Petition — Ohio Edison Co. v. Williams

Supreme Court brief1979

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Supreme Covet, U, .

FILED

JAN 25 1979

| MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OctoBErR TERM, 1978

No. 78-

OxI0 Epison Company, Petitioner,

Vv.

Nep E. Wiis, Director

OHIO ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

_—_ UO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

SS .

Of Counsel: C. Ranpo.tex Lieut

Pug, Her, Hooos & Page i Lanon, J

300 Madison Avenue ao ay

7 Toledo, Ohio 43603

a Fg ty Telephone: (419) 255-8220

James C. CaRroii

Ohio Edison Company

76 South Main Street

Akron, Ohio 44308

Attorneys for Petitioner

ee eT ma es en

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

~< 2" Sk. WS

en ee

TABLE OF CONTENTS

Page

BRE se 5 en 2

ed hai Ws ow seb isieus 2

NE NNO ss aia cs cou cack'ey on0-0 0 omens 2

ConstTiTuTIONAL Provision, STaTUTES, AND REGULATIONS

ES ay SE a ee ee 3

STATEMENT OF THE CAGE .... cc ccccccccccccccccccees 3

ee Cn ceca eeeecbbedenece 3

i wkd asenpsee dees ss 4

i a ie 5

EE a 10

REASON FoR GRANTING THE WRIT ................00-. 12

FUNDAMENTAL PrincipLes or Dug Process or Law

Require Pre-ENFORCEMENT JUDICIAL REVIEW OF

THE PROVISIONS OF A STATE IMPLEMENTATION UNDER

TH PAGES OF THM CAB cc ccc ccc cers cccccicccces 12

i ee dua nedwens 18

APPENDICES:

Appendix A: Order of the Supreme Court of Ohio dis-

missing Petitioner’s appeal ..................45. la

Appendix B: Order of the Supreme Court of Ohio

overruling Petitioner’s Motion to Certify ....... 3a

Appendix C: Order of the Supreme Court of Ohio

denying Petitioner’s Motion for Rehearing ...... 5a

Appendix D: Decision and Judgment of the Franklin

a” Ohio Court of Appeals issued April 6, :

ee es ids wip ser aas Obo8 60S bNe 60% a

Appendix E: Decision and Judgment of Franklin

County, Ohio Court of Appeals denying recon-

sideration issued June 13, 1978 ................ 19a

a owt

ii Table of Contents (Continued)

Page

Appendix F: Pertinent excerpts from the decision

(Findings of Fact and Final Order) of the Ohio

ne Board of Review issued May 20,

| RRL. TPCT RARE RRA DE eS EE en re ee ere Ir

Appendix @: Pertinent excerpts from the decision

(Final Findings and Order) of the Director of the

Ohio Environmental Protection Agency dated

Decemaner 22, WTS 2. ccc cs cecncevensveseeres 27a

Appendix H: Pertinent excerpts from the Findings of

Fact, Conclusions of Law and Recommendations

of the Hearing Panel of the Ohio Environmental

Protection Agency dated September 6, 1974 ..... 59a

Appendix I: The Fourteenth Amendment to the United.

Staten Constitution .........cnccsccccsesececes

Appendix J: Pertinent provisions of the Clean Air Act,

as amended, 42 U.S.C. §§ 7401 et seq. ........+5. 79a

Appendix K: Pertinent provisions of the Ohio Revised

Code, Chapters 119, 3704, 3745 and 4905, Pages

23a

77a

Ohio Revised Code ......ccccsevcccccesccceess 133a

Appendix L: Pertinent Ohio environmental regula-

DU ps er ere. ere Pere Pere eee l5la

TABLE OF AUTHORITIES

CasEs:

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

MN CLs bec awe hkbshagereeksbn bhekee eh aes aees

Buckeye Power, Inc. v. EPA, 525 F.2d 60 (6th Cir.

BE ids h4 cba CAA® MERE GEd hae chek a 0d beeen 10, 11

Ex parte Young, 209 U.S. 123 (1908) ............4. 13, 18

Fortner v. Thomas, 22 Ohio St.2d 13, 257 N.E.2d 371

7 EEE rey rrr rr rrr rrrerr rere 6

Fuentes v. Shevin, 407 U.S. 67 (1972) .........0.05. 12

aa | Oil Co. v. Ruckeishaus, 342 F. Supp. 1006 (D.C.

el. 1972), aff'd, 467 F.2d 349 (3rd Cir. 1972) .... 10

Northern Ohio Lung Association v. EPA, 572 F.2d

RAM CRE TIED ae kcck es tawsgnts Hos cere 11

S. S. Kresge Co. v. Bowers, 170 Ohio St. 405, 166 N.E.

oo 557 cc is sou svad lolink sa Gan eeAe s

Table of Authorities Continued iii

Page

State, ex rel. Williams v. Bozarth, 55 Ohi

N.E.2d 1006 (1978) ........ ef SiN cheese a 16

Train v. NRDC, 421 U.S. 60 (1975) ................) 44

Union Electric Co. v. EPA, 427 US. 246 (1976

Warren Molded Plastics v. Williams, 56 Ohie ssa aga.” “

mrs TAs ms ITO in ks vs cccccccccs.e., 16

Feperau Statutes:

ee en 2

On apt ee eeee OF BON. . 5... cc....s............., 3

ee 3.5

ee tates "5

I I er ok 17

| SESS PARES Ora tna aaa aa 9,14

> 8 PEST esteem gamete tata "17

ee ee 2, .52chiss ss. .......... 10, 11, 16

Out1o Statutes:

Revised Code Chapter 119 ........... 6

Revised Code § 3704.03(G) ......................... 6

Revised aw Ee aenaeame matt 8

Revised Code Chapter 3745 ........................ 6

Revised eee 6,7

Revised Oi aie renee meee 6,8

Revised Code § 4905.22 ..... Sain elas eS ee pe? Sec. 17

Cope or Feprerat Recuations:

at | 4 5

Oxu10 ApMINISTRATIVE CopE:

OAC 3745-17-02 (Former No. AP-3-02

OAC 3745-17-10 (Former No. AP3.1i3 Seagate ‘

OAC 3745-17-13 (Former No. YE SOR aaaa ies 4

OAC 3745-35-03 (Former No. EP-32-03) .......... 1g

IN THE

Supreme Court of the United States

OcToBER TERM, 1978

No. 78-

Onto Epison Company, Petitioner,

Nep E. Wiiu1aMs, DrrecTor

OnIO ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

Petitioner, Ohio Edison Company,’ respectfully

prays that a writ of certiorari issue to review the deci-

sions of the Supreme Court of Ohio overruling Peti-

tioner’s Motion to Certify and dismissing Petitioner’s

appeal from the judgment of the Franklin County

Court of Appeals, which were entered in this proceed-

ing on September 20, 1978.

? East Palestine Light and Power Company, a municipally owned

electric utility, had been a separate party to the administrative

proceeding below but was subsequently acquired by Ohio Edison

Company. Petitioner operates nine coal-fired electric generating

plants serving electric customers in thirty-five counties in northeast

and central Ohio, and three coal-fired steam plants serving steam

customers in Akron, Springfield, and Youngstown. These coal-fired

plants are the subject of this petition.

)

OPINIONS BELOW

The orders of the Supreme Court of Ohio dismissing

Petitioner’s appeal, overruling Petitioner’s Motion to

Certify and denying Petitioner’s Motion for Rehear-

ing appear as Appendices A, B and C, respectively.

The decision of the Franklin County, Ohio Court of

Appeals and that court’s judgment rendered April 6,

1978 appear as Appendix D. That court’s subsequent

decision and its judgment denying reconsideration, is-

sued on June 13, 1978, appear as Appendix E. Perti-

nent excerpts from decisions of the Ohio Environ-

mental Board of Review and the Director of the Ohio

Environmental Protection Agency and of the Findings

of Fact, Conclusions of Law and Recommendations of

the Hearing Panel of the Ohio Environmental Protec-

tion Agency appear as Appendices F, G, and H respec-

tively. None of the above decisions or opinions have

been officially reported.

JURISDICTION

The order of the Supreme Court of Ohio denying

Petitioner’s Motion for Rehearing was issued on Octo-

ber 26, 1978. Appendix C. This petition for writ of

certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1257

(3).

QUESTION PRESENTED

Whether the Due Process Clause of the United

States Constitution guarantees to Petitioner an oppor-

tunity to contest the substantive validity of the provi-

sions of a state implementation plan prior to their civil

and criminal enforcement?

CONSTITUTIONAL PROVISION, STATUTES,

AND REGULATIONS INVOLVED

This ease arises under the Fourteenth Amendment to

the United States Constitution.

The Fourteenth Amendment to the United States

Constitution is appended hereto as Appendix I. Perti-

nent provisions of the Clean Air Act, as amended, 42

U.S.C. §§ 7401 et seq., involved in this case as well as

certain relevant Ohio statutes and Ohio environmental

regulations involved in this case are appended hereto

as Appendices J through L.

STATEMENT OF THE CASE

A. Nature of the Case

This case presents a combined question of constitu-

tional and environmental law which has yet to be re-

solved by this Court. In Union Electric Co. v. EPA,

427 U.S. 246 (1976), this Court stated that considera-

tions of excessive stringency and economic or techno-

logical infeasibility are not relevant when the Admin-

istrator of the United States Environmental Protec-

tion Ageney (‘‘U.S. EPA’’) initially determines

whether a state implementation plan may be approved

under § 110 of the Clean Air Act, 42 U.S.C. § 7410. If

claims relating to the substantive validity of a state

implementation plan are to be considered, this Court

has stated that they should be resolved at the state

level.’

Petitioner has attempted to vindicate its claims of

excessive stringency and infeasibility by seeking a vari-

ance and by trying to secure judicial review of the

* Union Electric Co. v. EPA, 427 U.S. 246, 266 (1976).

implementation plan provisions in state administrative

and judicial tribunals. However, a variance regulation

adopted by the Ohio Environmental Protection Agency

flatly prohibits the issuance of any variance after

April 15, 1977. The validity of this regulation was up-

held by the highest state court rendering a decision in

this case. Appendix D. In addition, that court has de-

nied Petitioner the opportunity to obtain review of the

substantive validity of implementation plan provisions

prior to enforcement. Appendices D and EK. Although

Petitioner believes that the state variance regulation is

inconsistent and in direct conflict with Ohio statutory

law, the appellate court decision on that issue is a mat-

ter of state law which may not properly be brought

before this Court. However, the refusal to afford Peti-

tioner an opportunity to test the validity of these regu-

lations prior to enforeement constitutes a denial of the

due process of law which is guaranteed by the Four-

teenth Amendment to the U.S. Constitution.

B. History of the Case

In January, 1972, the Ohio Air Pollution Control

Board promulgated regulations which established am-

bient air quality standards and emission limitations for

particulate matter and sulfur dioxide.* The Ohio am-

*The ambient air quality standards for both air contaminants

were set forth in AP-3-02 and the emission standards for particu-

late matter and sulfur dioxide were contained in AP-3-11 and

AP-3-14, respectively. In January, 1977 the regulations of all state

agencies were renumbered as part of the process of implementing

an official, uniform citation system in the State of Ohio. Thus,

AP-3-02 beeame OAC 3745-17-02; AP-3-11 became OAC 3745-17-

10; and AP-3-14 became OAC 3745-17-13. Citations in this petition

will be to the Ohio Administrative Code (‘‘OAC’’), with parallel

references in the old format provided in the Table of Authorities.

bient standards were more stringent than federal

primary standards for either pollutant and the propor-

tional rollback methodology emploved to set the emis-

sion limitations resulted in regulations which were

excessively stringent and, in some instances, so infeasi-

ble that compliance was impossible. Moreover, the

sulfur dioxide emission limitations determined in this

fashion were so unnecessary to protect public health

and welfare that they have fallen into disrepute and

been rejected by the U.S. EPA in the sulfur dioxide

control plan which it prepared for Ohio. 40 C.F.R.

§ 52.1881. Although the same unnecessarily stringent

regulatory methodology was employed to establish lim-

itations for particulate matter, neither the U.S. EPA

nor the Ohio EPA has yet acknowledged any need to

revise these limitations. These regulations were sub-

mitted as part of the Ohio implementation plan to the

Administrator of the U.S. EPA to obtain requisite fed-

eral approval in accordance with § 110(a) of the Clean

Air Act, 42 U.S.C. § 7410(a). Federal approval was

published in May, 1972.

Petitioner knew that it had a right to obtain re-

view of the validity of these regulations sometime prior

to enforcement. However, in 1972 it was not certain

whether such review should be provided at the state or

federal level. Therefore, Petitioner attempted to secure

review in both forums.

1. State LEVEL

In early 1972, the Ohio Environmental Protection

Agency (‘Ohio EPA’’) and the Ohio Environmental

Board of Review had not yet been created. These agen-

cies were subsequently established by an act of the Ohio

General Assembly which became effective on October

23, 1972. Revised Code Chapter 3745. After enactment

of this legislation, appeals from rulemaking actions of

the Ohio EPA would be taken to the Ohio Environ-

mental Board of Review (Revised Code § 3745.04),

and from there to the Franklin County, Ohio Court of

Appeals (Revised Code § 3745.06), and eventually to

the Supreme Court of Ohio (Revised Code § 3745.06).

Unfortunately, this review mechanism did not exist

when the Air Pollution Control Board adopted its regu-

lations. Ohio’s Administrative Procedure Act, Revised

Code Chapter 119, likewise provided no relief. In 1970,

the Supreme Court of Ohio had determined that Ohio’s

Administrative Procedure Act could not be employed

to obtain review of rulemaking or quasi-legislative pro-

ceedings. Fortner v. Thomas, 22 Ohio St. 2d 13, 257

N.E.2d 371, Syllabus 2 & 3 (1970). The message of

Fortner was clear. Petitioner could not immediately

challenge the action of the Air Pollution Control Board

in adopting the regulations but had to wait until these

regulations were actually applied. The air pollution

regulations were to be applied in one of two ways in

Ohio, uec., either in a permit proceeding or in a vari-

ance proceeding. Only a source presently in compliance

with the emission limitations could obtain a permit. Re-

vised Code § 3704.03(G).

Therefore, in mid-1972, Petitioner requested vari-

ances for all of its facilities. In May, 1973, the Ohio

KPA Director proposed variance orders which denied

the requested relief for all of its facilities. Petitioner

filed adjudication requests which were consolidated

with requests of other Ohio electric utilities. A consoli-

dated hearing was conducted before a three member

Hearing Panel of the Ohio EPA from March 4 through

July 25, 1974. This adjudication hearing represented

the first adversarial proceeding, administrative or judi-

cial, in which Ohio’s air pollution control regulations

were actually to be applied to Petitioner’s facilities.

Moreover, it was not merely the first but the only pro-

ceeding at the state level in which Petitioner would

have an opportunity to contest the excessive stringency

and infeasibility of the regulations.

In September, 1974, the three-examiner Hearing

Panel of the Ohio EPA issued its findings of fact, con-

clusions of law and recommendations which constituted

a near total affirmance of all of the challenges made by

Petitioner. Appendix H. The Hearing Panel found

that Ohio’s ambient air quality standards and emission

standards were not necessary to meet the requirements

of state or federal law and urged the Director to em-

bark on new rulemaking to develop implementation

plan regulations which were not fatally defective. Ap-

pendix H, p. 72a-74a.

By order dated December 12, 1974, the Ohio EPA

Director rejected the unanimous recommendations of

his three triers of fact. The Director held that the Hear-

ing Panel had erred by considering evidence challeng-

ing the validity of his regulations. Appendix G, p. 41a-

42a. By holding that the regulations cannot be chal-

lenged, the Director rendered the proceedings below a

nullity.

Petitioner appealed the Director’s decision to the

Ohio Environmental Board of Review (‘‘EBR’’) in

January, 1975.‘ The EBR held that the Director had

correctly determined that the air pollution regulations

could not be challenged in an adjudication hearing.

‘By statute, the EBR has exclusive jurisdiction over appeals

from actions of the Director. Revised Code § 3745.04.

However, the EBR did order the Director to issue vari-

ances to Petitioner which would require compliance

with both the sulfur dioxide and particulate matter

emissicn standards at all of Petitioner’s facilities with-

in thirty-six months, or by mid-1980.

Both the Director and Petitioner appealed this deci-

sion to the Franklin County, Ohio Court of Appeals.’

Among other matters, Petitioner assigned as error the

refusal to permit a challenge to the substantive valid-

ity of the regulations. Petitioner argued that this re-

fusal to allow a challenge of the validity of the regula-

tions prior to enforcement constituted a denial of the

due process of law guaranteed by the Ohio and U.S.

Constitutions.’ Ohio Edison Brief, pp. 38-42. The Di-

rector argued that the EBR erred in ordering the issu-

ance of variances which would extend beyond the dead-

line date established in OAC 3745-35-03, i.e., April 15,

1977. The Franklin County Court of Appeals accepted

the Director’s argument that regulation OAC 3745-35-

03 was valid and, therefore, no variance can be issued

in Ohio after April 15, 1977.’ The Court dismissed all

other assignments of error as being moot. Appendix D,

p. Ida.

’ By statute, the Franklin County court of Appeals has exclusive

jurisdiction over appeals from the EBR. Revised Code § 3745.06.

°This was the first time the due process issue could be raised

beeause Ohio administrative agencies are not empowered to deter-

mine Constitutional questions. 8.8. Kresge Co. v. Bowers, 170 Ohio

St. 405, 166 N.E 2d 139 (1960).

7 Petitioner agrees with the EBR that Revised Code § 3704.03(H)

authorizes the issuanee of variances past April 15, 1977. Ilowever,

that is an issue of state law not properly before this court.

Although the Court of Appeals dismissed Petition-

er’s due process argument as being moot, a determina-

tion which Petitioner finds incomprehensible, the Court

stated:

‘‘ However, Ohio Edison is not without a remedy

so far as the enforcement of unreasonable stand-

ards are concerned. If the standards are unreason-

able as applied to Ohio Edison, the standards are

subject to challenge in an adjudicatory proceeding

when the director attempts to enforce the regula-

tion, although not subject to modification or amend-

ment by that method.’’

' (Appendix D, p. 14a.)

The appellate court simply refused to address any of

the substantive defects in Ohio’s air pollution control

regulations. Moreover, the court held that review in an

enforcement proceeding is a sufficient remedy. Peti-

tioner sought reconsideration of the appellate court

decision arguing that the Clean Air Amendments of

1977, and especially the noncompliance penalty provi-

sions (42 U.S.C. § 7420), strengthened the case for pre-

enforcement review. The court denied reconsideration.

Appendix E.

On June 5, 1978, Petitioner filed a Notice of Appeal

in the Supreme Court of Ohio. The Supreme Court dis-

missed Petitioner’s appeal and overruled the motion to

certify on September 20, 1978. Appendices A and B.

On October 26, 1978 the Supreme Court of Ohio denied

Petitioners’ Motion for Rehearing. Appendix C.

During the pendency of the Supreme Court proceed-

ings, the Director finally repealed, on August 8, 1978,

his defective sulfur dioxide emission regulations which

were based on the discredited proportional rollback

methodology. Unfortunately, the particulate emission

standards, which were also formulated using the same

methodology, remain on the books as effective regula-

tions.”

2. FEDERAL LEVEL

In 1972, Petitioner believed that claims of excessive

stringency and infeasibility must also be raised in re-

view proceedings pursuant to § 307(b), 42 U.S.C.

§ 7607(b). Getty Oil Co. v. Ruckelshaus, 342 F.Supp.

1006 (D.C. Del. 1972), aff’d, 467 F.2d 349 (3rd Cir.

1972). Thus, Petitioner sought review of the Admin-

istrator’s May, 1972 approval of the Ohio Implementa-

tion Plan in the U.S. Court of Appeals for the Sixth

Cireuit. On June 18, 1973, that court vacated the Ad-

ministrator’s approval for procedural reasons in Buck-

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

(‘*Buckeye I’’). Although the appellate court did not

reach the substantive issues, the court indicated that

these issues could be raised in a § 307(b) review pro-

ceeding. Buckeye I, 481 F.2d 162, at 173.

After providing an opportunity for public comment,

as required by Buckeye I, supra, the Administrator

again approved the Ohio implementation plan in April,

1974, absent a sulfur dioxide control strategy. The sul-

fur dioxide portion of the state plan had been with-

drawn by the Governor of Ohio in August, 1973. Again,

Petitioner sought review in the U.S. Court of Appeals

for the Sixth Cireuit primarily because of the interde-

pendence of sulfur dioxide and particulate emission

control and the absence of known sulfur dioxide provi-

sions. In Buckeye Power, Inc. v. EPA, 525 F.2d 60

®Sinee control of particulate and sulfur dioxide emissions are

inextricably intertwined, this belated development of more reason-

able sulfur dioxide emission standards has cost the company four

years of compliance time which would otherwise have been avail-

able to install necessary pollution controls.

(6th Cir. 1975) (‘Buckeye II’’), the court held that

the issues raised were not ripe for adjudication because

they were being resolved at the state agency level. The

Sixth Circuit specifically acknowledged the proceed-

ings before the Ohio EPA Hearing Panel and con-

cluded :

‘The federal Administrator’s pronouncements

on these points are definite and apparently con-

clusive, since he indicates that he will make them

all conditions for continued approval of the Ohio

plan. All of these changes referred to are designed

to meet objections pressed by petitioners in this

instant action. But the record before us shows that

these changes are still in process of being made

and that the Ohio plan is in process of major

revision. The explanation for this is probably

found in the fact that the Ohio EPA has just

completed extensive hearings upon the emission

standards set in the original Ohio Plan. On the

basis of 7,000 pages of testimony, an Ohio Hearing

Panel has published a 417 page report and recom-

mended downward revisions or elimination of the

disputed Ohio emission standards applicable to

particulates, nitrogen oxide and sulfur dioxide.’’

(525 F.2d 80, at 84; emphasis added. )’

Unfortunately, the Director ignored this report and

its recommendations, and the revisions were never

made.

After the Sixth Circuit’s decision in Buckeye II,

supra, this Court decided Union Electric Co. v. EPA,

427 U.S. 246 (1976), and eliminated any possibility

that claims of excessive stringency and infeasibility

could be raised in § 307(b), 42 U.S.C. § 7607(b) review

proceedings. Therefore, Petitioner’s third attempt to

* This language from Buckeye IJ refers to proceedings below in

this case.

obtain review in the Sixth Circuit met with failure.

Northern Ohio Lung Association v. EPA, 572 F.2d

1143 (6th Cir. 1978).

REASON FOR GRANTING THE WRIT

Fundamental Principles of Due Process of Law Require Pre-

Enforcement Judicial Review of the Provisions of a State

Implementation Under the Facts of This Case.

Procedural due process is a flexible concept which

admits of no precise definition. What is required by

due process will vary from case to case depending

upon the facts involved and the interests to be pro-

tected. Although no universal rule can be mechanically

applied to every case, certain basic principles have

been clearly established by this Court. In Fuentes v.

Shevin, 407 U.S. 67 (1972), this Court provided the

following description of procedural due process:

‘‘For more than a century the central meaning

of procedural due process has heen clear: ‘Partics

whose rights are to be affected are entitled to be

heard; and in order that they may enjoy that right

they must first be notified.’ Baldwin v. Hale, 1

Wall. 223, 233. See Windsor v. McVeigh, 93 U.S.

274; Hovey v. Elliott, 167 U.S. 409; Grannis v.

Ordean, 234 U.S. 385. It is equally fundamental

that the right to notice and an opportunity to be

heard ‘must be granted at a meaningful time and

in a meaningful manner.’ Armstrong v. Manzo,

380 U.S. 545, 552.’’ (407 U.S. 67, at 80.)

The right to be heard at a meaningful time and in

a meaningful manner is the central issue in this case.

The Franklin County, Ohio Court of Appeals has

determined that if a hearing upon the substantive

validity of the air pollution regulations is provided at

the enforcement stage, due process requirements are

satisfied. However, Petitioner believes that review in

an enforcement proceeding simply cannot satisfy the

fundamental requirement of a timely hearing.

Compliance with air pollution control regulations

requires a great deal of time and money. Petitioner

operates nine electric power plants and three steam

heat plants in Ohio and compliance with the particulate

emission regulations alone would require a construction

program of several years and an expenditure of hun-

dreds of millions of dollars. In view of the deadlines

established in the Clean Air Act and the time necessary

to install required control equipment, it is absolutely

essential that review of the substantive validity of the

regulations occur prior to enforcement. If pre-enforce-

ment review is not permitted, Petitioner is forced to

either expend enormous sums of money to comply with

regulations which may later be declared invalid, or to

risk potential exaction of civil and criminal penalties.

This untenable choice cannot be harmonized with ac-

cepted notions of due process. Ex parte Young, 209

U.S. 123 (1908). The following language from the

Young opinion is particularly relevant,

‘*. . . Now, to impose upon a party interested the

burden of obtaining a judicial decision of such a

question (no prior hearing having ever been given)

only upon the condition that if unsuccessful he

must suffer imprisonment and pay fines as pro-

vided in these acts, is, in effect, to close up all

approaches to the courts, and thus prevent any

hearing upon the question whether the rates as

provided by the acts are not too low, and therefore

invalid. The distinction is obvious between a case

where the validity of the act depends upon the

existence of a fact which can be determined only

after investigation of a very complicated and tech-

nical character, and the ordinary case of a statute

upon a subject requiring ne such investigation and

over which the jurisdiction of the legislature is

complete in any event. (209 U.S. 123, 148.)

The Clean Air Act Amendments of 1977 provide

further justification for requiring pre-enforcement ju-

dicial review. The Amendments require the imposition

of mandatory noncompliance penalties upon major

sources if compliance is not attained within a certain

time period. 42 U.S.C. § 7420. If Petitioner must wait

until an enforcement action is brought before challeng-

ing the standards, it risks the imposition of severe

noncompliance penalties, which cannot be tempered by

prosecutorial discretion. Therefore, the addition of the

noncompliance penalty section in the 1977 Amend-

ments, strongly reinforces the fundamental due proc-

ess necessity for pre-enforcement review under the

U.S. Constitution.

Petitioner is cognizant of the fact that national am-

bient air quality standards must be attained and that

if it chooses to challenge an implementation plan or to

seek a variance that it litigates on its own time. Train

v. NRDC, 421 U.S. 60 (1975). Nevertheless, there is

a significant difference between litigating on your own

time and being denied the right to litigate and the

right to meaningful judicial review. The State of Ohio

has denied Petitioner the fundamental right to a mean-

ingful hearing on the merits of its claims. Such action

by Ohio administrative officials and Ohio courts has

made a mockery of federal constitutional due process.

The Director asserted below that the adjudication

hearing was not Petitioner’s only opportunity to con-

test the validity of these standards. The Director ar-

gued in the Supreme Court of Ohio that Petitioner

should have filed for declaratory judgment during the

eight-month period between adoption of the regula-

tions and creation of the EBR. This contention is de-

void of merit and is totally inconsistent with Ohio

EPA’s prior legal position. During the course of the

adjudication hearing, lead counsel for Ohio EPA made

the following statements:

‘*T think the Agency can, in its discretion, choose

to allow an attack on the rules, which is essentially,

I believe, what the utilities are doing.’’ (Opening

Statement delivered by lead counsel for Ohio EPA,

March, 1974; Transcript of Hearing, Tr. p. 25)

‘*. ,. the Director has the legal authority to make

rulemaking or legislative, as well as adjudicatory,

decisions on the basis of evidence adduced at an

adjudicatory hearing.

* * *

‘*. .. the Director has ample authority to consider

a ‘fine-tuned’ application of his regulations to the

power plants subject to this proceeding.’’ (Ohio

EPA Reply Brief, pp. 7, 25 and 26, filed in Con-

solidated Adjudication Hearing.)

‘*. .. The question is one of decision making. This

is what is the role of the adjudication. ... It is

an occasion, we believe, in which the Agency has

an obligation to bite the bullet and say, ‘No, you

are wrong; you must comply literally, here in de-

tail is what you will do and here is what you need

not do,’ and zt is possible, and we have stated, even

to say to that applicant, ‘You are correct. As you

know, it would be unreasonable and unjust to

apply the regulations. Therefore, you will be ez-

empted,...

* * *

“If they are correct, then the Agency is under

the obligation to bite the bullet and say, ‘You are

right, it would not be just to apply these regula-

tions to you. You are exempted from those regu-

lations,’ and that is the key to our position, sir.”’

(Closing Statement delivered by lead counsel for

Ohio EPA, June, 1974, Transcript of Hearing,

Tr. p. 6,589-90 ; emphasis added)

Prior to the Director’s December 12, 1974 decision,

the Ohio EPA consistently maintained the state im-

plementation plan was subject to challenge in an ad-

judication hearing. The Director has waived any argu-

ment that Petitioner should have filed for declaratory

judgment. The due process clause does not require

Petitioner to forsee that a state agency will change its

legal position in midstream in an attempt to shield its

regulations from judicial scrutiny.

Furthermore, Ohio has precluded challenging the

validity of environmental regulations by way of dec-

laratory judgment. State, ex rel. Williams v. Bozarth,

55 Ohio St.2d 34, 377 N.E.2d 1006 (1978), Warren

Molded Plastics v. Williams, 56 Ohio St.2d 352,

N.E.2d (1978). In Bozarth, the Supreme Court of

Ohio concluded that environmental regulations could

not be challenged via declaratory judgment since the

Environmental Board of Review has exclusive juris-

diction to review such regulations. Ohio’s highest court

reached this conclusion in spite of the fact that the

regulations at issue in Bozarth had been adopted be-

fore the Environmental Board of Review was created.

In Union Electric Co. v. EPA, 427 U.S. 246 (1976),

this Court declined to consider the utility’s argument

that due process of law required review of the sub-

stantive validity of implementation plan provisions in

a § 307(b), 42 U.S.C. § 7607(b), proceeding. This Court

said there had been no showing that some other oppor-

tunity to raise such claims before a court did not exist.

427 U.S. 246, at 269 fn. 19. Since this Court has deter-

mined that such claims may not be raised in a § 307(b)

proceeding, Petitioner may be confined to either: 1)

pre-enforcement review in a state forum, or 2) review

in an enforcement proceeding. Clearly, pre-enforcement

review is the most desirable and, in fact, the only

realistic alternative.

An enforcement proceeding can be brought by fed-

eral, state, or local officials, or by private citizens. If

the Director of the Ohio EPA commences the enforce-

ment action and the regulations are challenged, then

the Ohio EPA would be the appropriate party to defend

the regulations. What happens, however, if the U.S.

EPA, a local official, or a private citizen commences

an enforcement action under § 113, 42 U.S.C. § 7413, or

§ 304, 42 U.S.C. § 7604, of the Clean Air Act? Would

the federal agency or the citizen be expected to defend

Ohio’s implementation plan provisions in the event of

a challenge? Moreover, with the virtual certainty that

multiple enforcement actions will be brought in sepa-

rate forums, inconsistent decisions could be reached

with respect to the validity of the regulations. Clearly,

it is not only procedural due process but also considera-

tions of judicial economy and consistency which re-

quire pre-enforcement judicial review.

Moreover, Petitioner is confronted by an additional

need for pre-enforcement review in this matter. Peti-

tioner is an electric utility obligated by Ohio law to

furnish adequate electric service to customers in thirty-

five counties in northeast and central Ohio. Ohio Re-

vised Code § 4905.22. Because of this legal obligation

to serve, Petitioner is denied the option enjoyed by

other industries to terminate its operations within a

state effectively denying it access to its courts and a

pre-enforcement determination of its rights under the

state implementation plan in order to avoid potential

civil and criminal penalties.

CONCLUSION

In Ex parte Young, supra, this Court was unwilling

to accept the notion that governmental regulators are

swathed in a cloak of infallibility exempting their

actions from judicial scrutiny. If judicial review is

to be meaningful, in both time and manner, the regu-

lated party must not be forced to place his head on

the chopping block as a condition precedent to obtain-

ing such review. This case should be remanded to the

Supreme Court of Ohio with instructions to provide

Petitioner with its pre-enforcement right to determine

the substantive validity of the Ohio state implementa-

tion plan regulations as applied to Petitioner’s twelve

facilities herein under the due process clause of the

Fourteenth Amendment to the United States Constitu-

tion.

Respectfully submitted,

Of Counsel: * eg ee —

| RED J. Lanar, JR.

F ag moan Hovor & 300 Madison Avenue

nw 9 7 .

300 Madison Avenue - = Lege My lasa

a oan 5 ae Toledo, Ohio 43603

P.O. Box 2088 Ta

Telephone: (419) 255-8220

Toledo, Ohio 43603

James C, Carroun

Ohio Edison Company

76 South Main Street

Akron, Ohio 44308

Attorneys for Petitioner

APPENDIX A

Order of the Supreme Court of Ohi

Petitioner's Appeal.

fe) Dismissing

THE SUPREME COURT OF OHIO

Tue Srare or Onto, City of Columbus.

1978 Term

To wit: September 20, 1978

Onto Epison Co., et au., Appellants,

vs,

Nep KE. WiuuiaMs, Dir., Appellee.

No. 78-691

Appeal From the Court of Appeals

for Franklin County

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

Appeals for Franklin County, was heard in the manner

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

having been filed, the Court sua sponte dismisses the appeal

for the reason that no substantial constitutional question

exists herein,

It is further ordered that a copy of this entry be certified

to the Clerk of the Court of Appeals for Franklin County

for entry.

I, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, cortify that the foregoing entry was correctly copied

from the Journal of this Court,

Witness my hand and the seal of the Court this 8th day

of January 1979,

/3/ Tuomas L, StartzMan

Thomas L. Startzman

Clerk

/3/ Sam F. Apxins

Sam F. Adkins

Deputy

(SEAL)

APPENDIX B

Order of the Supreme Court of Ohio Overruling

Petitioner's Motion to Certify.

~~ N |

4 ;

, |

THE SUPREME COURT OF THE STATE OF OHIO

Tue State or Onto, City of Columbus.

1978 TERM

To wit: September 20, 1978

Oux10 Epison Co., er au., Appellants.

vs.

Nev EK. Wiuurams, Dir., Appellee.

No, 78-691

Motion for an Order Directing the Court of Appeals for

Franklin County to Certify Its Record

It is ordered by the Court that this motion is overruled.

Costs:

Motion Fee, $20.00, paid by Fuller, Henry, Hodge &

Snyder.

I, Thomas L. Startzman, Clerk of the Supreme Court of

Ohio, certify that the foregoing entry was correctly copied

from the Journal of this Court.

Witness my hand and the seal of the Court this 8th day

of January 1979.

/8/ Titomas lL. StanrzMan

Thomas L. Startazman

Clerk

/8/ Sam F. Apkins

Sam F. Adkins

Deputy

(SEAL)

Be ee wt as

APPENDIX C

Order of the Supreme Court of Ohio Denying

Petitioner's Motion for Rehearing.

aro

THE SUPREME COURT OF THE STATE OF OHIO

Tue State or Onto, City of Columbus.

1978 Term

To wit: October 26, 1978

Onto Epison Company ET AL., Appellants,

vs.

Nep EK. Wiu1ams, Dir., Appellee.

No. 78-691

Rehearing

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

denied.

I, Tuomas L. Srarrzman, of Clerk the Supreme Court

of the State of Ohio, do hereby certify that the foregoing

entry was correctly copied from the records of said Court,

to wit, from Journal No. —— Page ——.

In Witness Wuenreor, I have hereunto subscribed my

name and affixed the seal of the Supreme Court this 26th

day of October, 1978.

/s/ THomas L. StartzMan

Thomas L. Startzman

Clerk

/s/ Sam F. Apkins

Sam F. Adkins

Deputy

(SEAL)

ne ree STE

APPENDIX D

Decision and Judgment of the Franklin County, Ohio

Court of Appeals Issued April 6, 1978.

IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

No. 77AP-461

Oxn10 Epison Company, Appellant-Appellant,

Nep B, Wituias, Director of Environmental Protection,

Appellee-Appellee.

No, 77AP-462

Kast Patestine Ligut anp Power Company,

Appellant-Appellant,

Nep EB. Wituras, Director of Environmental Protection,

Appellee-Appellee,

Nos. 77AP-472 and 77AP-473

Onto Epison Company, eT AL., Appellants-Appellees,

Vv.

Nep BE. WiuiaMs, Director of Environmental Protection,

Appellee-Appellant.

Decision

Rendered on April 6, 1978

Fuver, Henry, Hovors & Snyper,

Mr. Wiuson W, Snyper,

Mr. C. Ranvotrx Liaut and

Mr. Frep J. Lanos, Jr., of Counsel,

300 Madison Avenue,

P. O. Box 2088,

Toledo, Ohio 43603,

and

Mr. James C, Carrot,

47 North Main Street,

Akron, Ohio 44308,

For Ohio Edison Company.

Mr. WittiaM J. Brown, Attorney General,

Mr. Davin EK. Nortrurop, Assistant,

Environment Law Section,

State Office Tower,

30 East Broad Street,

Columbus, Ohio,

For Ned E. Williams, Director

of Environmental Protection.

Seoreti & Tousey,

Mr. A. Mark Seorett, Jr., and

Mr, Micuast N, Tousry,

169 East Livingston Avenue,

Columbus, Ohio.

GinsBerG, Guren & Merritt,

Mr. Micuagt L, Harpy and

Mr. James M. Friepman, of Counsel,

650 Terminal Tower,

Cleveland, Ohio 44113.

Squire, Sanvers & Dempsey,

Mr. Van Canrson, of Counsel,

1800 Union Commerce Building,

Cleveland, Ohio 44115.

McCormac, J.

On August 15, 1972, Ohio Edison applied to the Environ-

mental Protection Agency for variances which would

authorize emissions of air pollutants in excess of applicable

emission standard regulations for twelve Ohio Edison fa-

cilities. The proposed variances as issued contained com-

pliance schedules requiring Ohio Edison to meet the stand-

ards prescribed by regulation by July 15, 1975. As to the

remaining two facilities, the Gorge and Mad River Plants,

the director issued proposed denials of the variance ap-

plications.

Ohio Edison timely requested adjudication hearings to

contest the director’s proposed action on the variance re-

quests, ‘The hearings (consolidated with one another and

those regarding other electric utility companies) concluded

on July 25, 1974. On December 12, 1974, the director issued

his decision. The director declined to issue variances for

sulfur dioxide emission standards, having been convinced

that the sulfur dioxide emission regulation was more

stringent than necessary. As to emissions of particulate

matter, the director issued an enforcement order requiring

compliance with particulate matter emission standards by

April 15, 1977,

Ohio Edison appealed to the Environmental Board of

Review, alleging that the director’s order was unreasonable

and unlawful in several respects. After hearings on July

2, 1975, and September 22, 1976, in which further evidence

was adduced by the parties, the board, on May 20, 1977,

rendered its decision. In principal part, the board held that

the director erred in concluding that his sulfur dioxide

emission regulations applicable to Ohio Edison were ex-

cessively stringent. The board ruled that the sulfur dioxide

regulations of the director were lawful and reasonable and

that the director was without authority to decline to apply

them. The board ordered the director to issue variances to

Ohio Edison with compliance schedules of 36 months during

which time Ohio Edison was to comply with both particulate

matter and sulfur dioxide emission standard regulations.

The variances ordered by the board extended far beyond

April 15, 1977.

Both Ohio Edison and the director have appealed from

the board’s order, The appeals have been consolidated for

decisions.

10a

Ohio Edison has set forth the following assignments of

error:

(1. Whether the Ohio Environmental Board of Review

erred in refusing to remand the Company’s Appeal to

the Director of the OKPA for further consideration

and revision in accordance with the mutual wishes of

both the Appellant and Appellee herein,

‘2. Whether the Board erred as a matter of law in

holding that administrative regulations must be en-

forced as written until formally amended or repealed

unless clearly unreasonable on their face or in clear

conflict with the enabling statutes.

“3. Whether the Board erred as a matter of law in

holding that Ohio’s Ambient and Emission Standards

(AP-3-02, AP-3-11, and AP-3-14) could not be chal-

lenged, questioned, or modified upon application to a

specific source or sources in adjudication proceedings

unless unreasonable on their face or in clear conflict

with the enabling statutes.

‘‘4. Whether the Board erred as a matter of law in

holding that these regulations were reasonable in gen-

eral and in applying such regulations to all 12 Com-

pany plants herein.

‘*5, Whether the Board erred as a matter of law in

holding that a variance granted under Section 3704.03

(11) of the Ohio Revised Code must impose a schedule

for compliance with general emission standards.

‘‘6. Whether the Board erred as a matter of law in

determining that ambient necessity required the Com-

pany to comply with the Ohio sulfur dioxide emission

(AP-3-14) limitation at all 12 of its plants herein.

‘*7, Whether the Board erred as a matter of law in

creating a de facto ambient standard for sulfates (SO.)

to establish retroactive justification for the Ohio sulfur

dioxide (SO:) emission limitation.

lla

‘*8. Whether the Board and Director erred as a matter

of law in determining that ambient necessity required

the Company to comply with the Ohio particulate emis-

sion (AP-3-11) limitation at all 12 of its plants herein.

‘*9. Whether the Board erred as a matter of law in

substituting its judgment for that of the Director in

generally employing an incorrect standard of review

of factual matters,

‘10. Whether the Board erred as a matter of law in

determining adequate technology or alternate fuels

existed that would enable Ohio Edison to comply with

the sulfur dioxide emission standards (AP-3-14).

‘11. Whether the Board erred as a matter of law in

determining that the Company could install pollution

control equipment on, or shut down, all 12 Company

facilities in 86 months to comply with the Ohio par-

ticulate and sulfur dioxide emission (AP-3-11, AP-3-

14) limitations.

‘12. Whether the Board erred as a matter of law in

employing materiai neither presented by the parties

nor in evidence in the record on this appeal as the

basis for its decision.

‘13. Whether the Board erred as a matter of law in

requiring more stringent emission standards then are

necessary to protect public health and welfare in viola-

tion of the United States and Ohio Constitutions.”’

The director has set forth the following assignments of

error:

1. ‘*The Environmental Board of Review erred in or-

dering the director of Environmental Protection to

issue variances which authorize the emission of par-

ticulate matter in excess of the applicable emission

standard contained in the federally-approved state im-

12a

plementation plan in the absence of evidence that such

emissions will not prevent or interfere with timely

attainment and maintenance of ambient air quality

standards.’’

2. ‘*The Environmental Board of Review erred in or-

dering the director to issue variances from his emission

standard regulations which contain compliance sched-

ules extending beyond the deadline date set forth in

OAC 3745-35-53 (F) (2).”’

The primary issues in this case are the same as those

before the court in our recent unreported case of Cleveland

Electric Illuminating Co. v. Ned E, Williams, Director, case

Nos. 76AP-929 and 76AP-938, rendered on December 8,

1977 (1977 Decisions, page 4487). The first issue is to what

extent the director may issue or deny variances from his

regulations. Ohio Edison had sought variances from am-

bient air regulations pertaining to particulate and SO:

emissions. Variances were granted by the direccor to Ohio

Edison from complying with the SO. emission standard

regulations on the basis that the emission standards were

too strict and unreasonable. Variances from compliance

with particulate emission regulations were extended to

April 15, 1977.

Upon appeal to the Board of Review, the board required

enforcement of both particulate and SO: emission standard

regulations with the requirement of a compliance schedule

and ultimate compliance, no later than 36 months from the

issuance of the variances,

As we held in the Cleveland Electric Illuminating case,

R. C. 3704.03, in conjunction with the director’s regulation

EP-32-03, prohibits issuance of a variance from ambient

air pollution regulations for more than one year or for any

time after April 15, 1977. Complete discussion of the rea-

sons for this holding is contained in the Cleveland Electric

Illuminating case.

13a

Hence, the order of the board granting variances for

particulate and sulfur dioxide efission standards beyond

April 15, 1977 is unlawful and contrary telaw.

The director’s second assignment of error is sustained.

All other assignments of error are overruled as being

moot.

The appeal to the board was from variance orders which

are no longer possible since the regulations prohibit

variances after April 15, 1977. The reasonableness of the

director’s regulations was at issue only so far as the issu-

ance of variance was concerned. As hereinafter stated, the

regulations were not subject to modification, recission or

amendment through an appeal from a variance order. Hence

both the particulate and sulfur dioxide regulations remain

in effect.

The fact that no further variance may be granted, either

for particulate or SO: emissions, does not leave Ohio Edison

or the director without other remedies that are fair and

equitable to Ohio Edison or to the public. It does not mean

that Ohio Edison plants, which are not in compliance with

ambient air quality regulations, must be immediately shut

down. The director is given discretionary enforcement op-

tions and need not request that an injunction be brought

pursuant to R, C. 3704.06, even though there is a violation

of his regulations. Nor is the Attorney General required to

proceed with prosecution resulting in a penalty pursuant to

R. C. 3704.99. The director, however, is given a great deal

more effective enforcement by a holding that no further

variance is possible which means that the operator is acting

illegally if the emission from his plant exceeds the applic-

able air quality regulations. More prompt and effective

measures can be taken for enforeement under penalty of

severe monetary fines or threats of shut down to achieve

at the earliest possible time obtainment of properly adopted

air quality standards.

14a

The fact that no further variance is possible and imme-

diate attainment with particulate or sulfur dioxide emission

standards does not preclude further challenge of these

standards or regulations as applied to applicants during

the enforcement process. Neither the director nor the board

can use an appeal from a variance order to adopt new rules

and regulations or to modify the rules and regulations

adopted by the director. The regulations are not so subject

to attack in a variance proceeding either before the director

or on appeal therefrom to the board. Regulations may be

adopted, modified or amended only in a quasi-legislative or

rulemaking proceeding.

However, Ohio Edison is not without a remedy so far as

the enforcement of unreasonable standards are concerned.

If the standards are unreasonable as applied to Ohio Edi-

son, the standards are subject to challenge in an adjudica-

tory proceeding when the director attempts to enforce the

regulation, although not subject to modification or amend-

ment by that method.

If the sulfur dioxide emission standard regulations are

unreasonable and too strict, the director should promptly

promulgate reasonable and enforceable regulations through

the rulemaking process, rather than leaving the state with

regulations which are, as a practical matter, unenforceable.

The director acted within the authority of R. C. 3704.03 and

his regulations in attaching conditions to an application for

a variance and in requiring a compliance schedule as a

condition to the granting of a variance, R. C. 3704.03(H)

specifically refers to conditions of a variance, although

the board’s action in extending variances beyond April 15,

1977 was unlawful.

Turning to the assignments of error of the parties, the

director’s first assignment of error is overruled as moot

since no further variance beyond April 15, 1977 is lawful.

The director’s second assignment of error is sustained, as

the Board of Review acted unlawfully in issuing variances

15a

from the director’s emission standard regulations, which

contain compliance schedules beyond April 15, 1977.

Ohio Edison’s assignments of error are all overruled,

in that no variance either from particulate or sulfur diox-

ide emission standard regulations may be granted beyond

April 15, 1977.

The director’s first assignment of error is overruled and

the director’s second assignment of error is sustained. The

assignments of error of Ohio Edison are overruled. The

decision of the Board of Review is reversed and vacated.

The case is remanded to the director for further procedure

consistent with this decision.

Houtmgs, P.J., and Srraussavau, J., concur.

16a

IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

No. 77AP-461

Onto Evison Company, Appellant-Appellant,

Nep EB. Wu1aMs, Director, ete., Appellee-A ppellee.

No. 77AP-462

East Patestine Licut anp Power Company,

Appellant-Appellant,

Nep E. Wix1aMs, Director, ete., Appellee-Appellee.

No. 77AP-472 and No. 77AP-473

Outro Epison Company Et aL., Appellants-Appellees,

Nep KE. Wiuu1aMs, Director, etc., Appellee-Appellant.

Journal Entry of Judgment

For the reasons stated in the decision of this court ren-

dered herein on April 6, 1978, appellant Director’s assign-

ment of error 2 is sustained, and his assignment of error 1

is overruled, and Ohio Edison’s assignments of error are

overruled, and it is the Judgment and order of this court

that the order of the Environmental Board of Review is

reversed and vacated, and this cause is remanded to that

Board for implementation of this court’s judgment and

17a

for remand to the Director for further procedure consistent

with said decision.

Houmgs, P.J., StraussaueH and McCormag, JJ.

By /s/ Joun W. McCormac

John W. McCormac

Judge

ec: Fred J. Lange, Jr.

James C. Carroll

David E. Northrop

Michael N. Tousey

Michael L. Hardy

Van Carson

APPENDIX E

Decision and Judgment of Franklin County, Ohio Court of Appeals

Denying Reconsideration Issued June 13, 1978.

19a

IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

No. 77AP-461

On10 Epison Company, Appellant-Appellant,

Nep E. WiuuraMs, Director or EnviroNMENTAL PROTECTION,

Appellee-A ppellee.

No. 77AP-462

Kast Patestine Ligut anp Power Company,

Appellant-Appellant,

Nep E. Wituiams, Director or ENviroONMENTAL PROTECTION,

A ppellee-Appellee.

Nos. 77AP-472 and 77AP-473

Oxto Epison Company, Et au., Appellants-Appellees,

Nep EK. WitutaMs, Director or ENVIRONMENTAL PROTECTION,

A ppellee-A ppellant.

Decision

Rendered on June 13, 1978

Fuuier, Henry, Honors & Snyper,

Mr. Witson W. Snyprzr,

Mr. C. Ranvotenw Lieur and

Mr. Frev J. Lance, Jr., of Counsel,

300 Madison Avenue,

P. O. Box 2088,

Toledo, Ohio 43403,

and

20a

Mr. James C. CarRo..,

47 North Main Street,

Akron, Ohio 44308,

For Ohio Edison Company.

Mr. Wittiam J. Brown, Attorney General,

Mr. Davin FE. Nortruropr, Assistant,

Ienvironment Law Section,

State Office Tower,

30 East Broad Street,

Columbus, Ohio

For Ned FE. Williams, Director

of Environmental Protection.

Seereti & Tousey,

Mr. A. Mark Secret, Jr., and

Mr. Micuarn. N. Tousry,

169 East Livingston Avenue,

Columbus, Ohio.

Ginsperc, Guren & Merritt,

Mr. Micnart L. Harpy and

Me. James M. Friepman, of Counsel,

650 Terminal Tower,

Cleveland, Ohio 44113.

SeuirE, Sanpers & Dempsey,

Mr. Van Carson, of Counsel,

1800 Union Commerce Building,

Cleveland, Ohio 44115.

McCormac, J.

Appellant, Ohio Edison Company, has moved the court

for reconsideration of its decision rendered April 6, 1978,

requesting that the cases be remanded to the Director of

the Environmental Protection for purposes of tailoring

emission standards to meet public health and welfare needs

while eliminating unnecessary over-regulation for appel-

lant’s twelve involved facilities. Appellant claims that the

21a

overruling of thirteen of their assignments of error as moot

leaving unresolved the substantive issues inherent therein

violates due process rights of appellant in exposing appel-

lant to potential assessment of noncompliance penalties.

Appellee vigorously opposes the motion for reconsidera-

tion, arguing that this court correctly decided that a whole-

sale challenge to emission standard regulations cannot be

asserted in an appeal from an adjudication hearing on an

application for a variance.

Appellant’s motion for reconsideration is overruled. Ap-

pellant has had, and continues to have, adequate remedies

to thwart imposition of unlawful regulations. This case is

quite different from that relied upon by Ohio Edison, to

wit: Abbot Laboratories v. Gardner (1956), 307 U.S. 136,

where the court found that plaintiffs had a right to bring

a declaratory judgment action to seek a pre-enforcement

review of regulations, there being no statutory preclusion

to that remedy. In this case no appeal was taken from the

promulgation of the regulations involved. Instead the at-

tempt to obtain a comprehensive review of the regulations

took place in regard to an appeal from an administrative

proceeding where a variance was sought. Since a variance

is no longer possible, the issue of the appropriateness of a

variance is moot.

However, there is nothing within our decision that pro-

hibits the Director of the Environmental Protection Agency

from modifying or amending its particulate and sulfur di-

oxide emission standards to achieve the results advocated

by appellant, which in essence are those required to be

considered by R. C. 3704.03(D). In fact this court has urged

that sulfur dioxide emission standards be amended or re-

promulgated based upon the apparent agreement of the

parties that the present standards are unworkable.

Appellant’s motion for reconsideration is overruled.

Houmes, P.J., and Straussaven, J., concur.

22a

IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

No. 77AP-461

Oxu1o Epison Company, Appellant-A ppellant,

Nev FE. Wruuiams, Director, Erc., Appellee-Appellee,

No. 77AP-462

East Pacestine Licut anp Power Co., Appellant-A ppellant,

Nep KE. WituraMs, Director, etc., A ppellee-A ppellee.

No. 77AP-472 and No. 77AP-473

Onto Epison Company, ET AL., Appellants-Appellees,

Nep E. WiutaMs, Director, etc., A ppellee-A ppellant.

Journal Entry

For the reasons stated in the decision of this court rend-

ered herein on June 13, 1978, it is the order of this court

that the motion for reconsideration is overruled.

Homes, P.J., Straussauau and McCormac, JJ.

By /s/ Joun W. McCormac

Judge John W. MeCormac

ec: Fred J. Lange, Jr.

James C. Carroll

David EK. Northrop

Michael N. Tousey

James M. Friedman

Van Carson

APPENDIX F

Pertinent Excerpts From the Decision (Findings of Fact and Final

Order) of the Ohio Environmental Board of Review

Issued May 20, 1977.

23a

BEFORE THE ENVIRONMENTAL BOARD OF REVIEW

STATE OF OHIO

Case No. EBR 75-5

Onto Epison Company

47 North Main Street, Akron, Ohio 44308,

Appellant,

Nep KE. WiuuiaMs, Director or ENVIRONMENTAL PROTECTION

P. O. Box 1049, Columbus, Ohio 43216,

Appellee.

Case No. EBR 75-6

East Patesting Licut anp Power Company

West Main Street Extension, East Palestine, Ohio 44413,

Appellant,

Nep E. WiiuiaMs, Director or ENVIRONMENTAL PROTECTION

P. O. Box 1049, Columbus, Ohio 43216,

Appellee.

Findings of Fact and Final Order

Issued by: CounsEL For APPELLANT,

Oxnio Epison Company:

THe ENVIRONMENTAL Boarp C

oF REVIEW Witson W. Snyner, Esq.

Stanley Weissman, Fuuier, Henry, Hopae &

Chairman SNYDER

Sherman L. Frost, 300 Madison Avenue

Member Toledo, Ohio 43604

395 East Broad Street, James C. Carro.., Esq.

Suite 305 47 North Main Street

Columbus, Ohio 43215 Akron, Ohio 44308

Tel: 1/614/466-8950

Issued on: May 20, 1977

24a

CounsEL FoR APPELLANT,

East Pauestine Licut AND

Power Company:

Van Carson, Esq.

1800 Union Commerce Bldg.

Cleveland, Ohio 44115

CounsEL FOR APPELLEE, NED

E. WituiaMs, Director OF

ENVIRONMENTAL PROTEC-

TION :

Daviw E. Norturop, Esq.

Assistant Attorney General

Environmental Law Section

State Office Tower,

17th Floor

30 East Broad Street

Columbus, Ohio 43215

25a

sible with the maximum possible compliance time of

no later than 36 months from the issuance of said

variances allowable for those sources where FGD

is chosen.

(3) The seventy-five (75) days given above in Section

(1) of this order are to provide time for:

(a) to determine which abatement method will be

used for each source; and

(b) comply, where necessary, with the lawful pro-

cedural requirements to grant a variance to

Regulation EP-32-03(F) (2); and

(ce) to comply with any applicable federal laws

and regulations, including but not limited to,

where necessary, lawfully amending the Ohio

Implementation Pian when the compliance

schedules in the said variances contain dates

which exceed the deadlines given in the fed-

ce erally approved Ohio Implementation Plan.

Based upon the above findings the Board makes the follow- The Board in accordance with Section 3745.06 of the Re-

ing order vised Code informs the parties that:

in :

(1) Within seventy-five (75) days of issuance of this

order by the Board the Director is to issue vari-

ances to the Ohic Edison Company for those

sources which are the subject of this appeal;

(2) These variances are to be such that they contain a

compliance schedule whereby each source is

brought into compliance with the emission rates

given in Chapter AP-3 of the Regulations of the

Ohio Environmental Protection Agency for both

particular matter and sulfur dioxide, by a method

or methods chosen by the Ohio Edison Company

and acceptable to the Director; the sources should

be brought into compliance as expeditiously as pos-

Any party adversely affected by an order of the En-

vironmental Board of Review may appeal to the Court

of Appeals of Franklin County, or, if the appeal arises

from an alleged violation of law or regulation, to the

court of appeals of the district in which the violation

was alleged to have occurred. Any party desiring to

so appeal shall file with the Board a Notice of Appeal

designating the order appealed from. A copy of such

notice shall also be filed by the Appellant with the

court, and a copy shall be sent by certified mail to the

Director of Environmental Protection. Such notices

shall be filed and mailed within thirty days after the

26a

date upon which Appellant received notice from the

Board by certified mail of the making of the order ap-

pealed from. No appeal bond shall be required to make

an appeal effective.

Tue ENVIRONMENTAL Boarp of Review

/s/ Stantey WEISSMAN

Stanley Weissman, Chairman

/s/ Suerman L. Frost

Sherman L. Frost, Member

Entered in the Journal of the Environmental Board of

Review this 20th day of May, 1977 at Columbus, Ohio.

[Certificate of Service Omitted in Printing]

APPENDIX G

Pertinent Excerpts From the Decisi i

on (Final Findings and O

of the Director of the Ohio Environmental ieee a

Dated December 12, 1974.

PART I

HISTORY OF THE CASE

A. Background

This consolidated adjudication hearing was held pur-

suant to the provisions of Chapter 119 of the Ohio Revised

Code and other pertinent legislation. It involved eight (8)

investor owned electric utilities, one (1) consumer owned

electric utility, and four (4) municipal electric utilities.

These cases were consolidated because of common issues

of fact and law critical to a decision as to the granting of

variances or operating permits by the Ohio Environmental

Protection Agency to each of these companies. The in-

dividual cases which comprised this consolidated proceed-

ing are as follows:

Cardinal Operating Company

Unit No. 1—Case No. 73-A-V-132

Unit No. 2—Case No. 73-A-V-133

28a

Cincinnati Gas and Electric Company

Miami Fort Power Station—Case No. 73-A-V-144

West End Power Station—Case No. 73-A-V-149

W. C. Beckjord Station—Case No. 73-A-P-156

Cleveland Electric Illuminating Company

Lake Shore Plant—Case No. 73-A-P-120

Ashtabula Plant—Case No. 73-A-V-146

Avon Lake Plant—Case No. 73-A-V-147

Eastlake Plant—Case No. 73-A-V-148

Columbus and Southern Ohio Electric Company

Pickaway Generating Station—Case No. 73-A-V-

137

Conesville Generating Station—Case No. 73-A-

V-138

Poston Generating Station—Case No. 73-A-V-139

Dayton Power and Light Company

Frank M. Tait Station—Case No, 73-A-V-152

Ohio Edison Company

Gorge Plant—Case No. 73-A-P-126

R. E. Burger Plant—Case No. 73-A-V-128

Toronto Plant—Case No. 73-A-V-129

W. H. Sammis Plant—Case No. 73-A-V-130 -

Niles Station—Case No. 73-A-V-134

Edgewater Station—Case No. 73-A-V-135

Norwalk Station—Case No. 73-A-V-136

North Avenue Steam Station—Case Ne. 73-A-V-

140

Rockaway Steam Plant—Case No. 73-A-V-141

Mad River Station—Case No. 73-A-V-142

Beech Street Steam Plant—Case No. 73-A-V-143

29a

Ohio Power Company

Tidd Plant—Case No. 73-A-V-131

Woodcock Plant—Case No. 73-A-V-153

Philo Plant—Case No. 73-A-V-155

Muskingum River Plant—Case No. 73-A-V-154

Ohio Valley Electric Corporation

Kyger Creek Plant—Case No. 73-A-V-150

Toledo Edison Company

Bay Shore Plant—Case No. 73-A-V-122

Acme Station—Case No. 73-A-V-151

City of Cleveland Division of Light and Power—Case

No, 73-A-P-123, Case No, 73-A-V-127

Dover Municipal Power Plant—Case No. 73-A-P-145

East Palestine Light and Power Company—Case No.

73-A-V-159

Painesville Municipal Electric Company—Case No. 73-

A-V-157

Additionally it should be noted that Buckeye Power has

a partial ownership interest in the Cardinal Generating

facility.

Applications for variances or operating permits were

submitted by all of the applicants to the Ohio Air Pollution

Control Board, the predecessor of the Ohio Environmental

Protection Agency. In May, 1973, the Director issued pro-

posed variances or operating permits to the applicants.

Challenges to these actions in the form of requests for

adjudication hearings pursuant to Chapter 119 and the

Agency’s enabling legislation were subsequently filed.

Prior to commencement of the consolidated hearings

in this matter, a Motion for Leave to Intervene was filed

30a

by the Public Utilities Commission of Ohio on February

22,1974. On February 28, 1974 the panel of three Hearing

Examiners, chaired by the Chief Hearing Examiner, who

had been assigned to hear these consolidated cases rendered

their decision denying the Motion for Leave to Intervene.

The gist of this Decision was that Procedural Rule EP-

40-21(F) provided that persons other than parties or wit-

nesses presented by parties might present oral or written

arguments for the record and file proposed findings and

orders, conclusions of law or briefs for consideration by

the Hearing Examiners. The Motion filed by the Public

Utilities Commission of Ohio and the accompanying state-

ment indicated that the Commission was not seeking Leave

to Intervene either to present material evidence or to

cross-examine witnesses, but rather to observe the proceed-

ings and examine the evidence so that it might determine

which position to take. The Examiners concluded that

procedures existed under the previously cited Procedural

Rule enabling the Public Utilities Commission of Ohio

tu participate in this manner and the intervention was

an inappropriate remedy. An interlocutory appeal of this

Decision to the Director of the Ohio Environmental Pro-

tection Agency was refused in a letter from the Director

to counsel for the Public Utilities Commission of Ohio.

There were four (4) citizens who filed objections pur-

suant to the provisions of Revised Code Section 3745.07.

One of the original four objectors, Mrs. Joseph Fetchik,

submitted to .ne Chief Hearing Examiner, on February

12, 1974, a letter withdrawing her objection for the stated

reason that due to a recent illness she was unable to

attend any hearings in this matter. Additionally, a second

objector, Mrs, Elizabeth Gemberling, Executive Director of

the American Lung Association of Summit County, sub-

mitted a written statement which was treated by the Hear-

ing Panel as the expression of an opinion pursuant to

3la

Procedural Regulation EP-40-21(F) rather than documen-

tary evidence. This conclusion was reached because Mrs.

Gemberling was not in attendance at the hearing and

there would have been no opportunity to cross-examine

her as to any factual assertions made in this written sub-

mission. The other two objectors did actively participate.

Mrs. Patricia Smith representing the Air Conservation

Committee of the Northern Ohio Lung Association par-

ticipated in regard to presentations involving Cleveland

Electric Illuminating Company and the City of Cleveland.

Mr. Charles Miller, an attorney representing himself as

an objector, participated in the presentation involving the

City of Cleveland.

Hearings in these consolidated proceedings commenced

on March 4, 1974. The evidentiary portion of the hearing

was concluded on May 23, 1974. Oral argument by counsel

involved in these proceedings was held on July 25, 1974.

The transcript comprises some 6,830 pages. Additionally,

an extensive number of exhibits, many of them lengthy

technical reports, were introduced. Extensive briefs and

reply briefs exhaustively treated the legal and factual

issues involved in these cases.

B. Issues Raised at the Hearing

The contentions of the utility applicants as a group

and the Ohio Environmental Protection Agency revolve

around certain general areas of concern. The utility ap-

plicants contended that Ohio’s ambient air quality star-

dards and emission regulations are improperly drafted and

did not take into account considerations such as health

effects associated with various ambient levels of pollutants,

dispersion of pollutants, wind speed, topography and other

considerations which they argued are mandated by federal

law and regulations as well as relevant portions of the

32a

Ohio EPA enabling legislation. The Agency contended

that the present Ohio ambient air quality standards are

necessary to protect the health of Ohio’s citizens and it

also contende’! that the presently formulated emission stan-

dards are necessary in order to achieve the required am-

bient levels. The joint utility applicants also contended

that measured ambient sulfur dioxide levels indicate no

need for emission control in many parts of the state. Ohio

EPA contended that installation of flue gas desulfurization

equipment (FGD) or reduction in sulfur content of fuel

is necessary for twenty plants.

The joint utility applicants further contended that

emission control devices for the removal of sulfur oxide,

generically designated as flue gas desulfurization systems,

have not been adequately demonstrated to a sufficient

degree to require the investment of considerable sums

of money estimated to be in excess of $2 billion to control

sulfur oxide emissions by Ohio’s electric utilities. Ohio

EPA contended that such emission control systems have

been adequately demonstrated and that they are the only

ways to assure achievement of requisite ambient levels.

The joint utility applicants argued that insufficient quanti-

ties of limestone are available to permit widespread

operation of FGD systems which require it in Ohio. Ohio

EPA asserted that adequate supplies are available or can

be developed.

The joint utility applicants were also critical of a

requirement that they install flue gas desulfurization

equipment because the lime-limestone systems produce a

sludge which must be thickened or hardened and then

disposed of in some land area specifically set aside for

this purpose. The utility applicants argued that the addi-

tional costs required by sludge disposal make the utilization

of flue gas desulfurization unreasonable in light of the

83a

benefits to be derived particularly since they also con-

tended that an alternative system for achieving ambient

air quality exists. Ohio EPA argued that methods for

sludge disposal exist and have been demonstrated. It con-

tended that the utility applicants are able to find methods

to reasonably dispose of this sludge and that the trading

of a solid waste disposal problem for an air pollution

problem is environmentally acceptable.

The joint utility applicants contended that utilization

of tall stacks, perhaps in combination with so-called inter-

mittent contro! systems which respond to periodically high

degrees of emissions and unfavorable meteorological condi-

tions, will achieve the required ambient levels and are

a reasonable means of achieving compliance with State

and Federal air pollution control statutes and regulations.

Ohio EPA contended that the utilization of tall stacks

permits sulfur dioxide to remain in the ambient air for

substantially longer periods and enhances its conversion

to so-called secondary pollutants such as acid sulfate aero-

sols which Ohio EPA contended are as harmful if not

more harmful than sulfur dioxide itself. Ohio EPA also

contended that the utilization of tall stacks is not legally

permissible in this situation because flue gas desulfuriza-

tion is an adequately demonstrated emission control tech-

nique and the Clean Air Act Amendments of 1970 required

an attempt to utilize emission controls in order to achieve

ambient levels before other methods are approved. The

joint utility applicants disagreed and contended that the

primary purpose of federal and state legislation is to

achieve ambient levels of air quality. They contended

that any method which permits an applicant to do so

is permissible.

All parties agreed that low sulfur coal and fuel oil

are in short supply. Utilization of fuel switching is not

34a

a viable control strategy for most electric utilities at this

time. Ohio EPA contended, however, that washing or

blending of coal can significantly reduce the sulfur content

of fuels now in use to 3%. Utility applicants expressed

doubts.

Finally, all parties agreed that there is not present

need in Ohio for nitrogen oxide emissions standards or

ambient standards and they both recommended the revoca-

tion of existing regulations.

C. Hearing Panel’s Report

On September 6, 1974 the Hearing Panel filed an ex-

tensive 417 page report and recommendations which ex-

plained in great detail the evidence presented at the hear-

ing and the reasoning behind their recommendations to

the Director.

The recommendations of the Hearing Panel were the

following:

1. The Hearing Panel recommends that the Director

adopt the present Federal primary annual average

and twenty-four hour maximum ambient air qual-

ity standards for sulfur dioxide and particulate

matter and repeal Ohio’s existing ambient stan-

dards for those pollutants.

2. The Hearing Panel recommends that the Director

adopt a county by county classification and realistic

emission limitations upon emissions of sulfur di-

oxide and particulate matter based upon accurate

ambient data for each county and the most sophisti-

cated diffusion modeling techniques presently

available. Existing priority classifications and

emission regulations for these pollutants should be

repealed.

3)a

. The Hearing Panel recommends that Regula-

tion AP-7-06 be repealed.

. The Hearing Panel recommends that the Director

repeal Regulation EP-10-06 [AP-2-06] and adopt

a new regulatiort clearly expressing the means for

attaining the objectives which the present regula-

tion seeks to attain.

. Recommendations 1-4 should be implemented

‘through utilization of ORC Chapter 119 rule-mak-

_ ing procedures.

. The Hearing Panel recommends that no compliance

orders be issued as a result of this proceeding until

Recommendations 1-4 have been implemented.

. In the event that the Director should determine

that installation of FGD systems appears necessary

at any plant involved herein, the Hearing Panel

recommends that the Director obtain information

regarding the Bruce Mansfield and NIPSCO scrub-

ber systems in 1976 before issuing the draft order

attached hereto. (See the Hearing Examiners’ re-

port for the orders.)

. In the event that the Director determines that par-

ticulate control measures must be implemented

now, the Hearing Panel recommends issuance of

the draft order attached hereto. (See the Hearing

Examiners’ report for the orders.)

36a

PART II

ADEQUATE DEMONSTRATION OF TECHNOLOGY

The major focus of attention in the hearing was on

the availability of flue gas desulfurization equipment for

use on electric utility facilities. The Hearing Examiners’

Report concluded that “Flue gas desulfurization has not

been demonstrated to be a method of sulfur dioxide con-

trol presently available for implementation by the Ohio

Electric Utilities.” This conclusion is combined with con-

clusions as to the appropriateness of the Agency’s regula-

tions for sulfur oxides, nitrogen oxide and particulate mat-

ter to form the recommendation that no compliance or-

ders be issued until regulations have been revised and

until information has been obtained regarding the demon-

stration of new scrubber systems. The Director rejects

the Report’s conclusion (No. 15) as to the technological

feasibility of flue gas desulfurization.

A. Definition of Sufficient Demonstration

The Hearing Examiners’ Report proceeds from an

overly restrictive definition of what constitutes a sufficient

or adequate demonstration of technology to an unaccept-

able conclusion. The definition accepted by the report

is that presented by the American Academy of Engineer-

ing Ad Hock Panel: the more or less continuous operation

for one year of a 100 megawatt or greater unit. The

Hearing Examiners may also have been relying upon the

additional condition specified by one witness for the joint

applicants: that such a unit, after operating continuously

for one year, should show no significant corrosion or ero-

sion problems. This definition of a sufficient demonstra-

tion of control technology was the only one presented

or considered in the Hearing Examiners’ Report. In the

37a

Director’s opinion, such a definition is far too restrictive

to be appropriate for an enforcement program in a rela-

tively new field such as environmental control. To a

large extent, the use of this sort of definition would obli-

gate an enforcement agency to rely upon the willingness

of the regulated entities to install and test such systems

for at least one year at their own discretion before pro-

ceeding to further enforcement action. The electric util-

ities in Ohio cannot reasonably be expected to take such

action -of their own free will, if the end result of this

action will be still greater and more expensive require-

ments placed upon them.

A more adequate set of criteria for the sufficient dem-

onstration of technology was propounded by the Court

of Appeals for the District of Columbia Circuit in Essex

Chemical v. Ruckelshaus, 5 ERC 1820. (1973). The court

said in this opinion that

“An adequately demonstrated system is one which has

been shown to be reasonably reliable, reasonably effi-

cient, and which can reasonably be expected to serve

the interest of pollution control without becoming ex-

orbitantly costly in an economic or environmental

way.”

Moreover, the Circuit Court decision states that pollu-

tion control equipment does not need to be routinely

achieving the air quality standard within the affected in-

dustry prior to promulgation of rules. This definition

does not require the pollution abatement equipment to

be free of uncertainty before its adoption as a control

method. Instead, the technology must show the promise

of increasing reliability and increasingly efficient control

of pollutants. In the contest of the Clean Air Act of

1970, which mandates achievement of air quality standards

38a

within a very short period of time, enforcement agencies

must be allowed to rely upon some control methods that

have not been proven to be absolutely certain and abso-

lutely free of defects in order to achieve this goal.

B. Sufficient Demonstration

The evidence presented in the Hearing Examiners’

Report and in the record of the hearing indicates that

over the past few years flue gas desulfurization equip-

ment has shown marked increases in reliability and in

efficiency of control in demonstrations both in the United

States and overseas. The Director feels that the improve-

ments which have been experienced provide sufficient evi-

dence that flue gas desulfurization technology can meet

the criteria provided in the District of Columbia Circuit

Court opinion.

Scrubber systems installed in the United States and

overseas have admittedly experienced many operational

problems. But even the systems which are widely ac-

knowledged to have been unsuccessful showed improve-

ments in reliability over time. The record of the Meramac

and the Kansas Power and Light—Lawrence Station scrub-

bers shows the elimination of some of the plugging and

corrosion problems which were experienced in thé early

months of operation of those systems. The Lawrence Sta-

tion scrubbers are said to have achieved “fairly good”

reliability by early 1971 (Report - page 119). Modification

of similar systems at the Hawthorne station of Kansas

City Power and Light to “tail end” systems achieved still

further improvements in performance. The “tail end”

scrubbing system installed at the Will County Station of

Commonwealth Edison in early 1972 experienced the elim-

ination of scaling problems and an availability rate which

at times approached 80%. In this instance and in some

39a

of those which follow it in the Report, a careful reading

will show that the scrubbers were available for use at

least as much as the boilers were. This was often true,

for instance, in the operation of the magnesium oxide

system installed at the Mystic Station of Boston Edison.

This system experienced very erratic performance, but

its overall reliability was rated as “good” by a utility

witness. The erratic performance of the scrubter system

was attributed in many cases to the performance of the

boiler system rather than to defects in the scrubber sys-

tem itself.

Perhaps the highest level of reliability yet achieved

in a scrubber system is that experienced by the Paddy’s

Run station of Louisville Gas and Electric. This system,

which has been in operation since April of 1973, has expe-

rienced “no particularly significant problem areas” (page

132) in its operation. The downtime experienced by this

system has been due to boiler tube failures or to non-

operation of the boiler to which this system is attached.

It may be questioned whether the utility boiler system,

which has been installed and in use for many years, would

actually meet the tests of the criteria supplied by the

American Academy of Engineers.

The efficiency of removal of flue gas desulfurization

systems has shown similar increases over time. The Mer-

amec and Kansas Power and Light systems, for instance,

achieved a removal efficiency of between 60 and 70%.

Later systems have achieved much higher removal efficien-

cies, notably the Wood River installation’s catalytic oxi-

dizer system, with an 85% removal rate, and the various

carbide sludge scrubber systems, which apoear to achieve

removal rates of between 80 and 93%.

With numerous exemples of utility-sized scrubber sys-

tems operating in the United States and elsewhere, and

40a

considering that problems of removal efficiency and relia-

bility are being worked on and solved as experience with

the systems increases, there is no doubt that scrubber

systems such as those presently in use will be used to

abate sulfur oxide emissions from these types of sources.

Those doubts which do remain are much less significant:

how to deal with specific problems in specific installations,

location of supplies of chemical materials, and the like.

Existence of problems of this magnitude does not prove

that flue gas desulfurization systems are not adequately

demonstrated within the terms of the Essex definition.

Only a very real question as to whether scrubber systems

could be at all appropriate for use in sulfur oxide abate-

ment at any place could justify waiting for a full demon-

stration before ordering such equipment. In fact, there

seems no reason to suppose that most of the smaller prob-

lems remaining could not be worked out before such sys-

tems were in use on the boilers belonging to the Ohio

utilities, even if such systems were ordered immediately.

In the Director’s opinion, therefore, there would be still

less reason for waiting for further demonstrations before

proceeding with enforcement action. The availability of

scrubber systems for use on some Ohio utility boilers is

therefore not in itself an obstacle to proceeding with en-

forcement action. Recommendation 7 of the Hearing Panel

is therefore rejected.

PART III

APPLICATION OF THE STATE REGULATIONS

A. Legal Constraints on Decision Making by the Director

The Director is bound by law and his own regulations

to base his final decision in any adjudication hearing solely

on the evidence presented in the record. When deciding

the outcome of an adjudication hearing, the Director can

4la

not act in a legislative (rule-making) capacity. He must

act as judge. Thus, he must be both fair and impartial

to all parties. As a judge he must carefully weigh the

total body of the evidence. If one party in the case presents

a more persuasive argument than another party, and if

the one party meets its allocated burden of proof, then

that party should prevail. The Director must also give

weight to the Hearing Examiners’ opinion concerning the

outcome of the case, for it is they who have heard all

of the evidence and are responsible for the actual conduct

of the hearing. Thus the Director must base his final

decision on the weight of the evidence. In this regard

it should be noted that the Director’s final order concluding

this consolidated case or any other adjudication case should

not be viewed as an absolute indicator of the Director’s

future policy or rule making position concerning the sub-

ject matter of the adjudication.

B. Allowable Scope of Attack by a Party on Regulations

During an Adjudication Hearing

In determining the scope of questions which could

be raised at the consolidated hearing the Hearing Exam-

iners misinterpreted (1) the principles set down in Battles

v. The Ohio Racing Commission, 52 Ohio App. 2d 530

230 N.E. 2d 622 (1967) and (2) the intent of the Siivittes

regarding the scope of the hearing.

The Hearing Examiners on Pages 21 and 22 of their

report seemed to imply that the electric utility companies

had the right to challenge Ohio’s ambient air quality stan-

dards in an adjudication hearing. They indicated that

since the utilities had appealed Chapter EP-11 to the En-

vironmental Board of Review after adoption by the Direc-

tor and are currently making a Federal Clean Air Act

Section 307 challenge of the Ohio Implementation Plan

42a

that the utilities can, in the context of adjudication, make

a general challenge of the regulations. This is a mistaken

conclusion of law by the Examiners. The scope of an

adjudication hearing does not include a challenge of the

general reasonableness of the regulation but includes only

a challenge of the reasonableness of the particular appli-

cation of the regulation to the parties involved in the

adjudication. This is the conclusion of the Battles case

(supra), which carefully distinguished between review of

regulations in general, which is properly raised through

appeal of the rules or declaratory judgment (see the recent

decision of Cincinnati Gas & Electric Co. v. Whitman,

Case No. 74-AP-151, Tenth District Court of Appeals

(Franklin Cty., 1974)), and review of regulations as ap-

plied. The Hearing Examiners did not abide by the com-

plete holding of the case.

The Hearing Examiners also misconstrued the

Agency’s intent concerning the intended scope of the adju-

dication hearing. The Examiners’ report errs in inferring

from internal Agency memoranda that “the Director views

this proceeding as a vehicle for testing the reasonableness

of those [ambient sulfur oxides] standards. Therefore,

it devolves upon this Hearing Panel to make such an

objective determination.” Such was not the Director’s

intent, as a careful reading of those memoranda will clearly

show. The document which is apparently referred to is

an internal memorandum from Alan Farkas and Stuart

Donaldson dated December 19, 1973 (Joint Applicants’ &x-

hibit #48). On the second page of that document, the

following statement is made: “However, it was the gen-

eral consensus of the meeting that the adjudication hearing

itself could legitimately be seen as a policy-making process,

albeit of a different sort from what we had been used

to. One advantage of relying on the adjudication hearing

OE a ES tt

43a

to provide the substance of policy is that it will allow

us to collect information on a level of detail that was

not previously available, and thus to fine tune the final

orders more effectively than regulations could be.” The

context in which this sentence appears is a discussion

of the merits of adopting new emissions limitations for

sulfur oxides—ambient air quality standards are not men-

tioned in this section of the memorandum. Nor is there

any discussion of particulates. Clearly, the problem which

this memorandum addressed, and which the Director in-

tended to resolve through the process of the adjudication

hearing, was not the general appropriateness of ambient

air quality standards and regulations but the question of

how an emission limitation calculated for a large region

could not be more finely tuned to account for specific

peculiarities affecting the emissions from an individual

large source such as an electric utility. Nowhere in that

memorandum was it stated that the adjudication hearing

was regarded as an appropriate forum in which to make

a judgment on the appropriateness of air quality stan-

dards. This becomes clear upon reading the third page

of the same memorandum on which ambient air quality

standards are discussed. The Director decided to retain

the present state air quality standards for sulfur oxides.

This decision, unlike the decision as to regulations on emis-

sions limitations, was not to be (and legally could not

be) made subject to the decision of an adjudication héar-

ing. Moreover, in no part of the memoranda referred

to is there any discussion of the appropriateness of the

state’s particulates standards or of the possible use of

an adjudication hearing to make policy decisions gn those

standards. The intent of the Director was then, as it

is now, to use the adjudication hearing as a means for

arriving at a reasonable and lawful enforcement decision

44a

in the particular cases of the parties to the adjudication—

which amounts to policy in its specific application rather

than to general policy applied to entities throughout the

state. Recommendation 6 of the Hearing Panel is therefore

rejected.

C. General Validity of Chapter AP-3, Regulation AP-

7-06 and Regulation EP-10

The Hearing Panel’s recommendations concerned both

the general validity of Chapter AP-3, Regulation AP-7-

06 and Regulation EP-10, and the specific application of

those regulations to the electric utilities who are parties

to this consolidated case. The Director is not at liberty

to address the general validity of his own regulations in

the context of this final findings and order. Regulations

may be amended or rescinded only through the procedures

established in Section 119.03 of the Ohio Revised Code.

Thus, the Director must take the Hearing Panel’s recom-

mendations relative to the general validity of the Agency’s

regulations as advisory only. As the Hearing Panel recog-

nized in Recommendation 5, the Director can not act on

Recommendations 1 through 4 through an order in this

case.

D. Nitrogen Oxide Control

Since Regulation AP-7-06 (EP-14-06) applies only to

sources in Priority I areas, and since the Federal Adminis-

trator has reclassified all the Ohio air quality regions for

nitrogen oxide to Priority III, (39 Fed. Reg. 16344, May

8, 1974) Regulation AP-7-06 imposes no control require-

ments on the sources subject to this adjudication. No

further action is necessary by the parties.

a en ee tes, ER

45a

E. Sulfur Oxide Control

In most cases, the evidence presented by the Joint

Applicants and the discussion of it by the Heacing Exam-

iners is quite complete as to the application of sulfur

oxides emissions limitations to particular facilities. Be-

cause there is an absence of ambient air quality data

in the record showing widespread and serious violations

of the ambient air quality standards for sulfur oxides,

the requirement that applicants must show unreasonable-

ness in the specific application of regulation has been

met. Until new ambient air quality data is collected and

analyzed showing violations of the regulations by these

sources, it is inappropriate to require use of sulfur oxide

control by these sources. Thus, for the above reasons,

the Director will not require the Electric Utility Companies

to implement sulfur oxide control.

F. Enforcement of Particulate Standards in Chapter AP-3

In most cases, the specific reasonableness of the appli-

cation of the particulate regulation was not adequately

addressed by the joint utilities. There is a marked paucity

of evidence in support of the claim that some of these

facilities are not contributing to violations of ambient par-

ticulates standards. The joint utilities thus have not met

the burden of proof with respect to proving the umreason-

ableness of applying the particulate regulations to them.

Moreover, in most cases, the Hearing Examiners’ Report

concludes that the installation or upgrading of a particulate

control system in individual facilities would not be econom-

ically unreasonable or technically infeasible. Thus for

these reasons and the reasons set forth in Section IV

below the Director will issue orders requiring particulate

control. Recommendation 8 of the Hearing Panel is ac-

cepted in general terms, the specific orders appearing at

the end of this report.

46a

PART IV

PARTICULATE CONTROL UNDER THE CLEAN AIR

ACT IMPLEMENTATION PLAN

A. The Director is Compelled under the Federal Clean

Air Act Amendments of 1970, 42 USC Section 1857

et seq., to Enforce the Approved Portions of the Ohio

Implementation Plan.

1. History

On April 15, 1974, the United States Environmental

Protection Agency (U.S. EPA) approved the part of Ohio’s

Implementation Plan relative to the control of suspended

particulates 39 Fed. Reg. 13539 (1974). The Particulate

Control standards set forth in the Implementation Plan

are identical to the particulate control standards which

the Ohio Air Pollution Control Board promulgated in

Chapter AP-3 of its regulations, and which were subse-

quently made regulations of the Ohio EPA by Amended

Senate Bill 397. :

The Clean Air Act Amendments of 1970 (hereinafter

the “Act”) established a complex system whereby the juris-

diction to control air pollution was divided between the

state and federal governments. Certain aspects of the

air pollution control effort were vested in the states subject

to U.S. EPA supervision. Thus the role of the U.S. EPA

in relation to the states is cooperation, supplementation

and supervision. The legislative intent of this scheme

‘ was to ensure the achievement of naticn2! ambient air

’ quality standards while, at the same time, provide a means

to respond to local air pollution goals and problems.

Section 109 of the Act, 42 U.S.C. Section 1957c-4(a)

mandated uhe Administrator to establish national primary

ambient air quality standards to protect the public health

47a

and national secondary standards to protect the public

welfare. These standards set forth the maximum concen-

trations of air pollutants permitted in the ambient air.

Because each state has unique air pollution problems, the

Act gave the states primary responsibility to determine

the means by which the National Ambient Air Quality

Standards would be implemented. Section 110 of the Act,

42 U.S.C. Section 1957c-5, mandated that each state, after

reasonable notice and public hearing, adopt and submit

to the Administrator a plan which would provide for imple-

mentation, maintenance and enforcement of the National

Air Quality Standards. After the plan is submitted by

the state, the Administrator may approve or disapprove

it in whole or in part. After a plan is approved it becomes

enforceable by both the state and the federal governments:

All approved regulatory provisions of each plan are

incorporated by reference in this part. Regulatory

provisions of a plan approved or promulgated by the

Administrator are enforceable by the Administrator

and the State, and by local agencies in accordance

with their assigned responsibilities under the plan.

40 CFR Section 52.02(d).

2. The Director, Acting in His Judicial Capacity, Has

Under the Supremacy Clause of the United States

Constitution a Duty to Apply Federal Law.

The United States Supreme Court in Testa v. Katt,

330 U.S. 386 (1947), made it clear that article VI section

2 of the United States Constitution (“supremacy clause’)

prevents a state court from refusing to enforce federal

law if the state court has “adequate and appropriate”

jurisdiction under local law to adjudicate the matter being

enforced. The precise question of whether a state govern-

ment is required to enforce the terms of a federally adopted

48a

state implementation plan was litigated in a recent case

in the U.S. Court of Appeals for the third circuit Common-

wealth of Pennsylvania v. U.S. EPA, 6 ERC 1776 (3rd

Cir. 1974). In that case the U.S. EPA, pursuant to Section

110(c)(2) of the Act, 42 U.S.C. Section 1857c-5(c) (2),

promulgated a transportation control plan for the state

of Pennsylvania. Pennsylvania then sought review under

Section 307(b) of the Act alleging, in part, that the U.S.

EPA could not constitutionally compel the State to enforce

the federally adopted plan.

Before addressing itself to the constitutional issues,

the court thoroughly examined the legislative history be-

hind the Clean Air Act Amendments of 1970 to determine

whether Congress intended to require the states to enforce

implementation plans and to subject the states to federal

sanctions if the conditions of the plan are not met. The

court concluded that:

. .. In sum, Congress clearly contemplated that states

could be required to implement a transportation con-

trol plan, and thus the Administrator’s action in prom-

ulgating regulations containing such a requirement for

the Commonwealth and applying federal enforcement

procedures to it was within his statutory authority.

supra at 1777, 1778 :

After examining the policy and the case law under

the federal commerce power the court upheld the constitu-

tionality of the Administrator’s action. On page 1780 of

the opinion the court said:

After careful consideration, we do not find that the

implementation plan here under attack conflicts with

the proper functioning of the system of federalism

embodied in our Constitution. It is true, of course,

that such enforcement may be financially burdensome,

49a

but that fact is irrelevant, for “when Congress does

act [under the commerce power], it may place new

or even enormous fiscal burdens on the States.” Em-

ployees of the Department of Public Health and Wel-

fare v. Department of Public Health and Welfare,

supra at 824 [411 U.S. 279 (1973)]. It is also true

that compliance with the plan will require the Com-

monwealth to exercise its legislative and administrative

powers, for that is the means by which a state regu-

lates its transportation system. However, it must not

be forgotten that when dealing with the commerce

power, “we are guided by practical considerations.”

Overstreet v. North Shore Corp., 318 U.S. 125, 128

(1943) ... (supra at 1780)

The court’s conclusion was that

... the application of the federal enforcement proce-

dures to the Commonwealth for noncompliance with

the regulations contained in the Pennsylvania Trans-

portation Control Plan is a valid exercise of the fed-

eral commerce power... (supra at 1780)

3. The Director is Bound Under Ohio Law to Comply

with the Provisions of the Federal Clean Air Act

Amendments of 1970.

In 1971, the Ohio General Assembly extensively re-

vised Chapter 3704 of the Ohio Revised Code for the ex-

press purpose of putting Ohio into compliance with the

Clean Air Act, as amended in 1970. Substitute Senate

Bill No. 370 was entitled “An Act to amend sections .. . of

the Revised Code relative to the prevention, control, and

abatement of air pollution, and to declare an emergency.”

Subsection 4 of SB No. 370 provides:

50a

This act is hereby declared to be an emergency mea-

sure necessary for the immediate preservation of the

public peace, health, and safety. The reason for such

necessity lies in the fact that immediate action is neces-

sary in order to comply with the 1970 amendments

to the Federal Clean Air Act. Therefore this act shall

go into immediate effect. (emphasis added)

The General Assembly’s intent is further demonstrated

by Ohio Revised Code Section 3745.01(A). The Section

grants the Director power under relevant pollution control

laws and regulations to:

Provide such methods of administration, appoint such

personnel, make such reports, and take such other

action as may be necessary to comply with the re-

quirements of the federal laws and regulations per-

taining to air and water pollution control, public water

supply, water resource planning, and waste disposal

and treatment. (emphasis added)

Thus, the paramount purpose of the 1970 Ohio Legisla-

tion and one purpose of ORC Sec. 3745.01 is to comply

with the Federal Clean Air Act.

4. If the Director Does not Uphold the Terms of

the Approved Portion of the State Implementation

Plan He can be Subject to Federal Orders under

Section 113(a) (1) and (2) of the Act and to

Criminal Penalites under Section 113(c) of the

Act.

Any portion of an implementation plan that is ap-

proved by the Administrator is directly enforceable by

the Administrator under Section 113 of the Act against

any violator of the plan, including against the states, thirty

days after a violation is discovered:

5la

(1) Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of any requirement of an appli-

cable implementation plan, the Administrator shall

notify the person in violation of the plan and the

State in which the plan applies of such finding.

If such violation extends beyond the 30th day after

the date of the Administrator’s notification, the Ad-

ministrator may issue an order requiring such person

to comply with the requirements of such plan or he

may bring a civil action in accordance with subsec-

tion (b).

(2) Whenever, on the basis of information avail-

able to him, the Administrator finds that violations

of an applicable implementation plan are so wide-

spread that such violations appear to result from a

failure of the State in which the plan applies to en-

force the plan effectively he shall so notify the State.

If the Administrator finds such failure extends beyond

the 30th day after such notice, he shall give public

notice of such finding. During the period beginning

with such public notice and ending when such State

satisfies the Administrator that it will enforce such

plan (hereafter referred to in this section as ‘period

of Federally assumed enforcement’), the Administrator

may enforce any requirement of such plan with respect

to any person... 42 U.S.C. Section 1857c-8 (a)

If the Director fails to obey an order issued by the

Administrator he may be subject to extensive criminal

sanctions. Section 113(c) of the Act says:

(A) violates any requirement of an applicable

implementation plan (1) during any period of Fed-

52a

erally assumed enforcement, (ii) more than 30 days

after having been notified by the Administrator un-

der subsection (a)(1) that such person is violating

such requirement, or

(B) violates or fails or refuses to comply with

any order issued by the Administrator under subsec-

tion (a), or

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 both. If the conviction is for a

violation committed after the first conviction of such

person under this paragraph, punishment shall be a

fine of not more than $50,000 per day of violation,

or by imprisonment for not more than two years,

or by both... 42 U.S.C.A. Sec. 1857c-8 (c)

5. Section 307(b) of the Act Bars Parties from Con-

testing the Administrator’s Action Approving the

Implementation Plan in an Enforcement Proceed-

ing.

Under Section 307 of the Act, 42 U.S.C. Section 1857h-

5(b), those persons who object to the Administrator's ac-

tion adopting an implementation plan must do so in a

United States Court of Appeals within 30 days of approval

or forever be barred from objecting to the Adminis-

. trator’s action:

(1) ...A petition for review of the Adminis-

trator’s action in approving or promulgating any im-

plementation plan under section 110 or section 111(d)

may be filed only in the United States Court of Ap-

peals for the appropriate circuit. Any such petition

shall be filed within 30 days from the date of such

53a

promulgation or approval, or after such date if such

petition is based solely on grounds arising after such

30th day.

(a) ‘ Action of the Administrator with respect to

which review could have been obtained under para-

graph (1) shall not be subject to judicial review in

civil or criminal proceedings for enforcement. 42

U.S.C. Section 1857h-5(b)

Thus, Section 307 of the Act prevents parties from

asserting the same kind of arguments against federal regu-

lations during state adjudication hearings as were asserted

against state regulations in these consolidated cases. Such

attacks against federal regulations must be made in a

United States Court of Appeals through the procedures

established in Section 307.

C. The Sources Subject to this Adjudication Shall be

Required to Comply with the Particulate Emission

Requirements of Chaptér AP-3.

For the reasons outlined above, the Director is legally

obligated to issue orders requiring the sources subject to

this adjudication to comply with the particulate regulations

set out in Chapter AP-3 of the Regulations of the Ohio

Environmental Protection Agency, which are a part of

the approved State Implementation Plan for Ohio. The

Director recognizes that the record in this case demon-

strates that compliance by July 1, 1975, is physically im-

possible in light of the time required for design, construc-

tion, and installation of the necessary control equipment.

The Clean Air Act Amendments of 1970, as implemented

by the Administrator of the U.S. EPA provide for two

alternative ways of dealing with this problem:

(1) Section 110(f) of the Clean Air Act provides

for extensions of up to one year beyond the final

54a

SIP compliance date for any source or class of sources

upon request by the Governor of Ohio in appropriate

circumstances. The Federal regulations governing the

application of this Section require a Federal hearing

on the appropriateness of this extension, and the ex-

tension itself is limited to not more than one year.

Such extensions may be renewed, however.

(2) Section 113(a) allows the Administrator to

issue orders requiring compliance with the require-

ments of State Implementation Plans, and such orders

must “specify a time for compliance which the Ad-

ministrator determines is reasonable, taking into ac-

count the seriousness of the violation and any good

faith efforts to comply with applicable requirements.”

Section 113(a) (4). The Administrator has developed

a practice of issuing consent orders under this section

in circumstances where additional time is necessary

to comply with the requirements of a State Implemen-

tation Plan.

Whether a State official may exercise similar latitude

in issuing enforcement orders after a hearing on the rec-

ord has been questioned in light of the language of the

regulations promulgated by the Administrator in 39 Fed.

Reg. 34533 (September 26, 1974), which provides in part

as follows:

Enabling authority relating to the issuance of enforce-

ment orders, variances, or other state-initiated mea-

sures designed to defer compliance with a plan require-

ment which is necessary for attainment of a national

standard shall specifically provide for consistency with

the following requirements.

(1) Except as provided in paragraph (g) (2) [refer-

ring to Section 110(f) procedures] of this section

compliance may not be deferred beyond the ap-

55a

plicable attainment date specified in Part 52 of

this chapter. [i.e., the attainment dates estab-

lished in the State Implementation Plan.]

Since the orders being issued in this case grow out

of a record adjudicative proceeding requested by the permit

applicants to challenge schedules initiated by the Director

it is the Director’s conclusion that the orders below pe

not “state-initiated,” and therefore fall outside the scope

of the September 26, 1974, Federal Register requirements

In any case, the Director has consulted with U.S. EPA

on the availability and appropriateness of Consent Orders

in these circumstances, and he will formally request the

issuance by U.S. EPA of Consent Orders under Section

113(a) embodying the requirements of the attached orders.

ORDER

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

Code the Director makes the following orders:

(1) For the reasons stated in the Hearing Examiners’ Re-

port, the ruling of the Hearing Panel on the status

of the Public Utilities Commission of Ohio as a party

to this proceeding is hereby affirmed.

(2) All sources currently in compliance with the require-

ments governing particulates of Chapter AP-3 of the

Regulations of the Ohio Environmental Protection

Agency, which are a part of the approved Ohio Imple-

mentation Plan, are hereby issued the attached Permits

to Operate, subject to the conditions specified therein.

(3) All sources which pertain to the entities listed below

and which are not issued Permits to Operate under

(2) above are hereby ordered to tak i

e the foll

steps by the dates indicated: ee

56a

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

ule for compliance with the particulate regula-

tions of Chapter AP-3 that demonstrates compli-

ange as quickly as possible and before April 15,

1977.

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

the purchase and delivery as quickly as possible

of all necessary control equipment for those

sources needing control equipment under the pro-

grams and schedules submitted under the require-

ment of paragraph (2) above.

all particulate regulations of Chapter AP-3 of the

Regulations of the Ohio Environmental Protection

Agency.

Buckeye Power—

Cardinal

Cincinnati Gas & Electric—

Miami Fort

W. C, Beckjord

Cleveland Electric uminating—

Lake Shore

Ashtabula

Avon Lake

Eastlake

Columbus and Southern Ohio—

Conesville

Poston

Picway (Unit #9)

Dayton Power and Light—

Tait

57a

Ohio Edison—

Gorge

Burger

Toronto

Sammis

Niles

Edgewater

Ohio Power—

Muskingum

Cardinal

Ohio Valley Electric—

Kyger Creek

Toledo Edison—

Bay Shore

Acme

City of Cleveland

City of Painesville

(4) The sources listed below may submit phase out pro-

grams as an alternative to compliance with Order (3)

above. If phase out is not chosen, the terms of Order

(3) apply. All phase out schedules must be submitted

by April 15, 1975. Schedules will provide for neces-

Sary approvals from the Public Utilities Commission

of Ohio by April 15, 1976. Phase out must be accom-

plished by April 15, 1977.

Columbus and Southern Ohio Electric—

Picway (Units 7 & 8)

East Palestine Light and Power

Ohio Edison—

Beech Street

Rockaway ‘

58a

North Avenue

Mad River

Norwalk

Ohio Power—

Woodcock

Philo

Tidd

Toledo Edison—

Acme

(5) The Dover Municipal Power Plant shall submit par-

ticulate control program or evidence of purchase of

standby power by April 15, 1975. If a particulate

control program is selected, this facility shall be

subject to the conditions of Order (3) above.

/s/ Ira L. WHITMAN December 12, 1974

Ira L. Whitman Date

Director

APPENDIX H

Pertinent Excerpts From the Findings of Fact, Conclusions of Law

and Recommendations of the Hearing Panel of the Ohio

Environmental Protection Agency Dated September 6, 1974. °

— — ay oe

59a

BEFORE THE

OHIO ENVIRONMENTAL PROTECTION AGENCY

September 6, 1974

Case No. 73-A-P-120, et al

In the Matter of Consolidated Electric Utility Cases

Attached hereto is a copy of the Hearing Examiners’

Report and Recommendations in the above matter. Pursu-

ant to Ohio Revised Code Section 119.09, any party to this

matter may file written objections within ten (10) days of

receipt of a copy of the Report. Written objections should

be filed with:

Hearing Clerk

Ohio Environmental Protection Agency

Room 506

361 East Broad Street

Columbus, Ohio 43215

If objections are filed, an original plus two (2) copies are

required.

60a

Examiners’ Report and Recommendations

Harvey Rosenzweico

Chief Hearing Examiner

Pataicra Brown

Hearing Examiner

Auan Lapp

Hearing Examiner

6la

Finprnos or Fact

GENERAL CasE

. Applicants filed applications for variances or operat-

ing permits which were acted upon by the Director in

May, 1973.

. Requests for adjudication hearings were filed to chal-

lenge these actions. Four citizen objectors were also

parties to certain cases.

. The consolidated hearing in this matter commenced on

March 4, 1974.

. Ohio EPA’s previous ambient air quality standards

for sulfur dioxide and particulate matter were equiva-

lent to the Federal secondary ambient air quality

standards for those pollutants as published in the

April 30, 1971 Federal Register.

. The Federal secondary annual average and maximum

24 hour ambient air quality standards for sulfur diox-

ide were revoked by USEPA on September 14, 1973

because insufficient support was found in available data

to require their retention in order to protect the pub-

lic welfare.

. On January 21, 1974 Ohio EPA adopted new ambient

air quality standards for sulfur dioxide which included

the annual average and maximum 24 hour secondary

standards previously revoked by USEPA.

. Epidemiological and toxicological studies demonstrate

that sulfur dioxide and particulate matter can produce

adverse health effects over a wide range of concentra-

tions.

. Sulfur dioxide effects upon vegetation are minor com-

pared to effects from other natural causes. Adverse

effects are produced by short-term fumigations for

periods less than 24 hours.

10.

11.

12.

13.

14,

15.

16.

62a

Experts agree that the present Federal primary ambi-

ent annual average and 24 hour standards for sulfur

dioxide and particulate matter are adequate to protect

public health.

Ohio’s present ambient annual average and 24 hour

standards for sulfur dioxide and particulate matter are

too stringent and their attainment is not necessary to

protect public health.

Utilization of a ‘‘worst region’’ approach for classifi-

cation of geographic areas of the state for purposes of

emission control is overly simplistic and produces un-

necessary overkill.

Utilization of a proportional reduction or ‘‘rollback’’

technique to develop emission limitations ignores sig-

nificant factors affecting the relationship between levels

of emissions and ambient concentrations thereby re-

sulting in unnecessary overkill.

Utilization of diffusion modeling buttressed by ambient

monitoring data to develop emission limitations per-

mits control of emissions where necessary to produce

the desired air quality.

Ambient monitoring data gathered by local air pollu-

tion control agencies during 1973 demonstrates no need

for control of sulfur dioxide emissions in many parts

of the State.

The availability of flue gas desulfurization as an SO:

control method which can be employed by the Ohio elec-

tric utilities must be shown by an adequate demonstra-

tion of an FGD system.

An adequate demonstration of an FGD system is the

reasonably continuous operation of such system for a

period of one year on a boiler of approximately 100

mw.

17.

18.

19.

20.

21.

22.

23.

24.

63a

The furnace injection, lime/limestone scrubbing, cata-

lytic oxidation,.magnesium oxide, Wellman-Lord FGD

systems have not been so demonstrated.

Full scale demonstrations of the Chemico lime scrub-

bing system at Bruce Mansfield and the Wellman-Lord

scrubbing system at NIPSCO are scheduled to com-

mence in early 1975.

Limestone of ‘‘near high calcium’’ quality, having a

chemical makeup of at least 90% calcium carbonate,

less than 1% magnesium oxide, and less than 1% in-

solubles in hydrochloric acid, is the most suitable grade

for use in limestone based flue gas desulfurization proc-

esses, with four million tons required per year for

power plants in Ohio.

Although there are significant deposits of limestone in

Ohio and neighboring states, factors such as chemical

inconsistency, accessibility, competition from other

users, necessary lead time for production, and zoning

and reclamation laws influence the quantity of the

necessary grade of stone available for flue gas scrub-

bing.

Limestone base price will be as much as $5.75 per ton,

with transportation rates being in the range of .25¢ per

ton/mile to 10¢ per ton/mile.

Limestone meeting the specifications for use in flue gas

scrubbing processes is not available in sufficient quanti-

ties.

The installation of an individual FGD system would

require a period of three and a half years for the com-

pletion of all engineering and construction, and the

commencement of commercial operation.

Potential FGD vendor capacity and anticipated FGD

demand preclude the installation of FGD systems by

the Ohio electric utilities prior to July, 1978.

25.

27.

28.

29.

30.

31.

32.

33.

64a

The operation of certain FG@D systems produces a

waste sludge which must be disposed of in an environ-

mentally acceptable manner.

The disposal of untreated FGD scrubber sludge cannot

be accomplished in an environmentally acceptable man-

ner.

Chemical fixation of industrial sludge has been demon-

strated to be an available, feasible technology, which

is translatable to FGD scrubber sludge applications.

Chemical fixation of FGD scrubber sludge renders such

sludge suitable for environmentally acceptable dis-

posal.

A capital investment of greater than $60.00 per kw for

FGD installation, including the purchase of limestone

and scrubber sludge disposal when necessary, is eco-

nomically unreasonable unless counterbalanced by sig-

nificant adverse effects from emissions.

Tall stacks, taking into account the effective stack

height, can be designed to permit dispersion and dilu-

tion of SO: emissions to meet required ambient air con-

centrations under most conditions.

Ground level ambient SO: concentrations are affected

more by emission sources having short stacks than by

sources emitting through chimneys having large effec-

tive stack height.

Tall stacks generally can be effectively designed to ac-

count for adverse topographical and meteorological

conditions.

Tall stacks, in themselves, are not adequate as a control

device for particulate emissions.

Tall stacks have not been shown to cause adverse ambi-

ent SO: concentrations at long distances from the

source.

DAS ONE AR he ae Rt el

35.

36.

37.

38.

39.

40.

42.

65a

Supplementary control systems, including load switch-

ing and/or use of low sulfur fuel, can be effectively

used in conjunction with tall stacks to control ambient

SO: concentrations during short-term adverse meteoro-

logical conditions.

Ambient air monitoring and meteorological prediction

can be effectively used to initiate use of a supplemen-

tary control system.

Low sulfur natural gas is not available for use by

power plant boilers because of scarcity of supply and

priority allocations.

Low sulfur fuel oil is not available for use in power

plant boilers because of scarcity of supply, lack of ade-

quate transportation facilities, and ‘‘higher priority’’

usage.

Low sulfur coals, either from the Appalachian area or

from the western fields, are not generally available for

power plant operations because of increased demands,

lack of mine capacity, boiler reliability in usage of such

fuel, lack of transport facilities, increased cost, con-

tractual difficulties, and economic consequences to Ohio

coal and related industries.

Coal preparation techniques can be utilized to remove

an approximate average of 30% of the sulfur content

of Ohio-produced coals.

. There is no conclusive evidence in the record regarding

the health effects of secondary pollutants like sulfates.

There is no conclusive evidence in the record regarding

the ratio for conversion of sulfur dioxide to sulfates.

The Administrator of USEPA has not yet promul-

gated regulations describing a methodology for quan-

tifying the concept of ‘‘significant deterioration’’ of

existing air quality.

66a 67a

Finpines or Fact Ohio Power

InpivipuaL CasEs Tidd

: . Cardinal

1. Ambient monitoring data collected by local air pollu-

tion control agencies and evidence adduced herein re- Buckeye Power

garding the impact of an individual plant’s SO: emis- Cardinal

sions upon ambient concentrations demonstrates that City of Cleveland

there is no need for control of SO: emissions at the Lake Road

following generating stations:

<i “ | City of Painesville

Cleveland Electric Illuminating

Lakeshore 2. Ambient monitoring data collected by applicants or

Eastlake predictive modeling relating an individual plant’s SO:

Avon Lake | emissions to predicted or actual SO: concentrations in

the area additionally demonstrates that there is no

Cincinnati Gas and Electric ; , agi

need for installation of SO: emissions control systems

W. C. Beckjord

ect eee eae he

Miami Fort | at the following generating stations:

West End Cleveland Electric Dluminating

Dayton Power and Light Ashtabula

Frank M. Tait Columbus and Southern Ohio

Third Street Conesville

Toledo Edison Picway

Acme Poston

Bay Shore

3. The combined costs for installation of FGD systems

Water Street

ater otree and sludge disposal facilities at the following generat-

Ohio Edison ing stations are unreasonable unless counterbalanced

ed by significant adverse effects from SO: emissions:

Corea Der Cleveland Electric Illuminating

Beech Street Ne

Mad River '

Toronto Ashtabula

Rockaway | Avon Lake

North Avenue Columbus and Southern Ohio

, Conesville

Poston

Picway

68a

Cincinnati Gas and Electric

W. C. Beckjord

Miami Fort

Dayton Power and Light

Frank M. Tait

69a

Cincinnati Gas and Electric

W. C. Beckjord

Miami Fort

Dayton Power and Light

Frank M. Tait

Toledo Edison Toledo Edison

Acme Acme

Bay Shore Bay Shore

Ohio Edison Water Street

Sammis Ohio Power

Burger Cardinal

Toronto

Edgewater Buckeye Power

Gorge Cardinal

Mad River City of East Palestine

Niles ;

City of Dover

Ohio Power

Woodcock 5. It is technically feasible to insure that sulfur content

Muskingum of coal used does not exceed 3% at the following gen-

Cardinal erating stations:

Buckeye Power Cleveland Electric Illuminating

Cardinal Ashtabula

City of East Palestine Avon Lake

City of Dover Columbus and Southern Ohio

Picway

4. Lack of available space for installation of FGD systems Cincinnati Gas and Electric

and/or sludge disposal facilities renders a requirement Miami Fort

for their installation unreasonable at the following gen-

erating stations unless counterbalanced by significant Dayton Power and Light

adverse effects from SO: emissions: Frank M. Tait

Cleveland Electric Illuminating Toledo Edison

Lakeshore Acme

Bay Shore

Eastlake

70a

Ohio Edison

Edgewater

Gorge

Beech Street

Ohio Power

Tidd

Ohio Valley Electric

Kyger Creek

6. Imposition of a requirement for new or upgraded par-

ticulate control equipment is unreasonable for the fol-

lowing generating stations due to prohibitive costs or

planned phase out of operating equipment:

Columbus and Southern Ohio

Picway (Units 7 and 8)

Dayton Power and Light

Third Street

Ohio Edison

Norwalk

Mad River

Beech Street

North Avenue

Rockaway

Ohio Power

Woodcock

Philo

Tidd

City of East Palestine

City of Dover

Tla

Concuusions or Law

. Applicants bear the burden of proof with regard to the

following issues: technical feasibility and economic rea-

sonableness of F'GD systems, adequacy of limestone

supplies, ability to dispose of scrubber sludge, avail-

ability of low sulfur fuel, reasonableness of ambient

standards and emission limitations.

. Ohio EPA bears the burden of proof with regard to

the following issues: adverse effects of secondary pol-

lutants, relationship of use of tall stacks to formation

of secondary pollutants and significant deterioration of

air quality in adjoining areas.

. In determining the reasonableness or legality of a reg-

ulation as it applies to a particular set of facts or cir-

cumstances pursuant to ORC 119.11 it is proper to

consider evidence regarding the appropriateness of the

regulation in light of the objectives it seeks to attain.

. Ohio’s ambient air quality standards are intended to

achieve the goal of protecting human health and wel-

fare from the adverse effects of pollutants.

. Ohio’s emission standards are intended to achieve the

goal of limiting emissions to such a degree that, con-

sidering topography, prevailing wind directions, dura-

tion and frequency of the presence of the pollutants in

the ambient air and other relevant factors, the required

ambient levels are achieved.

. The Federal government has preempted the area of

setting primary ambient air quality standards and Ohio

may not at this time adopt less stringent ambient

standards.

. Ohio’s present ambient annual average and maximum

24 hour standards for sulfur dioxide and particulate

matter place an unreasonable burden of compliance

upon applicants herein.

10.

11.

12.

13.

14.

72a

Ohio’s present ambient 3 hour standard for sulfur diox-

ide was not lawfully enacted and it must be considered

a nullity insofar as these proceedings are concerned.

Ohio’s present priority classifications for sulfur diox-

ide and particulate matter are not based upon ambient

data or sopuisticated modeling and place an unreason-

able burden of compliance upon applicants herein.

Ohio’s present emission limitations for sulfur dioxide

particulate matter and nitrogen oxides are more strin-

gent than necessary to attain the appropriate ambient

levels and they place an unreasonable burden of com-

pliance upon applicants herein.

Ohio EPA may not justify requiring compliance with

unreasonable regulations by reference to portions of

the Clean Air Act requiring promulgation of these reg-

ulations within very brief time periods.

The term ‘‘emission limitation’’, as used in Section 110

of the Clean Air Act, means a limitation upon emissions

which exceed that level of emissions released at the

maximum effective stack height when considering the

worst possible effects of meteorology and topography

as well as maximum content in fuel of sulfur or other

pollutants which will not prevent attainment of the

appropriate air quality standard.

Ohio EPA may develop control strategies for appli-

cants herein which take into account stack height, me-

teorology, topography and other relevant factors and

thereby comply with the requirement of Section 110 of

the Clean Air Act.

The direct and indirect economic costs of compliance

with emission regulations must be balanced against the

benefits to be obtained from compliance in order to

determine if it is reasonable to require compliance.

15.

16.

17.

18,

19.

21.

22.

73a

Flue gas desulfurization is not a presently available,

technologically feasible method of SO: control which

may be employed by the Ohio electric utilities.

Chemical fixation of FGD scrubber sludge is a pres-

ently available, technologically feasible method of

FGD scrubber sludge treatment which may be employed

by the Ohio electric utilities.

Tall stacks, either alone or in combination with supple-

mentary control systems, are a technologically feasible

and economically reasonable means of meeting ambient

air quality standards for sulfur dioxide.

Overall conversion to low sulfur fuels by the electric

utilities is not technologically feasible or economically

reasonable. ,

Regulation EP-10-06 (AP-2-06) is unclear and does not

adequately address potential air pollution control

equipment malfunctions.

The date upon which the Administrator of USEPA

lawfully approves a State Implementation Plan is the

starting point for computation of the three-year com-

pliance period which the Clean Air Act provides for

compliance with primary ambient air quality stand-

ards.

Ohio’s Implementation Plan, minus a sulfur oxide con-

trol strategy, was lawfully approved by the Admin-

istrator for the first time on April 15, 1974.

The ultimate date for compliance with Ohio’s emission

limitations relative to particulate matter is April 15,

1977.

The evidence in this record regarding the formation

and health effects of secondary pollutants and the

parameters of ‘‘significant deterioration”’ of air qual-

ity does not provide a probative basis for approval or

24.

25.

26.

T4a

rejection of any particular method for emission limita-

tion.

The criteria for issuance of orders pursuant to ORC

Section 3704.03(S) to prohibit or abate unlawful emis-

sions embody the criteria for issuance of variances set

forth in ORC Section 3704.03(H).

Issuance of an order pursuant to ORC Section 3704.03

(S) to require applicants herein to abate emissions,

where necessary, by a date certain is a proper method

for resolving the controversies herein.

Regulation AP-7-06 limiting emissions of nitrogen

oxides is presently unnecessary.

RECOMMENDATIONS

The Hearing Panel recommends that the Director

adopt the present Federal primary annual average and

twenty-four hour maximum ambient air quality stand-

ards for sulfur dioxide and particulate matter and re-

peal Ohio’s existing ambient standards for those pollu-

tants.

The Hearing Panel recommends that the Director adopt

a county by county classification and realistic emission

limitations upon emissions of sulfur dioxide and par-

ticulate matter based upon accurate ambient data for

each county and the most sophisticated diffusion model-

ing techniques presently available. Existing priority

classifications and emission regulations for these pollu-

tants should be repealed.

The Hearing Panel recommends that Regulation AP-

7-06 be repealed.

The Hearing Panel recommends that the Director re-

peal Regulation EP-10-06 and adopt a new regulation

clearly expressing the means for attaining the objec-

tives which the present regulation seeks to attain.

75a

. Recommendations 1-4 should be implemented through

utilization of ORC Chapter 119 rule-making proce-

dures.

. The Hearing Panel recommends that no compliance

orders be issued as a result of this proceeding until

Recommendations 1-4 have been implemented.

. In the event that the Director should determine that

installation of FGD systems appears necessary at any

plant involved herein, the Hearing Panel recommends

that the Director obtain information regarding the

Bruce Mansfield and NIPSCO scrubber systems in 1976

before issuing the draft order attached hereto.

. In the event that the Director determines that particu-

late control measures must be implemented now, the

Hearing Panel recommends issuance of the draft order

attached hereto.

/s/ Harvey A. RosENzweie

Harvey A. Rosenzweig

Chief Hearing Examiner

/8/ Patricia L. Brown

Patricia L. Brown

Hearing Examiner

/s/ Avan L. Lapp

Alan L. Lapp

Hearing Examiner

APPENDIX I

The Fourteenth Amendment to the United States Constitution.

77a

Amendment XIV.—Citizenship: Privileges and Immunities: Due

' Process; Equal Protection: Apportionment of Representation:

Disqualification of Officers; Public Debt; Enforcement

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws.

Section 2. Representatives shall be apportioned among

the several States according to their respective numbers,

counting the whole number of persons in each States, ex-

cluding Indians not taxed. But when the right to vote at

any election for the choice of electors for President and

Vice President of the United States, Representatives in

Congress, the Executive and Judicial officers of a State, or

the members of the Legislature thereof, is denied to any

of the male inhabitants of such State, being twenty-one

years of age, and citizens of the United States, or in any

way abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall be re-

duced in the proportion which the number of such male

citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representa-

tive in Congress, or elector of President and Vice Presi-

dent, or hold any office, civil or military, under the United

States, or under any State, who, having previously taken

an oath, as a member of Congress, or as an officer of the

United States, or as a member of any State legislature, or

as an executive or judicial officer of any State, to support

the Constitution of the United States, shall have engaged

in insurrection or rebellion against the same, or given aid

78a

or comfort to the enemies thereof. But Congress may by

a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for pay-

ment of pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But

neither the United States nor any State shall assume or

pay any debt or obligation incurred in aid of insurrection

or rebellion against the United States, or any claim for the

loss or emancipation of any slave; but all such debts, obli-

gations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

APPENDIX J

Pertinent Provisions of the Clean Air Act, as Amended.

42 U.S.C. §§ 7401 ef seq.

awk

79a

§7410. State implementation plans for national primary and

secondary ambient air quality standards

Adoption of plan by State; submission to Administrator;

content of plan; revision; new sources; indirect source

review program; supplemental or intermittent

control systems

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

lic 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 pollutant, a plan

which provides for implementation, maintenance, and en-

forcement 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 Admin-

istrator (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 second-

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

for implementation, maintenance, and enforcement of such

secondary standard in each air quality control region (or

portion thereof) within such State. Unless a separate pub-

lic hearing is provided, each State shall consider its plan

implementing 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 para-

graph (1), approve or disapprove such plan or each por-

tion thereof. The Administrator shall approve such plan,

or any portion thereof if he determines that it was

adopted after reasonable notice and hearing and that—

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

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

mary ambient air quality standard, it provides for the

attainment of such primary standard as expeditiously

as practical but (subject to subsection (e) of this sec-

80a

tion) 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 standard); and

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

ondary ambient air quality standard, it specifies a

reasonable 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

attainment and maintenance of such primary or sec-

ondary standard, including, but not limited to, trans-

portation controls, air quality maintenance plans, and

preconstruction review of direct sources of air pollu-

tion as provided in subparagraph (D) ;

eration of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and ana-

lyze data on ambient air quality and, (ii) upon request,

make such data available to the Administrator;

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

forcement of emission limitations and regulation of the

modification, construction, and operation of any sta-

tionary source, including a permit program as required

in parts C and D of this subchapter and a permit or

equivalent program for any major emitting facility,

within such region as necessary to assure (i) that na-

tional ambient air quality standards are achieved

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

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

construction 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

8la

any air pollutant in amounts which will (I) prevent

attainment or maintenance by any other State of any

such national primary or secondary ambient air qual-

ity 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 emis-

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

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

such reports shall be correlated by the State agency

with any emission limitations or standards established

pursuant to this chapter, which reports shali be avail-

able at reasonable times for public inspection; (v) for

authority comparable to that in section 7603 of this

title, and adequate contingency plans to implement

such authority; and (vi) requirements that the State

comply with the requirements respecting State boards

under section 7428 of this title;

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

cable, 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

availability of improved or more expeditious methods

of achieving such primary or secondary standard; or

82a

(ii) except as provided in paragraph (3)(C), when-

ever the Administrator finds on the basis of informa-

tion available to him that the plan is substantially in-

adequate to achieve the national ambient air quality

primary 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 (relating

to nonattainment areas) ;

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

title (relating to consultation), section 7427 of this

title (relating to public notification), part C of this

subchapter (relating to prevention of significant de-

terioration of air quality and visibility protection) ;

and

(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

83a

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).

(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.

(B) As soon as practicable, the Administrator shall,

consistent with the purposes of this chapter and the

Energy Supply and Environmental Coordination Act

of 1974, review each State’s applicable implementation

plans and report to the State on whether such plans

can be revised in relation to fuel burning stationary

sources (or persons supplying fuel to such sources)

without interfering with the attainment and mainte-

nance of any national ambient air quality standard

within the period permitted in this section. If the Ad-

ministrator determines that any such plan can be re-

vised, he shall notify the State that a plan revision

may be submitted by the State. Any plan revision

which is submitted by the State shall, after public no-

tice and opportunity for public hearing, be approved

by the Administrator if the revision relates only to

fuel burning stationary sources (or persons supplying

fuel to such sources), and the plan as revised complies

with paragraph (2) of this subsection. The Adminis-

trator shall approve or disapprove any revision no

later than three months after its submission.

tion thereof) approved under this subsection, nor the

Administrator in the case of a plan (or portion there-

of) promulgated under subsection (c) of this section,

shall be required to revise an applicable implementa-

tion plan because one or more exemptions under sec-

84a

tion 7418 of this title (relating to Federal facilities),

enforcement orders under section 7413(d) of this title,

suspensions under section 7410(f) or (g) of this title

(relating to temporary energy or economic authority)

or orders under section 7419 of this title (relating to

primary nonferrous smelters) have been granted, if

such plan would have met the requirements of this

section if no such exemptions, orders, extensions, or

variances had been granted.

(D) Any applicable implementation plan for which

an attainment date later than December 31, 1982, is

provided to section 7502(a)(2) of this title shall be

revised by July 1, 1979, to include the comprehensive

measures and requirements referred to in subsection

(c)(5)(B) of this section.

(4) The procedure referred to in paragraph (2)(D) for

review, prior to construction or modification, of the location

of new sources shall (A) provide for adequate authority

to prevent the construction or modification of any new

source to which a standard of performance under section

7411 of this title will apply at any location which the State

determines will prevent the attainment or maintenance

within any air quality control region (or portion thereof)

within such State of a national ambient air quality primary

or secondary standard, and (B) require that prior to com-

mencing construction or modification of any such source,

the owner or operator thereof shall submit to such State

such information as may be necessary to permit the State

to make a determination under clause (A).

(5)(A)(i) Any State may include in a State implemen-

tation plan, but the Administrator may not require as a

condition of approval of such plan under this section, any

indirect source review program. The Administrator may

approve and enforce, as part of an applicable implementa-

tion plan, an indirect source review program which the

State chooses to adopt and submit as part of its plan.

85a

(ii) Except as provided in subparagraph (BY, no

plan promulgated by the Administrator shall include

any indirect source review program for any air qual-

ity control region, or portion thereof.

(iii) Any State may revise an applicable implemen-

tation plan approved under this subsection to suspend

or revoke any such program included in such plan,

provided that such plan meets the requirements of this

section.

(B) The Administrator shall have the authority to

promulgate, implement and enforce regulations under

subsection (c) of this section respecting indirect source

review programs which apply only to federally as-

sisted highways, airports, and other major federally

assisted indirect sources and federally owned or op-

erated indirect sources.

direct source” means a facility, building, structure, in-

stallation, real property, road, or highway which at-

tracts, or may attract, mobile sources of pollution. Such

term includes parking lots, parking garages, and other

facilities subject to any measure for management of

parking supply (within the meaning of subsection (c)

(2)(D) (ii) of this section), including regulation of ex-

isting off-street parking but such term does not include

new or existing on-street parking. Direct emissions

sources or facilities at, within, or associated with, any

indirect source shall not be deemed indirect sources for

the purposes of this paragraph.

(D) For purposes of this paragraph the term “in-

direct source review program” means the facility-by-

facility review of indirect sources of air pollution, in-

cluding such measures as are necessary to assure, or

assist in assuring, that a new or modified indirect source

will not attract mobile sources of air pollution, the

86a

emissions from which would cause or contribute to air

pollution concentrations—

(i) exceeding any national primary ambient air

quality standard for a mobile source-related air

pollutant after the primary standard attainment

date, or

(ii) preventing maintenance of any such stand-

ard after such date.

(E) For purposes of this paragraph and paragraph

(2)(B), the term “transportation control measure” does

not include any measure which is an “indirect source

review program.”

(6) No State plan shall be treated as meeting the re-

quirements of this section unless such plan provides that in

the case of any source which uses a supplemental, or inter-

mittent control system for purposes of meeting the require-

ments of an order under section 7413(d) or section 7419 of

this title (relating to primary nonferrous smelter orders),

the owner or operator of such source may not temporarily

reduce the pay of any employee by reason of the use of

such supplemental or intermittent or other dispersion de-

pendent control system.

Extension of period for submission of plans

(b) The Administrator may, wherever he determines

necessary, extend the period for submission of any plan or

portion thereof which implements a national secondary

ambient air quality standard for a period not to exceed 18

months from the date otherwise required for submission

of such plan.

87a

Preparation and publication by Administrator of proposed

regulations setting forth implementation plan; transporta-

tion regulations study and report; parking surcharge;

suspension authority; plan implementation

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

any State hearing record, promptly prepare and publish

proposed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(A) the State fails to submit an implementation plan

which meets the requirements of this section,

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

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

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

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

If such State held no public hearing associated with 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-

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 de-

scribed in the first sentence of section 7421 of this title (re-

lating to consultation) or the consultation process required

under such section 7421 shall not be required to be promul-

gated before the date eight months after such date required

for submission.

88a

(2)(A) The Administrator shall conduct a study and

shall submit a report to the Committee on Interstate and

Foreign Commerce of the United States House of Repre-

sentatives and the Committee on Public Works of the United

States Senate not later than three months after June 22,

1974, on the necessity of parking surcharge, management of

parking supply, and preferential bus/carpool lane regula-

tions as part of the applicable implementation plans re-

quired under this section to achieve and maintain national

primary ambient air quality standards. The study shal! in-

clude an assessment of the economic impact of such regula-

tions, consideration of alternative means of reducing total

vehicle miles traveled, and an assessment of the impact of

such regulations on other Federal and State programs deal-

ing with energy or transportation. In the course of such

study, the Administrator shall consult with other Federal

officials including, but not limited to, the Secretary of

Transportation, the Federal Energy Administrator, and

the Chairman of the Council on Environmental Quality.

(B) No parking surcharge regulation may be required by

the Administrator under paragraph (1) of this subsection

as a part of an applicable implementation plan. All parking

surcharge regulations previously required by the Admin-

istrator shall be void on June 22, 1974. This subparagraph

shall not prevent the Administrator from approving park-

ing surcharges if they are adopted and submitted by a State

as part of an applicable implementation plan. The Admin-

istrator may not condition approval of any implementation

plan submitted by a State on such plan’s including a parking

surcharge regulation.

January 1, 1975, the effective date or applicability of any

regulations for the management of parking supply or any

requirement that such regulations be a part of an applicable

implementation plan approved or promulgated under this

section. The exercise of the authority under this subpara-

89a

graph shall not prevent the Administrator from approving

such regulations if they are adopted and submitted by a

State as part of an applicable implementation plan. If the

Administrator exercises the authority under this subpara-

graph, regulations requiring a review or analysis of the

impact of proposed parking facilities before construction

which take effect on or after January 1, 1975, shail not

apply to parking facilities on which construction has been

initiated before January 1, 1975.

(D) For purposes of this paragraph—

(i) The term ‘‘parking surcharge regulation’’ means

a regulation imposing or requiring the imposition of

any tax, surcharge, fee, or other charge on parking

spaces, or any other area used for the temporary stor-

age of motor vehicles.

(ii) The term ‘‘management of parking supply’’

shall include any requirement providing that any new

facility containing a given number of parking spaces

shall receive a permit or other prior approval, issuance

of which is to be conditioned on air quality. considera-

tions.

(iii) The term ‘‘preferential bus/carpool lane’’ shall

include any requirement for the setting aside of one

or more lanes of a street or highway on a permanent

or temporary basis for the exclusive use of buses or

carpools, or both.

(EK) No standard, plan, or requirement, relating to man-

agement of parking supply or preferential bus/carpool

lanes shall be promulgated after June 22, 1974, by the

Administrator pursuant to this section, unless such promul-

gation has been subjected to at leasi one public hearing

which has been held in the area affected and for which

reasonable notice has been given in such area. If substan-

tial changes are made following public hearings, one or

more additional hexrings shall be held in such area after

such notice.

90a

(3) Upon application of the chief executive officer of any

general purpose unit of local government, if the Adminis-

trator determines that such unit has adequate authority

under State or local law, the Administrator may delegate

to such unit the authority to implement and enforce within

the jurisdiction of such unit any part of a plan promulgated

under this subsection. Nothing in this paragraph shall pre-

vent the Administrator from implementing or enforcing any

applicable provision of a plan promulgated under this sub-

section.

(4) In the case of any applicable implementation plan

containing measures requiring—

(A) retrofits on other than commercially owned in-

use vehicles,

(B) gas rationing which the Administrator finds

would have seriously disruptive and widespread eco-

nomic or social effects, or

spaces,

the Governor of the State may, after notice and opportunity

for public hearing, temporarily suspend such measures

notwithstanding the requirements of this section until Janu-

ary 1, 1979, or the date on which a plan revision under

subsection (a)(2)(1) of this section is submitted, whichever

is earlier. No such suspension shall be granted unless the

State agrees to prepare, adopt, and submit such plan revi-

sion as determined by the Administrator.

(5)(A) Any measure in an applicable implementation

plan which requires a toll or other charge for the use of a

bridge located entirely within one city shall be eliminated

from such plan by the Administrator upon application by

the Governor of the State, which application shall include a

certification by the Governor that he will revise such plan

in accordance with subparagraph (B).

9la

(B) In the case of any applicable implementation plan

with respect to which a measure has been eliminated under

subparagraph (A), such plan shall, not later than one year

after August 7, 1977, be revised to include comprehensive

measures (including the written evidence required by part

D of this subchapter), to:

(i) establish, expand, or improve public transporta-

tion measures to meet basic transportation needs, as

expeditiously as is practicable; and

(ii) implement transportation control measures nec-

essary to attain and maintain national ambient air

quality standards,

and such revised plan shall, for the purpose of implement-

ing such comprehensive public transportation measures,

include requirements to use (insofar as is necessary) Fed-

eral grants, State or local funds, or any combination of

such grants and funds as may be consistent with the terms

of the legislation providing such grants and funds. Such

measures shall, as a substitute for the tolls or charges

eliminated under subparagraph (A), provide for emissions

reductions equivalent to the reductions which may reason-

ably be expected to be achieved through the use of the tolls

or charges eliminated.

of meeting the requirements of subparagraph (B) shall be

submitted in coordination with any plan revision required

under part D of this subchapter.

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 the requirements of this

section.

92a

Extension of time period for attainment of national primary

ambient air quality standard in implementation plan;

procedure; approval of extension by Admimstrator

(e)(1) Upon application of a Governor of a State at the

time of submission of any plan implementing a national

ambient air quality primary standard, the Administrator

may (subject to paragraph (2)) extend the three-year

period referred to in subsection (a)(2)(A)(i) of this sec-

tion for not more than two years for an air quality control

region if after review of such plan the Administrator de-

termines that—

(A) one or more emission sources (or classes of

moving sources) are unable to comply with the require-

ments of such plan which implement such primary

standard because the necessary technology or other

alternatives are not available or will not be available

soon enough to premit compliance within such three-

year period, and

(B) the State has considered and applied as a part

of its plan reasonably available alternative means of

attaining such primary standard and has justifiably

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

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