# Petition — Ohio Edison Co. v. Williams

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 961

## Text

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

Oe

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,
We

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?

3

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).

4

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.

4)

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

6

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

7

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.

8

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.

9

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

10

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.

11

(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.

12

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

13

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

14

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

15

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-

16

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-

17

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

18

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

la

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 ;
, |

3a

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

5a

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.

7a
IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO

No. 77AP-461
Oxn10 Epison Company, Appellant-Appellant,
v.
Nep B, Wituias, Director of Environmental Protection,
Appellee-Appellee.
No, 77AP-462

Kast Patestine Ligut anp Power Company,

Appellant-Appellant,
v.

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

8a

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-

9a

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.

ae

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,
v.

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

No. 77AP-462

East Patestine Licut anp Power Company,
Appellant-Appellant,
v.

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

No. 77AP-472 and No. 77AP-473
Outro Epison Company Et aL., Appellants-Appellees,
v.
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,
v.

Nep E. WiuuraMs, Director or EnviroNMENTAL PROTECTION,
Appellee-A ppellee.

No. 77AP-462

Kast Patestine Ligut anp Power Company,

Appellant-Appellant,
v.

Nep E. Wituiams, Director or ENviroONMENTAL PROTECTION,
A ppellee-Appellee.
Nos. 77AP-472 and 77AP-473
Oxto Epison Company, Et au., Appellants-Appellees,
v.

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

a

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,
v.

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

No. 77AP-462
East Pacestine Licut anp Power Co., Appellant-A ppellant,
v.

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

No. 77AP-472 and No. 77AP-473
Onto Epison Company, ET AL., Appellants-Appellees,
v.

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.

oJ

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,
v.

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,
v.

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.
V
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.

bo
~I
S

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:

(c) (1) Any person who knowingly—

(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

(C) violates section 111(e) or section 112(c),
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.

(C) By April 15, 1977, attain final compliance with
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 in

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2392%3A1. Public record. Not legal advice.