired under such section 7421 shall not be required to be

promulgated before the date eight months after such date

required for submission.

Applicable implementation plan

(d) For purposes of this chapter, an applicable imple- .

mentation plan is the implementation plan, or most recent

revision thereof, which has been approved under subsec-

tion (a) of this section or promulgated under subsection

of this section.

§ 7413. Federal enforcement procedures

Penalties

(c)(1) Any person who knowingly—

(A) violates any requirement of an applicable im-

plementation plan (i) during any period of Federally

assumed enforcement, or (ii) more than 30 days after

having been notified by the Administrator under sub-

section (a)(1) of this section that such person is vio-

lating such requirement, or

(B) violates or fails or refuses to comply with any

order under section 7419 of this title or under sub-

section (a) or (d) of this section, or

title; or

26a

(D) violates any requirement of section 119(g) (as

in effect before August 7, 1977), subsection (b)(7) or

(d)(5) of section 7420 of this title (relating to non-

compliance penalties), or any requirement of part B

of this subchapter (relating to ozone).

shall be punished by a fine of not more than $25,000 per

day of violation, or by imprisonment for not more than

one year, or by both. If the conviction is for a violation

committed after the first conviction of such pevson under

this paragraph, punishment shall be by a fine of not more

than $50,000 per day of violation, or by imprisonment for

not more than two years, or by both.

§ 7416. Retention of State authority

Exception as otherwise provided in sections 119(c), (e),

and (f) (as in effect before August 7, 1977), 7543, 7545(c)

(4), and 7573 of this title (preempting certain State regu-

lation of moving sources) nothing in this chapter shall pre-

clude or deny the right of any State or political subdivision

thereof to adopt or enforce (1) any standard or limitation

respecting emissions of air pollutants or (2) any require-

ment respecting control or abatement of air pollution; ex-

cept that if an emission standard or limitation is in effect

under an applicable implementation plan or under section

7411 or section 7412 of this title, such State or political sub-

division may not adopt or enforce any emission standard

or limitation which is less stringent than the standard or

limitation under such plan or section.

§ 7607. Administrative proceedings and judicial review

es e e e

Judicial review

(b)(1) A petition for review of action of the Adminis-

trator in promulgating any national primary or secondary

27a

ambient air quality standard, any emission standard or re-

quirement under section 7412 of this title, any standard of

performance or requirement under section 7411 of this title,

any standard under section 7521 of this title (other than a

standard required to be prescribed under section 7521(b)

(1) of this title) any determination under section 7521(b)

(5) of this title, any control or prohibition under section

7545 of this title, any standard under section 7571 of this

title, any rule issued under section 7413, 7419, or 7420 of

this title, or any other nationally applicable regulations

promulgated, or final action taken, by the Administrator

under this chapter may be filed only in the United States

Court of Appeals for the District of Columbia. A petition

for review of the Administrator’s action in approving or

promulgating any implementation plan under section 7410

of this title or section 7411(d) of this title, any order under

section 7411(j) of this title, under section 7412(c) of this

title, under section 7413(d) of this title, under section 7419

of this title, or under section 7420 of this title, or his action

under section 119(c)(2)(A), (B), or (C) (as in effect before

August 7, 1977) or under regulations thereunder, or any

other final action of the Administrator under this chapter

(including any denial or disapproval by the Administrator

under subchapter I of this chapter) which is locally or re-

gionally applicable may be filed only in the United States

Court of Appeals for the appropriate circuit. Notwithstand-

ing the preceding sentence a petition for review of any ac-

tion referred to in such sentence may be filed only in the

United States Court of Appeals for the District of Colum-

bia if such action is based on a determination of nationwide

scope or effect and if in taking such action the Administra-

tor finds and publishes that such action is based on such a

determination. Any petition for review under this subsec-

tion shall be filed within sixty days from the date notice of

such promulgation, approval, or action appears in the Fed-

eral Register, except that if such petition is based solely

on grounds arising after such sixtieth day, then any petition

28a

for review under this subsection shall be filed within sixty

days after such grounds arise.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall

not be subject to judicial review in civil or criminal pro-

ceedings for enforcement.

(Footnote omitted.)

Rulemaking

(d)(1) This subsection applies to—

(3) In the case of any rule to which this subsection ap-

plies, notice of proposed rulemaking shall be published in

the Federal Register, as provided under section 553(b) of

Title 5, shall be accompanied by a statement of its basis

and purpose and shall specify the period available for pub-

lic comment (hereinafter referred to av the ‘‘comment pe-

riod’’). The notice of proposed rulemaking shall also state

the docket number, the location or locations of the docket,

and the times it will be open to public inspection. The state-

ment of basis and purpose shall include a summary of—

(A) the factual data on which the proposed rule is

based;

(B) the methodology used in obtaining the data and

in analyzing the data; and

siderations underlying the proposed rule.

The statement shall also set forth or summarize and pro-

vide a reference to any pertinent findings, yecommenda-

tions, and comments by the Scientific Review Committee

established under section 7409(d) of this title and the Na-

tional Academy of Sciences, and, if the proposal differs in

29a

any important respect from any of these recommendations,

an explanation of the reasons for such differences. All data,

information, and documents referred to in this paragraph

on which the proposed rule relies shall be included in the

docket on the date of publication of the proposed rule.

(6)(A) The promulgated rule shall be accompanied by

(i) a statement of basis and purpose like that referred to in

paragraph (3) with respect to a proposed rule and (ii) an

explanation of the reasons for any major changes in the

promulgated rule from the proposed rule.

(B) The promulgated rule shall also be accompanied by

a response to each of the significant comments, criticisms,

and new data submitted in written or oral presentations

during the comment period.

whole) on any information or data which has not been

placed in the docket as of the date of such promulgation.

(9) In the case of review of any action of the Adminis-

trator to which this subsection applies, the court may re-

verse any such action found to be—

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

otherwise not in accordance with law;

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

ege, or immunity ;

limitations, or short of statutory right; or

(D) without observance of procedure required by

law, if (i) such failure to observe such procedure is

arbitrary or capricious, (ii) the requirement of para-

30a

graph (7)\B) has been met, and (iii) the condition of

the last sentence of paragraph (8) is met.

§ 7620. Standardized air quality modeling

Conferences

(a) Not later than six months after August 7, 1977, and at

least every three years thereafter, the Administrator shall

conduct a conference on air quality modeling. In conducting

such conference, special attention shall be given to appro-

priate modeling necessary for carrying out part C of sub-

chapter I of this chapter (relating to prevention of signifi-

cant deterioration of air quality).

Conferees

(b) The conference conducted under this section shall

provide for participation by the National Academy of Sci-

ences, representatives of State and local air pollution con-

trol agencies, and appropriate Federal agencies, including

the National Science Foundation; the National Oceanic and

Atmospheric Administration, and the National Bureau of

Standards.

ay or ae Os

Ce ha

APPENDIX E

Relevant provisions of the Administrative Procedure

Act, 5 U.S.C. §§ 553 and 706

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3la

APPENDIX E

§ 553. Rule making

(a) This section applies, according to the provisions

thereof, except to the extent that there is involved—

(1) a military or foreign affairs function of the

United States; or

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

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

contracts,

(b) General notice of proposed rule making shal! be

published in the Federal Register, unless persons subject

thereto are named and either personally served or other-

wise have actual notice thereof in accordance with law. The

notice shall include—

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

public rule making proceedings;

(2) reference to the legal authority under which the

rule is proposed; and

(3) either the terms or substance of the proposed

rule or a description of the subjects and issues in-

volved.

Except when notice or hearing is required by statute, this

subsection does not apply—

(A) to interpretative rules, general statements of

policy, or rules of agency organization, procedure, or

practice ; or

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

corporates the finding and a brief statement of reasons

therefore in the rules issued) that notice and publie

procedure thereon are impracticable, unnecessary, or

contrary to the public interest.

32a

give interested persons an opportunity to participate in the

rule making through submission of written data, views, or

arguments with or without opportunity for oral presenta-

tion. After consideration of the relevant matter presented,

the agency shall incorporate in the rules adopted a concise

general statement of their basis and purpose. When rules

are required by statute to be made on the record after op-

portunity for an agency hearing, sections 556 and 557 of

this title apply instead of this subsection.

(d) The required publication or service of a substantive

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

date, except—

(1) a substantive rule which grants or recognizes an

exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good

cause found and published with the rule.

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

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

§706. Scope of review

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action, find-

ings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

33a

(B) contrary to constitutional right, power,

privilege, or immunity ;

ity, or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the re-

viewing court.

In making the foregoing determinations, the court shall re-

view the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial

error.

aie

ai *.

Raine art

EUGRY a: |

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a AP

H ~+'S58

i) 49 ‘-=

APPENDIX F

Relevant provisions of the regulations being

reviewed, 40 C.F.R. §§ 52.1875, 1881 and

1882 (1977)

———————— ool

~ mete

34a

APPENDIX F

Sn nt

4. 40 C.F.R. §§ 52.1875, 1881 and 1882 (1977).

§ 52.1875 Attainment dates for national standards.

(a) The following table presents the latest dates by

which the national standards are to be attained. These

iunenetiiedeamee ee

dates reflect the information presented in Ohio’s plan,

except where noted.

Pollutant ; .

1 orticulasa Sulfur rnotocnenice

gt on “matter | oxides @iNitronen! Cerdon oxidants

ri- [secon- AVV= T9econ= dioxide _— (hydrocarbons)

nary | dary jeary dary

Lreater Metropolitan

Cleveland Intrastate h fh t { e e 4

luntington (vast Virginia)-

Ashlend coy gta

mouth-Ironten (Gnio

Interstate h h f f e ° °

Mansfield-"arion

Intresiate h h ' e e e

* Metropolitan Cincinrst» : : May 31,

Interstate h h f t e é 1975

Metropolitan Colutozs

Intrestate h h f f e e a

: May 31,

fetrconoliten Cayton

lavas ~ =e oe oe e 1975

r ; May 31,

Yetropolitan Toleco

interstate . h h fe e ° 1975

lerthvest Ghio Intrastate h h f t ° ° e

jorth:est Pennsylvenia-

FYouncsteun Interstate n h f t e ° e

Dorkersburg (est Virginia)-

Marietta (Chio) Interstcte | h h f ‘ e e v

Sandusky Intrastate h h f f e e e

Bteubenville-“eirter- :

wigeling Interstc:e h h t t e e

Wi lmington-Chillicothe-

Legon intres.at h h e e e e e

Zanesville-Cactricce

ar h h t ‘ e - e

35a

NOTE: Dates or footnotes which are underlined are

prescribed by the Administrator because the plan did

not provide a specific date or the date provided was not

acceptable.

a. July 1975.

b. 5 years from plan approval or promulgation.

c. 18-month extension granted.

d. Air quality levels presently below primary

standards.

e. Air quality levels presently below secondary

standards.

f. August 27, 1979, except for the following

companies which are subject to an attainment date of

June 17, 1980:

Ashland Oil, Inc.; Youngstown Sheet & Tube Co.;

PPG Industries, Icn.; Wheeling-Pittsburgh Steel Corp.;

Pittsburgh-Candield Corporation; The Timken

Company; The Sun Oil Co.; Sheller-Globe Corp.; The B.

F. Goodrich Company; Phillips Petroleum Co.; Shell Oil

Co.; Federal Paper Board Co., Icn.; The Firestone Tire &

Rubber Co.; Republic Steel Corp.; Chase Bag Co.;

White-Westinghouse Corp.; U.S. Steel Corp; Interlake,

Inc.; Austin Powder Co.; Diamond Crystal Salt Co.; The

Goodyear Tire & Rubber Co.; The Gulf Oil Co.; The

Standard Oil Co.; Champion International Corp.;

Coppers Co., Inc.; General Motors Corp; E.I. duPont de

Nemours and Co.; Coulton Chemical Corp; Allied

Chemical Corp, Specialty Chemicals Division; The

Hoover Co.; Aluminum Co. of America; Ohio

Greenhouse Assoc.; Armco Steel Corp.; Buckeye Power,

Inc.; Cincinnati Gas and Electric; Cleveland Electric

Illuminating Co.; Columbus and Southern Ohio

Electric; Dayton Power and Light Co.; Columbus and

Southern Ohio Electric; Dayton Power and Light Co.;

Duquesne Light Co.; Ohio Edison Co.; Ohio Electric

Co.; Ohio Power Co.; Pennsylvania Power Co.; Toledo

Edison Co.

36a

g. Notwithstanding the above, the following Ohio

counties have already met the primary and secondary

standards: Ashland, Brown, Carroll, Champaign,

Clinton, Darke, Defiance, Fayette, Fulton, Geauga,

Guernsy, Hardin, Harrison, Highland, Hocking

Holmes, Jackson, Knox, Logan, Madison, Monroe,

Morrow, Noble, Perry, Portage, Preble, Putnam,

Shelby, Union, Van Wert, Warren, Williams, Wyandot.

h. Ppr. 15, 1977.

(b) The requirements of 40 CFR Part 51 are not met

by Revised AP-5-04, AP-7-03 and EP-32-03 (as it

pertains to attainment dates for nitrogen oxides, carbon

monoxide, hydrocarbon and photochemical oxidant

standards in Ohio). [37 FR 10886, May 31, 1972, as

amended at 37 FR 15088, July 27, 1972, 37 FR 19808,

Sept. 22, 1972; 38 FR 7328, Mar. 20, 1973; 38 FR 12702,

May 14, 1973; 38 FR 12921, May 17, 1973; 38 FR 30974,

Nov. 8, 1973, 39 FR 16347, May 8, 1974; 41 FR 36327,

Aug. 27, 1976; 41 FR 41692, Sept. 23, 1976; 42 FR 27589,

May 31, 1977]

§ 52.1881 Control strategy: Sulfur oxides (sulfur dioxide).

(a) The requirements of § 51.13 of this chapter are

not met because the Ohio plan does not provide for

attainment and maintenance of the national standards

for sulfur oxides (sulfur dioxide).

(b) Regulations for the control of sulfur dioxide in

the State of Ohio.

37a

§ 52.1882 Compliance schedules.

(a) Federal compliance schedules.

(1) Except as provided in subparagraph (5)

of this paragraph, the owner or operator of

any process equipment subject to applicable

subparagraphs of § 52.1881 (b), shall -comply

with the compliance schedule in paragraph (a)

(2) of this section.

(2) Any owner or operator of any process

equipment subject to applicable paragraphs of

§ 52.1881 (b) of this Chapter shall take the

following actions to comply with the

requirements of said regulation with respect: to

that source no later than the date specified.

38a

(i) 8 weeks from the date of pro-

mulgation — Submit preliminary control plans to

the Administrator.

(ii) 25 weeks from the date of pro-

mulgation — Submit final control plan to the

administrator.

(iii) 34 weeks from the date of pro-

mulgation — Award contracts for emissions

control systems or process modification, or issue

orders for purchase of component parts to

accomplish emission eontrol or process

modification and notify the Administrator in

writing that such action was taken.

(vi) 52 weeks from the date of pro-

mulgation — Initiate on-site construction of

installation of emission control equipment or

process change and notify the Administrator in

writing that such action was taken.

(v) 139 weeks from the date of pro-

mulgation — Complete construction or

installation of emission control equipment or

process change and notify the Administrator in

writing that such action was taken.

(vi) 154 weeks from the date of

promulgation — Complete shakedown opera-

tions and performance test on source, submit

39a

performance test results to the Administrator and

achieve final compliance with § 52.1881 (b) of

this chapter, as applicable.

(3) Except as provided in subparagraph (5) of

this paragraph, the owner or operator of any

stack venting any fossil fuel-fired steam

generating unit(s) subject to § 52.1881 (b) of this

chapter shall comply the spplicable compliance

schedule in paragraph (a) (4) of this section.

(4) (i) The owner or operator of any stack

venting any fossil fuel-fired steam generating

unit(s) subject ot § 52.1881 (b) of this chapter

who elects to comply with an applicable optional

emission limitation specified in § 52.1881 (b) of

this chapter, shall notify the Administrator’ no

later than eight weeks after the date of this

promulgation of the specific emission limitations

selected. Failure to select applicable optional

emission limitations shall result in the facility

being subject to the single uniform emission

limitation for all stacks at that facility specified

in § 52.1881 (b). Notice received later than eight

weeks after the date of promulgation shall be

invalid.

(ii) The owner or operator of any fossil

fuel-fired steam generating unit(s) subject to

applicable subparagraphs of § 52.1881 (b) of this

chapter shall notify the Administrator no later

than eight weeks after the date of promulgation

of his intent to utilize either low-sulfur fuel

including blended or washed coal or flue gas

desulfurization to comply with the requirements

of said regulation.

40a

(iii) Any owner or operator of any stack

venting any fossil fuel-fired steam generating

unit(s) subject to applicable subparagraphs of

§ 52.1881 (b) of this chapter who elects to utilize

low-sulfur fuel including blended or washed coal

to comply with the requirements of said

regulation shall take the following actions with

respect to that source no later than the date

specified:

(a) 8 weeks from the date of pro-

mulgation — Submit to the Administrator a

projection for 10 years of the amount of fuel by

types that will be substantially adequate to

enable compliance with § 52.1881 (b) of this

chapter, as applicable.

(b) 32 weeks from the date of pro-

mulgation — Submit data demonstrating the

availability of the fuel meeting the requirements

projected in subparagraph (a) to the

Administrator.

mulgation — Submit a statement to the

Administrator as to whether boiler modifications

will or will not be required. If modifications will

be required, submit plans for such

modifications.

(d) 50 weeks from the date of pro-

mulgation — Let contracts for necessary boiler

modifications, if applicable, and notify the

Administrator in writing that such action was

taken.

(e) 60 weeks from the date of pro-

mulgation — Initiate on-site modifications, if

applicable, and notify the Administrator in

writing that such action was taken.

4ia

(f) 118 weeks from the date of pro-

mulgation — Complete on-site modification, if

applicable, and notify the Administrator in

writing that such action was taken.

(g) 122 weeks from the date of pro-

mulgation — Achieve final compliance with the

emission limitation of § 52.1881 (b) of this

chapter, as applicable, and notify the

Administrator in writing that such action was

taken.

(iv) Any owner or operator of any stack

venting any fossil fuel-fired steam generating

unit(s) subject to applicable subparagraphs of

§ 52.1881 (b) of this chapter to elects to utilize

flue gas desulfurization to comply with the

requirements of said regulations shall take the

following actions with respect to the source no

later than the date specified.

(a) 17 weeks from the date of pro-

mulgation— Let necessary contracts for

construction and notify the Administrator in

writing that such action was taken.

(b) 61 weeks from the date of pro-

mulgation — Initiate on-site construction and

notify the Administrator in writing that such

action was taken.

mulgation — Complete on-site construction and

notify the Administrator in writing what such

action was taken.

(d) 156 weeks from the date of

promulgation — Complete shakedown opera-

tions and performance test on source, submit

ee —_--

42a

performance test results to the Administrator and

achieve final compliance with § 52.1881 (b) of

this chapter, as applicable.

(5) (i) None of the preceding subparagraphs of

this paragraph shall apply to any owner or

operator of a source which is presently in

compliance with the applicable subparagraphs of

§ 52.1881 (b) of this chapter.

(ii) Any owner or operator of a source capable

of emitting 100 tons of sulfur dioxide per year

from all stacks at any facility who is presently in

compliance with the applicable subparagraphs of

§ 52.1881 (b) of this chapter shall so certify to the

Administrator by four weeks from the date of

promulgation.

(iii) Any owner or operator subject to a

compliance schedule in this paragraph who

elects to achieve compliance by means not

covered by this paragraph may submit to the

Administrator no later than six weeks from the

date of promulgation a proposed alternative

compliance schedule. For process equipment

subject to applicable subparagraphs of 52.1881

(b) of this chapter no such compliance schedule

may provide for final compliance after the final

compliance date in subparagraph (2) of this

paragraph. For any stack venting any fossil

fuel-fired steam generating unit(s) subject to

applicable subparagraphs of § 52.1881 (b) of this

chapter, which will utilize low-sulfur fuel

including blended or washed coal to comply

with the requirements of said regulations, no

such compliance schedule may provide for final

compliance after final compliance date in

43a

subparagraph (4) (iii) of this paragraph. For any

stack venting any fossil fuel-fired steam

generating unit(s) subject to applicable

subparagraphs of § 52.1881 (b) of this chapter,

which will utilize flue gas desulfurization to

comply with the requirements of said

regulations, no such compliance schedule may

provide for final compliance after the final

compliance date in subparagraph (4) (iv) of this

paragraph.

(iv) Any owner or operator of any process

equipment subject to applicable subparagraphs

of § 52.1881 (b) of this chapter who submits an

alternative compliance schedule pursuant to

§ 52.1882 (a) (5) (iii) of this chapter shall remain

subject to the provisions of § 52.1882 (a) (2) of

this chapter until the alternative schedule is

approved by the Administrator.

(v) Any owner or operator of any stack venting

any fossil fuel-fired steam generating unit(s)

subject to applicable subparagraphs of § 52.1881

(b) of this chapter who submits an alternative

compliance schedule pursuant to § 52.1882 (a) (5)

(iii) of this chapter shall remain subject to the

provisions of § 52.1882 (a) (4) of this chapter

until the alternative schedule is approved by the

Administrator.

(6) Nothing in this paragraph shall preclude

the Administrator from promulgating a separate

schedule for any source to which the application

of the compliance schedules in paragraphs (d)

(2), or (4) of this section fails to satisfy the

requirements of § 52.15 (b) and (c) of this

Chapter.

44a

(b) Federal compliance schedule for petitioners

in Buckeye Power, Inc. et al v. USEPA, No.

76-2090 et al.

(1) Except as provided in paragraph (b) (5) of

this section, the owner or operator of any

process equipment subject to applicable

subparagraphs of § 52.1881 (b) shall comply with

the compliance schedule in paragraph (a) (2) of

this section.

(2) Any owner or operator of any process

equipment subject to applicable paragraphs of

§ 52.1881 (b) of the Chapter shall take the

following actions to comply with the

requirements of said regulation with respect to

that source no later than the date specified.

(i) 8 weeks from June 17, 1977: Submit

preliminary control plans to the Administrator.

(ii) 25 weeks from June 17, 1977: Submit final

control plan to the Administrator.

(iii) 34 weeks from June 17, 1977: Award

contracts for emissions control systems or

process modification, or issue orders for

purchase of component parts to accomplish

emission control or process modification and

notify the Administrator in writing that such

action was taken.

(iv) 52 weeks from June 17, 1977: Initiate

on-site construction or installation of emission

control equipment or process change and notify

the Administrator in writing that such action

was taken.

(v) 139 weeks from June 17, 1977: Complete

construction or installation of emission control

45a

equipment or process change and notify the

Administrator in writing that such action was

taken.

(vi) 154 weeks from June 17, 1977: Complete

shakedown operations and performance test on

source, submit performance test results to the

Administrator and achieve final compliance with

§ 52.1881 (b) of this chapter, as applicable.

(3) Except as provided in subparagraph (5) of

this paragraph, the owner or operator of any

stack venting any fossil fuel-fired steam

generating unit(s) subject to § 52.1881 (b) of this

chapter shall comply with the applicable

compliance schedule in paragraph (a) (4) of this

section. f

(4) (i) The Owner or operator of any stack

venting any focsel fuel-fired steam generating

unit(s) or process subject to § 52.1881 (b) of this

chapter who elects to comply with an applicable

optional emission limitation specified in

§ 52.1881 (b) of this chapter, shall notify the

Administrator no later than 17 weeks after June

17, 1977 of the specific emission limitations

selected. Failure to select applicable optional

emission limitations shall result in the facility

being subject to the single uniform emission

limitation for all stacks at that facility specified

in § 52.1881 (b). Notice received later than 17

weeks after June 17, 1977 shall be invalid.

(ii) The owner or operator of any fossil

fuel-fired steam generating unit(s) subject to

applicable subparagraphs of § 52.1881 (b) of this

chapter shall notify the Administrator no later

46a

than 17 weeks after June 17, 1977 of his intent to

utilize either low-sulfur fuel including blended

or washed coal or flue gas desulfurization to

comply with the requirements of said regulation.

(iii) Any owner or operator of any stack

venting any fossil fuel-fired steam generating

unit(s) subject to applicable subparagraphs of

§ 52.1881 (b) of this chapter who elects to utilize

low sulfur fuel including blended or washed coal

to comply with the requirements of said

regulation shall take the following actions with

respect to that source no later than the date

specified:

(A) 17 weeks after June 17, 1977: Submit to

the Administrator a projection for ten years of

the amount of fuel by types that will be

substantially adequate to enable compliance

with § 52.1881 (b) of this chapter, as

applicable.

(B) 32 weeks from June 17, 1977: Submit

data demonstrating the availability of the fuel

meeting the requirements projected in

subparagraph (a) to the Administrator.

statement to the Administrator as to whether

boiler modifications will or will not be

required. If modifications will be required,

submit plans for such modifications.

(D) 50 weeks from June 17, 1977: Let

contracts for necessary boiler modifications, if

applicable, and notify the Administrator in

writing that such action was taken.

47a

(E) 60 weeks after June 17, 1977: Initiate

on-site modifications, if applicable, and ‘notify

the Administrator in writing that such action

was taken.

(F) 118 weeks from June 17, 1977: Complete

on-site modification, if applicable, and notify

the Administrator in writing that such action

was taken.

(G) 122 weeks from June 17, 1977: Achieve

final compliance with the emission limitation

of § 52.1881 (b) of this chapter, as applicable,

and notify the Administrator in writing that

such action was taken.

(iv) Any owner or operator of any stack

venting any fossil fuel-fired steam generating

unit(s) subject to applicable subparagraphs of

§ 52.1881 (b) of this chapter who elects to

utilize flue gas desulfurization to comply with

the requirements of said regulations shall take

the following actions with respect to the

source no later than the date specified.

(A) 17 weeks from June 17, 1977: Let

necessary contracts for construction and notify

the Administrator in writing that such action

was taken.

(B) 61 weeks from June 17, 1977: Initiate

On-site construction and _ notify the

Administrator in writing that such action was

taken.

On-site construction and _ notify the

Administrator in writing that such action was

taken.

48a

(D) 156 weeks from June 17, 1977: Complete

shakedown operations and performance test

on source, submit performance test on source,

submit performance test results to the

Administrator and achieve final compliance

with § 52.1881 (b) of this chapter, as

applicable.

(5) (i) None of the preceding subparagraphs

of this paragraph shall apply to any owner or

operator of a source which is presently in

compliance with the applicable subparagraphs

of § 52.1881 (b) of this chapter.

(ii) Any owner or operator of a source

capable of emitting 100 tons of sulfur dioxide

per year from all stacks at any facility who is

presently in compliance with the applicable

subparagraphs of § 52.1881 (b) of this chapter

shall so certify to the Administrator by four

weeks from June 17, 1977.

(iii) Any owner or operator subject to a

compliance schedule in this paragraph who

elects to achieve compliance by means not

covered by this paragraph may submit to the

Administrator no later than six weeks from

June 17, 1977, a proposed alternative

compliance schedule. For process equipment

subject to applicable subparagraphs of

§ 52.1881 (b) of this chapter no such

compliance schedule may provide for final

compliance after the final compliance date in

subparagraph (2) of this paragraph. For any

stack venting any fossil fuel-fired

steam-generating unit(s) subject to applicable

subparagraphs of § 52.1881 (b) of this chapter,

49a

which will utilize low-sulfur fuel including

blended or washed coal to comply with the

requirements of said regulations, no such

compliance schedule may provide for final

compliance after final compliance date in

subparagraph (4) (iii) of this paragraph. For

any stack venting any fossil fuel-fired

steam-generating unit(s) subject to applicable

subparagraphs of § 52.1881 (b) of this chapter,

which will utilize flue gas desulfurization to

comply with the requirements of said

regulations, no such compliance schedule may

provide for final compliance after the final

compliance date in subparagraph (4) (iv) of

this paragraph.

(iv) Any owner or operator of any process

equipment subject to applicable sub-

paragraphs of § 52.1881 (b) of this chapter

who submits an alternative compliance

schedule pursuant to § 52.1882 (c) (5) (iii) of

this chapter shall remain subject to the

provisions of § 52.1882 (b) (2) of this chapter

until the alternative schedule is approved by

the Administrator.

(v) Any owner or operator of any stack

venting any fossil fuel-fired steam-generating

unit(s) subject to applicable subparagraphs of

§ 52.1881 (b) of this chapter who submits an

alternative compliance schedule pursuant to

§ 52.1882 (b) (5) (iii) of this chapter shall

remain subject to the provisions of § 52.1882

(B) (4) of this chapter until the alternative

schedule is approved by the Administrator.

50a

(6) Nothing in this paragraph shall preclude

the Administrator from promulgating a

separate schedule for any source to which the

application of the compliance schedules in

paragraphs (d) (2) or (4) of this section fails to

satisfy the requirements of § 51.15 (b) and (c)

of this chapter.

[41 FR 36339, Aug. 27, 1976, as amended at 42

FR 27592, May 31, 1977]

APPENDIX G

Decision of the United States Court of Appeals for the

Sixth Circuit in Cleveland Electric Illuminating Co. v.

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

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

tr ee Te ey Te a

5la

APPENDIX G

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 ELectnic ILLUMINAT- }

inc Company, THE Dayton Power

& Licut Co., TH Onto Epison Co.,

THe To.iepvo Epson Co., THe

TrmxKeN Co., WHITE-WESTINGHOUSE

Corp., THe STANDARD On Co. oF Pp

Onto, InTgrLake, INc., THe Cout- of pond a a

TON CHEMICAL Corp., ministrator of the En-

Petitioners, vironmental Protec-

tion Agency.

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

and Dovcias M. Coste, ADMIN-

ISTRATOR OF THE ENVIRONMENTAL

PROTECTION AGENCY,

Respondents. |

Decided and Filed February 13, 1978.

Before: Puiiurs, Chief Judge, Epwanrps and Peck, Circuit

Judges.

Epwanrps, 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

52a

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-

' This decision dismisses the objections to the regulations that ly

to the following facilities: “=

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

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

(d) Toledo Edison Co. — all facilities.

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

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

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

makes clear that White-Wes use’s Franklin County

facility is subject to the 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.

53a

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:

2 The Clean Air Act was originally enacted in 1963, Pub. L. Mc

_——. 77 Stat. 392. It was amended in relatively minor wa were Sass

times during the foll +) ears. Pub. L. No. 89-272, 79 Stat. 992

(1965) ; ue L. No. 89-6 tat. 954 (1966); Pub. L. No. 90-148, 81

Stat. 485 (1967).

The Act’s } — ee form, however, is derived from amendments

adopted in 1 ow Rg iy = -_ Clean Air Act Amendments of

1970, Pub. L. No. 91-604 6, as amended, Pub. L. No. 92-157,

85 Stat. 464 (1971); Pub L. Ro. 90-810, 88 Stat. 246 (1974); Pub. L.

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

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

54a

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

(a) 80 micrograms per cubic meter hare 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 move 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 _ for ae presently under consideration contains no

separate implem eS re ty standards.

tion and will be considered and decided subsequently. _

55a

Nos. 76-2090 etc. Cleveland Elec. Illum., 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 HEALTH Perspectives 97, 99 (1974).

It appears that present national air quality standards have

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

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

minimal or nonexistent margins of safety are vividly por-

trayed below:

56a

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

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57a

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. FrirzHANp & K. CAMPBELL, TOXICOLOGY

oF ATMOSPHERIC SULFUR DioxipE 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’TAL

HEALTH PeErspPECTIVEs 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 tc 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

58a

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 rs 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 shall prepare an

appropriate response and shall amend the subject regu-

59a

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 fede-.l 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

60a

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

on the sulfur dioxide control scheme contained in the Ohio

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

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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 EVA

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

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

62a

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 ty 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)].

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-

;

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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 witb instructions to adhere

to the informal 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

64a

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 reasonabie 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

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Nos. 76-2090 etc. Cleveland Elec. IMum., et 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, 129 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 rulermaking 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. )

66a

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

Further, in United States v. Florida Eust 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

held:

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’

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-

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

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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 into 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

68a

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

69a

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 sgme 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

70a

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, each 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 of this added precision requires

a massive analytical task. Tremendous amounts of data

are required for each source analyzed. In addition to the

emissions data for each source, dispersion modeling 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 gaseous

pollutant emitted over a grassy field will disperse much

differently than if the pollutant is emitted over a large

urban area. There the dispersion will he affected not only

by the local weather conditions but also by the greater

7la

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 iu relation to emission data, United States

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

dioxide vequired 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 deterinine 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 Aci

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 United 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

72a

22 Cleveland Elec. Iilum., 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 standards

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

73a

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

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 regs are: _regsfor: regs for:

stricter than 14 20 of petitioners’

facilities*

less strict than 2 17 1“

the same as 1 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

”

ooo wo

”

T4a

24 Cleveland Elec. Illum., et al.v. EPA Nos. 76-2080 etc.

3. US EPA 1976-77

regs (all models) are:

stricter than 4 7 Ohio counties*

less strict than 40 35 ws

the same as 0 0 »

ambiguous® compared with 24 26 ws

4. US EPA 1976-77

regs (all models) are: ,

stricter than 22 32 of petitioners’

facilities*

less strict than 50 43 vs

the same as 1 1 “

ambiguous” compared with 14 ll *

“Including 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, render-

ing comparison impossible; or insufficient data available for

meaningful comparison.

emissions.

All comparisons are based om the data set out in Appendices

A, B and C.

75a

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

76a

26 Cleveland Elec. Illum., et al. v. EPA Nos. 76-2080 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;

77a

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 . . 219 . -

2 201 73 438 #%4I181 16 ~« 8zi

3 83 " “4 lly 662i

4 109 “ " 151 109 17

5 161 57 6198 . 68 = 41

6 207 * 13 66 #4110 £4975

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 — 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.

78a

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 «vas

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.

79a

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 Ohio

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 litigation 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 Cueve. Sr. L. Rev. 371, 405 (1976)

80a

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 Illuminating Co. and Dayton

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

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

location of these plants and of the population distribution in

the near vicinity convinces us that the United States EPA

classification cannot properly be termed arbitrary and 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, sunra.

8la

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

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.

82a

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 Protection 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.

Located in Morgan and Washington Counties.

Optional compliance equation omitted from chart.

No present objection to regulation of this facility.

Not regulated.

> a *- 8

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.

83a

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

County; Ohio | Ohio | Current US EPA

Model(s) EPA EPA

employed Petitioner; facility 19729] 1974" | Reg.° Model

Adame (MAX) 3.27 14.8 | 3.16

Dayton Power & Light, Stuart plant 3.16* MAX

Allen(Rural RAM; MAX) 1.0 |1.0 | 0,13-5.30*

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. SO,

ton production

Ieo stabilizer, split heaters 0.71

Vac I heater 0.21

All other unite 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. Illun.,

Ashtabula plant® SCIM

Stacks 1-3 2.40

Stack 4 9.10

Stack 5 8.20

Athens(MAX; SCIM) 1.6 14.0 | 3.72=7.504

Columbus & So. Ohio Power,

Poston. plant MAX

Stacks 1 & 2 3.72°

Stack 3 1.2074

Auglaize(SCIM) 1.0 {4.0 4.20

Goodyear Tire ani RubberS 4.20 SCIM

Sta

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

County; Ohic |Ohio |Current US BPA

Model(s) EPA |

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

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