Appendix — Dow Chemical Co. v. United States Environmental Protection Agency

Supreme Court brief1981

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80-1708 Ottis Supreme court, Ws

APR 2 (gge.

NO. 81- AUAANDER

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

——_e———

THE DOW CHEMICAL COMPANY,

a Delaware corporation,

Petitioner,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and DOUGLAS M. COSTLE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_o—_—_—

R. L. DAVIS

Division Counsel

The Dow Chemical Company

Midland, Michigan 48640

(517) 636-4781

MEAS POTTER, Jr.

FISCHER, FRANKLIN, FORD,

SIMON & HOGG

1700 Guardian Building

Detroit, Michigan 48226

(313) 962-5210

Attorneys for Petitioner

The Dow Chemical Company

Interstate Brief & Record Co., Wurlitzer Bidg., 1509 Broadway, Detroit, Mi 48226

962-8745 962-8746

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A

Opinion of the U.S. Court of Appeals for the Sixth

MU Oink Coa dakar vere hs Geib <a 1

APPENDIX B

U.S. Environmental Protection Agency rule

redesignating portions of Midland County,

Michigan as a “‘non-attainment” area ........ 14

U.S. Environmental Protection Agency rule

rejecting a variance granted to The Dow

Chemical Company by the Michigan Air

Pollution Control Commission as a proposed

revision by the Michigan State Implementation

RWS heh sd e Hi a Swadion naan ea viene cre ac 26

APPENDIX C

Order of the U.S. Court of Appeals for the Sixth

Circuit consolidating certain Petitions to

Review filed by The Dow Chemical Company 34

Judgment of the U.S. Court of Appeals for the

Sixth Circuit denying the consolidated

Petitions to Review filed by the Dow Chemical

SNE sacs Dees Vane eeataan . aoe, ees 35

Order of the U.S. Court of Appeals for the Sixth

Circuit denying Petition for Rehearing and

Suggestion for Rehearing En Banc filed by The

Dow Chemical Company ................... 36

APPENDIX D

MEULEC, CPUAIOIIDS «wn cic ecco cccctvdess 36

URC BPA) insane is cc ce ciccevcess 38

Oe URC SID bos coho takesccsuee ce 43

PE IE Fas vic ic ok uvder soe eons 44

Se EERE eee er one AE ee 44

RN I Ss uns vow ehiaich Coax 44

metry MEER: coy se ccs cccckeuwteaan 44

APPENDIX E

Consent Order 12-73-05 between the Michigan

Air Pollution Control Commission and The

Dow Chemical Company .................:: 46

Letter dated June 13, 1974 from the Michigan

Department of Natural Resources transmitting

Consent Order 12-73-05 to the U.S.

Environmental Protection Agency ........... 51

Letter dated July 10, 1974 from U.S. Environ-

mental Protection Agency acknowledging

receipt of Consent Order 12-73-05 ........... 52

Consent Order No. 10-1977 between the Michigan

Air Pollution Control Commission and The

Dow: Chemtical Company ......ccccsveccccces 53

Letter dated July 21, 1977 from the Michigan

Department of Natural Resources transmitting

Consent Order No. 10-1977 to the U.S.

Environmental Protection Agency ........... 64

iii

Page

Letter dated August 10, 1977 from U.S.

Environmental Protection Agency acknow-

ledging receipt of Consent Order No. 10-1977 65

Letter dated August 22, 1977 from the Michigan

Department of Natural Resources to U.S.

Environmental Protection Agency regarding

Consent Order No. 10-1977 ................. 67

Consent Order No. 01-1979 between the Michigan

Air Pollution Control Commission and The

Dow Chemical Company .................5. 70

Letter dated February 14, 1979 from the Michigan

Department of Natural Resources transmitting

Consent Order No. 01-1979 ‘to the U.S.

Environmental Protection Agency ........... 80

Minutes of the November 22, 1977 meeting of the

Michigan Air Pollution Control Commission . 84

Minutes of the December 20, 1977 meeting of the

Michigan Air Pollution Control Commission . 111

Letter dated December 30, 1977 from the Michigan

Department of Natural Resources to the U.S.

Environmental Protection Agency transmitting

the Clean Air Act ‘attainment’ and

“non-attainment”’ designations made by the

ee Oe I Seicwen. i chaikch eee tcadmeous 136

NO. 81-

IN THE

Supreme Court of the United States

OCTOBER TERM 1980

THE DOW CHEMICAL COMPANY,

a Delaware corporation,

Petitioner,

vs.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and DOUGLAS M. COSTLE,

Respondents.

—_——_oe —_——_

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUi1

APPENDIX “A”

OPINION

(United States Court of Appeals

for the Sixth Circuit)

(Dow Chemical v. USEPA

Nos. 78-3139, 78-3595, 80-3260)

Decided and Filed December 9, 1980.

Before: Ed wards, Chief

Judge, Phillips and Peck,

Senior Circuit Judges.

Edwards, Chief Judge. We deal here with three

petitions filed by The Dow Chemical Company seeking

review of decisions of respondent, United States

Environmental Protection Agency, under the Clean Air

Act, 42 U.S.C. § 7401 et seq. (Supp. II 1978). These

decisions designated Midland County as a “nonattain-

ment area’ (Appeal Nos. 78-3139 and 78-3595) and

a refused to approve a state approved revision of

Michigan’s “State Implementation Plan” (Appeal No.

80-3260). These appeals were consolidated by order of

this court when it became apparent that they presented

basically the same issue.

We recognize at the outset that this case is not

comparable to the many clean air petitions which have

previously been heard by this court. In these prior cases,

many industries have demonstrated obdurate resistance

to the national effort to achieve national air quality

standards. Cincinnati Gas & Electric Co. v. EPA, 578 F.2d

660 (6th Cir. 1978), cert. denied, 439 U.S. 1114 (1979);

Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150

(6th Cir.), cert. denied, 439 U.S. 910 (1978).

In contradistinction, this record shows that even

before the 1970 Clean Air Act was adopted, Dow

Chemical laid plans for a permanent solution to its then

and currently existing sulfur dioxide pollution problems.

At the same time, Dow recognized that it would take

years to achieve the permanent solution by which Dow

committed itself to one-third participation in the

building of Consumers Power’s nuclear power plant to

supply all the power needed for Dow’s Midland plants.

As a result, Dow also put in operation an alternative to

the burning of high sulfur coal in its old power plants in

“g the form of a Supplementary Control System (SCS) for

temporary use of low sulfur oil on occasions when its ~

normal emission of SO: pollutants would otherwise

occasion the atmospheric pollution in Midland County

to exceed national air quality standards. The parties

agree that this SCS, geared to 24-hours-a-day and

7-days-a-week meteorological control through satellite

weather observation, has succeeded in preventing any

monitor-recorded instance of actual violation of national

air quality standards in Midland County during the

interim years.

It is an interesting contrast to note that at least 20

counties and portions of counties in Ohio are listed by

EPA as in violation of national air quality standards. In

Michigan, EPA lists no county in the state, except

Midland County, as in violation of national air quality

standards, And Midland is in violation only because,

according to United States EPA, Congress has refused to

accept any intermittent or temporary remedial measures

as effective for purposes of determining national air

quality standards.

From this description of our current problem, it might

be deduced that the panel which heard this case is

inclined by its previous contrasting experiences toward

exercise of any judicial discretion it might have favorably

to Dow. While this is true, unfortunately for Dow, our

review of this record and the applicable statutory

provisions indicates that Congress, in the exercises of its

legislative powers, has dealt specifically with the

identical issue raised by Dow and has foreclosed judicial

relief.

As we see the issues in these appeals, they should be

phrased as follows:

1) Did Congress in the 1977 Amendments to the

Clean Air Act prohibit consideration of any intermittent

system designed to reduce excessive pollution emissions

temporarily in United States EPA’s determination of

achievement of national air quality standards?

2) If so, was it arbitrary and capricious for United

States EPA to refuse to approve a revision to the

Michigan State Implementation Plan to which the

Michigan Air Pollution Control Commission had

consented?

We answer the first of these questions in the

affirmative and the second in the negative.

As to the first issue in this case, Dow claims basically

that Midland County should have been and should now

be designated as an “attainment area” because there

have been no monitored violations since Dow began to

use its supplementary low sulfur oil burning system. As

indicated above, whatever logic this argument may have,

United States EPA argues that Dow cannot be in

compliance and that Midland County cannot be granted

an attainment designation, since Dow does not

continuously limit sulfur dioxide pollution from its stacks.

It is EPA’s position, strongly disputed by Dow, that

the 1977 Amendments to the Clean Air Act adopted by

Congress were designed to clarify the 1970 Clean Air Act

so as to show that national standards must be met by

constant control of emissions.

As to this issue the confrontation between the parties

is over whether or not Dow’s SCS is in fact one which

“limits the quantity, rate or concentration of emissions

of air pollutants on a continuous basis. .. .” Dow also

argues, however, that while “constant controls are the

preferred means to obtain compliance,’”’ intermittent

controls used on an interim basis are permissible where

there is a showing that constant controls are

¢%

economically or technologically infeasible. Citing

Kennecott Copper Corp. v. Train, 424 F. Supp. 1217 (D.

Nev. 1976), rev'd on other grounds sub nom., Kennecott

Copper Corp. v. Costle, 572 F.2d 1349 (9th Cir. 1978). In

relation to this issue, the EPA cited and relied on Train v.

Natural Resources Defense Council, Inc., 421 U.S. 60

(1975); Kennecott Copper Corp. v. Train, 526 F.2d 1149 (9th

Cir. 1975), cert. denied, 425 U.S. 935 (1976); and Big Rivers

Electric Corp. v. EPA, 523 F.2d 16 (6th Cir, 1975), cert.

denied, 425 U.S. 934 (1976). As to these cases, Dow argues

that they “expressly hold” that an interim system like

Dow’s can be used where there is no other “economically

and/or technologically feasible alternative.’”’

We do not atempt to resolve this dispute, since these

cases were all decided before 1977 and in our view,

Congress resolved the argument contrary to Dow’s

contention in the 1977 Amendments. 42 U.S.C. § 7602(k)

(1978) now provides:

The terms “emission limitation” and “emission

standard” mean a requirement established by the

State or the Administrator which limits the

quantity, rate, or concentration of emissions of air

pollutants on a continuous basis, including any

requirement relating to the Operation or

maintenance of a source to assure continuous

emission reduction.

In addition, in 1977 Congress added a new Section

123(a) (42 U.S.C. § 7423(a)) Stating that ‘[t]he degree of

emission limitation required’ by a SIP ‘shall not be

affected in any manner” by the use of excessive stack

heights or “any other dispersion technique,” and a new

Section 123(b) (42 U.S.C. § 7423(b)) defining “dispersion

technique” to include “any intermittent or supplemental

control of air pollutants varying with atmospheric

conditions.’’ (Emphasis added.)

We have read and considered the language relied on

by Dow from House and Senate legislative history

written prior to adoption of the 1977 Amendments. We

recognize that some of the language relied upon by Dow

does seem to conflict with what we believe to be the

obvious and unambiguous language of the 1977 statutory

provisions quoted above.

It is, however, a cardinal rule of statutory

interpretation that the courts do not turn to legislative

history to shed light on the meaning of easily

understandable and unambiguous statutory enactments.

See Southeastern Community College v. Davis, 442 U.S.

397, 405 (1979); United States v. Oregon, 366 U.S. 643, 648

(1961).

We do not believe that other sections of this

complicated statute relied on by Dow convey discretion

to United States EPA to approve as an SIP revision the

Michigan Air Pollution Control Commission’s grant of a

variance under the facts recorded here. Dow is now

emitting from its aging power plants 39,809 tons of SO:

per year. Due to dispersion among a number of stacks

and to relatively low SO: pollution from other sources in

the same county, Dow’s emissions have not caused

Midland County monitors to show violations of national

air quality standards.

The total quantity of Dow’s emissions, however, is not

being reduced — nor will it be — until 1984 at the

earliest. This means, of course, that absent EPA’s order,

Dow’s SO: pollutants will continue to damage the air and

the environment both in Midland County and

downwind therefrom until Consumer’s nuclear plant

comes on line. This appears to be the exact sort of fact

situation which Congress had in mind in adopting the

1977 Clean Air Act Amendments. H.R. Rep. No. 294,

95th Cong., Ist Sess. 84-87, 128-33, reprinted in [1977]

U.S. Code Cong. & Ad. News 1077, 1162-65, 1207-11. See

Appendix following.

Since we find §§ 123(a) and (b) (42 U.S.C. §§ 7423(a)

and (b) (1978)), to be clear and unambiguous, we hold

that these amendments required the United States EPA’s

decision, and now require our approval thereof. The

holding requires the answer we have already set forth to

the two questions posed by this case.

The petitions for review are denied.

APPENDIX

HOUSE REPORT NO. 95-294

Interstate and Foreign Commerce Committee

May 12, 1977

(To accompany H.R. 6161)

* * ©

The fundamental policy objections which have been

raised to the use of tall stacks, intermittent or

supplemental controls, and other dispersion techniques

are as follows:.

1. Even for the purpose of attaining and maintaining the

national ambient air quality standards, these methods are

of dubious reliability and enforceability.

This point has been made repeatedly by many persons

and groups. One of the groups which have expressed

these doubts is the National Academy of Sciences. The

NAS points out that the effectiveness of intermittent

control systems depends on accurate meteorological

forecasting; quick response to adverse air quality

readings; proper placement, maintenance, and

calibration of monitors, among other factors.

+ + +

2. Intermittent control systems do not help to reduce the

derivative pollutants of sulfur oxides (sulfates, sulfites,

sulfuric acid) or oxides of nitrogen (nitrates, nitrites,

nitric acid, nitrosamines); in conjunction with tall stacks,

ICS may thus increase the health risks associated with

SO2 and NO2 emissions.

The Environmental Protection Agency has found —

and the National Academy of Sciences has confirmed —

that sulfates, sulfites, and sulfuric acid appear to be

“more toxic than the parent compound [sulfur dioxide]

and appear likely to be responsible for a substantial

portion of adverse effects on health associated with

stationary source combustion of fossil fuels.’”” NAS has

also found,

*** The application of tall stacks and/or

intermittent control systems will not reduce total

emissions of sulfur oxides to any significant

degree; thus this strategy does not decrease

the total amount of sulfate in the regional

atmosphere.

Similarly, one of the papers contained in the

HEW-NIEHS Rall Report, conducted at the request of the

Office of Management and Budget concluded,

In view of the possible toxicity of suspended

sulfates, it should be noted that emission control

measures designed to disperse sulfur dioxide

from point sources, that is, tall stacks, will not

have a major effect on suspended sulfate levels

despite producing a decrease in local ambient

sulfur dioxide concentration.

In fact, the same report expressed concern that “there

is some evidence that local control of SO; (by higher

stacks, and so forth) is leading to a wider dissemination

of particulate sulfates.”’

The National Academy of Sciences has expressed even

greater concern about the effects of tall stacks and

intermittent controls for dealing with oxides of nitrogen

than for SO2. As the NAS explained,

*** Nitric oxide converts to nitric acid and

nitrates faster than sulfur dioxide converts to

sulfuric acid and sulfates; and since the reaction

products precipitate, there is greater potential for

local impact.

At least in. part because of the adverse impact of these

derivative pollutants, the National Academy of Sciences

has recommended a compromise.

The tall stack-ICS technology could be rejected

as a permanent control technique on the basis of

substantial potential risks associated with

increased atmospheric loading of sulfur

compounds. At the same time, the technology

could be accepted for carefully defined situations

as an interim control technique.

The Ford administration essentially agreed with

these conclusions and recommendations. The Ford

administration bill in 1975 (H.R. 2633) would have

authorized the use of intermittent controls only on an

interim basis; constant controls would have been

required as a permanent or final compliance strategy. (H.

40, 156, 1181). Testimony from the State of Illinois agreed

that intermittent controls should be permitted only on an

interim basis. (H. 1308) Illinois’ position is reflective of

that taken by the State and Territorial Air Pollution

Program Administrators.

3. Use of tall stacks spreads the pollution, subjects areas to

risk which were not previously exposed, and exports the

problem to other areas and States, where it is too late to

control the pollution.

This point was made by the National Institute of

Environmental Health Sciences’ Rall Report. The

National Academy of Sciences has also expressed

concern about the long-distance transport phenomenon,

which is encouraged by use of tall stacks and

intermittent controls.

Even in 1907, it was apparent that pollution must be

reduced at its source if injury were to be avoided

downwind. For the U.S. Supreme Court in that year held

that the State of Georgia had a right to sue a smelter in

Tennessee which was emanating sulfur dioxide fumes

which then traveled across the States’ shared border

causing harm in Georgia.

It is a fair and reasonable demand on the part of

a sovereign that the air over its terruory should

not be polluted on a great scale by surfurous acid

gas, that the forests on its mountains, be they

better or worse, and whatever domestic

destruction they have suffered, should not be

further destroyed or threatened by the act of

persons beyond its control, that the crops and

orchards on its hills should not be endangered

from the same source. * * *

The proof requires but a few words. It is not

denied that the defendants generate in their

works near the Georgia line large quantities of

sulfur dioxide which becomes sulfurous acid by

its mixture with the air. It is hardly denied and

cannot be denied with success that this gas often

is carried by the wind great distances and over

tracts of Georgia land. On the evidence the

pollution of the air and the magnitude of that

pollution are not open to dispute *** we are

satisfied by a preponderance of the evidence that

the sulfurous fumes cause and threaten damage

on so considerable a scale to the forests and

vegetable life, if not to health, within the plaintiff

State as to make out a case within the require-

ments of Missouri v. Illinois, 200 U.S. 496. * * *

*** the plaintiff now finds *** that the tall

chimneys in present use [since the complaint was

filed] cause the poisonous gases to be carried

greater distances than ever before and that the

evil has not been helped.

In the committee’s view, what Justice Holmes and the

Supreme Court knew and explained in 1907 cannot be

ignored nearly 70 years later. This is particularly so in

light of the fact that the NAS and NIEHS reports of the

most current scientific evidence confirm the knowledge

of seven decades ago.

If SO2 and NO: emissions are merely dispersed by tall

stacks and intermittent controls and are not reduced,

these emissions will be converted to acid rain in

significant amounts. Acid rain reduces soil productivity,

harms vegetation, crops, buildings, and materials, and

may jeopardize segments of the whole economy of

certain areas.

The increasing acidity of rainfall has been noted in

many areas — England, Scotland, Norway, Sweden,

Brazil, and the States of the Northeastern United States.

Cornell, Yale and Dartmouth scientists have documented

this trend.

As the acidity of rainfall increases, the productivity of

forest and agricultural lands are threatened. The 1972

report of the Swedish Government to the United Nations

Conference on the Human Environment concluded that

continued sulfur oxide emissions from England and

Germany could reduce Swedish forest yields by 3-15

percent in the next 30 years.

Similar concerns have been expressed by the National

Academy of Sciences. The concentration of both sulfates

and nitrates in precipitation have increased in the past

20 years, and these increases appear to be associated

with the increases in high level emissions (that is,

emissions from tall stacks).

Furthermore, the NAS has predicted, that if sulfur

oxide emissions are allowed to double between 1970-80,

the average acidity of rain in the Northeast is likely to

increase as much as 300 percent.

Effects of acid rain on natural systems are

probably of greater consequence than effects of

sulfur dioxide, especially if emissions are

permitted to increase* * *.

Identifiable effects of acid rain include

acidification of soil, reduction in forest

productivity, and depletion of freshwater fish

populations. The full.impact of these effects may

be delayed for years or even decades.* * *

The possibility of large additional effects, such

as extensive injury to valuable ornamental plants

or reduction in agricultural productivity, cannot

be dismissed, especially if the acidity of

precipitation is permitted to increase* * *.

‘\

—

The possibility of effects on weather and

climate cannot be dismissed.

The NAS also concluded that acid rain could increase

corrosion, damage materials, and reduce property

values. Therefore it concluded, ‘These effects point to

the desirability of controlling the amount of

man-produced sulfur compounds emitted into the

atmosphere.”’

H.R. Rep. No. 294, 95th Cong., Ist Sess. 82-86, reprinted

in [1971] U.S. Code Cong. & Ad. News 1077, 1160-64

(footnotes omitted; emphasis in Original).

APPENDIX “B”

EXCERPT FROM FEDERAL REGISTER

[6560-01]

SUBCHAPTER C—AIR PROGRAMS

(FRL 856-5)

PART 81—AIR QUALITY CONTROL

REGIONS, CRITERIA, AND CON-

TROL TECHNIQUES

Section 107—Attainment Status

Designations

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: This rulemaking sets

forth the attainment status of all

States in relation to the national am-

bient air quality standards (NAAQS).

The tables following this rulemaking

indicate, on a State-by-State, pollut-

ant-by-pollutant basis, the attainment

status of every area as submitted by

the appropriate State agency and ap-

proved, or as designated by the Envi-

ronmental Protection Agency (EPA).

No distinctions are made as to the se-

verity of the violations recorded in the

areas designated as nonattainment in

these tables. These designations are

immediately effective. EPA is solicit-

ing comments for 60 days and will re-

sma revised designations as appro-

DATES: Effective Date: Imm

Comments Due: May 2, 1978.

ADDRESS: General comments on

these designations should be ad-

dressed to Norman L. Dunfee, Chief,

Control Programs Operations Branch

(MD-15), Office of Air Quality Plan-

ning and Standards (OAQPS), Re-

search Trangle Park, N.C. 27711.

Comments relative to specific State

designations should be directed to the

appropriate EPA Regional Office, con-

tact as listed below:

March 3, 1978 — Part II

TV, 345 Courtland

Jack Divita, Chief, Air Branch, EPA Region

VI, 1201 Elm Street, Dallas, Tex. 75270

(Arkansas, Louisiana, Oklahoma, New

Region VII, 1735 Baltimore Street, Kansas

City, 4 64108 (Nebraska, Iowa, Kansas,

Robert DeSpain, Chief, Air Branch, EPA

IX, 215 Fremont Street, San

FOR FURTHER INFORMATION

CONTACT:

Norman L. Dunfee, USEPA, Re-

search Triangle Park, N.C. 27711,

phone 629-5226 (FTS) or 919-541-

5226 (commercial).

SUPPLEMENTARY INFORMATION:

The Clean Air Act (CAA) Amend-

ments of 1977 place additional require-

ments on the States and EPA. Among

them, the Amendments added section

107(d), which directed each State,

within 120 days after the Amendments

were enacted, to submit to the Admin-

istrator a list of the NAAQS attain-

ment status of all areas within the

State. The Administrator was required

under section 107(d2) to promulgate

the State lists, with any necessary

modifications, within 60 days of their

submittal.

The States are now preparing revi-

sions to their State implementation

Plans (SIPs) as required by sections

110(aX2XI) and 172 of the Act. This

enterprise, which must be completed

by January 1, 1979, requires that the

States have immediate guidance as to

the attainment status of the areas des-

ignated under section 107(d). Congress

has acknowledged this by imposing a

tight schedule on the designation pro-

cess and requiring EPA to promulgate

the list within 180 days of the enact-

ment of the amendments. Under these

circumstances it would be impractica-

ble and contrary to the public interest

to ignore the statutory schedule and

postpone publishing these regulations

until notice and comment can be effec-

tuated. For this good cause, the Ad-

ministrator has made these designa-

tions immediately effective.

The Agency recognizes, however, the

importance of public involvement in

the designation process. It is there-

fore, soliciting public comment on this

rule by May 2, 1978.

Comments received will be consid-

ered carefully and revisions to the des-

ignations will be made where appropri-

ate. The criteria used in making these

designations include the following.

Arr QUALITY DaTA

Section 107(d) of the CAA specified

that designations should be based

upon air quality levels as of enactment

of the Amendments (August 7, 1977).

States were required by EPA guidance

to consider the most recent four quar-

ters of monitored ambient air quality

data.available. If this data showed no

standards violations, then the previous

four quarters of monitoring data were

to be examined to assure that the cur-

rent indication of attainment was not

the result of a single year’s data re-

flecting unrepresentative meteorologi-

cal conditions. In the absence of suffi-

cient monitored air quality data, other

evaluation methods were used, includ-

ing air quality dispersion modeling.

’ GEOGRAPHIC Size

The Act specified that the designa-

tion areas could be based on air qual-

ity control regions (AQCRs) or any

. Subportions of these areas. EPA ad-

vised States they could divide AQCRs

into various nonattainment, attain-

ment, or unclassified portions, i.e.,

county, subcounty, or other geograph-

ic areas as long as the area could be

clearly defined in a written narrative.

Additionally, a different geographic

area could be used in designating the

status for each pollutant.

POLLUTANT SPECIFIC CONSIDERATIONS

classifiable, and (4) attainment. For

carbon monoxide (CO), photochemical

O,, and nitrogen dioxide (NO,), desig-

nations of: (1) Not meeting the prima-

ry NAAQS, and (2) attainment/unclas-

sified were possible. The attainment

ow ae Se —_— for CO/ TOTAL SUSPENDED PARTICULATES

: are co umn

Pandit tables pormontordee prepa Given the spatially limited nature of

because both designations are set TSP violations, no general area size

forth by subsection 107(d)(1XE) of the Criteria were possible. However, States

CAA. No designations regarding the Were advised that designations along

secondary NAAQS for these pollutants Political boundaries such as city limits

were necessary since the primary stan- °F county lines were practical from an

dards and secondary standards are “ir quality management standpoint.

identical.

The criteria used in designation of

the status of each pollutant used in

addition to ambient air quality data is

discussed below:

PHOTOCHEMICAL OXIDANTS

There are 105 urban areas in the

United States with populations great-

‘er than 200,000. These major urban

areas (except Honolulu, Hawaii, and

Spokane, Wash.) are where the oxi-

dant problem is most severe. Honolulu

has recorded eight consecutive quar-

ters of data without a violations justi-

fying and attainment designation.

There is sufficient uncertainty regard-

ing conditions in Spokane to warrant

an unclassifiable designation for the

present time. The other 103 urban

areas, where over 100,000,000 people

reside, consistently experience photo-

chemical oxidant levels above the

NAAQS. Due to these factors, higher

priority is being given in the SIP plan-

ning process to these urban areas. Of

these, only six urban areas do not

have oxidant ambient air quality mon-

itoring data. The other 97 urban areas

experienced oxidant violations .based

on ambient data. Since 97 of the 105

urban areas greater than 200,000 with

monitoring data recorded violations,

the six cities without data were pre-

sumed to be nonattainment for oxi-

dants.

Additionally, a comprehensive analy-

sis was performed by OAQPS and

other factors considered by EPA for

each of the six urban areas. These

analyses substantiated the presump-

tive nonattainment designation and

these areas will be required to monitor

during the 1978 oxidant season

(summer-fall) to determine the magni-

tude of their oxidant problem.

The problem of designating for rural

fugitive dust areas required special

consideration. EPA’s fugitive dust

policy recognizes the generally greater

health impact due to fugitive dust in

urban areas in contrast to rural areas.

In urban areas, the windblown soil

contains various manmade toxic pol-

lutants. But, rural windblown dust is

usually not significantly contaminated

by industrial pollutants. Therefore,

for the purposes of these designations,

any rural areas experiencing TSP vio-

lations which could be attributed to

fugitive dust could claim attainment

of the TSP NAAQS. Rural areas for

this purpose are defined as those

which have: (1) A lack of major indus-

trial development or the absence of

significant industrial particulate emis-

sions, and (2) low urbanized popula-

tion densities.

CARBON MONOXIDE

A designation of nonattainment for

the entire urban core area of a city ex-

periencing monitored CO violations

was desirable, but smaller area desig-

nations were acceptable since CO vio-

lations are most pervasive in down-

town areas of high traffic density.

Su.rur D1ox1pE AND NITROGEN

DIOXIDE

Generally where EPA promulgated a

designation for SO,, the minimum

area was to be the county in which the

violating monitoring site was located.

If States had monitoring data to sub-

stantiate the size areas they designat-

ed, they would be acceptable by EPA

regardless of size.

’%

AIR QUALITY ConTROL REGION (AQCR)

REDESIGNATIONS

Section 107 of the CAA also pro-

vided for redesignation of the existing

AQCR boundaries where a State de-

termined that the redesignated areas

would promote more efficient air qual-

ity management. Several States exer-

cised this option in defining their des-

ignation areas. Part 81 under Title 40

of the Code of Federal Regulations

presently contains descriptions of all

existing AQCRs and these descrip-

tions, where feasible, will be modified

in a future PeperaL REcIsTER notice to

reflect the State revisions. The exact

descriptions of all AQCR boundaries

are available from either the appropri-

ate State or EPA Regional Office,

EFFECT OF THE DESIGNATIONS

Section 107(d\1)(A)-(E) sets out at-

tainment status categories to which

reference is made in Parts C (Preven-

tion of Significant Deterioration

(PSD)) and D (Nonattainment) of the

CAA. Section 171(2) in Part D defines

“nonattainment area” to include any

area identified under subparagraphs

107(d1) (A)-(C), while giving the Ad-

ministrator authority to add other

areas based on monitoring or calcula-

tions. Similarly, areas designated

under subparagraphs 107(d)(1) (D) or

(E) are described in section 161, Part

C, as PSD areas.

The section 107(d) designations are

meant to provide a starting point for

States in their efforts to correct exist-

ing air quality problems and to imple-

ment programs under the 1977 CAA

Amendments. For example, a designa-

tion as a nonattainment area, in gener-

al, means that an applicable SIP must

be revised, pursuant to section 172, to

provide for attainment of the NAAQS

as expeditiously as practicable, but not

later than December 31, 1982 (Decem-

ber 31, 1987, under certain conditions

for photochemical oxidants and/or

carbon monoxide). Under section

172(bX6) the revised SIPs must re-

~ quire permits, in accordance with the

provisions of section 173, for the con-

struction and operation of major new

or modified stationary sources. To be

approved by the Administrator under

section 110(aX2XI), a SIP must con-

tain a prohibition against major new

source construction in nonattainment

areas after June 30, 1979, where emis-

sions from the source would contrib-

ute to increases in pollutants for

which a NAAQS was being exceeded,

unless the SIP meets the requirements

of Part D at the time of the permit ap-

plication. Under section 129 of the

Amendments, EPA’s emission offsets

policy, as modified, continues to apply

to major new source construction in

nonattainment areas prior to July 1,

1979.

But the designation of an area as

nonattainment or attainment must be

considered only a point of departure

and not a final, inflexible end in itself.

The designations will have only limit-

ed significance for new source precon-

struction review, for three reasons.

First, new sources, wherever they pro-

pose to locate, must be reviewed for

their impact on all nearby areas as

well as that in which they would

locate. If an area on which a new

source would impact is designated dif-

ferently than the one in which it is lo-

cating, the designation of the latter

would not necessarily determine the

rules to which the source would be

subject. Second, PSD rules apply in

any area where at least one NAAQS is

attained, and since virtually every area

in the country shows attainment for

at least one pollutant, the PSD review

will be a requisite virtually every-

where. Finally, case-by-case new

source review is necessitated to ac-

count for the possibility that an area

with a particular designation may en-

compass “pockets” which do not fit

that designation.

These section 107(d) designations

are subject to revision under Section

107(d5) whenever sufficient data is

available to warrant a redesignation.

Both the State and EPA can initiate

changes to these designations, but any

State redesignation must be submitted

to EPA for concurrence. EPA will pro-

mulgate any revised list in accordance

with the requirements for this initial

promulgation.

EPA REVIEW

The State submittals were reviewed

by EPA for consistency with the crite-

ria set forth in this notice. Where EPA

differed with a State designation, sec-

tion 107 of the CAA provides that EPA

should notify the State and allow the

submission of additional information.

If EPA and the State could not reach

agreement, an EPA designation would

replace the State submitted designa-

tion. Also, in the case where a State

failed to designate for any State or

portion thereof the EPA would desig-

nate for the State as needed.

EPA considered all available moni-

toring data where it was determined to

be valid. All EPA designations con-

tained in the following tables were

made within the criteria contained in

this notice except in a limited number

of cases whvre the State designations

were replaced by unclassifiable desig-

nations by the appropriate Regional

Offices on the basis that a major

source in each county was utilizing a

possibly unauthorized dispersion tech-

nique. Since EPA has not finalized its

tall stack policy regulations to imple-

ment Section 123, it is presently un-

known whether the sources can claim

full credit for their existing stacks.

EPA designations are indicated in

the following tables by the asterisks

accompanying the designations: *

means a Federal EPA designation re-

placed a State recommendation. This *

is used where either the designation

status or the area size was modified by

EPA: °° means solely a Federal desig-

nation where a State failed to submit

their own recommendation. In some

instances, the descriptions of the des-

ignated areas submitted by the States

were so lengthy as to prohibit their

publication in the limited space avail-

able in the tables presented below.

Exact descriptions of all areas desig-

nated are available at the appropriate

Regional Offices or the State in ques-

tion. In some of the following tables,

States referenced AQCRs by their ap-

propriate number instead of their

title. An Appendix A is included in the

regulatory section of this rulemaking

which gives both the AQCR name and

number for ease of reference.

A summary of the approved designa-

tions for the 3215 counties or county

equivalents covered by these designa-

tions is presented below:

TSP

Number of counties either totally or par-

tially approved or designated by EPA as

nonattainment 421 101 190 607

Dated: February 23, 1978.

Dovuc.ias M. Cost ez,

Administrator.

Part 81 of Chapter I, Title 40 of the

Code of Federal Regulations is amend-

ed by adding Subpart C and Appendix

A as follows:

81.305 California.

81.306 Colorado.

81.307 Connecticut.

81.308 Delaware.

81.309 District of Columbia.

81.310 Florida.

Sec.

81.327 Montana.

81.328 Nebraska.

81.329 Nevada.

81.330 New Hampshire.

81.331 New Jersey.

81.332 New Mexico.

81.333 New York.

81.334 North Carolina.

81.335 North Dakota.

81.336 Ohio.

81.337 Oklahoma.

81.338 Oregon.

81.339 Pennsylvania.

81.340 Rhode Island.

81.341 South Carolina.

81.342 South Dakota.

81.343 Tennessee..

81.344 Texas.

81.345 Utah.

81.346 Vermont.

81.347 Virginia.

81.348 Washington.

81.349 West Virginia.

81.350 Wisconsin.

81.351 Wyoming.

81.352 American Samoa.

81.353 Guam.

81.354 Northern Mariana Islands.

81.355 Puerto Rico.

81.356 U.S. Virgin Islands.

Arrrenvix A—Air Quality Control Regions

(AQCR’s).

Avurnonirty: Secs. 107, 301 of the Clean Air

Act, as amended (42 U.S.C. 7407, 7601).

Subpert C—Section 107 Attainment Stetus

Designations

§ 81.300 Scope.

Attainment status designations as

approved or designated by the Envi-

ronmental Protection Agency (EPA)

pursuant to Section 107 of the Act are

listed in this subpart. Area designa-

tions are subject to revision whenever

sufficient data becomes available to

warrant a redesignation. Both the

State and EPA can initiate changes to

these designations, but any State rede-

signation must be submitted to EPA

. for concurrence.

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EXCERPT FROM FEDERAL REGISTER

March 26, 1980

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

. (FRL 1445-7)

Approval and Promuigation of

Implementation Plans; Disapproval of

Proposed Revision to Michigan Pian

AGENCY: Environmental Protection

Agency.

ACTION: Disapproval of proposed

revision.

SUMMARY: This action disapproves a

proposed revision to the Michigan State

Implementation Plan (SIP) submitted to

the U.S. Environmental Protection

Agency (USEPA) by the Michigan

Department of Natural Resources

(MDNR) pursuant to Section 110(a)(3) of

the Clean Air Act, 42 U.S.C. 7410(a)(3).

The revision, in the form of a Final

Order issued February 13, 1979 by the

Michigan Air Pollution Control

Commission (MAPCC), proposed to

extend the compliance date to

December 31, 1982 for Dow Chemical

Company (Dow) of Midland, Michigan

to meet the State emission limits for the

sulfur dioxide, particulate matter, and

visual emissions. In order to control

emissions before December 31, 1982 the

Order permitted Dow to utilize a.

Supplementary Control System (SCS).

FOR FURTHER INFORMATION CONTACT:

Gary Gulezian, Acting Chief, Regulatory

Analysis Section, Air Programs Branch,

United States Environmental Protection

Agency, Region V, 230 South Dearborn

Street, Chicago, Illinois 60604 (312) 886~

6053.

SUPPLEMENTARY INFORMATION:

I. Background

On February 14, 1979 the Michigan Air

Pollution Control Commission (MAPCC)

submitted to USEPA a proposed revision

to Michigan's State Implementation Plan

(SIP). The revision was in the form of a

Final Order issued by MAPCC after

Dow and the MDNR had entered into a

Stipulation for Entry of a Consent Order.

In the Consent Order Dow

acknowledged “that it is presently the

source of the emissions which result in

all significant ambient air

concentrations of sulfur dioxide in and

around Midland, Michigan,” and agreed

with the MAPCC that “Federal Ambient

Air Quality Standards for sulfur dioxide

are presently being met in and around

Midland, Michigan, because of the

operation of an SCR (Supplementary or

Intermittent Control System] by Dow.”

Supplementary or Intermittent Control

Systems are described in the Order as -

“systems which limit the rate of

pollutant emissions during periods when

meterological conditions conducive to

ambient ground level concentrations in

excess of levels specified in

subparagraph (iii) are anticipated.” The

ambient ground level concentrations

specified in subparagraph (iii) are the

same as the National Ambient Air

Quality Standards (NAAQS) for sulfur

dioxide (a running 24-hour average of

0.14 ppm, an annual arithmetic mean of

0.03 ppm, and a running 3-hour average

of 0.50 ppm) with the exception that no

exceedances are allowed. In order to

keep from exceeding these

concentrations, subparagraph (iii) of the

Order provides t that “Dow shall

utilize low sulfur fuel, load reduction,

plant shut down, or other measures * *

*” The Order provided that b

December 31, 1982, Dow would be in

continuous compliance with the present

State emission standards through the

purchase of process steam and

electricity or by burning fuel which

would result in compliance; but, until

that time Dow would be exempt from

the State emission limitations for sulfur

dioxide, particulates and opacity.

At the present time the federally-

approved Michigan Implementation Plan

provides that Dow achieve compliance

with sulfur dioxide emission standards

by July 1, 1975, and with particulate

emission standards by April 1, 1975. See

40 CFR 52.1175(d).

On May 17, 1974 Dow and MAPCC

entered into a Consent Order which

provided that Dow could temporarily

operate a SCS until July 1, 1980, to meet

NAAQS for sulfur dioxide; that, until

July 1, 1980, Dow was exempt from the

State emission limitations for sulfur

dioxide (SO,) and, that Dow would, in

the interim, purchase and install

equipment on its coal-fired boilers so as

to enable Dow to shift the use of fuels

from coal to oil or natural gas when it

was determined through the use of its

SCS that the weather was conducive to

ground level concentrations in excess of

NAAQS. This Consent Order was never

submitted to USEPA as a SIP revision.

On July 21, 1977, Dow and MAPCC

entered into a new Consent Order. This

Order authorized Dow to continue

operation of its existing system

(switching from coal to oil or gas when

meteorological conditions conducive to

ground level concentrations in excess of

NAAQS exist) until July 1, 1980, at

which time Dow agreed to eliminate

coal as a fuel in its power plants and

substitute compliance fuels, primiarly

oil.' The 1977 Consent Order was the

subject of litigation (Dow Chemical v.

Costle, No. 7810019, E.D. Mich.),

wherein the District Court determined

‘that the review of the Consent Order as

a proposed SIP revision by USEPA could

not be accomplished until the MAPCC

had completed the record and submitted

it to USEPA for review. Instead of

' Comments by the Dow Chemical Company,

August Z 1978 p. @

completing the record for the 1977

Consent Order, Dow and the MAPCC

entered into negotiations for a new

Consent Order and on February 14, 1979

Consent Order APC No. 01-1979 was

formally submitted by MAPCC to

USEPA as a proposed SIP revision.

In August 1977, Congress amended the

Clean Air Act (Act) to require the

designation of areas in each state where

the National Ambient Air Quality

Standards (NAAQS) for total suspended

particulates (TSP), sulfur dioxide (SO),

carbon monoxide (CO), photochemical

oxidents (ozone), and nitrogen dioxide

(NO,) were not being met. See Section

107(d) of the Act, 42 U.S.C. § 7407. An

area in Midland County, Michigan,

where Dow is located, was designated

as a nonattainment area for both the

primary and secondary SO, NAAQS and

for the secondary TSP NAAQS. See 43

FR 8692, dated March 3, 1978, and 43 FR

45993 dated October 5, 1978. Thereafter,

the State of Michigan submitted its part

D implementation plan to attain and

maintain sulfur dioxide and particulate

NAAQS in the nonattainment areas. In

its submittal the State indicated that its

part D control strategy for SO, -

. nonattainment areas was to eliminate

supplemental control systems and to

require “constant emission control .

systems.” *This was to be accomplished

by Consent Orders, such as APC No.

01-1979 previously submitfed February

14, 1979, to USEPA as a proposed SIP

revision. USEPA's review of Order No.

01-1979 as a part D SIP review is the

subject of a separate notice of proposed

rulemaking published 45 FR 9752

(February 13, 1980).

* State of Michigan Air Implementstion

Quality

Plan dated May 1, 1878 p. 5-2

On June 19, 1979 USEPA published at

44 FR 35263 a Proposed Disapproval of

the proposed site specific SIP revision

on the basis that the Consent Order did

not contain constant control devices for

the continuous reduction of emissions

but, instead, permitted Dow to vary its

emissions of sulfur dioxide and

particulates according to atmospheric

conditions.

Il. Public Comments

In response to the proposed

disapproval of the proposed SIP revision

comments were received from Dow

Chemical Company and from the

American Lung Association of Michigan.

Dow's comments urged approval of the

proposed SIP revision and made the

following a ts:

1. been sr revision is

approvable because it meets the

requirements of Sections 110(a)(2) and

Sections 302(k) and (m) of the Clean Air

Act.

2. In the event that Dow's system is

determined to be a SCS and barred by

Section 123 of the Act as a final means

of compliance, Section 123 does not bar

the use of the SCS as an interim means

of compliance.

3. The designation of the Midland,

Michigan area as a nonattainment area

for sulfur dioxide and particulate

NAAQS is in error.

4. The proposed revision should be

approved because of equitable

considerations,

5. Since the supplementary control

system enables Dow to keep from

violating NAAQS, “no significant health

effects would be presented by

. controlling Dow-Midland sulfur dioxide

emissions below the SCS level.” 2

The comments of the American Lung

Association of Michigan supported

disapproval of the Consent Order as a

SIP revision and stressed the following

points: “

(1) The Order is contrary to law in

that it permits reliance on a SCS for

control of emissions from the Dow-

Midland complex.

(2) The period during which Dow is

permitted to use the SCS to control

emissions does not qualify as an interim

‘ig under the Clean Air Act or case

aw.

(3) The Consent Order does not

satisfy the SIP requirements of Section

172 of the Clean Air Act for

nonattainment areas.

(4) The Consent Order does not

provide for adequate emission

monitoring for enforcement purposes.

(5) It would be inequitable to approve

the Consent Order as a SIP revision.

As set forth below, the comments of

Dow do not justify approval of the

Consent Order as a SIP revision.

1. Requirements of Section 110(a})(3)(A)

and Sections 302(k) and 302(m) of the

Clean Air Act

A. Section 110(a)(3)(A) of the Clean

Air Act provides for approval of SIP

revisions by the Administrator if the

revision “meets the requirements of

paragraph (2) and fen bane adopted by

the State after reasonable notice and

public hearings.” Paragraph (2) refers to

Section 110(a)(2) which requires in

subparagraph (B) that the revision

contain “emission limitations * * * and

such other measures as may be

necessary to insure attainment of such

primary or secondary standard * * *,”

Section 302(k) defines “emission

limitation” and “emission standard” as

“a requirement * * * which limits the

quantity, rate or concentration of

’%

emissions of air pollutants on a

continuous basis * * *;" and Section

302(m) defines “means of emission

limitation” as “a system of continuous

emission reduction (including the use of

specific technology or fuels with

specified pollution characteristics).”

Although Dow and the MAPCC

continuously refer to Dow's means of

emission limitation as a Supplementary

Control System,* Dow cleims in its

comments that Dow's system is not a

SCS and that the Consent Order

contains a proper “emission limitation"

in that it establishes a “concentration”

of pollutant which Dow Is required to

achieve. The “emission limitation”, and/

or “concentration”, in the Consent Order

are the primary and secondary National

Ambient Air Quality Standards for

sulfur dioxide with the exception that

any exceedance of the Standards is

considered a violation. Dow comments

further that its system is not a SCS

because it reduces emissions and

insures continuous compliance with the

NAAQS numerical limitations.*

Dow describes its SCS as a process by

which information from eight SO:

analyzers located in the City of Midland,

from meteorological instruments in a

tower located near the company, and

from its boiler operation are fed into a

computer which provides data to a

consultant in Boston. The consultant

uses this information to forecast the air

quality impact of Dow's planned boiler

operations. When the consultant

determines which fuel must be burned in

order to maintain NAAQS under the

*Consent Order APC No. 1-1979 and Dow's

Comments dated August 2, 1979.

* The concentration levels in the Consent Order

meteorological conditions in Midland,

the information is sent back to the Dow

computer for transmission to the Dow

Utilities Control Room. The individuals

in charge of the boiler operations then

switch certain boilers to the fuel .

necessary to maintain NAAQS. Dow, in

its comments stressed the ability of its

SCS to keep Dow from violating

NAAQS and alleged that because of this

effectiveness Dow's SCS was not the

type of SCS that Congress intended to

ban by adding Section 123 of the Clean

Air Act.

The Act requires more than

continuous compliance with the

NAAQS. Section 110(a)(2)(B) requires

the use of emission limitations to insure

attainment and maintenance of the

NAAQS. Emission limitation, as defined

in Section 302(k) and 302(m) of the Act

requires “continuous emission

reduction.” Under Section 123 of the Act.

the degree of emission limitation

required to meet the standards cannot

be affected by a dispersion technique.

It is USEPA's determination, that

Dow's system does not require

continuous emission reduction and that

it is designed so as to allow Dow to vary

the fuel mix used by its boilers to the

extent that it is necessary to keep from

exceeding NAAQS.*

*See Dow's comments (July 20, 1979, p. 6) “This

mixture of fuel varies as the concentration of the

pollutant varies so that et no time is the limitation

[SO. NAAQS] violated.” ,

Such a system is a “dispersion

technique" as described in Section 123

of the Act, i.e., “any intermittent or

supplemental control of air pollutants

varying with atmospheric conditions”,

and thus cannot be considered in

determining the degree of emission

limitation that Dow is required to meet.

Furthermore, the Consent Order states

that “Dow and the Commission agree

that Federal Ambient Air Quality

Standards are being met in and around

Midland, Michigan, because of

operation of an SCS by Dow.” |

Dow comments that the use of fuels

may be a means of emission limitation.

For the use of fuels, however, to be a

proper means of compliance, the

proposed SIP revision must identify the

specific fuel mix to be used and include

a demonstration that use of specific

fuels at maximum operating conditions

and “worst case" meteorology would

not cause a violation of the NAAQS for

either sulfur dioxide or particulates.

The proposed SIP revision that

MAPCC has submitted to USEPA for

approval/disapproval is deficient in tha

it contains no demonstration that the

sulfur dioxide and particulate NAAQS

would be protected without the use of

Dow's SCS, a “dispersion technique.”

B. Dow comments that the proposed

revision contains a proper emission

limitation because Dow cannot exceed

the SO, NAAQS. Dow claims this

limitation [NAAQS] is a “concentration

of pollutant which Dow is required to

achieve and thus is an “emission

limitation” which meets the

requirements of Sections 110(a)(2) and

302{(k) of the Act. It is USEPA's position

that the Clean Air Act not only requires

compliance with the national ambient

air quality standards, which are ground

level concentrations, but also with

emission limitations, which limit the

amount of pollutants emitted by a

source (42 U.S.C. 7410(a)(2) (A) and (B).

Emission limitations, as applied to a

source, must “assure continuous

emission reduction” 42 U.S.C. 7602 (k)

and (m). Dow is required to comply with

both ground level concentrations

(ambient standards) and emission

limitations designed to attain the

ambient standards. Compliance by Dow

with ground level concentrations of the

SO, NAAQS does not constitute

compliance with its emission limitation

in the federally approved SIP. The Order

which requires only compliance with the

und level concentrations of the SO,

NAAQS does not meet the statutory

requirements of Section 110(a)(2)(B) (42

U.S.C. 7410{a)(2)(B)).

The proposed revision is also

deficient in that it does not contain any

emission limitations for particulates or

visual emissions.

2. Interim Use of Supplementary Control

Systems

Dow comments on page 3 of its July

20, 1979 counsel's letter to USEPA that

“Regardless, therefore, of whether the

System is continous means of emission

control, EPA should permit the use of it

in the interim;" and that nothing in the

Clean Air Act nor case law prohibits the:

use of SCS on an interim basis. In

support of its position Dow cites several

cases decided prior to the 1977

Amendments. Congress was aware of

those cases when it passed the 1977

Amendments and chose to narrow

substantially the circumstances where

dispersion techniques were permissible..

USEPA has stated that “apart from

the limited circumstances of sections

113(d) and 119, and the narrow

exceptions of Section 123, dispersion

technology cannot be employed in lieu

of constant controls for any purpose

under the Act." See 1977 Clean Air Act

Amendments for Stack Heights, Notice

°°.

of Proposed Rulemaking 44 FR 2608,

January 12, 1979. It is USEPA's position

that Congress, in the 1977 Amendments

to the Act, permitted interim use of a

SCS only as part of a Section 113(d)

delayed compliance order or a primary

nonferous smelter order under Section

119. Sections 113(d) and 119, 42 U.S.C.

7413(d), and 7419. American Lung in its

comments agrees with USEPA's

position.

3. Nonattainment Designation and

Requirements of Part D of the Act

Dow maintains that the area in which

its plant is located in Midland,

Michigan, is an attainment area for

NAAQS because of monitoring data

recorded while Dow was using its SCS.

USEPA has designated the area as a

nonattainment area because Dow has

failed to comply with its required

emission limitations. Dow's reliance on

SCS to avoid ambient standard

violations is an impermissible way to

attain national standards. See Sections

110(a)(2)(B), 123(a) and 302 (k} and (m).

American Lung's comments stressed

disapproval of Dow’s Order No. 01-1979

under Part D of the Act. USEPA agrees

and has proposed disapproval of the

Order for failure to meet Part D

requirements in a Notice of Proposed

Rulemaking published February 13, 1980

(45 FR 9752}.

American Lung’s comments, which

pertain to the requirements of Part D,

and other comments received in

response to the proposed disapproval

under Part D will be considered in

USEPA's final rulemaking on that

proposed disapproval.

4. Equitable Considerations

Dow stresses that USEPA's position is

inequitable in that Dow is being

penalized for its use of less than “Good

Engineering Practice” stacks; that

USEPA's disapproval will not result in

any improvement in the public health

and welfare in the public area; and that

it would waste a critical national

resource.

Dow's policy has been to rely on the

possibility of purchasing process steam

from a nuclear plant to be constructed

by Consumers Power Company near

Dow's Midland, Michigan industrial

facilities. The nuclear facility was to

have been operational by 1974-1975.

When it became obvious that this

operational date was not possible Dow

sought to extend its compliance date for

meeting the sulfur dioxide and

particulate emission limits in the

Michigan State Implementation Plan

through Stipulation and Entry of

Consent Orders with the MAPCC, which

Consent Orders permitted Dow to attain

and maintain NAAQS through the use of

a SCS. These Consent Orders were not

submitted to USEPA as SIP revisions.

Dow has insisted on this approach even

though it has been informed by both the

MAPCC and USEPA that operation of a

SCS in lieu of continuous emission

controls was not an acceptable means of

emission control.’

States District Court, Western District of

Southern Division (December, 1977), and USEPA

correspondence with Dow in 1977.

’%

In the July 21, 1977 Consent Order,

Dow‘agreed to achieve compliance by

uly 1, 1980 with the State emission

imits for particulate matter, opacity,

and sulfur dioxide. Compliance was to

have been achieved through the use of

compliance fuels. In this Order Dow did

not make any claim that it was

economically infeasible to achieve

compliance by switching to compliance

fuels in 1980. Instead of taking steps

which would enable Dow to achieve

final compliance by switching to

compliance fuels in 1980, the Company

negotiated further Consent Orders, the

last of which extended the compliance

date to December 31, 1982. Instead of

implementing its SCS, Dow could have

chosen other means of compliance in the

early 1970's when it became apparent

that the start up of the nuclear plant was

beyond Dow's control. Dow can still

select other means of compliance which

meet the requirements of the Clean Air

Act, i.e., continuous emission reduction.

Dow claims that it is inequitable for

USEPA to expect Dow to comply with

the requirements of the Clean Air Act.

The Act does not empower USEPA to

consider equities in fulfilling its

statutory mandate. The Act provides

that USEPA is to approve a SIP revision

if, among other things, it contains a

demonstration that NAAQS, both

primary and secondary, will be attained

and maintained through emission

limitations. Such a demonstration must

be made by approved modeling or

monitoring techniques which cannot be

affected by any dispersion techniques as

defined by Section 123 of the Act. The

February 14, 1979, Consent Order

submitted as a proposed SIP revision

does not contain this demonstration.

Because the proposed revision permits

Dow to use a SCS to attain standards,

rather than providing for immediate

compliance with the emission

limitations that Dow was required to

meet in 1975, the revision does not

satisfy the statutory requirements and

cannot be approved by USEPA.

5. Health Effects From Use of

Supplementary Control System as

Compared to Continuous Emission

Controls

Dow submitted various opinions from

individuals concerning the health and

welfare effects to be gained by requiring

Dow to implement continuous emission

controls as opposed to permitting Dow

to continue ta use its SCS to keep from

violating the SO: NAAQS. DOW claims

that “no significant health effects will be

prevented by controlling DOW-Midland

SO; emissions below the SCS level.”

Congress considered health and welfare

effects in passing the Clean Air Act

Amendments of 1970 and 1977. Congress

determined that use of dispersion

techniques may result in adverse health

and welfare impacts hundreds of miles

from a source and therefore required use

of continuous emission reduction

technology to attain the standards. See

H.R. Rep. No. 95-294, 95th Cong. 1st.

Sess. (1977) at 79-94. USEPA has no

authority to override that congressional

judgment.

The comments of American Lung

Association of Michigan have been

addressed in USEPA's response to

Dow's comments with the exception of

No. 4 which asserted that the proposed

SIP revision does not provide for

emission monitoring as required in

Section 114(a) of the Act and in State

regulations. Section 114(a)(1) of the Act

provides the Administrator with

discretionary authority to require a

source to perform in-stack monitoring of

emissions in order to assist in the

determination of whether or not

compliance is being achieved.

American Lung also cites Michigan

rules which require in-stack monitoring

as a condition for obtaining relief from

sulfur emission limits beyond 1980. The

discretionary authority found in Section

114(a)(1) is not applicable to this

situation inasmuch as it does not

establish criteria for SIP approval or

disapproval. In addition, State

requirements for extending compliance

dates are a matter of State law and do

not establish Federal requirements for

the approval or disapproval of a SIP by

USEPA.

USEPA has determined the proposed

SIP revision, Consent Order No. 01-1979,

dated February 13, 1979, lacks a

demonstration that the primary and

secondary National Ambient Air

Quality Standards will be attained and

maintained without use of a

supplementary or intermittent control

system, does not provide for continuous

emission reduction, and does not

contain emission limitations for sulfur

dioxide and particulates.

Therefore, the reviston is disapproved

as not complying with the requirements

of Sections 110({a)(2) and (3). (42 U.S.C.

7410(a}{2) and (3)).

Under Executive Order 12044 (43 FR

12661), USEPA is required to judge _

whether a regulation is “significant”

and, therefore, subject to certain

procedural requirements of the Order or

whether it may follow other specialized

development procedures. USEPA labels

these other regulations as “specialized”.

I have reviewed this regulation and

determined that it is a specialized

regulation not subject to the procedural

requirements of Executive Order 12044.

This Final Rulemaking is issued under

the authority of Section 110 of the Clean

Air Act as amended. (42 U.S.C. 7410, et.

seq. )

_ Dated: March 18, 1960,

Douglas Costle, 4

Administrator.

(FR Doc. 80-2980 Filed 3-25-20; £45 am)

APPENDIX “C”

ORDER CONSOLIDATING CASES

(United States Court of Appeals

For the Sixth Circuit)

(Filed Sept. 25, 1980)

(Dow Chemical v USEPA, Nos. 78-3139, 78-3595,

80-3260)

Before: EDWARDS, Chief Judge, PHILLIPS and PECK,

Senior Circuit Judges.

On receipt and consideration of briefs and oral

arguments in appeals in Nos. 78-3139 and 78-3595; and

On receipt and consideration of an appeal in

No. 80-3260; and

Noting that both sets of appeals involve similar

questions,

Now, therefore, all appeals numbered above are

hereby consolidated and reset or set for oral argument in

the October term.

Entered by order of the Court

ls) John P. Hehman

Clerk

ORDER DENYING PETITIONS FOR REVIEW

(United States Court of Appeals

For the Sixth Circuit)

(Filed Dec. 9, 1980)

(Dow Chemical v USEPA; Nos. 78-3139; 78-3595; 80-3260)

Before: EDWARDS, Chief Judge, PHILLIPS and PECK,

Senior Circuit Judges.

On petition to review final action of Administrator,

U. S. Environmental Protection Agency,

These cases came on to be heard on the record of

proceedings before the Environment Protection Agency

and were argued by counsel.

On consideration whereof, it is now ordered,

adjudged and decreed by this Court that the petitions for

review are denied.

It is further ordered that Respondents recover from

Petitioner the costs on appeal as itemized below.

ENTERED BY ORDER OF THE COURT.

ls) John P. Hehman

Clerk

ORDER DENYING MOTION FOR REHEARING

(United States Court of Appeals

For the Sixth Circuit)

(Filed February 9, 1980)

(Dow Chemical v USEPA; Nos. 78-3139, 78-3595, 80-3260)

Before: EDWARDS, Chief Judge, PHILLIPS and PECK,

Senior Circuit Judges.

On receipt and consideration of a motion for

rehearing,

The same is hereby denied, since all of the matters

presented in said motion were thoroughly considered by

the panel in advance of issuance of its opinion.

Entered by order of the court

ls) John P. Hehman

Clerk

APPENDIX “’D”’

EXCERPTS OF THE CLEAN AIR ACT

§ 7407. Air quality control regions

List of noncomplying regions

(d)(1) For the purpose of transportation

control planning, part D of this subchapter

(relating to nonattainment), part C of this

subchapter (relating to prevention of significant

deterioration of air quality), and for other

purposes, each State, within one hundred and

twenty days after August 7, 1977, shall submit to

the Administrator a list, together with a summary

‘of the available information, identifying those air

quality control regions, or portions thereof,

established pursuant to this section in such State

which on August 7, 1977 —

(A) do not meet a national primary ambient

air quality standard for any air pollutant other

than sulfur dioxide or particulate matter;

(B) do not meet, or in the judgment of the

State may not in the time period required by an

applicable implementation plan attain or

maintain, any national primary ambient air

quality standard for sulfur dioxide or particulate

matter;

air quality standard;

(D) cannot be classified under subparagraph

(B) or (C) of this paragraph on the basis of

available information, for ambient air quality

levels for sulfur oxides or particulate matter; or

(E) have ambient air quality levels better than

any national primary or secondary air quality

standard other than for sulfur dioxide or

particulate matter, or for which there is not

sufficient data to be classified under sub-

paragraph (A) or (C) of this paragraph.

(2) Not later than sixty days after submittal of the list

under paragraph (1) of this subsection the Administrator

shall promulgate each such list with such modifications

as he deems necessary. Whenever the Administrator

proposes to modify a list submitted by a State, he shall

notify the State and request all available data relating to

such region or portion, and provide such State with

an opportunity to demonstrate why any proposed

modification is inappropriate.

§ 7410. State implementation plans for national

primary and secondary ambient air quality standards

Adoption of plan by State; submission to Administrator;

content of plan; revision; new sources; indirect

source review program; supplemental or

intermittent control systems

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

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision

thereof) under section 7409 of this title for any air

pollutant, a plan which provides for implementation,

maintenance, and enforcement of such primary standard

in each air quality control region (or portion thereof)

within such State. In addition, such State shall adopt and

submit to the Administrator (either as a part of a plan

submitted under the preceding sentence or separately)

within nine months after the promulgation of a national

ambient air quality secondary standard (or revision

thereof), a plan which provides for implementation,

maintenance and enforcement of such secondary

standard in each air quality control region (or portion

thereof) within such State. Unless a separate public

hearing is provided, each State shall consider its plan

implementing such secondary standard at the hearing

required by the first sentence of this paragraph.

(2) The Administrator shall, within four months after

the date required for submission of a plan under

°°

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

portion thereof. The Administrator shall approve such

plan, or any portion thereof, if he determines that it was

adopted after reasonable notice and hearing and that —

(A) except as may be provided in sub-

paragraph (1)(i) in the case of a plan

implementing a national primary ambient air

quality standard, it provides for the attainment of

such primary standard as expeditiously as

practicable but (subject to subsection (e) of this

section) in no case later than three years from the

date of approval of such plan (or any revision

thereof to take account of a revised primary

standard); and (ii) in the case of a plan

implementing a national secondary ambient air

quality standard, it specifies a reasonable time at

which such secondary standard will be attained;

(B) it includes emission jimitations, sched-

ules, and timetables for compliance with such

limitations, and such othe: measures as may be

necessary to insure attainment and maintenance

of such primary or secondary standard, including,

but not limited to, transportation controls, air

quality maintenance plans, and preconstruction

review of direct sources of air pollution as

provided in subparagraph (D);

and operation of appropriate devices, methods,

systems, and procedures necessary to (i) monitor,

compile, and analyze data on ambient air quality

and, (ii) upon request, make such data available

to the Administrator;

(D) it includes a program to provide for the

enforcement of emission limitations and

regulation of the modification, construction, and

operation of any stationary source, including a

permit program as required in parts C and D of

this subchapter and a permit or equivalent

program for any major emitting facility, within

such region as necessary to assure (i) that national

ambient air quality standards are achieved and

maintained, and (ii) a procedure, meeting the

requirements of paragraph (4), for review (prior

to construction or modification) of the location of

new sources to which a standard of performance

will apply;

(E) it contains adequate provisions (i) pro-

hibiting any stationary source within the State

from emitting any air pollutant in amounts which

will (1) prevent attainment or maintenance by any

other State of any such national primary or

secondary ambient air quality standard, or (II)

interfere with measures required to be included

in the applicable implementation plan for any

other State under part C of this subchapter to

prevent significant deterioration of ‘air quality or

to protect visibility, and (ii) insuring compliance

with the requirements of section 7426 of this title,

relating to interstate pollution abatement;

(F) it provides (i) necessary assurances that

the State will have adequate personnel, funding,

and authority to carry out such implementation

plan; (ii) requirements for installation of

equipment by owners or operators of stationary

sources to monitor emissions from such sources:

(iii) for periodic reports on the nature and

amounts of such emissions; (iv) that such reports

shall be correlated by the State agency with any

emission limitations or standards established

pursuant to this chapter, which reports shall be

available at reasonable times for public

inspection; (v) for authority comparable to that in

section 7603 of this title, and adequate

contingency plans to implement such authority;

and (vi) requirements that the State comply with

the requirements respecting State boards under

section 7428 of this title;

(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing of

motor vehicles to enforce compliance with

applicable emission standards;

(H) it provides for revision, after public

hearings, of such plan (i) from time to time as

may be necessary to take account of revisions of

such national primary or secondary ambient air

quality standard or the availability of improved or

more expeditious methods of achieving such

primary or secondary standard; or (ii) except as

provided in paragraph (3)(C), whenever the

Administrator finds on the basis of information

available to him that the plan is substantially

inadequate to achieve the national ambient air

quality. primary or secondary standard which it

implements or to otherwise comply with any

additional requirements established under the

Clean Air Act Amendments of 1977;

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

major stationary source shall be constructed or

modified in any nonattainment area (as defined

in section 7501(2) of this title) to which such plan

’%

applies, if the emissions from such facility will

cause or contribute to concentrations of any

pollutant for which a national ambient air quality

standard is exceeded in such area, unless, as of

the time of application for a permit for such

construction or modification, such plan meets the

requirements of part D of this subchapter

(relating to nonattainment areas);

(J) it meets the requirements of section 7421 of

this title (relating to consultation), section 7427 of

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

this subchapter (relating to prevention of

significant deterioration of air quality and

visibility protection); and

(K) it requires the owner or operator of each

major stationary source to pay to the permitting

authority as a condition of any permit required

under this chapter a fee sufficient to cover —

(i) the reasonable costs of reviewing and

acting upon any application for such a

permit, and

(ii) if the owner or operator receives a

permit for such source, whether before or

after August 7, 1977, the reasonable costs

(incurred after August 7, 1977) of

implementing and enforcing the terms and

conditions of any such permit (not including

any court costs or other costs associated with

any enforcement action).

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

of an implementation plan applicable to an air quality

control region if he determines that it meets the

requirements of paragraph (2) and has been adopted by

the State after reasonable notice and public hearings.

§ 7423. Stack heights

Heights in excess of good engineering practice;

other dispersion techniques

(a) The degree of emission limitation required for

control of any air pollutant under an applicable

implementation plan under this subchapter shall not be

affected in any manner by —

(1) so much of the stack height of any source

as exceeds good engineering practice (as

determined under regulations promulgated by the

Administrator), or

(2) any other dispersion technique.

The preceding sentence shall not apply with respect to

stack heights in existence before December 31, 1970, or

dispersion techniques implemented before such date. In

establishing an emission limitation for coal-fired steam

electric generating units which are subject to the

provisions of section 7418 of this title and which

commenced operation before July 1, 1957, the effect of

the entire stack height of stacks for which a construction

contract was awarded before February 8, 1974, may be

taken into account.

Dispersion technique

(b) For the purpose of this section, the term

“dispersion technique’ includes any intermittent or

supplemental control of air pollutants varying with.

atmospheric conditions.

§ 7501. Definitions

For the purpose of this part and section 7410(a)(2)(I) of

this title —

(2) The term “nonattainment area” means, for any air

pollutant an area which is shown by monitored data or

which is calculated by air quality modeling (or other

methods determined by the Administrator to be reliable)

to exceed any national ambient air quality standard for

such pollutant. Such term includes any area identified

under subparagraphs (A) through (C) of section

7407(d)(1) of this title.

§ 7602. Definitions

When used in this chapter —

(k) The terms ‘‘emission limitation” and ‘emission

standard’ mean a requirement established by the State

or the Administrator which limits the quantity, rate, or

concentration of emissions of air pollutants on a

continuous basis, including any requirement relating to

the operation or maintenance of a source to assure

continuous emission reduction. ;

(m) The term “means of emission limitation’’ means

a system of continuous emission reduction (including

the use-of specific technology or fuels with specified

pollution characteristics).

§ 7607. Administrative proceedings and judicial

review

Judicial review

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

Administrator in promulgating any national primary or

secondary ambient air quality standard, any emission

standard or requirement under section 7412 of this title,

any standard of performance or requirement under

’%

section 7411 of this title, any standard under section 7521

of this title (other than a standard required to be

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

determination under section 7521(b)(5) of this title, any

control or prohibition under section 7545 of this title, any

standard under section 7571 of this title, any rule issued

under section 7413, 7419, or 7420 of this title, or any

other nationally applicable regulations promulgated, or

final action taken, by the Administrator under this

chapter may be filed only in the United States Court of

Appeals for the District of Columbia. A petition for

review of the Administrator’s action in approving or

promulgating any implementation plan under section

7410 of this title or section 7411(d) of this title, any order

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

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

7419 of this title, or under section 7420 of this title, or his

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

before August 7, 1977) or under regulations thereunder,

or any other final action of the Administrator under this

chapter (including any denial or disapproval by the

Administrator under subchapter I of this chapter) which

is locally or regionally applicable may be filed only in the

United States Court of Appeals for the appropriate

circuit. Notwithstanding the preceding sentence a

petition for review of any action referred to in such

sentence may be filed only in the United States Court of

Appeals for the District of Columbia if such action is

based on a determination of nationwide scope or effect

and if in taking such action the Administrator finds and

publishes that such action is based on such a

determination. Any petition for review under this

subsection shall be filed within sixty days from the date

notice of such promulgation, approval, or action appears

in the Federal Register, except that if such petition is

based solely on grounds arising after such sixtieth day,

then any petition for review under this subsection shall

be filed within sixty days after such grounds arise.

APPENDIX “E”

STIPULATION FOR ENTRY OF CONSENT ORDER

AND FINAL ORDER

(State of Michigan

Department of Natural Resources

Air Pollution Control Commission)

In re Administrative Proceedings against DOW

CHEMICAL COMPANY, a Delaware Corporation,

concerning sulfur dioxide emissions frorn fossil fuel

burning operations at Midland Division, in Midland,

Michigan. File No. 12-73-05

This matter is before the Air Pollution Control

Commission on a proposal from the company to

implement a Supplementary Control System for sulfur

dioxide control in lieu of the Company’s commitment to

construct two 400-foot stacks to enhance dispersion of

sulfur dioxide. The previous commitment was developed

because the Commission had cause to believe that the

fossil fuel fired boilers are emitting sulfur dioxide that, if

continued unabated, will be in excess of allowable limits

according to the provisions of Michigan R. 336.49 (ACS

No. 71, pages 30-32) on July 1, 1975. Supplementary

Control Systems are systems which limit the rate of

pollutant emissions during periods when meteorological

conditions conducive to ground level concentrations in

excess of air quality standards are anticipated.

Dow Chemical Company and the staff hereby, with

the approval of this Commission, agree to the

termination of this proceeding by entry of a Final Order

by consent.

Dow Chemical Company and staff hereby and

herewith stipulate and agree as follows:

1. That Dow Chemical Company, a Delaware

Corporation, having its principal office at Midland,

Michigan, acknowledges proper service of a notice of

hearing and proposed order for corrective action, and

expressly herewith waives the filing of an answer or

denial thereto.

2. That the Dow Chemical Company acknowledges

that it is presently the source of the emissions which

result in all significant ambient air concentrations of

sulfur dioxide in and around Midland, Michigan.

3. That the Dow Chemical Company has demon-

strated to the satisfaction of the Commission that all

constant emission reduction technology reasonably

available to the company has been applied and is

presently insufficient to attain the national sulfur dioxide

air quality standards. The company and the staff agree

that further constant emission reduction means, other

than tall stack construction, are not reasonably available

to the company at this time.

4. That the Dow Chemical Company has demon-

strated the technical feasibility of its version of a

Supplementary Control System to achieve the primary

and secondary sulfur dioxide air quality standards by

July 1, 1975.

5. That Dow Chemical Company and the staff agree

that the signing of this Stipulation is for settlement

purposes only and does not constitute an admission by

Dow Chemical Company that the law has been violated,

but both staff and Dow Chemical Company do expressly

agree that the sulfur dioxide emissions from Midland

Division, South Side and West Side Power Plants, at

Midland, Michigan, should be abated and, therefore,

both staff and Dow Chemical Company herewith and

hereby stipulate and agree to the following time schedule

for affirmative action:

a) By April 1, 1974, Dow Chemical Company

shall replace the four existing continuous sulfur

dioxide analyzers with units that will comply

with the United States Environmental Protection

Agency’s specifications as listed in the Federal

Regis «¢, Volume 36, No. 84, April 30, 1971.

b) Furthermore, Dow Chemical Company

shall install up to four additional sulfur dioxide

monitors at locations and on a timetable specified

by the Chief, Air Pollution Control Division,

Department of Natural Resources.

c) On and after May 1, 1974, Dow Chemical

Company shall submit to the staff on a real time

basis all air quality data from the sulfur dioxide

monitoring stations and other pertinent

information related to fuel switching and the

implementation of the Supplementary Control

System at Midland, Michigan. Dow Chemical

Company shall provide at its expense the

necessary equipment to receive this information

at the staff offices in Lansing.

d) By April 1, 1974, and monthly thereafter,

Dow Chemical Company shall submit a monthly

report of air quality data summaries and a

summary of abatement action taken at the South

Side and West Side Power Plants.

e) By September 1, 1974, submit to the

Commission evidence to show cause, if any Dow

Chemical Company has, why the company

should not be required to increase the stack

height for Boiler No. 20.

f) After June 30, 1975 Dow Chemical Company

shall prevent all sulfur dioxide air quality

standards promulgated by the United States

Environmental Protection Agency in Federal

from being exceeded in and around Midland,

Michigan, for any cause attributable to the

company. The company shall utilize at its option

lower sulfur fuel, load reduction, plant shut down

or other means to accomplish this objective.

g) By January 1, 1975, and annually thereafter,

the company shall report to the Commission and

shall show cause, if any the company has, as to

why the company should not proceed with

dispatch to the design and installation of

particulate controls on its existing coal-fired

boilers.

h) By July 1, 1980, Dow Chemical Company

shall purchase its steam and power requirements

in sufficient quanitities or make other operating

modifications, as appropriate, to be approved in

advance by the Commission, to ensure complete

compliance with all applicable state and federal

particulate and sulfur dioxide emission

limitations, such limitations being published in

the Administrative Code.

6. The Dow Chemical Company and the staff agree

that this stipulation and final order rescinds an

agreement between the parties dated March 14, 1973,

entitled Voluntary Agreement for Air Pollution.

Abatement.

Staff and Dow Chemical Company both acknowledge

that public hearings on this abatement program were

held before the Commission on December 18, 1973. Both

staff and Dow Chemical Company hereby consent to

enforcement of this stipulation and Final Order in the

Same manner and by the same procedures for all final

orders entered pursuant to Section 16 of Act 257 of the

Public Acts of 1972, being Section 336.26 of the Michigan

Compiled Laws, including, but not limited to,

enforcement by legal action brought under 1972 PA 257

and/or 1970 PA 127.

Approved as to Form and Content

/s/ J. M. Leathers,

Vice President

Midland Division

Dow Chemical Company

Dated: 5/3/74

Approved as to Content: Approved as to Form:

ls} Lee E. Jager, Chief Is) Stewart H. Freeman

Air Pollution Control Assistant Attorney General

Division Department of Natural

Dated: 5/7/74 Resources

Dated: May 13, 1974

FINAL ORDER

This Commission having read the above stated

Stipulation for Entry of Consent Order, and the

Commission being further fully advised in the premises.

IT IS ORDERED that this Consent Order shall be en-

tered in the record of this Commission as stated herein.

AIR POLLUTION CONTROL

COMMISSION

By: /s/ Ralph W. Purdy

Executive Sec: “ary

Dated: 5/17/74

June 13, 1974

Mr. Francis T. Mayo

Regional Administrator

U.S. Environmental Protection Agency

1 North Wacker Drive

Chicago, Illinois 60606

Dear Mr. Mayo:

The purpose of this letter is to transmit to EPA

compliance schedules which have recently been finalized

between sources of air pollution in the State of Michigan

and the Michigan Air Pollution Control Commission.

Following is a list of the compliance schedules enclosed

with this letter:

Performance Contract for Air Pollution Abatement

04-1974 — Bridgman Casting Center, Division of

Marmon Group, Inc.

05-1974 — Consumers Power Company, J. R.

Whiting Plant

06-1974 — Union Camp Corporation

Stipulation for Entry of Consent Order and Final Order

12-73-05 — Dow Chemical Company

06-1974 — Berlin and Farro Liquid Incineration, Inc.

07-1974 — Dundee Cement Company

Final Order for Corrective Action

04-1974 — Battle Creek Foundry Company

Amendments — Performance Contracts

973-13 — Consumers Power Company, J. R.

Whiting Plant

973-12 — Consumers Power Company, D. E.

Karn Plant

We look forward to approval by the EPA of these

compliance schedules and would be pleased to meet with

your staff members to discuss them in more detail if such

a conference would assist in your review.

Very truly yours,

Lee E. Jager, Chief

Air Pollution Control Division

LEJ:mah

Enclosures (9)

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION V

230 SOUTH DEARBORN ST.

CHICAGO, ILLINOIS 60604

Mr. Lee E. Jager, Chief July 10, 1974

Air Pollution Control Division

Department of Natural Resources

Stevens T. Mason Building

Lansing, Michigan 48926

Dear Mr. Jager:

Thank you for your letter of June 13, 1974 in which you

submitted the following compliance schedules:

Performance Contract for Air Pollution Abatement

04-1974 — Bridgman Casting Center, Division of

Marmon Group, Inc.

05-1974 — Consumers Power Company, J. R.

Whiting Plant

06-1974 — Union Camp Corporation

Stipulation for Entry of Consent Order and Final Order

12-73-05 — Dow Chemical Company

06-1974 — Berlin and Farro Liquid Incineration, Inc.

07-1974 — Dundee Cement Company

Final Order for Corrective Action

04-1974 — Battle Creek Foundry Company

Amendments — Performance Contracts

973-13 — Consumers Power Company, J. R.

Whiting Plant

973-12 — Consumers Power Company, D. E.

Karn Plant

We are presently reviewing the schedules and will

contact you if further assistance is necessary.

Very truly yours,

ls! Dale S. Bryson, Acting Director

Enforcement Division

STIPULATION FOR ENTRY OF CONSENT ORDER

AND FINAL ORDER

(State of Michigan

Department of Natural Resources

Air Pollution Control Commission)

In the matter of administrative proceedings against

THE DOW CHEMICAL COMPANY, a Delaware

corporation, concerning particulate matter and sulfur

dioxide emission from fossil fuel burning operations at

the Michigan Division in the City of Midland, County of

Midland, State of Michigan. APC No. 10-1977

This proceeding arises out of Final Order 12-73-05, an

Order for Rehearing dated January 21, 1976 of the

Michigan Air Pollution Control Commission [hereinafter

referred to as the “‘Commission’’] and a proposal from

The Dow Chemical Company [hereinafter referred to as

“Dow’’] for the continued operation of its South Side and

West Side Power Plants at Dow’s manufacturing location

in Midland, Michigan, after July 1, 1980. .

One of the provisions of the existing Consent Order,

No. 12-73-05, is that the Company shall purchase its

steam and power requirements after July 1, 1980 or make

other operating modifications, as appropriate, to be

approved in advance by the Commission, to insure

complete compliance with all applicable State particulate

and sulfur dioxide emission limitations. Because it is

now apparent that Dow will not be able to purchase its

steam by this date, Dow has proposed to comply with all

applicable State emission limitations and regulations by

eliminating coal as a fuel in its Power Plants.

This Consent Order has been developed in order to

incorporate provisions caused by the proposed complete

conversion from coal to oil as a fuel. This Consent Order

has also been developed because particulate matter and

sulfur dioxide emissions from the Power Plants, if not

abated, would be in excess of allowable limits according

to the provisions of Michigan R 336.41, R 336.44 and R

336.49, Administrative Code, 1973 AACS.

Dow and the staff of the Air Quality Division,

Department of Natural Resources [hereinafter referred to

as the ‘’Staff’’] with the approval of the Commission,

agree to the termination of this proceeding by entry of a

final order of consent in accord with the stipulation

recited below.

°-.

Dow and Staff hereby and herewith stipulate and

agree as follows:

1. Dow acknowledges proper service of a notice of

hearing and proposed order and expressly waives filing

of an answer. Dow agrees to the termination of this

matter by the entry of a final consent order incorporating

the terms of this Stipulation in the form attached to this

Stipulation.

2. Dow acknowledges that it is presently the source

of the emissions which results [sic] in all significant

ambient air concentrations of sulfur dioxide in and

around Midland, Michigan.

3. Dow has demonstrated to the satisfaction of the

Commission that all constant emission reduction

technology reasonably available to Dow and econom-

ically feasible to install between now and July 1, 1980 has

been applied and such constant emission reduction

technology is insufficient to attain the Federal primary

and secondary ambient air quality standards. Following

July 1, 1980, the only constant emission reduction

technology reasonably available to Dow and

economically feasible to install is fue! conversion.

However, Dow has demonstrated the technical and

operational feasibility of its version of a Supplementary

Control System to achieve the Federal primary and

secondary ambient air quality standards.

4. Dow and the staff agree that the signing of this

Stipulation is for settlement purposes only and does not

constitute an admission by Dow that the law has been

violated. However, both Staff and Dow do expressly

agree that the particulate and sulfur dioxide emissions

from Dow’s South and West Side Power Plants in

Midland, Michigan, should be abated; and, therefore,

both Staff and Dow herewith and hereby stipulate and

agree to the following time schedule and program for

further affirmative action:

(a) CONTROL PROGRAM:

(i) By July 1, 1980, Dow shall utilize fuel

which when burned will result in compliance

with the State emission standards, R 336.41,

R 336.44 and R 336.49, unless otherwise

permitted by the Commission.

(ii) In order to meet the July 1, 1980 date

above, Dow shall meet the increments of

progress noted in Attachment A. Deviation

from Attachment A shall be permitted only to

the extent that it does not interfere with

meeting the July 1, 1980 date and if Dow

notifies the Staff in writing prior to such

deviations.

(b) SUPPLEMENTARY CONTROL SYSTEM:

Supplementary Control Systems (SCS) are

systems which limit the rate of pollutant

emissions during periods when meteorological

conditions conducive to ground level concen-

trations in excess of Federal ambient air quality

standards are anticipated. In order to maintain

ambient air quality, Dow and Staff hereby and

herewith agree to be bound by the following

operational details of a Supplementary Control

System (SCS):

(i) On and after the effective date of this

Order, Dow shall maintain the operation of

eight (8) continuous sulfur dioxide monitors

of a type and at locations approved by the

Staff. The operation of these monitors shall

continue until the Power Plants are in

compliance with all applicable State sulfur

dioxide emission limits and Dow has

demonstrated to the satisfaction of the

Commission that the potential for violations

of the Federal ambient air quality standards

has been eliminated.

(ii) On and after the effective date of this

Order, Dow shall submit to Staff the

information referred to in Attachment B.

Attachment B may only be changed upon

mutual agreement of Staff and Dow or upon

order of the Commission. All monitoring,

meteorological and boiler operating data

mentioned in Attachment B shall continue to

be submitted until the Power Plants are in

compliance with all applicable State sulfur

dioxide emission limits and Dow has

demonstrated to the satisfaction of the

Commission that the potential for violations

of the Federal ambient air quality standards

have been eliminated. Dow retains full

responsibility for the operation of its Power

Plants. The information released to the Staff

according to Attachment B shall be used by

the Staff to evaluate Dow’s operation of the

SCS.

(iii) After the effective date of this Order

and until the program mentioned in

Paragraph 4(a), above, becomes fully

operational, Dow shall prevent ambient sulfur

dioxide concentrations in and around

Midland, Michigan, from ever exceeding a

running 24-hour average of 0.14 ppm, an

annual arithmetic mean of 0.03 ppm, or a

running 3-hour average of 0.50 ppm. Dow

shall utilize low sulfur fuel, load reduction,

plant shutdown, or other means to maintain

this air quality. Each excursion above the

specified limit at the same monitor or at

different monitors shall constitute a separate

violation of this Order. Both Staff and Dow

acknowledge that the requirements set forth

in this paragraph are more stringent than

would be required to satisfy the Federal

ambient air quality standards.

(iv) Dow shall retain the services of a

consultant(s) for air quality modeling and

meteorological forecasting purposes (or

otherwise provide such services) approved

by the Chief, Air Quality Division. Any

change in any consultant requires written

authorization by the Chief, Air Quality

Division, following a demonstration by

Dow that the necessary services can be

satisfactorily performed by another party.

(v) Dow shall provide the consultant(s)

mentioned in paragraph 4(b)(iv), above, with

a separate series of control strategies for each

of the West Side and South Side Power Plants.

Those strategies shall be based upon the

combinations of boilers which may be

available for operations at any time in the

future. Each strategy shall itemize consecutive

steps that specify changing modes of boiler

operations such that the power plant’s sulfur

dioxide emissions can be incrementally

reduced. The consultant(s) shall regularly

recommend to Dow a strategy step which the

consultant(s) has determined will assure at all

times the maintenance of air quality as

described in paragraph 4(b)(iii), above.

(vi) After the effective date of this Order,

and until the air pollution control program

mentioned in paragraph 4(a), above, becomes

fully operational, Dow shall operate its boilers

in accordance with a strategy step which will

result in sulfur dioxide ground level

concentrations at least as low as the ground

level concentrations would be if the strategy

step specified by the consultant mentioned in

paragraph 4(b)(v), above, were followed.

adoption of this Consent Order, Dow shall

submit to Staff (and upon request to the

Commission) a report of its progress towards

complying with the provisions of this Control

Program and Supplementary Control System

(including Attachments A and B). Any significant

developments which would preclude compliance

by Dow with any provision of this Consent Order

shall be immediately transmitted in writing to the

Staff and the Commission.

5. Dow and the Staff agree that this Stipulation and

Final Order, upon approval by the Commission, rescinds

an agreement between the parties dated May 17, 1974,

Final Order No. 12-73-05.

6. Staff and Dow both acknowledge that a public

hearing on this abatement program was held on May 11,

1977. Both Staff and Dow hereby consent to enforcement

of this Stipulation and Final Order in the same manner

°°.

and by the same procedures for all final orders entered

pursuant to Section 16 of Act 257 of the Public Acts of

1972, being Section 336.26 of the Michigan Compiled

Laws, including but not limited to, enforcement by legal

action brought under 1972 PA 257 and/or 1970 PA 127.

Approved as to Form and Content:

Paul Oreffice

THE DOW CHEMICAL COMPANY

Dated: 6/21/77

Approved as to Content: Approved as to Form:

ls! Lee E. Jager, Chief Stewart H. Freeman

Air Quality Division Assistant Attorney General

Department of Department of

Natural Resources Attorney General

Dated: July 21, 1977 Dated: July 18, 1977

FINAL ORDER

This Commission having had opportunity to review

the above-stated Stipulation for Entry of Consent Order,

and having approved the terms thereof, and this

Commission having authorized the Executive Secretary

of the Air Pollution Control Commission as agent of the

Commission to enter into Consent Orders,

IT IS ORDERED that the Stipulation for Entry of

Consent Order is approved and shall be entered in the

record of this Commission as stated herein.

AIR POLLUTION CONTROL

COMMISSION

/s/ Lee E. Jager

Executive Secretary

Dated: July 21, 1977

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ATTACHMENT B

1) EVERY EIGHT (8) HOURS:

(i)

(ii)

(iii)

Twenty-four (24) hour meteorological forecasts

that the consultant(s) use in the dispersion

model(s), including wind direction, wind speed,

stability and mixing heights.

Recommended control strategy steps for

subsequent 24 hours.

Predicted 3-hour and 24-hour running averages of

sulfur dioxide concentrations for each of the

subsequent 12 hours at each monitoring station

and the maximum predicted 3-hour and 24-hour

running averages of sulfur dioxide concentrations

and their location. It is understood that the

predictions for the maximum concentrations shall

also be for each of the subsequent 12 hours.

2) DAILY:

(i)

(ii)

(iii)

Summary of sulfur dioxide air quality data for

previous day, including hourly averages and

running 24-hour averages.

Boiler operation summary specifying actual

operation. When strategy step calls for reduced

operation from any boiler, the boiler operation

summary shall include the boiler load reported as

a percentage of full or nominal load.

Measured meteorological data, including wind

speed, wind direction (including deviation),

temperature, dew point temperature, and low

level (10-91 meters) lapse rate as observed in

Midland. Such data shall be submitted in an

hourly format for the preceding 24 hours and shall

include 10, 60 and 90 meter observations.

3) MONTHLY:

(i)

Sulfur dioxide air quality data from all stations in

SAROAD format.

4) AS REQUESTED:

(i)

All amendments to control strategies, including

supplementary steps not normally defined by the

consultant(s) and amended meteorological

forecasts, appropriate steps as they occur, and

other information requested by staff relating to

the operation of the SCS.

(ii) A report of all occurrences when the actual boiler

operation did not follow the recommended

strategy, including a demonstration as to whether

or not the actual operation was equivalent to the

recommended strategy with respect to its air

quality impact.

July 21, 1977

Mr. George R. Alexander, Jr.

Regional Administrator

U.S. Environmental Protection Agency

230 South Dearborn Street

Chicago, Illinois 60604

Dear Mr. Alexander:

The purpose of this letter is to transmit to EPA a

compliance schedule which has recently been finalized

between The Dow Chemical Company and the Michigan

Air Pollution Control Commission.

Stipulation for Entry of Consent Order and Final Order,

APC No. 10-1977, is enclosed. We look forward to

approval by the EPA of this compliance schedule and

would be pleased to meet with your staff members to

discuss it in more detail if such a conference would assist

in your review.

Very truly yours,

Is) Lee E. Jager, Chief

Air Quality Division

LEJ:mah

Enclosure

cc: Hunter W. Henry, Jr.

The Dow Chemical Company

* 65

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

REGION V

230 SOUTH DEARBORN ST.

CHICAGO, ILLINOIS 60604

Mr. Lee E. Jager, Chief August 10, 1979

Division of Air Pollution Control

Michigan Department of Natural

Resources

Stevens T. Mason Building

Lansing, Michigan 48926

RE: Dow Chemical Company

Department of Natural Resources

Consent Order APC No. 10-1977

Dear Mr. Jager:

Thank you for the transmittal of the July 21, 1977,

Consent Order APC No. 10-1977. The United States

Environmental Protection Aency (U.S. EPA) policy

regarding State compliance schedules which provide for

final compliance with emission limitations at some

date beyond an applicable attainment date, is that such

schedules must conform to the requirements of the Clean

Air Act and 40 CFR Part 51 and be accompanied by a

control strategy demonstration. If such document

demonstrates that the compliance schedule will not

interfere with the attainment or maintenance of national

ambient air quality standards, the schedule will be

approved as a revision to the State Implementation Plan,

see 41 FR 18510 (May 15, 1976), Train v. NRDC et al, 421

U.S. 60 (1975). The typical strategy demonstration

contains the latest available comprehensive data

regarding air quality, emissions and background levels

which influence that air quality, the regulations which

control the emissions, and the procedures which ensure

that the national standards will be maintained in the

future.

Please note that the Michigan Implementation Plan

currently sets out a compliance schedule specifically for

Dow Chemical Company at 40 CFR Section 52.1175(e),

which requires final compliance with emission

limitations by April 1, 1975. If the State of Michigan

wishes to grant Dow Chemical Company a Consent

Order which delays compliance beyond this final date,

then a control strategy demonstration must be

submitted. Until such time as the New Consent Order is

approved by U.S. EPA as a revision to the State

Implementation Plan, the source is subject to Federal

enforcement action and citizen suit under the current

Implementation Plan.

Due to the utilization by the subject source of a

supplemental control system, it should be specifically

noted that, in order to obtain U.S. EPA approval, any

Consent Order must conform to the U.S. EPA Tall

Stack-Supplemental Control System Policy set out at 41

FR 7450 (February 18, 1976) and the Sixth Circuit's

decision in Big Rivers, et al v. EPA, 523 F. 2d 16 (CA6,

1975).

This office has received a copy of a letter from Mr. Robert

I, Hanfling, Deputy Assistant Administrator of the

Federal Energy Administration to Mr. Zoltan Merszei,

President of the Dow Chemical Company, expressing

concern that the proposed conversion of coal fired boilers

to oil utilization is contrary to National energy policy.

Has this recommendation of the Federal Energy

Administration that ‘‘all potential alternatives” to

conversion be considered affected the conversion

compliance strategy set out in your Consent Order?

Consistent with the above, will you please supply this

office with a control strategy demonstration for Michigan

Consent Order APC No. 10-1977 in order that an

Implementation Plan revision analysis can be performed.

If you have any questions or desire additional

information, please contact Mr. Michael Smith of my

staff at (312) 353-2086.

Sincerely yours,

Is/ George R. Alexander, Jr.

Regional Administrator

STATE OF MICHIGAN

WILLIAM G. MILLIKEN, Governor

DEPARTMENT OF NATURAL RESOURCES

STEVENS T. MASON BUILDING, BOX 30028

LANSING, MICHIGAN 48909

August 22, 1977

Mr. George R. Alexander, Jr.

Regional Administrator

U.S. Environmental Protection Agency

Region V

230 South Dearborn Street

Chicago, Illinois 60604

Dear Mr. Alexander:

This is in reply to your letter dated August 10, 1977 and

received in this office on August 17, 1977 concerning

Consent Order, APC No. 10-1977, issued by the

Michigan Air Pollution Control Commission to the Dow

Chemical Company of Midland, Michigan. In your letter

you state that this compliance program as contained in

that Consent Order can only be approved as an

amendment to the Michigan State Implementation Plan

and, therefore, the compliance schedule must be

accompanied by a “control strategy demonstration.”

Quoting further from your letter, “The typical strategy

demonstration contains the latest available compre-

hensive data regarding air quality, emissions and

background levels which influence that air quality, the

regulations which control the emissions, and the

procedures which ensure that the national standards will

be maintained in the future.” It appears to me that the

regional EPA office has all of the information that is

being requested, specifically the regional office receives

regular reports from our air quality monitoring network

and should by this time be in receipt of our most recent

published Air Quality Data Report covering 1976 data.

Additionally, EPA regularly receives emissions data from

all sources in the State of Michigan, including the Dow

Chemical Company. EPA is, of course, aware of our

regulations and procedures which ensure that national

standards will be maintained in the future, since these

are the same regulations and procedures that were

accepted by the EPA in their approval of the Michigan

State Implementation Plan.

This office is willing to prepare a reasonable package of

information pertaining to the specific situation in

Midland; however, it is not clear to us from your letter

how extensive this package should be and what the

format of such a submittal should be. Your letter refers to

a ‘‘typical strategy demonstration” and it would be

greatly appreciated if you could send to this office an

example of a typical strategy demonstration so that we

may have some guidance in the preparation of our

submittal.

In your letter you note that the Supplementary Control

System must be consistent with U.S. EPA tall stack

policy. To the best of our knowledge, the SCS program

being implemented by Dow Chemical Company is

totally consistent with that policy and is an interim

program ‘o protect air quality prior to full compliance

with emission standards, which according to the

Consent Order will occur in 1980.

Your letter also notes that the Federal Energy

Administration has raised question as to whether the

proposed conversion of these coal-fired boilers to oil

utilization is contrary to the national energy policy. The

use of additional oil in lieu of coal at the Dow Chemical

Company and the consistency of that action with the

national energy policy has been discussed between the

Commission and the Company. The Company legal

representatives have assured the Commission that there

are no legal barriers to this increased use of oil in their

boilers. If EPA differs with that legal position, this

agency would greatly appreciate receiving those legal

arguments. If the Company is not legally entitled to use

oil as will be required under this Consent Order, of

course, we will immediately renegotiate the terms of the

Consent Order with the Company.

Very truly yours,

/s/ Lee E. Jager, Chief

Air Quality Division

LEJ:mah

cc: Mr. Hunter Henry

The Dow Chemical Company

STIPULATION FOR ENTRY OF CONSENT ORDER

AND FINAL ORDER

(State of Michigan

Department of Natural Resources

Air Pollution Control Commission)

In the matter of administrative proceedings involving

the DOW CHEMICAL COMPANY, a Delaware

corporation, concerning sulfur dioxide, particulate

matter and visual emissions from fossil fuel burning

operations at the Michigan Division in the City of

Midland, County Of Midland, State of Michigan. APC

No. 01-1979

This proceeding arises out of Consent Order

No. 10-1977 entered into between the Michigan

Air Pollution Control Commission (hereinafter

“Commission”) and the Michigan Division of the Dow

Chemical Company (hereinafter Dow”) on July 21, 1977.

Under Consent Order No. 10-1977, Dow is authorized to

exceed State emission limits for particulate matter,

opacity, and sulfur dioxide and to operate a

Supplementary (or Intermittent) Control System

(hereinafter “‘SCS’’) until July 1, 1980. Consent Order No.

10-1977 also requires that: “By July 1, 1980, Dow shall

utilize fuel which when burned will result in compliance

with the State emission standards, R 336.41, R 336.44,

and R 336.49, unless otherwise permitted by the

Commission.”

This Consent Order has been developed because the

Commission, based upon information included in Dow’s

document entitled ‘‘Request for Extension of Sulfur

Dioxide Compliance Date for Dow’s Midland

Powerhouses” and the evidence contained in the public

record, believes that an extension of Dow’s existing

variance from the State emission limits relating to sulfur

dioxide, particulate matter, and visual emissions until

December 1982 is warranted.

Dow and the Commission agree to the termination of

this proceeding by entry of a new Consent Order in

accord with the stipulation recited below.

Dow and the Commission herewith stipulate and

agree as follows:

1. Dow acknowledges proper service of a notice of

hearing and proposed order and expressly waives filing

of an answer. Dow and the Commission agree to the

termination of this matter by the entry of a final consent

order incorporating the terms of this Stipulation in the

form attached to this Stipulation.

2. Dow stipulates that termination of this matter by a

Final Order to be entered as a Consent Order is proper

and acceptable.

3. Dow acknowledges that it is presently the source

of the emissions which result in all significant ambient

air concentrations of sulfur dioxide in and around

Midland, Michigan.

4. Dow has demonstrated to the satisfaction of the

Commission that is not technologically reasonable or

economically feasible to provide constant emission

reductions between the present date and July 1, 1980. In

view of Dow’s contractural commitment, entered into

with Consumers Power Company in December 1967, to

purchase its process steam and electricity from

Consumers Power Company when the nuclear power

plant presently being constructed at Midland, Michigan,

is completed. and placed in operation, the Commission

finds that burning oil and gas as principal fuels,

commencing July 1, 1980, for a period of two and

one-half years, is not presently an economically feasible

constant control.

5. Dow and the Commission agree that Federal

Ambient Air Quality Standards for sulfur dioxide are

presently being met in and around Midland, Michigan,

because of the operation of an SCS by Dow.

6. Dow has demonstrated to the satisfaction of the

Commission that the continued operation of its SCS, as

hereinafter modified, with continued use of coal as a

principal fuel will assure that the Federal Primary and

Secondary Ambient Air Quality Standards for sulfur

dioxide and the Federal Primary Ambient Air Quality

Standard for particulate matter will be adhered to and

not exceeded during the period covered by this Consent

Order.

7. Dow and the Commission agree that the signing of

this Stipulation is for settlement purposes only and does

not constitute an admission by Dow that any law has

been violated. However, both the Commission and Dow

do expressly agree that sulfur dioxide and particulate

emissions from Dow’s South and West Side power plants

in Midland, Michigan, should be reduced, and therefore

both the Commission and Dow agree to the following

time schedule for further affirmative action:

FINAL CONSTANT CONTROL PROGRAM

8. By December 31, 1982, and thereafter Dow shall

purchase process steam and electricity or utilize fuel

which when burned will result in continuous compliance

with the State emission standards, R 336.41, R 336.44,

- and R 336.49.

9. In order to utilize the fuel required by Paragraph

8, above, by December 31, 1982, Dow shall meet the

increments of progress noted in Attachment A.

Deviations of more than thirty (30) days from

Attachment A shall be permitted only to the extent that it

does not interfere with meeting the December 31, 1982,

date and if Dow notifies the Staff in writing and receives

written authorization from Staff prior to such deviations.

INTERIM CONTROL PROGRAM USING

SUPPLEMENTARY OR INTERMITTENT

CONTROL SYSTEMS

10. The parties agree to the continued operation of

Dow’s SCS until December 31, 1982, in accordance with

the method of operation described below.

Supplementary (or Intermittent) Control Systems (SCS)

are systems which limit the rate of pollutant emissions

during periods when meteorological conditions

conducive to ambient ground level concentrations in

excess of levels specified in subparagraph (iii) are

anticipated. In order to maintain air quality, Dow and

the Commission hereby and herewith agree to be bound

by the following operational details of a supplementary

control system.

(i) On and after the effective date of this

Order, Dow shall maintain the operation of eight

(8) continuous sulfur dioxide monitors of a type

and at locations approved by the Staff. The

operation of these monitors shall continue until

the Power Plants are in compliance with all

applicable State sulfur dioxide emission limits

and Dow has demonstrated to the satisfaction of

the Commission that the potential for violations

of the Federal Ambient Air Quality Standards has

been eliminated.

(ii) On and after the effective date of this

Order, Dow shall submit to Staff the information

referred to in Attachment B. Attachment B may

only be changed upon mutual agreement of Staff

and Dow or upon order of the Commission. All

monitoring, meteorological and boiler operating

data mentioned in Attachment B shall continue to

be submitted until the Power Plants are in

compliance with all applicable State sulfur

dioxide emission limits and Dow has

demonstrated to the satisfaction of the

Commission that the potential for violations of

the Federal Ambient Air Quality Standards have

been eliminated. Dow retains full responsibility

for the operation of its Power Plants. The

information released to the Staff according to

Attachment B shall be used by the Staff to

evaluate Dow’s operation of the SCS.

(iii) After the effective date of this Order and

until the program required in paragraph 8

becomes fully operational, Dow shall prevent

ambient sulfur dioxide concentrations in and

around Midland, Michigan, from ever exceeding

a running 24-hour average of 0.14 ppm, an annual

arithmetic mean of 0.03 ppm, ora running 3-hour

average of 0.50 ppm. Dow shall utilize low sulfur

fuel, load reduction, plant shut down, or other

means to maintain this air quality. Each excursion

above the specified limit at the same monitor or

at different monitors shall constitute a separate

violation of this Order. Both Staff and Dow

acknowledge that the requirements set forth in

this paragraph are more stringent than would be

required to satisfy the Federal sulfur dioxide

Ambient Air Quality Standards.

(iv) Dow shall retain the services of a

consultant(s) for air quality modeling and

meteorological forecasting purposes (or otherwise

provide such services) approved by the Chief, Air

Quality Division. Any change in any consultant

requires written authorization by the Chief, Air

Quality Division, following a demonstration by

Dow that the necessary services can be-

satisfactorily performed by another party.

(v) Dow shall provide the consultant(s)

mentioned in subparagraph (iv), above, with a

separate series of control strategies for each of the

West Side and South Side Power Plants. Those

Strategies shall be based upon the combinations

of boilers which may be available for operations

at any time in the future. Each strategy shall

itemize consecutive steps that specify changing

modes of boiler operations such that the Power

Plants’ sulfur dioxide emissions can be

incrementally reduced. The consultant(s) shall

regularly recommend to Dow a Strategy step

which the consultant(s) has determined will

assure at all times the maintenance of air quality

as described in subparagraph (iii), above.

(vi) After the effective date of this Order, and

until the air pollution control required in

paragraph 8 becomes fully operational, Dow shall

operate its boilers in accordance with a strategy

step which will result in sulfur dioxide ground

level concentrations at least as low as the ground

level concentrations would be if the strategy step

specified by the consultant mentioned in

subparagraph (v), above, were followed.

11. REPORTING: Annually from the date of final

adoption of this Consent Order, Dow shall submit to

Staff (and upon request to the Commission) a report of

its progress towards complying with the provisions of

this Control Program and Supplementary Control System

(including Attachments A and B). Any significant’

developments which would preclude compliance by Dow

with any provision of this Consent Order shall be

immediately transmitted in writing to the Staff and the

Commission.

12. Dow and the Chief of the Air Quality Division of

the Department of Natural Resources agree that this

Consent Order, the supporting data, and all necessary

data that may be requested by the U.S. Environmental

Protection Agency which is available to the Staff or

provided by Dow shall be transmitted to the U.S.

Environmental Protection Agency for approval as a

revision to the Michigan State Implementation Plan.

13. Dow and the Commission agree that this Consent

Order shall rescind and supersede Consent Order

No. 10-1977 only upon approval of this Consent Order as

a revision to the Michigan State Implementation Plan by

the U.S. Environmental Protection Agency.

14. The Commission expressly finds that it will be

necéssary to continue this Consent Order in effect on a

yearly basis until December 31, 1982, at which time it is

presently expected that the nuclear power plant being

constructed by Consumers Power Company at Midland,

Michigan, will be fully operational.

15. Dow and the Commission acknowledge that a

public hearing on this abatement program was held on

January 29, 1979. The Commission and Dow hereby

consent to the enforcement of this Stipulation and

Consent Order in the same manner and by the same

procedure for all Final Orders entered pursuant to

Section 16 of Act 257 of the Public Acts of 1972, being

Section 336.26 of the Michigan Compiled Laws,

including but not limited to, enforcement by legal action

brought under Act 257 of the Public Acts of 1972 and/or

Act 127 of the Public Acts of 1970.

Approved as to Form and Content:

ls) D. L. Rooke

THE DOW CHEMICAL COMPANY

Dated: 2/9/79

Approved as to Content: Approved as to Form:

/s/ Delbert Rector /s/ Stewart H. Freeman

Executive Secretary Assistant Attorney General

Air Pollution Control Department of

Commission Attorney General

Department of Natural

Dated: February 13, 1979

Resources

Dated: February 13, 1979

FINAL ORDER

This Commission having had opportunity to review

the above stated Stipulation for Entry of Consent Order,

and this Commission having authorized the Executive

Secretary of the Air Pollution Control Commission as

agent of the Commission to enter into Consent Orders,

IT IS ORDERED that this Consent Order shall be

entered in the record of this Commission as stated

herein.

AIR POLLUTION CONTROL

COMMISSION

By: /s/ Delbert Rector

Executive Secretary

Dated: February 13, 1979

Attochment A-

INTEGRATED BOILER REHABILITATION

BI3 REBUILD

Bi8 STACK

B20 REBUILD - OIL

BIS UPGRADE -OIL

89 UPGRADE

814 UPGRADE

B12 MAINTENANCE

BIG Oil CONVERSION

BIG UPGRADE

BI9 Oil CONVERSION

BI7 UPGRADE

B18 UPGRADE (7)

8 20 UPGRADE

821622 MAINT.

100 % OIL CONVERSION

ENGINEERING

B.C. TANKS /PIPE

PIPELINE

MID. TANKS /PIPE

LLL Ws

INTEGRATED BOILER REHABILITATION AND OIL CONVERSION SCHEDULE

Legend

fig OUTAGE FOR INSTALLATION

FS] FIELO construction

A AUTHORIZATION WONEY

9 MATERIALS ORDERED

R MATERIALS RECEIVED

| EE

0 be eey R BEE 3 ees |

0 ane ee

0 Peo fer nad QE: Tey

ee eS ee ee a ee a ee LS CMT HERES

m - > = : ~ = =e =

FEHETEZESHELTETLTTZPESSLTLT LPR HTGZEL==E22H5EE

1977 1973 i879 1389

ATTACHMENT B

1) EVERY EIGHT (8) HOURS:

(i) Twenty-four (24) hours meteorological forecasts

that the consultant(s) use in the dispersion

model(s), including wind direction, wind speed,

stability and mixing heights.

(ii) Recommended control strategy steps for

subsequent 24 hours.

(iii) Predicted 3-hour and 24-hour running averages of

sulfur dioxide concentrations for each of the

subsequent 12 hours at each monitoring station

and the maximum predicted 3-hour and 24-hour

running averages of sulfur dioxide concentrations

and their location. It is understood that the

predictions for the maximum concentrations shall

also be for each of the subsequent 12 hours.

2) DAILY:

(i) Summary of sulfur dioxide air quality data for

previous day, including hourly averages and

running 24-hour averages.

(ii) Boiler operation summary specifying actual

operation. When strategy step calls for reduced

operation from any boiler, the boiler operation

summary shall include the boiler load reported as

a percentage of full or nominal load.

(iii) Measured meteorological data, including wind

speed, wind direction (including deviation),

temperature, dew point temperature, and low

level (10-91 meters) lapse rate as observed in

Midland. Such data shall be submitted in an

hourly format for the preceding 24 hours and shall

include 10, 60 and 90 meter observations.

3) MONTHLY:

(i) Sulfur dioxide air quality data from all stations in

SAROAD format.

4) AS REQUESTED:

(i) All amendments to control strategies, including

supplementary steps not normally defined by the

consultant(s) and amended meteorological

forecasts, appropriate steps as they occur, and

other information requested by staff relating to

the operation of the SCS.

(ii) A report of all occurrences when the actual boiler

operation did not follow the recommended

strategy, including a demonstration as to whether

or not the actual operation was equivalent to the

recommended strategy with respect to its air

quality impact.

DEPARTMENT OF NATURAL RESOURCES

STEVENS T. MASON BUILDING, BOX 30028 .

LANSING, MICHIGAN 48909

February 14, 1979

Mr. John J. McGuire

Regional Administrator

U.S. Environental Protection Agency

230 South Dearborn Street *

Chicago, Illinois 60604

Dear Mr. McGuire:

Pursuant to the authority vested in me by Governor

Milliken, I am submitting for your review and approval a

revision to Michigan’s State Implementation Plan. The

revision contemplates extending the compliance date for

particulate and sulfur dioxide emissions from the power

°>

plants at the Dow Chemical Company’s complex in

Midland, Michigan, until December 31, 1982, and

allowing, on an interim basis, the operation of a

Supplementary Control System. In approving the

company’s request for an extension to their compliance

date, the Michigan Air Pollution Control Commission

found that operation of the company’s Supplementary

Control Commission would ensure maintenance of the

federal primary and secondary ambient air quality

standard for sulfur dioxide and maintenance of the

federal primary ambient air quality standard for

particulate matter. The Commission also found that

denial of the company’s request to extend their

compliance date from the previous commitment of July

‘1980 to December 31, 1982, would cause economic

hardship to the company, community, and state.

The following documents are being sent under separate

cover to assist your staff in their review:

No. Title

1 Request for Extension of Sulfur Dioxide Date for

Dow Midland Power Houses (November 1978)

2 Supplementary Control System Demonstration

(Volumes 1 & 2)

3 Addendum to Modification and Validation of

the Operating Version AQFOR (October 1978)

+ Responses to Questions 1-13 of Delbert Rector’s

Letter Dated November 6, 1978, except for the

Brinewell Publications (November 16, 1978)

5 Transcript of November 21, 1978, Michigan Air

Pollution Control Commission Meeting

6 Transcript of December 19, 1978, Michigan Air

_ Pollution Control Commission Meeting

7 Transcript of January 29, 1979, Public Hearing

in Midland on Proposed Consent Order. ;

8 Staff Activity Report Summarizing the Public

Hearing in Midland (February 8, 1979)

9 Stipulation for Entry of Consent Order and

Final Order, APC No. 01-1979 (February 1979)

10 Michigan Department of Commerce Letter

Providing Additional Information on Oil Costs

(February 12, 1979)

I have included two sets of all documents, except for

Dow’s annual financial reports which are part of Item

No. 4.'One set of the financial reports is included.

I would like to provide brief comment on some of the

documents submitted with this revision request. Volume

I of Item No. 2, Supplementary Control System

Demonstration, provides an overview description of the

system, an historical summary of the results of four years

of operation of the SCS, and a detailed description of the

model. Further, an examination of 12 adverse

meteorological conditions (either observed or ‘‘worst

case’) is described.

The SCS model has been continually validated and

improved. The last significant model improvement was

made in 1977 and dealt with unusual downwash

conditions caused by high wind shear. Since that

improvement, no exceedances of either the primary or

secondary federal ambient air quality standard for sulfur

dioxide have been observed at any of the eight

monitoring sites in the vicinity of the plants. Staff of the

Air Quality Control Division and the Michigan Air

Pollution Control Commission are convinced that Dow’s

SCS system is effective and capable of preventing any

ambient sulfur dioxide air quality standard violations.

The response to my questions (Item No. 4) provide

further information and documentation on the matter of

economic hardship and infeasibility. The Michigan

Department of Commerce’s letter (Item No. 10) provides

an independent assessment of the projected oil costs and

concludes that Dow’s estimates may be too low. The

Commerce Department's letter was not received in time

to be made part of the public record but is included

herein for informational purposes.

We believe that it will be particularly beneficial to note

the comments offered by the public at the two Michigan

Air Pollution Control Commission meetings (Items No. 5

and No. 6). The input from local, citizens, union

personnel, other business people, and local elected

officials was valuable to the Commission in their

deliberation.

A couple features of the Final Order (Item No. 9) merit

discussion. First, the Commission found that burning oil

and gas as principal fuels commencing July 1, 1980, for a

period of two and one-half years was not presently an

economically feasible control method. Second, the order

requ’ves that Dow be in continous compliance with all

applicable emission standards by December 31, 1982,

regardless of the operational status of the nuclear power

plant currently under construction in Midland.

In summary, the Michigan Air Pollution Control

Commission has found that it is economically infeasible

to require full compliance with the State emission limits

until December 31, 1982. They are confident, however,

that all federal ambient air quality standards for sulfur

dioxide and the primary standard for particulate matter

will be maintained throughout the period of this

extension by virture of the continued operation of Dow’s

Supplementary Control System. I realize that some of the

issues surrounding this proposed SIP revision are

complex and that it will be a large task to read through

all the supporting documents referenced in this letter.

We will be happy to provide you with any additional

information you deem necessary. I would suggest that

any questions of a technical nature other than ones

dealing with the Final Order be directed to Dan Meyer.

Mr. Bob Miller can assist in any questions regarding the

Final Order. Each of us may be reached at (517) 322-1330.

We appreciate your cooperation and assistance in this

matter and look forward to early approval of this SIP

revision.

Very truly yours,

ls! Delbert Rector, Chief

Air Quality Division

DR:dmh

cc:D.D. DeLine

Mike Koryto

Stewart H. Freeman

Minutes of Meeting

MICHIGAN AIR POLLUTION

CONTROL COMMISSION

November 22, 1977

Lansing, Michigan

Commissioners Present:

Maurice S. Reizen, M.D., Chairman

Watson A. Gilpin, M.D.

Edward J. Klopp, Jr., M.D.

Mr. George H. Reicks

Mr. Philip L. Richards

Mr. O. J. Scherschligt

Mr. Edwin S. Shannon

Mr. Morton Sterling

Mr. Ronald Spenski, representing Department of

Agriculture

Commissioners Absent:

Mrs. Mary L. Graves

Mr. Robert L. Henry, Jr.

Mr. Stanley R. Quackenbush

Staff Members Present:

Mr. Thomas Schimpf, Department of Attorney General

Mr. Lee E. Jager, Executive Secretary

Mr. Dennis Armbruster

Mr. Gerald L. Avery

Ms. Gay Cowles

Mr. Dennis Drake

Ms. Barbara Gass

Ms. Mary Ann Halbeisen

Mr. L. J. Holmes

Mr. Richard S. Johns

Mr. Daniel F. Meyer

Mr. Delbert Rector

Mr. Paul R. Shutt

Mr. Milo D. Smith

Mr. Benjamin E. White

Others Present:

Mr. D. M. Aldorfer, General Motors Corporation

Mr. Albert Almy, Michigan Farm Bureau

Ms. Penny Ancel, Senate Republican Office

Mr. E. R. Bangel, GMC, Chevrolet Motors Division

Mr. Gary P. Boszak, GMC, Assembly Division

Mr. D. H. Brandt, D. H. Brandt Associates

Mr. John W. Brophy, Product Recovery & Energy

Company

Mr. E. F. Brush, Lansing Board of Water & Light

Mr. Jonathan Cain, Governor's Office

Mr. Ron Callen, Michigan Public Service Commission

Mr. D. F. Casteele, Lansing Board of Water & Light

Mr. L. F. Charla, GMC, Assembly Division

Mr. A. Crabtree, Michigan Public Service Commission

Mr. Geoffrey Crandal, Michigan Public Service

Commission

Mr. Kenneth E. Dowell, Clayton Environmental

Consultants

Mr. Ruben Essary, Traverse Corporation

Mr. Jens C. Faeborg, Product Recovery & Energy

Company

Mr. Don Fry, Fry Stock Farm, Marlette

Mr. John E. Garner, Total Petroleum, Inc.

Mr. James J. Gessner, The Detroit Edison Company

Mr. Ivan Hanner, Hillcrest Center, Howell

Rep. Quincy Hoffman, 77th District

Mr. Tony Houston, Ford Motor Company

Mr. Wallace A. Huggett, Huggett Sod Farm, Inc.,

Marlette

Mr. D. M. Ilgenfritz, The Dow Chemical Company

Mr. Norman J. Kerr, Macomb County Health

Department

Mr. Richard Kieft, GMC, Pontiac Motor Division

Mr. Ralph E. Magnuson, Jr., The Cleveland-Cliffs

Iron Co.

Mr. Bruce R. Maters, Attorney, Detroit Edison

Company

Mr. Ken Miller, Marlette |

Mr. Dennis R. Minano, General Motors Corporation

Mr. Stephen Mooney, Muskegon County Health

Department

Mr. Thomas F. O’Masta, Consumers Power Company

Mr. Joseph A. Orloff, GMC, Assembly Division

Mr. E. J. Piasecki, General Motors Corporation

Mr. Ron Presley, Champion International

Mr. Alex Sagady, Michigan Lung Association

Mr. Harry M. Schaeffer, Ford Motor Company

Mr. Erick Schneidawind, Michigan Public Service

Commission

Mr. Jack L. Sheneberger, Dow Corning Corporation

Mr. Tom Sinclair, Dow Chemical Company

Mr. Charles Smith, The Detroit Edison Company

Mr. M. H. Stehman, Champion International

Mr. Norman J. Stevens, The Detroit Edison Company

Mr. Julian Szten, Muskegon County Health Department

Mr. P. Thelen, Lansing Board of Water and Light

Mr. Duane Thompson, Marlette

Mr. Michael J. Tyro, General Motors Corporation

Mr. A. E. Valentine, National Gypsum Company

Mr. Ronald J. VanMersbergen, U.S. Environmental

Protection Agency

Mr. Joe Wolfe, Lansing Board of Water and Light

Chairman Reizen called the 137th regular meeting of the

Commission to order at 9:10 a.m., and eight

commissioners were present. The staff announced there

were no additions to the agenda.

Approval of Minutes of Previous Meeting

The staff presented the proposed minutes of the

Commission’s October 17 and 18, 1977, meeting held in

Benton Harbor, Michigan.

Minute 1411: Commissioner Richards moved approval of

the October 17 and 18, 1977, minutes as

submitted. The motion was supported by

‘\

Commissioner Shannon, all commissioners

present voting therefore (8-0).

Executive Secretary's Report

The Commission discussed their proposed calendar of

meetings for 1978, and the Commission consensus was

to schedule the meetings as follows: January 17 in

Lansing; February 21 in Saginaw; March 21 at Michigan

State University; April 17 and 18 in Muskegon; May 16

in Lansing, June 19 and 20 in Marquette; July 18 in

Lansing; August 14 and 15 in Traverse City; September

19 in Lansing; October 17, Lansing; November 21,

Lansing; December 19, Lansing.

Mr. Jager reported on the status of requests from the

Detroit Edison Company to install oil firing equipment

at the Hancock and Northeast Stations and to obtain a

variance from the Commission’s Rule 41(c) for visible

emissions from the St. Clair Power Plant, Unit 6. Both of

these matters will be scheduled for Commission

consideration in December.

Mr. Jager also reviewed studies underway to amend the

State Implementation Plan (SIP) for total suspended

_ particulates in the Detroit Metropolitan area,

photochemical oxidants in southern Michigan, and

carbon monoxide in Saginaw. The staff indicated that

carbon monoxide air quality standards are not being met

in the Saginaw area as a result of emissions from the

General Motors Corporation’s Chevrolet Modular Iron

and Grey Iron Casting Plants. The staff indicated that if

they do not receive a commitment from the company to

abate the carbon monoxide emissions, they will be

recommending the Commission adopt source emission

standards for carbon monoxide through a SIP revision.

Commissioner Sterling suggested that the Commission

should proceed with a complaint against the company if

an agreement is not reached.

Legal Counsel’s Report — none

Disbursement of Surveillance Fees

Mr. Milo Smith presented the staff report on the request

from the Macomb County Health Department for

reimbursement of funds to be expended for air pollution

control activities performed by the county during their

fiscal year beginning January 1, 1978, to December 31,

1978. The staff recommended the Commission adopt a

proposed resolution recommending that the Director of

the Department of Natural Resources disburse $55,000 to

the Macomb County Health Department.

Minute 1412: Commissioner Shannon moved the

Commission adopt the following

resolution. The motion was supported

by Commissioner Sterling, all com-

missioners present voting therefor by

roll call vote (present and voting:

Commissioners Gilpin, Klopp, Reicks,

Scherschligt, Shannon, Sterling, and

Chairman Reizen):

WHEREAS, the Macomb County Health

Department made application to the

Department of Natural Resources for

disbursement to the Macomb County

Health Department of surveillance fees

under Section 14a of Act 348, P.A. 1965,

as amended; and

WHEREAS, the Macomb County Health

Department is prohibited by Section

14a(2) of said Act from assessing any

type of fee for its air pollution

operations; and

WHEREAS, the said application

includes a complete description of the

applicant’s entire air pollution control

program, an itemized statement of

surveillance fee related costs expected to

be incurred or borne during the period

January 1, 1978, through December 31,

1978, including delineation and

justification of that portion of its air

pollution control program to be funded

by surveillance fees and a description of

how the applicant will coordinate its air

pollution program with the state air

pollution control program and the

compatibility of the applicant’s program

with the state program; and

WHEREAS, the application has been

reviewed by the Air Pollution Control

Commission;

NOW THEREFORE BE IT RESOLVED

that the Air Pollution Control

Commission makes the following

affirmative findings of fact:

1. The air pollution control program

of the Macomb County Health

Department, for which surveillance

fees have been requested, is

adequate to perform the duties

assigned to that agency in the

Michigan Implementation Plan for

air pollution control and _ is

compatible with the air pollution

control program conducted by the

Michigan Air Pollution Control

Commission and the Michigan

Department of Natural Resources.

2. That portion of cost (increased

surveillance, investigation, and

other activities necessary to provide

greater protection of the air of this

State and for attainment and

maintenance of national ambient air

quality standards) for the overall air

pollution control program borne

by the Macomb County Health

Department amounts to not less than

$55,000.

AND BE IT FURTHER RESOLVED that,

as a result of the affirmative findings

stated above, the Air Pollution Control

Commission recommends that the

Director of the Department of Natural

Resources disburse to the Macomb

County Health Department the sum of

$55,000 subject to legislative

appropriations for the state fiscal year

beginning October 1, 1978, and subject

to surveillance fee collections during

that fiscal year.

In addition, the staff reported that the Muskegon County

Health Department has requested reimbursement of

$52,218 from the surveillance fees for air pollution control

activities to be conducted during the fiscal year from

January 1, 1978, to December 31, 1978. Muskegon

County’s request included an increase of $14,400

identified as inflationary costs and indirect costs. Since

this increase was not included in the legislative

appropriation, the staff recommended that only $37,800

be disbursed to Muskegon County and proposed a

resolution for the Commission’s consideration. Mr.

Julian Sztan, Chief of the Air Pollution Control Division,

Muskegon County Health Department, reviewed

alternatives the county would explore to obtain

additional funds. :

Minute 1413: Commissioner Klopp moved the

Commission adopt the following

resolution. The motion was supported

by Commissioner Scherschligt, all

commissioners present voting therefor

(present and voting: Commissioners

Gilpin, Klopp, Reicks, Richards,

Scherschligt, Shannon, Sterling, and

Chairman Reizen):

WHEREAS, the Muskegon County

Health Department made application to

the Department of Natural Resources

for disbursement to the Muskegon

County Health Department of sur-

veillance fees under Section 14a of Act

348, P.A. 1965, as amended; and

WHEREAS, the Muskegon County

Health Department is prohibited by

Section 14a(2) of said Act from

assessing any type of fee for its air

pollution operations; and

WHEREAS, the said application

includes a complete description of the

applicant's entire air pollution control

program, an itemized statement of

surveillance fee related costs expected to

be incurred or borne during the period

January 1, 1978, through December 31,

1978, including delineation and

justification of that portion of its air

pollution control program to be funded

by surveillance fees and a description of

how the applicant will coordinate its air

pollution program with the state air

pollution control program and the

compatibility of the applicant’s program

with the state program; and

WHEREAS, the application has been

reviewed by the Air Pollution Control

Commission;

NOW THEREFORE BE IT RESOLVED

that the Air Pollution Control

Commission makes the following

affirmative findings of fact:

1. The air pollution control program of

the Muskegon County Health

Department, for which _ air

surveillance fees have _ been

requested, is adequate to perform

the duties assigned to that agency in

the Michigan Implementation Plan

for air pollution control and is

compatible with the air pollution

control program conducted by the

Michigan Air Pollution Control

Commission and the Michigan

Department of Natural Resources.

2. That portion of cost (increased

surveillance, investigation, and

other activities necessary to provide

greater protection of the air of this

state and for the attainment and

maintenance of national ambient air

quality standards) for the overall air

pollution control program borne by

the Muskegon County Health

Department amounts to not less than

$37,800.

AND BE IT FURTHER RESOLVED that, as a

result of the affirmative findings stated

above, the Air Pollution Control Com-

mission recommends that the Director of

the Department of Natural Resources

disburse to the Muskegon County Health

Department the sum of $37,800 subject to

legislative appropriations for the state fiscal

year beginning October 1, 1977, and subject

to surveillance fee collections during that

fiscal year.

Designation of Attainment Status

The federal Clean Air Act Amendments of 1977 require

states to submit to the Environmental Protection Agency

(EPA) lists denoting the attainment and non-attainment

status of all geographic areas with respect to the National

Ambient Air Quality Standards. Mr. Delbert Rector

presented a report on the available air quality data for

total suspended particulates, sulfur dioxide, nitrogen

dioxide, carbon monoxide, and photochemical oxidants.

The staff recommended the Commission announce its

intent to adopt the proposed geographic designations of

attainment status and hold a public hearing on the

proposed designations at the Commission’s December

meeting. The staff recommended geographic areas be

designated as follows:

(1) Total Suspended Particulates: Primary

standards are being met in all areas of the state,

except portions of Calhoun, Saginaw, and Wayne

Counties. Secondary standards are being met in

the state, except for portions of Bay, Berrien,

Delta, Emmet, Genesee, Ingham, Kent, Macomb,

Manistee, Marquette, Mason, Midland, Monroe,

Muskegon, Oakland, Saginaw, St. Clair,

Washtenaw, and Wayne Counties.

(2) Sulfur Dioxide: Primary standards are being

met in all areas of the state, except portions of

Ingham and Midland Counties.

(3) Nitrogen Dioxide: All areas of the state are

being proposed to be designated as an attainment

area.

(4) Carbon Monoxide: Primary standards are

being met in the state, except portions of

Macomb, Oakland, Saginaw, and Wayne

Counties.

(5) Photochemical Oxidants: Thirty-seven

counties in southern Michigan, including Bay,

Gratiot, Huron, Kent, Midland, Montcalm,

Muskegon, Tuscola, and all counties south of

those named, are proposed to be designated as

non-attainment for oxidant standards. The

remaining 46 counties in northern Michigan are

being proposed as an attainment area.

The staff reported that they were recommending portions

of Ingham and Midland Counties be designated as

non-attainment areas for sulfur dioxide standards,

because they had received communication from the

Environmental Protection Agency stating that an area

cannot be considered as an attainment area if a source is

operating a Supplementary Control System (SCS) in

order to meet the air quality standards. The Dow

Chemical Company is operating under a SCS program in

Midland County, and the Lansing Board of Water and

Light is operating under a SCS program in Ingham

County.

Mr. Ronald J. VanMersbergen of the Air Programs

Branch, Region V, U.S. Environmental Protection

Agency, reviewed EPA’s policy on emission offsets. Mr.

VanMersbergen stated that EPA is considering a

proposal to have the applicability of the off-set policy be

determined on the basis of potential emission rates. He

further stated that the offset policy will apply in areas not

meeting secondary standards as well as in areas not

meeting the primary standards. The staff indicated they

were getting different responses from EPA as to whether

or not the offset policy would apply in secondary

non-attainment areas and that they would request an

official statement in writing from the Environmental

Protection Agency.

Minute 1414: Commissioner Klopp moved the

Commission support staff’s recom-

mendation, as outlined in Items 1

through 5 above, and conduct a public

hearing on the proposed designation of

atatinment status at their December 20,

1977, meeting. The motion was

supported by Commissioner Richards

and passed by a vote of seven to zero

(present and voting: Commissioners

Gilpin, Klopp, Reicks, Richards,

Scherschligt, Sterling, and Chairman

Reizen; Commissioner Shannon

abstained),

Consumers Power Company, Essexville, Muskegon, and

West Olive

At the Commission's October 18, 1977, meeting, the staff

reported on an application from Consumers Power

Company to defer compliance with sulfur dioxide

emission standards until January 1, 1985, at the J. C.

Weadock Plant in Essexville, the B. C. Cobb Plant in

Muskegon, and the J. H. Campbell Plant in West Olive.

At that time, the Commission deferred action on the

request pending additional information to be submitted

by the company.

Mr. Dan Meyer reported that the company has requested

that this matter be postponed until the December

meeting; however, since this matter was a scheduled

agenda item, the staff recommended the Commission

listen to any public comments at this time.

Mr. Ron Callen, Director of Scientific Research and

Evaluation for the Michigan Public Service Commission,

and Mr. Eric Schneidewind, Director of the Office of

Policy for the Public Service Commission, presented

their analyses of the Consumers Power Company’s

proposal. The Public Service Commission recommended

to the Air Pollution Control Commission that additional

sulfur dioxide controls not be required unless the costs

are justified.

The Commission deferred further discission on this

matter until their December 20, 1977, meeting.

Lansing Board of Water and Light

The Lansing Board of Water and Light operates a

Supplementary Control System (SCS) for the control of

sulfur dioxide emissions; however, on numerous

occasions the Commission's staff has reported violations

of the ambient air quality standards due to the operation

of the Board’s Eckert Station. On June 16, 1977, an

alteration of the Board’s Consent Order No. 11-1975 was

signed which required that after July 1, 1977, should any

sulfur dioxide excursions occur, the Board would be

required to implement a control strategy within nine

months to comply with Tables 3 and 4 of Rule 336.49.

Mr. Dennis Drake reported that on August 27 and 28,

1977, a 24-hour sulfur dioxide excursion was recorded,

which the statff believed was caused by the Board’s

Eckert-Moores Park Station. By letter dated October 28,

1977, the staff officially notified the Board of the

excursion and ordered them to submit a control strategy

to the Commission within 60 days for compliance with

Tables 3 and 4 of Rule 336.49.

Mr. Earl F. Brush, General Manager of the Board of

Water and Light, stated that they did not believe the

monitoring data was valid since the monitor was

installed in a building without air conditioning. Brush

argued that the temperature in the building may have

reached 100 degrees on August 27 which may have

caused the monitor to read erroneously, and therefore

the data should be disregarded.

Mr. Alex Sagady presented a statement for the Michigan

Lung Association supporting the action taken by the Air

Quality Division to require the Board to convert to

’%

low sulfur coal within nine months. Mr. Sagady also

stated it was the position of the Michigan Lung

Association that the real time monitoring connections

from the Board to the DNR monitors be severed at the

earliest opportunity.

Mr. Jager indicated the staff would be conducting a test

on the monitor to determine what effect temperature

would have on the readings.

Minute 1415: Commissioner Gilpin moved the

Commission support staff's notification

to the Lansing Board of Water and Light

to proceed under the terms of Consent

Order No. 11-1975 which requires the

Board to submit a control strategy for

sulfur dioxide by December 28, 1977.

The motion was supported by

Commissioner Scherschligt.

Commissioner Shannon spoke against the motion,

stating he would like more evidence on the accuracy of

the monitor which recorded the excursion.

Minute 1416: | Commissioner Richards moved to table

the motion, Minute 1415, for one

month. Commissioner Shannon

supported the motion which passed by

a vote of four to three (Voting yes:

Commissioners Klopp, Richards,

Shannon, and Sterling; Voting no:

Commissioners Gilpin, Scherschligt,

and Chairman Reizen).

The Commission recessed for lunch at 12:00 noon and

reconvened at 1:10 p.m.

Public Comment: None

100

Huggett Sod Farm, Inc., Marlette

The Huggett Sod Farm operates a grass dehydration

facility which was installed in 1974 without an air use

permit. Mr. ‘Benjamin White presented a staff report on

this facility and stated that a cease and desist letter was

sent to the company on August 23, 1977, because the

emissions from the facility were in excess of the

Commission’s rules. In October the staff issued a Permit

to Install to the company containing conditions which

require

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