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

* >

Prime.

Office -Supreme Court, US.

FILED

80-1708 | APR 1S 1980

ALEXANDER L. STEVAS,

dtd CLERK_

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.

sihaistnihilaptibiiiaiag

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(Supplemental Appendix “’’B’’)

oii

R. L. DAVIS

Division Counsel

The Dow Chemical Company

Midland, Michigan 48640

(517) 636-4781

RICHARD FORD

WILLIAM C. POTTER, JR.

FISCHER, FRANKLIN, FORD,

SIMON & HOGG

1700 Guardian Building

Detroit, Michigan 48226

(313) 962-5210

Attorneys for Petitioner

The Dow Chemical Company

ee eT RE I AEN) ELAR NE ETE, MN Ae

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

962-8745 962-8746

The following is a typeset reprint of

Appendix ‘’B’’ which appeared as a

photostat, on pages 14 through 33, in the

original Appendix to Petition for Writ of

Certiorari filed on April 2, 1981.

APPENDIX “B”

EXCERPT FROM FEDERAL REGISTER

March 3, 1978 — Part Il

[6560-01]

Title 40 — Protection of Environment

CHAPTER 1 — ENVIRONMENTAL

PROTECTION AGENCY

SUBCHAPTER C — AIR PROGRAMS

[FRL 856-5]

PART 81 — AIR QUALITY CONTROL REGIONS,

CRITERIA, AND CONTROL 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 ambient air

quality standards (NAAQS). The tables following this

rulemaking indicate, on a State-by-State, pollutant-

by-pollutant basis, the attainment status of every area as

submitted by the appropriate State agency and

approved, or as designated by the Environmental

Protection Agency (EPA). No distinctions are made as to

the severity of the violations recorded in the areas

designated as nonattainment in these tables. These

designations are immediately effective. EPA is soliciting

comments for 60 days and will republish revised

designations as appropriate.

DATES: Effective Date: Immediately.

Comments Due: May 2, 1978.

ADDRESS: General comments on these designations

should be addressed to Norman L. Dunfee, Chief

Control Programs Operations Branch (MD-15), Office of

Air Quality Planning and Standards (OAQPS), Research

Triangle Park, N.C. 27711.

Comments relative to specific State designations

should be directed to the appropriate EPA Regional

Office, contact as listed below:

Tom Devine, Chief, Air Branch, EPA Region I, JFK

Federal Building, Boston, Mass. 02203 (Connecticut,

Maine, Massachusetts, New Hampshire, Rhode Island,

Vermont).

William Baker, Chief, Air Branch, EPA Region II, 26

Federal Plaza, New York, N.Y. 10007 (New York, New

Jersey, Puerto Rico, Virgin Islands).

Howard Heim, Chief, Air Branch, EPA Region III,

Curtis Building’ Sixth and Walnut Streets, Philadelphia,

Pa. 19106 (Delaware, Maryland, Pennsylvania, Virginia,

West Virginia, District of Columbia).

Tom Helms, Chief, Air Branch, EPA Region IV, 345

Courtland Street NE., Atlanta, Ga. 30308 (Alabama,

Georgia, Florida, Kentucky, Mississippi, North Carolina,

Tennessee, South Carolina).

Jack Chicca, Chief, Air Branch, EPA Region V, 230

South Dearborn Street, Chicago, Ill. 60604 (Indiana,

Illinois, Michigan, Minnesota, Ohio, Wisconsin).

Jack Divita, Chief, Air Branch, EPA Region VI, 1201

Elm Street, Dallas, Tex. 75270 (Arkansas, Louisiana,

Oklahoma, New Mexico, Texas).

7.

*.

Art Spratlin, Chief, Air Branch, EPA Region VII, 1735

Baltimore Street, Kansas City, Mo. 64108 (Nebraska,

Iowa, Kansas, Missouri).

Robert DeSpain, Chief, Air Branch, EPA Region VIII,

1860 Lincoln Street, Denver, Colo. 80295 (Montana, Utah,

North Dakota, South Dakota, Wyoming, Colorado).

Allyn Davis, Chief, Air Branch, EPA Region IX, 215

Fremont Street, San Francisco, Calif. 94105 (California,

Nevada, Arizona, Hawaii, American Samoa, Northern

Mariana Islands).

Clark Gaulding, Chief, Air Branch, EPA Region X,

1200 Sixth Avenue, Seattle, Wash. 98101 (Alaska,

Washington, Oregon, Idaho).

FOR FURTHER INFORMATION CONTACT:

Norman L. Dunfee, USEPA, Research Triangle Park,

N.C. 27711, phone 629-5226 (FTS) or 919-541-5226

(commercial).

SUPPLEMENTARY INFORMATION:

The Clean Air Act (CAA) Amendments of 1977 place

additional requirements 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

Administrator a list of the NAAQS attainment status of

all areas within the State. The Administrator was

required under section 107(d)(2) to promulgate the State’

lists, with any necessary modifications, within 60 days of

their submittal.

The States are now preparing revisions to their State

implementation plans (SIPs) as required by sections

110(a)(2)(1) and 172 of the Act. This enterprise, which

r\

must be completed by January 1, 1979, requires that the

States have immediate guidance as to the attainment

status of the areas designated under section 107(d).

Congress has acknowledged this by imposing a tight

schedule on the designation process and requiring EPA

to promulgate the list within 180 days of the enactment

of the amendments. Under these circumstances it would

be impracticable and contrary to the public interest to

ignore the statutory schedule and postpone publishing

these regulations until notice and comment can be

effectuated. For this good cause, the Administrator has

made these designations immediately effective.

The Agency recognizes, however, the importance of

public involvement in the designation process. It is

therefore, soliciting public comment on this rule by May

2, 1978.

_Comments received will be considered carefully and

revisions to the designations will be made where

appropriate. The criteria used in making these

designations include the following.

AIR 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 quarters 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 current indication of

attainment was not the result of a single year’s data

reflecting unrepresentative meteorological conditions. In

the absence of sufficient monitored air quality data,

other evaluation methods were used, including air

quality dispersion modeling.

GEOGRAPHIC SIZE

The Act specified that the designation areas could be

based on air quality control regions (AQCRs) or any

subportions of these areas. EPA advised States they

could divide AQCRs into various nonattainment,

attainment, or unclassified pertions, i.e., county,

subcounty, or other geographic 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

Subsections 107(d)(1) (A)-(E) of the CAA Amendments

specified the possible categories for area designations.

For both total suspended particulates (TSP) and sulfur

dioxide (SO2), an area could be designated as: (1) Not

meeting the primary NAAQS, (2) not meeting the

secondary NAAQS, (3) unclassifiable, and (4)

attainment. For carbon monoxide (CO), photochemical

Ox, and nitrogen dioxide (NO2), designations of: (1) Not

meeting the primary NAAQS, and (2) attainment!/

unclassified were possible. The attainment and

unclassified designations for CO/O.JNO: are combined

into one column for the tables presented in this notice

because both designations are set forth by subsection

107(d)(1)(E) of the CAA. No designations regarding the

secondary NAAQS for these pollutants were necessary

since the primary standards and secondary standards are

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 greater than 200,000. These major urban

areas (except Honolulu, Hawaii, and Spokane, Wash.)

are where the oxidant problem is most severe. Honolulu

has recorded eight consecutive quarters of data without a

violations justifying and attainment designation. There

is sufficient uncertainty regarding 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 photochemical

oxidant levals above the NAAQS. Due to these factors,

higher priority is being given in the SIP planning

process to these urban areas. Of these, only six urban

ai as do not have oxidant ambient air quality monitoring

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

presumed to be nonattainment for oxidants.

Additionally, a comprehensive analysis was performed

by OAQPS and other factors considered by EPA for each

of the six urban areas. These analyses substantiated the

presumptive nonattainment designation and these areas

will be required to monitor during the 1978 oxidant

season (summer-fall) to determine the magnitude of their

oxidant problem.

TOTAL SUSPENDED PARTICULATES

Given the spatially limited nature of TSP violations, no

general area size criteria were possible. However, States

were advised that designations along political

boundaries such as city limits or county lines were

practical from an air quality management standpoint.

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 pollutants. But, rural windblown dust is

usually not significantly contaminated by industrial

pollutants. Therefore, for the purposes of these

designations, any rural areas experiencing TSP violations

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 industrial development or the absence of

significant industrial particulate emissions, and (2) low

urbanized population densities.

CARBON MONOXIDE

A designation of nonattainment for the entire urban

core area of a city experiencing monitored CO violations

was desirable, but smaller area designations were

acceptable since CO violations are most pervasive in

downtown areas of high traffic density.

SULFUR DIOXIDE AND NITROGEN DIOXIDE

Generally where EPA promulgated a designation for

SO2, the minimum area was to be the county in which

the violating monitoring site was located. If States had

monitoring data to substantiate the size areas they

designated, they would be acceptable by EPA regardless

of size. .

AIR QUALITY CONTROL REGION (AQCR)

REDESIGNATIONS

Section 107 of the CAA also provided for redesignation

of the existing AQCR boundaries where a State

determined that the redesignated areas would promote

more efficient air quality management. Several States

exercised this option in defining their designation areas.

Part 81 under Title 40 of the Code of Federal Regulations

presently contains descriptions of all existing AQCRs

and these descriptions, where feasible, will be modified

in a future FEDERAL REGISTER notice to reflect the

State revisions. The exact descriptions of all AQCR

boundaries are available from either the appropriate

State or EPA Regional Office.

EFFECT OF THE DESIGNATIONS

Section 107(d)(1)(A)-(E) sets out attainment status

categories to which reference is made in Parts C

(Prevention 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(d)(1) (A)-(C), while

giving the Administrator authority to add other areas

based on monitoring or calculations 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 existing

air quality problems and to implement programs under

the 1977 CAA Amendments. For example, a designation

as a nonattainment area, in general, 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

(December 31, 1987, under certain conditions for

photochemical oxidants and/or carbon monoxide.) Under

section 172(b)(6) the revised SIPs must require permits,

in accordance with the provisions of section 173, for the

construction and operation of major new or modified

stationary sources. To be approved by the Administrator

under section 110(a)(2)(I1), a SIP must contain a

i.

prohibition against major new source construction in

nonattainment areas after June 30, 1979, where emissions

from the source would contribute 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 application. 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 limited significance for new source

preconstruction review, for three reasons. First, new

sources, wherever they propose 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 differently than

the one in which it is locating, 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 everywhere. Finally, case-by-case

new source review is necessitated to account for the

possibility that an area with a particular designation may

encompass ‘‘pockets’’ which do not fit that designation.

These section 107(d) designations are subject to

revision under Section 107(d)(5) 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 promulgate 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 criteria set forth in this notice.

Where EPA differed with a State designation, section 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

designation. Also, in the case where a State failed to

designate for any State or portion thereof the EPA would

designate for the State as needed.

EPA considered all available monitoring data where it

was determined to be valid. All EPA designations

contained in the following tables were made within the

criteria contained in this notice except in a limited

number of cases where the State designations were

replaced by unclassifiable designations by the

appropriate Regional Offices on the basis that a major

source in each county was utilizing a possibly

unauthorized dispersion technique. Since EPA has not

finalized its tall stack policy regulations to implement

Section 123, it is presently unknown 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 replaced a State

recommendation. This * is used where either the

designation status or the area size was modified by EPA:

** means solely a Federal designation where a State failed

to submit their own recommendation. In some instances,

the descriptions of the designated areas submitted by the

States were so lengthy as to prohibit their publication in

the limited space available in the tables presented below.

Exact descriptions of all areas designated are available at

the appropriate Regional Offices or the State in question.

In some of the following tables, States referenced AQCRs

by their appropriate 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 designations for the 3215

counties or county equivalents covered by these

designations is presented below:

) ee, a % © O, NC;

Number of counties

either totally or par-

tially approved or

designated by EPA as

nonattainment...... 421 101 190 = 607 8

Dated: February 23, 1978.

DOUGLAS M. COSTLE,

Administrator.

-\

Part 81 of Chapter I, Title 40 of the Code of Federal

Regulations is amended by adding Subpart C and

Appendix A as follows:

Sec.

81.300

81.301

81.302

81.303

81.304

81.305

81.306

Sec.

81.307

81,308

81.309

81.310

81.311

81.312

81.313

81.314

81.315

81.316

81.317

81.318

81.319

81.320

81.321

81.322

81.323

81.324

81.325

81.326

Subpart C — Section 107 Attainment

Status Designations

Scope.

Alabama.

Alaska.

Arizona.

Arkansas.

California.

Colorado.

Connecticut.

Delaware.

District of Columbia.

Florida.

Georgia.

Hawaii.

Idaho.

Illinois.

Indiana.

lowa.,

Kansas.

Kentucky. -

Louisiana.

Maine.

Maryland.

Massachusetts.

Michigan.

Minnesota.

Mississippi.

Missouri.

Fr

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.

APPENDIX A — Air Quality Control Regions

(AQCR’s).

AUTHORITY: Secs. 107, 301, of the Clean Air Act, as

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

Subpart C — Section 107 Attainment

Status Designations

§ 81.300 Scope.

Attainment status designations as approved or

designated by the Environmental Protection Agency

(EPA) pursuant to Section 107 of the Act are listed in this

subpart. Area designations 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

redesignation must be submitted to EPA for

concurrence,

Michigan — TSP

§ 81.323 Michigan

hill oe :

ill

pie}. 1 ge. ane, ie

+ Js: ae 2 AE 2282 + TT hst pe

dics te diet

“EPA designation replaces State designation

Designated Area

3. Kent County

R11W, T7N, Sections

19, 30, 31

R12W, T7N, Sections

22-27 & 34-36

4. Mason County

R18W, T18N, Sections

13,14, 23 & 24

5. Midland County

R2E, T14N,

Sections 13-15,

21-23, 26-28 & 33-35

6. Muskegon County

R16W. TON.

Sections 21, 22 &

27-34

7. Saginaw County

a. R4E, T21N,

Sections 1, 12-15,

22-27 & 34-36

RSE, T12N,

Sections 4-6, 9, 16,

19-21 & 28-33

b. RSE, T12N,

Sections 7, 8, 17

& 18

AQCR 123

Except sub-areas defined:

1. Macomb County

a. R14E, TAN,

Sections 247, 28, 33,

& 34

b. All of County

South of 20 Mile Rd.

Designated Area

Cannot Be

Classified

Better

Than

National

Standards

. Oakland County

a. RIE, TSN,

Sections 15, 16, 21,

22, 27 & 28

b. Area included

within:

Coolidge Rd.

10 Mile Rd.

Campbell Rd.

14 Mile Rad.

Dequindre Rd. &

8 Mile Rd.

. St. Clair County

RI7E, T6N,

Sections 2-4

9-11, 14-16, 21

22 & 28

. Wayne County

a. Area included

within:

Lake St. Clair

8 mile Rd. to

Schaeffer Rd. to

McNichols Rd. to

Greenfield Av. to

Evergreen Rd. to

Joy Rd. to Tele

graph Rd. to Ford

Rd., to Beech-

Daly Rd. to Cherry

Hill Rd. to Inkster

Rd. to Carlysie St.

to Middle Belt Rd.

to Van Born Rd. to

Wayne Rd. to Ecorse

Rd. to Haggerty Hwy.

to Tyler Rd. to

Belleville Rd. to

|-94 to Rawsonville

to Oakville — Waltz

Rd. to Wil —

Cariton Ad. to the

Huron River to Lake

area except for the

subarea under b.

Michigan — TSP (continued) ©

Designated Area

Does Not

Meet

Primary

Standards

Does Not

Meet

Secondary

Standards

| Cannot Be

Classified

b. Area included

within: Lake St.

Giair-Moross Rd. to

7 Mile Rd. to Van Dyke

Rd. to 8 Mile Rd. to

Wyoming Rd. to 7 Mile

Rd. to Schaffer Ad. to

Fenkell Rd. to Green-

field Av. to Joy Rd.

to Southfield Express-

way to Ford Rd. to

Cherry Hii Rd. to

Beech-Daly Rd. to

Michigan Av. to

Inkster Rd. to

Carlysie St. to Middle

Belt Rd. to Sibley Rd.

to Telegraph Rd. to

Michigan — TSP (continued)

Designated Area

Goes Not

Meet

Primary

Standards

Does Not

Meet

Secondary

Standards

Cannot Be

Classified

Better

Than

National

Standards

4. Washtenaw County

Area near Ypsilanti

within Cross St.,

Huron St., Harris

Rd. & 1-94

AQCR 126

1. Delta County

R22W, T39N, Sections

6-8, 17-20, 29-30

R23W, T39N

Sections 1, 12 & 13

2. Emmet County

R6W, T34N

Sections 1-3 & 9-12

3. Manistee County

R1I6W, T21N

Sections 7, 18 & 19

R17W, T21N, Section

12 & 13

4. Marquette County

R25W, T48N

Section 1 & 2

Wine

Does Not Does Not Better

Designated Area Meet Meet Cannot Be | Than

Primary Secondary | Classified National

Standards | Standards Standards

AQCR 82 (Michigan portion) xX

AQCR 122

Except sub-areas defined X

1. Ingham County x*

2. Midland County x"

AQCR 123 xX

AQCR 124 (Michigan portion) x

AQCR 125 x

AQCR 126 X

“EPA designation replaces State designation

»

Designated Area

ri

Cannot Be Classified

or Better Than

National Standards

AQCR 8&2 (Michigan portion)

AQCR 122

Except sub-area defined:

1. Muskegon, Ottawa,

calm, lonia, Gratiot,

Midland, Bay,

Saginaw, Shiawasee,

Genesse, Tuscola,

Lapeer, Sanilac

and Huron Counties

ACQR 123

AQCR 124 (Michigan portion)

AQCR 125

AQCR 126

Except sub-area

defined:

1. Marquette County

x*

“EPA designations replace State designations

s

Michigan — CO

Cannot Be Classified

Does Not Meet

Designated Area Primary $ Sibi or Better Than

National Standards

AQCR 82 (Michigan portion)

AQCR 122

Except sub-area defined:

1. Saginaw County

R4E, T12N Sections

1, 12, 13 & 24

R5E, T12N Sections

49, 16-21

Lake St. Gair — 14

Mile Rd. to Kelly Rd.

N. to 15 Mile Rd. to

Hayes Rd. S. to 14

Mile Rd. to Clawson

northern city bound-

ary to Royal Oak

northem city bound-

ary to 13 Mile Rd. to

Evergreen Rd. to

Beverly Hills

southern city bound-

ary to Bingham Farms

southern city bound-

ary to Franklin

southem city bound-

ary to Inkster Rd. to

8 Mile Rd. to Livonia

western city bound-

ary to Wayne western

City boundary to

Romulus southern city

boundary following

Pennsylvania Rd. to

Detroit River.

AQCR 124 Michigan portion

AQCR 125

AQCR 126

Michigan — NO2

Designated Area

Does Not Meet

Primary Standards

Cannot Be Classified

or Better Than

National Standards

State of Michigan

EXCERPT FROM FEDERAL REGISTER

March 26, 1980

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

([FRL 1445-7]

Approval and Promulgation of

Implementation Plans; Disapproval of

Proposed Revision to Michigan Plan

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 Sectior’ 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

meteorological 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 further that ‘Dow shall utilize

low sulfur fuel, load reduction, plant shut down, or other

measures **

>>

The Order provided that by 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.

78-10019, 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

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 (SO2), 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.’ 2 This was to be

accomplished by Consent Orders, such as APC

No. 01-1979 previously submitted February 14, 1979, to

USEPA as a proposed SIP revision. USEPA’s review of

* Comments by the Dow Chemical Company, August 2, 1979,

p. 6.

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).

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.

II. 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 arguments:

1. The proposed 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.

* State of Michigan Air Quality Implementation Plan dated May 1,

1979, p. 5-2.

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4. The proposed revision should be approved

because of equitable considerations.

5. Since the supplementary contro] 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.’’3

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 period under the Clean Air Act or case law.

(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.

3 Health and Welfare Benefits of Continuous Control of Sulfur

Dioxide emissions, prepared for Dow Chemical Co., November 17,

1978.

>

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°°.

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

has, been 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 claims 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.5

+ Consent Order APC No. 1-1979 and Dow’s Comments dated

August 2, 1979.

*?

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 meteorological conditions in

Midland, the information is sent vack 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.

'

5 The concentration levels in the Consent Order will be referred to

as to NAAQS hereafter for purposes of brevity although it is

understood that the difference between the requirements in the

Consent Orders and NAAQS is that the Consent Order states that any

exceedance of the 24-hour standard is a violation, whereas NAAQS

permit one exceedance of the 24-hour and 3-hour standards before the

exceedances are considered a violation.

ry

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 NAAQOS.®

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 "vould 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 that it

contains no demonstration that the sulfur dioxide and

particulate NAAQS would be protected without the use

of Dow’s SCS, a “dispersion technique.”

* See Dow’s comments (July 20, 1979, p. 6) ‘’This mixture of fuel

varies as the concentration of the pollutant varies so that at no time is

the limitation [502 NAAQS] violated.”

ey

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°°?

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 SO2 NAAQS does not constitute

compliance with its emission limitation in the federally

approved SIP. The Order which requires only

compliance with the ground level concentrations of the

SO2 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 continuous 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

ec.

‘\

7-3

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

°y

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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 thorugh 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

so

|

USEPA that operation of a SCS in lieu of continuous

emission controls was not an acceptable means of

emission control.”

In the July 21, 1977 Consent Order, Dow agreed to

achieve compliance by July 1, 1980 with the State

emission limits 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

’ 41 FR 7450, Stack Height Increase Guildlines issued February 18,

1976; Notice of Violation EPA-5-77-A-13 issued November 18, 1976 by

James O. McDonald, Director of Enforcement, Region V, USEPA;

Answer of MAPCC to Dow’s Complaint filed ir. Dow Chemical Co. v.

Reizen, et al., Michigan Court of Appeals No. 77-4792, United States

District Court, Western District of Michigan, Southern Division

(December, 1977), and USEPA correspondence with Dow in 1977.

*%

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 to 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. Ist. 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

i

>

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 dves 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 revision is disapproved as not

complving 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, 1980

Douglas Costle,

Administrator.

[FR Doc. 80-8980 Filed 3-25-80; 8:45 am]

BILLING CODE 6560-01-M

NON-FULLY OWNED SUBSIDIARIES AND

AFFILIATES OF THE DOW CHEMICAL

COMPANY AS OF FEBRUARY 28, 1981

Subsidiaries and affiliates owned both directly and

indirectly have been included. The company underlined

is the direct owner of the companies listed below it.

“Dow’s”’ percent awnership is indicated by each

company.

**%

SUBSIDIARIES

The Dow Chemical Company

Gruppo Lepetit S.p.A. (92%)

L.I.F.E. (Laboratorios Industriales Farmaceuticos

Ecuatorianos) (59%)

Laboratorios L.I.F.E. del Salvador S.A. (100%)

Negocios e Industrias S.A. ‘Neisa”’ (100%)

Pacific Chemical Berhad (51%)

Propenasa-Produtos Petroquimicos Nacionais S.A.

(80%)

Ivon Watkins-Dow Ltd (51%)

Dow Banking Corporation (76%)

, Administration de Participations Etrangeres S.A. (A.P.E.

ro owned 100% hy Gruppo)

Lepetit Pharmaghreb (65%)

Lepetit S.A. (France) (99%)

Lepetit (Thailand) Company Ltd (83%)

Lepetit Iran S.A. (93%) (No longer controlled or

consolidated by The Dow Chemical Company)

ll

>’

Dow Chemical A.G. (A.G. owned 100% by The Dow

Chemical Company)

Dow Chemical Iberica S.A. (99%)

Petroquimica-Dow S.A. (70%)

AFFILIATES

The Dow Chemical Company

Arabian Chemical Company (50%)

Cordis Dow Corporation (50%)

Dow Corning Corporation (50%)

The D-H Titanium Company (50%)

Dowell Schlumberger Corporation (50%)

Compagnie des Services Dowell Schlumberger

(50%)

El Dorado Terminals Company (50%)

The Kartridge Pak Company (50%)

Korea Pacific Chemical Corporation (50%)

AgroQuim Maringa (20%)

Bank Mendes Gans (29%)

Chemi-Trol Chemical Company (23%)

DINA (49%)

DOKI (49%)

Estireno Del Zulia C.A. (25%)

Ibafon Chemical Ltd (40%)

Oasis Pipeline Company (30%)

Package Machinery Company (28%)

Piramides Brazil (22%)

Spuma Pac Cia Brasilerira (41%)

Top Drilling, Inc (33%)

Total Raffinaderij Nederland N.V. (20%)

Zoo Agro de Venezuela C.A. (49%)

*%

Dow Chemical A.G.

Asahi-Dow Limited (50%)

Polychem Ltd (25%)

Coral Navigation (Coral is owned 100% by The Dow

Chemical Company)

Chief Shipping Company (50%)

Dow Chemical Company Ltd (Ltd is 100% owned by

Dow Chemical A.G.)

Cromarty Petroleum Company Ltd (50%)

Bio-Science Enterprises (Bio-Science is 100% owned by

The Dow Chemical Company)

Teijin Bio-Science (50%)

Bio-Ciencia/Lavosier Analysis Clinicas (49%)

Dow Chemical of Canada Ltd (Canada is 100% owned

by The Dow Chemical Company)

Lawrason’s Chemical, Ltd (20%)

Wabiskaw Explorations Limited (50%)

Maligne Resources Limited (Maligne is 100% owned by

Dow Chemical of Canada Ltd)

MT Partnership (50%)

‘\

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.’’3

The comments of the American Lung Association of

Michigan supported disapproval of the Consent Order as

a SIP revision and stressed the following points:

(*’ 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

inte period under the Clean Air Act or case law.

(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.

3 Health and Welfare Benefits of Continuous Control of Sulfur

Dioxide emissions, prepared for Dow Chemical Co., November 17,

1978.

anlage

1. Requirements of Section 110¢aX 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

has been 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 claims in its comments that Dow’s

system is not a SCS and that the Consent Order contains

a proper “emission limitation” in thai 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.5

+ Consent Order APC No. 1-1979 and Dow’s Comments dated

August 2, 1979.

o-

rf

Dow describes its SCS as a process by which

information from eight SO2 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 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.

5 The concentration levels in the Consent Order will be referred to

as to NAAQS hereafter for purposes of brevity although it is

understood that the difference between the requirements in the

Consent Orders and NAAQS is that the Consent Order states that any

exceedance of the 24-hour standard is a violation, whereas NAAQS

permit one exceedance of the 24-hour and 3-hour standards before the

exceedances are considered a violation.

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.®

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 that it

contains: no demonstration that the sulfur dioxide and

particulate NAAQS would be protected without the use

of Dow’s SCS, a “dispersion technique.”

* See Dow’s comments (July 20, 1979, p. 6) ‘‘This mixture of fuel

varies as the concentration of the pollutant varies so that at no time is

the limitation [502 NAAQS] violated.”

B. Dow comments that the proposed revision

contains a proper emission limitation because Dow

cannot exceed the SO2 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 SO2 NAAQS does not constitute

compliance with its emission limitation in the federally

approved SIP. The Order which requires only

compliance with the ground level concentrations of the

SO2 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 umaitations 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 continuous 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

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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 thorugh 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.”

In the July 21, 1977 Consent Order, Dow agreed to

achieve compliance by July 1, 1980 with the State

emission limits 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 swit

fuels in 1980, the Company negotiated further Consent

Orders, the last of which extended tlhe 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

*?

1976; Notice of Violation EPA-5-77-A-13 issued November 18, 1976 by

James O. McDonald, Director of Enforcement, Region V, USEPA;

Answer of MAPCC to Dow’s Complaint filed in Dow Chemical Co. v.

Reizen, et al., Michigan Court of Appeals No. 77-4792, United States

District Court, Western District of Michigan, Southern Division

(December, 1977), and USEPA correspondence with Dow in 1977.

|

” 41 FR 7450, Stack Height Increase Guildlines issued February 18,

:

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 to use

its SCS to keep from violating the SO2 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

fF’

°>

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 revision 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, 1980

Douglas Costle,

Administrator.

[FR Doc. 80-8980 Filed 3-25-80; 8:45 am]

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