Petition for Writ of Certiorari — Ohio Power Co. v. United States Environmental Protection Agency
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AUé’S 1984
84-195
No. ——_—— ; ;
ee eT racenpenacieiasicicsichiadteriemasiedans “3
| _ CLERK
IN THE
Supreme Court of the United States
‘OCTOBER TERM, 1984
OHIO PowER COMPANY, - —
Petitioner,
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE.
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
?
EDWARD BERLIN
Counsel of Record for Petitioner
FRANCIS S. BLAKE
SWIDLER, BERLIN & STRELOW,
CHARTERED
1000 Thomas Jefferson St., N. W.
Washington, D.C. 20007
; (202) 342-5500
. A. JOSEPH DowD
’ JEFFREY P. WHITE
OHIO POWER COMPANY
E. DONALD ELLIOTT
Box 401A Yale Station
New Haven, Connecticut 06520
Of Counsel
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
aa
QUESTION PRESENTED
May a court, which has held an administrative rule
arbitrary and capricious, authorize an agency to limit’
its inquiry on remand to the “further study” of a single
“issue,” notwithstanding the mandate of the Administra- -
tive Procedure Act that agency action held to be’ arbi-
trary must be set aside and returned to the\agency for
repromulgation and the requirement of Article III of the
‘Constitution that courts must review the agency action in
controversy, not abstract issues?
*
(i)
ii
PARTIES TO THE PROCEEDING BELOW
Parties before the Court of Appeals in addition to
Petitioner and Respondents named in the caption of this
case were Columbus & Southern Ohio Electric Company,
_ Dayton Power & Light Company, Peabody Coal Company,
and the Commonwealth of Pennsylvania.*
LIST OF PARENT COMPANIES, |
‘SUBSIDIARIES AND AFFILIATES
A listing of parent companies, subsidiaries and af-
filiates of Petitioner as required by Rule 28.1 of the
Supreme Court Rules is as follows:
Petitioner Ohio Power Company is a subsidiary of
American Electric Power Company, the affiliates. and
subsidiaries (other than wholly owned subsidiaries) of
which are:
Appalachian Power Company
Cardinal Operating Company
Columbus & Southern Ohio Electric Company
Indiana Kentucky Electric Corporation
Ohio Valley Electric Corporation
* Additional parties appeared before the Court of Appeals in
the initial proceeding leading to the remand of an “issue” to the
agency (Shell Oil Co., Austin Powder Co. and E.I. duPont
deNemours & Co.). Those parties were not involved in the deci-
sion leading to the final judgment at issue in this case.
TABLE OF CONTENTS
I ie occvecenncsoecnaconiacens
I his
CONSTITUTIONAL AND STATUTORY PROVI-
SN ssid nnccdckianaciscswnssdinessnashctsbsieonnssssoeess
STATEMENT OF THE CASE W002...
REASONS FOR GRANTING THE PETITION ..........
The Decisions Below Raise Important and Unset-
tled Questions of Administrative Law on Which
There Is Conflict among the Lower Federal Courts..
A. The Lower Court’s Failure to Set Aside and
Remand for Repromulgation Is Inconsistent
with Congress’s and this Court’s Delineation
of the Proper Relationship between Courts
and Administrative Agencies ........00000000022- 0.
B. The Lower Court’s Limitation of Judicial Re-
view to the “Issue” Remanded to the Agency
Is Inconsistent with the Proper Function of
Judicial Review under Article III of the Con-
a a salsa behlpnenencpaiaduns
Ea a
APPENDIX: .
Opinions of the Court of Appeals —.........0.0000000000000...
Decisions of the United States Environmental Pro-
RETR EERE
Judgments of the Court of Appeals
Order of the Court of Appeals Denying Rehearing
Se cece
Constitutional and Statutory Provisions Involved..
(iii)
11
16
18
94a
98a
99a
iv
TABLE OF AUTHORITIES ~
Cases: Page
Action on Smoking and Health v. CAB, 713 F.2d
oR + _; RENT eNO RE ene eam 7,10
American Meat Institute v. EPA, 526 F.2d 442
A I ci sss te atcnmbbiineebe Redeigaiens 7
Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th
Cir. 1973), cert. denied, 425 U.S. 934 (1974)... 12
Burlington Truck Lines v. United States, 371 U. S.
OU i ae al cahasintis 15.
California Cartage Co. v. United enema 721 F.2d
I I soe ics dateaietenacaccctennsectianimnsicoes 7
Camp v. Pitts, 411 U.S. 135 (i978) OPENS AS 7-11
Central Power & Light Co. v. United States, 634
¢ # 8 ge Th. : eeieie eee ce
Cincinnati Gas & Electric Co. v. EPA, 578 F.2d
660 (6th Cir. 1978), cert. denied, 489 U.S. 1114
¢. : | Eaaeneee POY ILD OL SIRS IO ee ORAL TE 2, passim
Citizens to Preserve Overton Park v. Volpe, 401
Oa a eee 8-11
Cleveland Electric Illuminating Co. v. EPA, 572
F.2d 1150 (6th Cir. 1978), cert. denied, 439 U.S.
i caiaediiclinien 3
Columbus & Southern Ohio Electric Co. v. ‘Guile,
638 F.2d 910 (6th Cir. 1980) ...........002220000222...2...- 5
EDF v. Costle, 657 F.2d 275 (D.C. Cir. 1981)........ 7
FCC v. Pottsville Broadcasting Co., 309 U.S. 134
RAB. SR SR eI LTE TY PR 13, 17-18
FCC v. Schrieber, 381 U.S. 279 (1965) .................. 13
Federal Radio Comm. v. General Electric €o., 281
ee Sg ENE By nen es rene oe eaten 17
FMC Corp. v. Train, 539 F.2d 973 (4th Cir. 1976)... 7
Ford Motor Co. v. NLRB, 305 U.S. 364 (1939)... 15
PC v. Transcontinental Gas Pipe Line Corp., 423
Oe 9,13
‘Harrison v. PPG Industries, Inc., 446 U.S. 578
Bee, aR EE RR Ae NIeTe tare Pe RCN eC IG ear 8-9
__) Montana-Dakota Utility Co. v. FERC, 631 F.2d
Ie 7
National Lime Assoc. v. EPA, 627 F.2d 416 (D.C.
aerate crt ace ER th eae ah ee RROD 12
Vv
TABLE OF AUTHORITIES—Continued
Page
NRDC v. EPA, 494 F.2d 519 (2d Cir. 1974) . eee 7
Port Norris Express Co. v. ICC, 687 F.2d 803
SE WIN: I can id onan eka crscaaaausuaiunienioncianenns 7
Public Power Council v. Johnson, 674°F.2d 791
I ON an ubdaucianiomnniaines 9
Rogers v. Hill, 289 U.S. 582 (19338) -................00...... 2
SEC v. Chenery, 332 U.S. 194 (1947) -........00000000.... 14, 15
Tabor v. Joint Board for Enrollment of Actuaries,
ee &, Ble A. ys Ren cae 7
Valley Forge College v. Americans United for
Separation of Church and State, 454 U.S. 464
I aN ae 17
Vermont ‘Yankee Nuclear Power Corp. v. NRDC, |
EE NE TE FD oi inven datnonscrcisincnasaptebacodlbauson 11-13
Statutes and Regulations:
Administrative Procedure Act, 5 U.S.C. § 500 et
seq.
Section 10(e), 5 U.S.C. § 706 .........................- 11-12
Clean Air Act, 42 U.S.C. § 7401 et seq:
Section 109(b) (2), 42 U.S.C. § 7409 (b) (2) ..... 11
Section 110(c), 42 U.S.C. § 7410 (c) _20022- 3
Section 165(e) (3) (d), 42 U.S.C. § 7475 (e),
(3) (d) ......-.- PRM OS EE AN AS Oe OTS 14
Section 302 (h), 42 U.S.C. § 7602 (h) ....000.......... 11
Section 307 (d), 42 U.S.C. § 7607 (d) _....000. 3, 12, 16
Section 820, 42 U.S.C. § 7620 _........................4.... 14
' US. Constitution, Article III, Section 2 .......... -10, 16-18
Miscellaneous:
EPA Promulgation of State Implementation Plan
for the Control of Sulfur Dioxide for the State
of Ohio (41 Fed. Reg. 36324 (August 27, 1976) ;
40 C.F.R. Part 52, Subpart KK, § 1881(b)
OI vcivciskacilastaatnaetaditce Mek n a ees ee ee Ee ae
EPA’s “Reconsideration of the Use of Pasquill-
Gifford Dispersion Coefficients for Stability
Class A in Setting Emission Limitations for
Four Ohio Power Plants” :
vi
TABLE OF AUTHORITIES—Continued
Page
Comments Solicited (44 Fed. Reg. 7798 (Feb-
SUE Ta TORO. taiicicccnbinicrenisssssadminiiibasioiagninsainn 4
Evaluation of Public Comments (45 Fed. Reg.
41501 (June 19, 1980) ) W000... 4
Denial of Petitions for Reconsideration (45
Fed. Reg. 74041 (November 7, 1980) )........ 4-5
Restart of Compliance Schedules (45 Fed. Reg.
_ 73927 (November 7, 1980)) ....................-.-- 4
K. Davis, Administrative Law Treatise, §§ 7.1, 7.2
I i a ee 14
IN THE
Supreme Court of the Huited States
OCTOBER TERM, 1984
No. ——
OHIO POWER COMPANY,
. Petitioner,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
WILLIAM D. RUCKELSHAUS, ADMINISTRATOR,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
- Ohio Power Company petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Sixth Circuit in this case.
OPINIONS BELOW
The opinion of the Court of Appeals remanding an
issue to the United States Environmental Protection
Agency is reported at 578 F.2d 660 (Petitioner’s Appen-
dix at 9a-27a) (hereafter referred to as App.). The
opinion of the Court of Appeals upholding the agency’s
action on remand is reported at 729 F.2d 1096. App. 1la-
8a. The order of the Court of Appeals denying rehear-
ing and rehearing en banc is reprinted at App. 98a. The
decisions of the United States Environmental Protection
Agency are reported at 45 Fed. Reg. 41501, 73927, 74041.
App. 28a-938a.
2
JURISDICTION
The judgment of the Court of Appeals (App. la) was
entered on March 22, 1984. Rehearing was denied on
May 8, 1984. App. 98a. This petition is filed within
90 days of the date of denial of rehearing. The jurisdic-
tion of this Court is invoked under 28 U.S.C. § 1254(1).
The decision of the Court of Appeals remanding an “is-
sue” to the U.S. Environmental Protection Agency for
“further study” was issued on June 29, 1978. Since that
decision did not constitute a final judgment with respect
to the controversy presented here, the decision is properly
before the Court at this time under Rule 18 of the Su-
preme Court Rules; see 28 U.S.C. § 2101(e); see also
Rogers Vv. Hill, 289 U.S. 582 (1933). Other aspects of the
Court of Appeals’ 1978 decision that were final are not at
issue in this case. See Cincinnati Gas & Electric Co. V.
EPA, 578 F.2d 660 (6th Cir. 1978), cert. denied, 4389
U.S. 1114 (1979).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The following constitutional and statutory provisions
are involved in this case and are set out verbatim in the
appendix, App. 99a-107a:
U.S. Constitution
Article I{I, Section 2.
Administrative Procedure Act, 5 U.S.C. § 500 et seq.,
Section 10(e), 5 U.S.C. § 706.
Clean Air Act, 42 U.S.C. § 7401 et seq.,
Section 307(d), 42 U.S.C. § 7607(d).
STATEMENT OF THE CASE
This case involves Ohio Power Company’s attempt to
seek judicial review of the United States Environmental
Protection Agency’s (EPA’s) action establishing an
emission limitation for one of Ohio Power Company’s
3 ;
powerplants. EPA promulgated the emission limitation
at issue in 1976 pursuant to its authority under the Clean
Air. Act."
Ohio Power Company first sought judicial review of the
emission limitation following its promulgation in 1976.
Ohio Power argued that the emission limit was arbitrary
and capricious because the computer model EPA used in |
establishing the limit was not supported by the record in
the rulemaking proceeding. In general, EPA uses com-
puter models to predict the air quality impact of a plant’s
emissions and then, based-on those predictions, establishes
an emission limitation designed to ensure that the plant’s
emissions do not violate the National Ambient Air Qual-
ity Standards. See generally, Cleveland Electric Illumi-
nating Co. v. EPA, 572 F.2d 1150, 1160 (6th Cir. 1978),
cert. denied, 439 U.S. 910 (1979). In this case, Ohio
Power contended that a critical set of assumptions (called
the “Class A” coefficients” )- contained in EPA’s computer
_.model were in error and had been discredited by the
scientific community.
The Court of Appeals for the Sixth Circuit, noting the
scientific community’s rejection of the Class A coefficients,
held: “On this present record we conclude that United
States EPA’s employment of the Class A [coefficients]
. . 1s not a rational decision and is arbitrary and capri-
cious.” App. 16a.
141 Fed. Reg. 36324 (August 27, 1976); 40 C.F.R. Part 52,
§ 1881 (b) (47) (1984). Under section 110(c) of the Clean Air Act
(codified at that time in 42 U.S.C. § 1857c-5(c) ), EPA promulgated
a plan for control of sulfur dioxide emissions, including specific
emission limitations for individual sources, for the State of Ohio.
The Clean Air Act was substantially amended in 1977 and recodi-
fied at 42 U.S.C. § 7401 et seq. (Supp. 1979). The agency’s author-
ity to promulgate emission limitations was left intact by the 1977
amendments, see 42 U.S.C. § 7410(c), but the amendments did
significantly expand the statutory procedures applicable to EPA’s
promulgation of an emission limit, see id., § 7607(d). a
4
Having found the agency’s action arbitrary and capri-
cious, the court then described its mandate to EPA:
“Our ultimate action on this score is simupiy to
remand this issue to United States EPA for surther
_ study.” App. 17a.
The court did not state in its decision that the emission
limitation established by EPA was set aside.”
- In the administrative proceedings that followed, EPA
read the court’s mand. te as meaning that it could meet
its obligations on remand by merely supplementing the
record to support its use of the Class A coefficients. EPA
~ announced its intent to develop this supplemental record
in February, 1979, and solicited comments for inclusion
in the record. 44 Fed. Reg. 7798-7805. In June, 1980,
EPA announced its final development of the supplemental
record. App. 28a-62a. EPA contended at that point that
it had fully discharged its legal obligations on remand by
conducting a “further study” of the Class A issue. The
agency rejected Ohio Power Company’s argument that it
had to promulgate an emission limitation to replace the
emission limitation which had been found arbitrary and
capricious. In EPA’s view, the 1976 limitation had never
been set aside, and the court’s mandate authorized it to
conduct a separate proceeding to “study” the Class A
issue without connecting that proceeding to the promul-
gation of an emission limitation. App. 58a-59a. As a
‘consequence, EPA believed it was only required to show
that the supplemental record supported the Class A
coefficients, and not the 1976 emission limit. Jd.
Ohio Power Company’s petition for administrative re-
consideration of EPA’s decision was denied (App. 71la-
93a), and at the same time, the agency announced that
2 The Court of Appeals issued a subsequent decision “clarifying”
its earlier order, but again did not indicate that it had set aside
the emission limitation. App. 23a-27a.
5
the schedule for Ohio Power Company’s bringing its
powerplant into compliance with the 1976 limitation was
“restarted,” effective June, 1980 (App. 60a-70a).
Following these decisions, Ohio Power Company again
petitioned the Court of Appeals for review. Ohio Power
argued that the emission limitation had necessarily been
set aside by the court’s prior ruling that the ageicy’s
action was arbitrary and capricious.* Ohio Power re-
quested that the case be remanded to EPA for promulga-
tion of an emission limitation.
This request was not merely a matter of form. The
agency, in its efforts to establish the propriety of the
Class A coefficients on remand, used a different modeling
procedure than it had used in establishing the emission
limitation.* It did not, however, use that revised model-
ing procedure to reevaluate the propriety of the emission
limitation—the most significant matter at issue. Had it
done so, Ohio Power argued, a substantially less stringent
emission limitation would have resulted. The revised
modeling procedure employs the Class A coefficients but
results in an emission limitation with which the Com-
pany’s plant is already in compliance. Thus, promulga-
tion of an emission limitation to replace the one that
was held to be arbitrary would moot the entire contro-
versy. The costs involved in EPA’s refusal to repromul-
gate an emission limitation are substantial—approxi-
mately $29 million annually for Ohio Power Company.
*Ohio Power Company pointed out that, in another case, the
same panel that remanded the Class A issue to EPA had described
its remand in this case as having “set aside EPA’s emissions
limits.” Columbus & Southern Ohio Electric Co. v. Costle, 638 F.2d
910, 911 (6th Cir. 1980) (emphasis added). Based on that descrip-
tion, it appeared possible—at least prior to the court’s March, 1984,
decision—that the court’s failure to state that it had set aside the
emission limitation was inadvertent and that the court would reject
EPA’s interpretation of the remand order.
* The revised modeling procedure was based on both a new model
and different input data. App. 87a-90a.
6
The Court of Appeals, however, refused to address any
issues relating to the emission limitation. It ruled that
the emission limitation was not at issue in the case, since
it had “carefully limited the remand to a single issue
and we should now decide only that issue.” App. 6a
(emphasis added.) That issue was: “[{W]hether or not
the EPA, since the remand, has properly carried out this
court’s mandate to undertake further study of the basis
for the use of Class A coefficients.” App. 5a. Having
narrowed its scope of review to the single issue of
whether the agency had conducted “further study” of the
Class A issue, the court then found that EPA “did re-
consider and introduce into the record additional support
for its original finding that the . . . Class A coefficients
should be used and we now affirm.” App. 6a.
REASONS FOR GRANTING THE WRIT
This case presents an important and unsettled aber
of administrative law: Whether a court must set aside an
agency rule that it has found to be arbitrary and capri-
cious and remand it to the agency for repromulgation in
vompliance with the relevant statutory requirements. The
two Sixth Circuit decisions at issue here® stand for the
proposition that a court has the authority to remand
selected “issues” to an agency for “further study” with-
out setting aside the rule found to be arbitrary and ca-
pricious and without requiring the agency’s rule to be
repromulgated. |
This approach conflicts with that taken by the majority
of lower federal courts, which have held that the proper
5 As indicated in the Jurisdictional Statement, both decisions of
the Sixth Circuit are appropriately before this Court for review
since the 1978 decision was not a final judgment. See p. 2, supra.
7
remedy for an arbitrary and capricious agency action is
“to vacate the action and to remand the matter back to
the agency for further consideration.” EDF v. Costle,
657 F.2d 275, 285 (D.C. Cir. 1981); see also California
Cartage Co. v. United States, 721 F.2d 1199, 1202 (9th
Cir. 1983); Action on Smoking and Health v. CAB, 713
F.2d 795 (D.C. Cir. 198%); Port Norris Express Co. Vv.
ICC, 687 F.2d 803 (3d Cir. 1982); Central Power &
Light Co. v. United States, 634 F.2d 137, 150 (5th Cir.
1980) ; Montana-Dakota Utility Co. v. FERC, 631 F.2d
557, 562-63 (8th Cir. 1980); Tabor v. Joint Bd. for En-
_ rollment of Actuaries, 566 F.2d 705, 711-12 (D.C. Cir.
1977). Decisions from other lower federal courts, how-
- ever, have taken an approach similar to that of the Sixth
Circuit. See FMC Corp. v. Train, 539 F.2d 973, 985 (4th
Cir. 1976) (standards set under Clean Water Act “re-
manded to the Agency for further documentation’) ;
American Meat Institute v. EPA, 526 F.2d 442 (7th Cir.
1975 (remand for the Agency to consider whether evi-
dence already in the record would support rule); NRDC
v. EPA, 494 F.2d 519, 526 (2d Cir. 1974) (remanding
agency action based on “unrealistic” computer model for
further study on specific issues) .®
' This Court has not directly addressed the issue of the
type of remand necessary after; an agency rule is invali-
dated. The Court’s decision in Camp v. Pitts, 411 U.S.
It should be noted that the circumstances presented in the
above cases vary. In American Meat Institute, for example, the
court offered the agency the alternative of supporting its arbitrary
and capricious regulation with evidence already in the record
but not previously relied on. The agency would be allowed to follow
that course of action without repromulgating the regulation. The
court also made it clear, however, that if the agency developed new
evidence for the record, it had to repromulgate the rule. 526 F.2d
at 467. The Seventh Circuit’s action, therefore, is a more moderate
version of the Sixth Circuit approach, which authorized the agency
to introduce new evidence into the record without repromulgation
of the rule.
g
135 (1973) (per curiam), holds that an arbitrary agency
decision “must be vacated,” id. at 148. However, since
the agency action at issue in Camp v. Pitts did not in-
volve an exercise of agency rulemaking authority, the
Court did not deal with the scope of the ensuing remand.
The Court should grant certiorari in this case to resolve
the confusion among the lower federal courts and to
clarify the principle stated in Camp v. Pitts for agency
rulemaking. The statutory, constitutional and policy
issues involved are substantial. The scope of a court’s
remand authority relates directly to the question of the
proper boundaries of the relationship between courts and
administrative agencies; the proper interpretation of the
Administrative Procedure Act; and the “case or con-
troversy” requirement of Article III of the Constitution.
The present case is, moreover, a suitable one for the res-
olution of these issues, since the Sixth Circuit’s failure
to set aside the agency’s action and remand for reprom-
ulgation has a substantial practical impact, amounting to
nearly $30 million per year for Ohio Power Company.
THE DECISIONS BELOW RAISE IMPORTANT AND
UNSETTLED QUESTIONS OF ADMINISTRATIVE
LAW ON WHICH THERE IS CONFLICT AMONG
THE LOWER FEDERAL COURTS
This Court’s decisions bracket, but do not directly
address, the issue of the proper scope of a remand order
following a decision that an agency has acted arbitrarily
and capriciously.
In Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402 (1972), the Court held that a limited remand for an
explanation of agency action is appropriate if the grounds
for the agency’s decision were not adequately disclosed on
the record. See Camp Vv. Pitts, 411 U.S. 138, 143 (distin-
guishing Overton Park); see also Harrison v. PPG In-
dustries, Inc., 446 U.S. 578, 594 (1980) (reviewing court” » >
may remand for further administrative proceedings if
2 nee Ne Ome eae beee: ML
ae een oo. er
9
the record is inadequate to permit “informed judicial
review”). The purpose of the limited remand in that
circumstance is ‘to aid the court in its review, and the
limited remand is issued without the court’s reaching a
determination on the arbitrarmess or rationality of the
rule. See, e.g., Public Power Council v. Johnson, 674 F.2d
791 (9th Cir. 1982).
The Court’s decision in Overton Park, however, does
not sanction limited remands for supplementation where
the record before the court and the agency’s explanations
for its findings and actions are sufficiently developed to
allow judicial review. This distinction was clearly set out
in Camp V. Pitts. The Court in Camp stated that, where
the record is adequate for judicial review “[t]he validity
of the [agency’s] action must stand or fall on the propri-
ety of that finding, judged, of course, by the appropriate
standard of review.” Camp Vv. Pitts, supra, 411 U.S. at
143; see also FPC v. Transcontinental Gas Pipe Line
Corp., 423 U.S. 326 (1976) (per curiam).
This case falls squarely within the situation described
by Camp. The record before the court was fully adequate
to permit judicial review, and the court never suggested
otherwise. The court’s assessment, based on the record,
was that EPA’s use of the Class A coefficients to estab-
lish the emission limit was not a “rational decision”
and was “arbitrary and capricious.” App. 16a. Having
reached that conclusion, however, the court’s next step
was to remand the Class A “issue” for “further study.”
Its apparent conclusion—subsequently made explicit in its
decision after the remand proceedings—was that the
agency could enforce its original rule if it supplemented
the record on that one issue.
In Camp v. Pitts, the Court was not faced with the
issue of determining the scope of reconsideration on re-
mand necessary to resurrect an invalid rule. The agency
action at issue in Camp was not subject to rulemaking
10
procedures. As the Court noted, “neither the National
Bank Act nor the APA requires the Comptroller to hold
a hearing or to make formal findings on the hearing
records when passing on applications for new banking
authorities.” 411 U.S. at 140-41. .
A recent case interpreting Camp has pointed out:
“Where, as in Camp ..., the agency’s explanation is
required to be responsive to the purposes of the en-
abling statute, rather than to a record developed
through mandatory hearings or public comments,
post hoc rationalizations, while undesirable, are not
fatal.”
Action on Smoking and Health v. C.A.B., 713 F.2d 795,
798 n.2 (D.C. Cir. 1983) (citations omitted).
The court in Action on Smoking and Health went on to
address the open issue of what “steps an agency must
take to enter a valid new order... .” Jd. at 798. The
D.C. Circuit concluded that the agency had to conduct a
new inquiry, adhering to the same statutory require-
ments applicable to the initial promulgation. Facing the
situation left open in Camp, the court reasoned that
repromulgation was necessary to prevent post hoc ration-
alizations on the part of the agency and to provide the
parties on remand the full benefit of the applicable statu-
' tory provisions. Id.
The Sixth Circuit’s contrary conclusion in this case
raises two distinct, though interrelated, issues: First,
whether the failure to set aside an invalid rule and
remand for repromulgation is consistent with Congress’s
and this Court’s delineation of the proper relationship
between courts and administrative agencies; and, second,
whether the lower court’s subsequent limitation of judi-
cial review to the “issue” remanded to the agency is con-
sistent with Article III of the Constitution and the prin-
ciples governing judicial review of administrative action.
u
A. The Lower Court’s Failure to Set Aside and Remand
for Repromulgation Is Inconsistent with Congress’s
and this Court’s Delineation of the Proper Relation-
ship between Courts and Administrative Agencies.
The lower court viewed its reihand for supplementa-
tion as flowing from the proper rélationship between
courts and administrative agencies as outlined by this
Court’s decisions.’ The court noted that “decision-making
(particularly in this highly technical’area) is the primary
responsibility of the agency and not the responsibility of
this court,” App. 16a, citing Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519 (1978), and Citi-
zens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1971). The court apparently viewed a remand for “fur-
- ther study” as a less “intrusive” judicial action, and thus
more in keeping with the spirit of Vermont Yankee and
Overton Park, than setting aside the agency action and
requiring repromulgation of the emission limit.
The Court’s approach, however, was misguided and
contrary to the spirit of Vermont Yankee.
First, the court’s action was inconsistent with the
Administrative Procedure Act (APA). The Sixth Cir-
cuit’s initial review of EPA’s action was governed by the
7 The court may also have been influenced in its choice of a re-
mand approach by its perception of the health hazards posed by
powerplant emissions. App. 2a-4a; 6a. It is important to note, how-
ever, that the court misunderstood the purpose of the emission limi-
tation at issue in this case. The limitation was set to protect the
“secondary” national ambient air quality standard, not the “pri-
mary” standard. The primary standard is designed to protect
health; the secondary standard is designed only to protect other
general “welfare” concerns (e.g., vegetation). 42 U.S.C. §§ 7409
(b) (2); 7602(h) (defining “welfare” considerations). Indeed,
EPA never claimed that the limitation was necessary to protect
public health and stayed enforcement of the limitation pending its
Class A “study.” App. 64a.
12
judicial review provisions of the APA, 5 U.S.C. § 706,”
which state:
The reviewing court shall—
. (2) hold unlawful and set aside agency action,
findings and conclusions found to be—
(A) arbitrary, capricious, an abuse of
discretion or otherwise not in accordance
with law; ....
5 U.S.C. § 706(2) (A) (emphasis added).
There is nothing in the Sixth Circuit’s opinion, how-
ever, to suggest that the court recognized that the lan-
guage of the APA constrained its choice of a remand
order. Yet the Congressional instruction is unambiguous
that the court “shall set aside” arbitrary and capricious
rules. The APA certaintly contains no Congressional
authorization for a limited remand of an arbitrary and
capricious rule for “further study.”
This Court has previously noted that the requirements
of the APA represent a “statutory scheme through which
Congress enacted ‘a formula upon which opposing social
and political forces have come to rest.’” Vermont Yankee
Nuclear Power Corp. v. NRDC, supra, 435 U.S. at 547
(citation omitted). The Act’s requirement that arbitrary
rules be set-aside serves several vital purposes: It acts as
a restraint on judicial review by ensuring that agency
8 The court’s review of EPA’s actions under the Clean Air Act,
as in effect when EPA promulgated the emission limitation at
issue, was governed by the judicial review provisions of the APA.
5 U.S.C. §§ 701-706. See Buckeye Power, Inc. v. EPA, 481 F.2d
162, 171 (6th Cir. 1973), cert. denied, 425 U.S. 934 (1974). The
Clean Air Act Amendments of 1977 contain their own judicial
review provisions modeled after the APA. 42 U.S.C. § 7607(d).
The language in the Clean Air Act now states that the reviewing
court is to “reverse any .. . action found to be—arbitrary, capri-
cious... .” Id. § 7607(d)(9)(A). The legislative history of the
1977 Amendments clearly indicates that this language was in-
tended to parallel the APA, see National Lime Ass’n v. EPA, 627
F.2d 416, 452 and nn. 126-27 (D.C. Cir. 1980).
13
action will not lightly be found arbitrary; it obviates the
Due Process concerns that would be raised by an agency’s
attempting to enforce an arbitrary rule during the pen-
dency of a remand; and it protects the integrity of the
administrative process. The latter point is particularly
important in this case.
In the past, this Court has struck down lower courts’
attempts to impose particular procedures on remand. See
Vermont Yankee Nuclear Power Corp. v. NRDC, supra,
435 U.S. at 542-49 (court order requiring rulemaking
process on remand to include more extensive procedures) ;
FPC v. Transcontinental Gas Pipe Line Corp., supra, 423
U.S. at 333 (court order requiring agency to study issue
of natural gas shortage); FCC v. Schrieber, 381 U.S.
279, 290 (1965) (court order requiring confidential pro-
ceeding on remand) ; FCC v. Pottsville Broadcasting Co.,
309 U.S. 134 (1940) (court order requiring agency to
conduct proceedings on remand based on then-existing
record).
In this case, rather than imposing a special procedure
on the agency, the court authorized a special procedure.
The remand order was then used by EPA as justification
for limiting its scope of inquiry to the Class A issue and
for ignoring the ultimate question of the validity of the
emission limitation.? The court’s authorization of the
truncated inquiry on remand harms the administrative
process as much as the imposition of special procedures
in cases such as Vermont Yankee.
It is not the province of a reviewing court to assume
that an arbitrary and capricious rule can be cured by
® For example, in denying Ohio Power Company’s petition for
reconsideration, EPA briefly discussed the differences between the
modeling procedures it used in setting the limitation and those it
used to “study” the Class A coefficients. In that discussion, the
agency simply concluded that the differences were insubstantial for
purposes of its “study,” but never addressed whether those differ-
ences "vould result in a changed emission limitation. App. 87a-90a.
14
studying and supplementing the record on one particular
factual issue. An agency rule is an amalgam of factual
findings and poliey considerations applied to yield a final
action—here, an emission limitation. K. Davis, Adminis-
trative Law Treatise, §$ 7.1. 7.2 (1979). Removal of
one finding from the jackstraw pile of findings and
policy considerations that comprise the agency’s final
action can have effects that the court, lacking in technical
expertise, cannot anticipate. See SEC Vv. Chenery, 332
U.S. 194, 195-97 (1947). That is well-illustrated in
this case.
The computer models EPA uses to set emission limita-
tions are, in essence, sophisticated methods for processing
facts (data) in accordance with a given set of assump-
tions (such as the Class A coefficients). Changes in either
the input data or the method of processing the data can
alter the resulting emission limitation. The Class A co-
efficients can be used to produce any of a variety of
results depending on the data and computer model used.”
What the court’s remand authorized EPA to do was
to “study” and justify the Class A coefficients using a
model with a different set of data and assumptions than
those used in the model that produced the emission limi-
tation. By failing to set aside the emission limitation
and remand for repromulgation, the court invited EPA
to pull one set of assumptions out of the statutory deci-
sion-making context and deprived Ohio Power Company
of the opportunity to challenge the connection between the
‘agency’s finding of fact (i.e., the computer model used to
process data) and the agency’s action (the emission
limitation) .™
10 See p. 5, supra.
11 Computer models are an increasingly important tool in agency
rulemaking. Congress’s concern over the potential abuses of com-
puter modeling in the context of the Clean Air Act led it to re-
quire EPA to establish uniform modeling techniques and review
and update the models periodically as science develops. 42 U.S.C.
§§ 7475(e) (8) (D) and 7620.
15
In the context of adjudicatory proceedings, this Court
has emphasized that an order remanding an agency ac-
tion should not constrict the parties’ opportunity to raise
any and all objections to an agency’s action on remand.
See Ford Motor Co. v. NLRB, 305 U.S. 364, 374-76
(1939) (a proper remand “does not encroach upon ad-
ministrative functions” or restrict the parties’ right to
raise all objections to the agency’s action since “the set-
ting aside of the findings and order carrie[s] with it
the opportunity for reconsideration and the making of
a new record”); see also SEC v. Chenery, supra, 332
U.S. at 201 (“after the remand was made.. ., the
Commission was bound to deal with the problem afresh,
performing the function delegated to it by Congress’).
The same principle should apply in the context of in-
formal rulemaking.
A contrary conclusion would invite post hoc rationaliza-
tions. But see Burlington Truck Lines v. United States,
371 U.S. 156, 165-69 (1962). In this case, the court’s re-
mand encouraged post hoc findings. It allowed EPA to
keep the 1976 emission limitation in place, on the condi-
tion that the “further study” of the Class A coefficients
resulted in an affirmation of those coefficients. App. 17a.
Post hoc supplementation of the record was the path of
least resistance, allowing the agency to avoid reconsider-
ation of the emission limitation itself. .
The failure to set aside invalid agency action thus
provides the agency with an excuse for truncating the
administrative inquiry. The agency is invited to design
the inquiry on remand to satisfy the court’s limited or-
der, not its statutory mandate. That is what oceurred in
this case, and it affected both the proceedings on remand
and the subsequent judicial review.
16
B. The Lower Court’s Limitation of Judicial Review to
the “Issue” Remanded to the Agency Is Inconsistent
with the Proper Function of Judicial Review under
Article III of the Constitution.
In reviewing EPA’s response to its remand, the Sixth
Circuit held: “Thus the sole issue of practical signifi-
cance before this court at this time is the question as to
whether or not the EPA, since the remand, has properly
carried out this court’s mandate to undertake further
study of the basis for the use of Class A coefficients. .. .”
App. 5a. In fact, the Class A coefficients in isolation have
no practical significance; it is the emission limitation that
determines what Ohio Power must do. The issue the
court reviewed was whether EPA complied with its man-
date of “further study,” not. whether the agency com-
plied with Congress’s mandate that its emission limita-
tion be rational and supported on the record. 42 U.S.C.
§ 7607(d). Similarly, the court reviewed whether EPA’s
action on remand was adequate in terms of the “further
study,” but not whether its action was adequate for the
promulgation of an emission limitation. App. 6a, n.2.”
In short, the court substituted its interest in the Class A
issue for the Congressionally-mandated focus on the ra-
tionality of the emission limitation. -
In failing to review the issue of the emission limita-
tion, the lower court treated judicial review of agency
rulemaking as though it were a collaborative process in
which the court affirms findings and identifies problem
12 The Court briefly addressed the issue of whether EPA had to
comply with the procedural requirements of the Clean Air Act
relating to the promulgation of an emission limitation. App. 6a,
n. 2. The court held that EPA did not, since its “study” did not
involve promulgation of an emission limit and that, in any event,
the “study” was done with adequate notice and comment, making
the procedural error “harmless.” Jd. The court clearly did not
address whether the agency properly reconsidered the emission
limitation itself.
17
areas and the agency, in response, must only address the
problem areas.’* That approach may be appropriate in
the context. of judicial review of a lower court decision
but it is inappropriate for judicial review of agency
action. See FCC v. Pottsville Broadcasting Co., 309 U.S.
134, 140-44 (1940). As Justice Frankfurter stated in
Pottsville :
What is in issue is not the relationship of federal
courts inter se—a relationship defined largely by the
courts themselves—but the due observance by courts
of the distribution of authority made by Congress as
between its power to regulate commerce and the re-
viewing power which it has conferred upon the courts
under Article III of the Constitution.
Id, at 141,
At heart, the error in the decisions below was that the
Sixth Circuit perceived its judicial function as though it
were reviewing the resolution of the issue of the Class A
coefficients and not the action of the agency in imposing
an emission limitation. Courts, however, have no author-
ity to review issues”; their authority is to review “cases
or controversies”. U.S. Const. Art. III § 2, cl. 1; see
Valley Forge College v. Americans United For Separation
of Church and State, 454 U.S. 464, 472 (1982); Federal
Radio Comm. v. General Electric Co., 281 U.S. 464, 469
(1930) (a court on judicial review “cannot give decisions
which are merely advisory; nor can it exercise or partici-
pate in the exercise of functions which are essentially . . .
administrative’) . .
18 The Sixth Circuit was of the view that it had “approved the
EPA plan in all respects except one. The exception pertained to
the EPA’s employment of the Class A assumption... .” App. 4a.
The court did not explain how it could have “approved” the ’
emission limitation while striking down the agency’s use of the
Class A coefficients, particularly since the Class A coefficients, as
employed in the agency’s previous model, were the determining
factor in establishing the emission limitation. See App. 14a.
18
The requirement that arbitrary agency action be set
aside and remanded for repromulgation implements the
“case or controversy” limitation by ensuring that the
court reviews and acts upon the contested agency action
and that the proceedings on remand are directed to the
resolution of the relevant statutory issues, not the court’s
interest in an issue in the abstract.
As evidenced by the Sixth Circuit’s decisions, it is en-
ticing for a court to limit its remand to “issues.” That
approach appears to provide a short cut through what
may be perceived as a cumbersome administrative process
and a method of limiting the issues for subsequent judi-
cial review. But as the court stated in Pottsville, it is
an enticement that must be resisted.
It is . . . urged upon us that if all matters of
administrative discretion remain open for determina-
tion on remand after reversal, a succession of single
determinations upon single legal issues is possible
with resulting delay and hardship. . . . But courts
are not charged with general guardianship against
all potential mischief. . . . Congress which creates
and sustains these agencies must be trusted to cor-
rect whatever defects experience may reveal. Inter-
ference by the courts is not conducive to the develop-
ment of habits of responsibility in administrative
agencies. 3
FCC v. Pottsville Broadcasting Co., supra, 309 U.S.
at 146.
CONCLUSION
In several recent cases, this Court has attempted to
correct the inclination of the lower federal courts to in-
sert themselves into the administrative process and “im-
prove” upon the statutory structure created by Congress.
This case presents a comparable problem in a different;
though equally important, context. The Court should ad-
dress the issue of the proper scope of a remand order
after agency action is found arbitrary and capricious.
19
The issue is one that arises frequently and the lower
courts have reached conflicting conclusions. Several
strains from this Court’s prior decisions—the concerns
expressed over intrusive judicial review, post hoc agency
rationalizations, and the proper role of the courts under
Article I[1]—all suggest that the Sixth Circuit’s resolu-
tion of the issue left open in Camp was in error. Ohio
Power Company has been substantially harmed by that
error.
This Court should grant certiorari to resolve the issue
of the proper scope of a remand order and to clarify the .
‘ application of the principles announced in Camp v. Pitts
and Overton Park for agency rulemakings.
Respectfully submitted,
EDWARD BERLIN
Counsel of Record for Petitioner
FRANCIS S. BLAKE
SWIDLER, BERLIN & STRELOW,
CHARTERED
1000 Thomas Jefferson St., N.W.
Washington, D.C. 20007
(202) 342-5500
A. JOSEPH DowD
JEFFREY P. WHITE
OHIO POWER COMPANY
E. DONALD ELLIOTT
Box 401A Yale Station
New Haven, Connecticut 06520
Of Counsel
August 3, 1984
APPENDIX
=~ —-
la
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 80-3561, 80-3730, 80-3732, 80-3813,
77-1367, 76-2090
CHIO POWER COMPANY;
CINCINNATI GAS & ELECTRIC COMPANY, et al.,
Petitioners,
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and ANNE M. GorsucH, Administrator,
Respondents.
THE COMMONWEALTH OF PENNSYLVANIA, (80-3813),
Petitioner,
v. :
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and ANNE M. GorSUCH, Administrator,
Respondents,
OHIO POWER COMPANY and
COLUMBUS AND SOUTHERN OHIO ELECTRIC COMPANY,
Intervenors.
On Petitions to Review Final Action of the
Administrator of the United States
Environmental Protection Agency
Decided and Filed March 22, 1984
2a
Before: EDWARDS, Circuit Judge; PHILLIPS and PECK,
Senior Circuit Judges.
EDWARDS, Circuit Judge. This appeal concerns the
problem of airborne sulphur dioxide emanating from
three major power plants located in rural areas in the
State of Ohio.t The pollution of the ambient air by
sulphur dioxide (produced by burning high sulphur coal),
is a medically recognized threat to human health. This
is particularly true as to infants, the ill and the aged.
It also contributes to acid rain with its subsequent dele-
terious impact on the plant and fish life in the lakes and
rivers of Ohio and neighboring states. Indeed it is al-
leged to contribute to the latter type of pollution in down-
wind areas as far removed as New England and East-
ern Canada.
The fundamental issues of this case were dealt with
and decided over five years ago in Cleveland Electric
Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir. 1978)
and Cincinnati Gas & Electric Co. v. EPA, 578 F.2d
660 (6th Cir. 1978), cert. denied, 489 U.S. 1114 (1979).
In those two opinions, this court approved the EPA’s
plan for controlling the ambient air affected by four
power plants and the Supreme Court denied certiorari.
This court’s basic rationale for its approval of the EPA’s
air quality standards was (and remains) concern about
human hezlth and safety. In our earlier Cleveland Elec-
tric decision, we said:
1(1) Stuart (Dayton Power & Light)—now in compliance, but
remaining in litigation;
(2) Cardinal (Ohio Power Co.)—limits not contested, but if
P-G Class A coefficients are again vacated, the limits are once again
in question; and
(3) Muskingum River (Ohio. Power Co.)—only plant in which
emission limitations are still contested.
One petition involved in the original appeal (that of Columbus
& Southern Ohio Electric Company’s Conesville plant) has been
voluntarily dismissed.
3a
The federal Clean Air Act program which pro-
duced these standards is based primarily upon the
adverse effect which sir poiution has upon human
life and health. 3
Acute episodes of high pollution have clearly re-
sulted in mortality and morbidity. Often the effects
of high pollutant concentrations in these episodes
have been combined with other environmental fea-
tures such as low temperatures or epidemic diseases
(influenza) which may in themselves have serious
or fatal consequences. This has sometimes made it
difficult to determine to what extent pollution and
temperature extremes are responsible for the effects.
Nevertheless, there is now no longer any doubt that
high levels of pollution sustained for periods of days
can kill. Those aged 45 and over with chronic dis-
eases, particularly of the lungs or heart, seem to be
predominantly affected. In addition to these acute
episodes, pollutants can attain daily levels which
have been shown to have serious consequences to
city dwellers.
a * o *
There is a large and increasing body of evidence
that significant health effects are produced by long-
term exposures to air pollutants. Acute respiratory
infections in children, chronic respiratory diseases in
adults, and decreased levels of ventilatory lung func-
tions in both children and adults have been found
~ to be related to concentrations of SO, and particu-
lates, after apparently sufficient allowance has been
made for such confounding variable as smoking and
socioeconomic circumstances.
Rall, Review of the Health Effects of Sulfur Oxides,
8 Env’tal Health Perspectives 97, 99 (1974).
* * * *
Two other facts should be added from the exten-
sive technical record in this case before we turn to
4a
the specific legal issues. The first is that sulfur
dioxide emitted from plant stacks reacts with other
elements in the atmosphere to form sulfuric acid
mist and various suspended sulfates which are in
fact the irritants which adversely affect human
health. T. Lewis, M. Amdur, M. Fritzhand & K.
Campbell, Toxicology of Atmospheric Sulfur Dioxide
Decay Products 17 (1972).
The second important fact is that these derivatives
from sulfur dioxide tend to be airborne for days.
They affect areas at great distances downwind, even
when in the original sulfur dioxide form they were
emitted from a high power plant stack.
Rall, Review of the Health Effects of Sulfur Oxides,
8 Env’tal Health Perspectives 97, 106 (1974).
572 F.2d at 1153, 1155.
While three of the original petitioners are parties to
this appeal, we are advised that two of the four are now
in compliance with the EPA standards which we ap-
proved in 1978. As to those two appellants, this appeal
is in effect a petition to roll back emission standards
which are currently being met, and thus to increase
SO, emissions in the ambient air in Ohio and elsewhere.
As indicated above, the plant not in compliance is
Ohio Power Company’s Muskingum River plant.
This court, in its opinion in Cincinati Gas & Electric
Co. v. EPA, supra, approved the EPA plan in all respects
except one. The exception pertained to the EPA’s em-
ployment of the Class A assumption in determining pol-
lution dispersion under least stable wind conditions in
rural areas. As to this issue, we remanded saying as
follows:
On this present record we conclude that United
States EPA’s employment of the Class A assumption
in determining pollution dispersion under “least
~
——— ee
«
>
5a
stable” wind conditions in rural areas and areas of
complex terrain is not a rational decision and is ar-
bitrary and capricious.
As we read EPA’s position on this point, it is that
no better solution has been proposed. This answer,
however, ignores the Enviroplan and Smith-Singer
studies. More importantly, it ignores the conclusions
of the experts’ conference convened by Argonne Na-
tional Laboratory at United States .EPA’s own re-
quest. The report of that conference suggested
“elimination of the A curve and the use of the B
curve for both A and B stability categories.” See
Report of the Specialists’ Conference on the EPA
Modeling Guideline, Feb. 22-24, 1977, Chicago, II-
linois, at § 2.7.5: “Vertical Dispersion Estimates.”
mandate its acceptance by United States EPA. Our
ultimate action on this score is simply to remand
this issue to United States EPA for further study.
This might result in the writing of a new record
which supplies the now missing support for the use
of Class A coefficients for the least stable wind con-
dition in rural counties, or it might result in United
States EPA’s adoption of use of the Class B co-
efficients for the two least stable wind conditions, or
it might result in a new record which supports a:
wholly new solution.
578 F.2d at 663-64.
Thus the sole issue of practical significance before this
court at this time is the question as to whether or not
the EPA, since the remand, has properly carried out this
court’s mandate to undertake further study of the basis
for the use of Class A coefficients and whether, if so, the
record now supports EPA’s renewed determintion that
the Class A coefficients should continue to be used for
power plants in rural areas.
By pointing out this proposed solution, we do not
6a
We now have this case back before us with many
newly stated arguments from EPA’s opponents® and
some from Intervenor State of Pennsylvania.
After a lengthy hearing (which included the State of
Pennsylvania’s contentions), the court concludes that we
carefully limited the remand to a single issue and that
we should now decide only that issue. This record shows
that EPA did re¢onsider and did introduce into the
record additional support for its original finding that the
Pasquill-Gifford Class A coefficients should be used and
we now affirm.
Since the beginning, this case has been the subject of
careful study by this court because of 1) the complexity
and technicality of the record; 2) the economic impor-
tance of the decision to the industry concerned; and 3)
the health hazards to the general public. Yet our review
is limited by a very narrow standard. Congress has
provided :
(9) In the case of review of any action of the Ad-
ministrator to which this subsection applies, the court
may reverse any such action found to be—
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
42 U.S.C. § 7607(d) (9) (A) (Supp. I 1977).
The Supreme Court has elaborated upon this standard:
Under the “arbitrary and capricious” standard the
scope of review is a narrow one. A reviewing court
2 Petitioners also contend that EPA was required on this remand
to follow the formal notice requirements of § 307(d) of the Clean
Air Act, 42 U.S.C. § 7607(d). We agree with EPA, however, that
the reconsideration ordered by this court did not constitute either
promulgation or revision of an implementation plan. Additionally,
if we were to assume the applicability of § 307(d) to this proceed-
ing, any deviation from the § 307(d) requirements under the record
contained here would be harmless within the meaning of 42 U.S.C.
§ 7607 (d) (9).
a ee ee Ps
Ta
must “consider whether the decision was based on a
consideration of the relevant factors and whether
there has been a clear error of judgment. .... Al-
though this inquiry into the facts is to be searching
and careful, the ultimate standard of review is a
narrow.one. The court is not empowered to sub-
stitute its judgment for that of the agency.” Citizens
to Preserve Overton Park v. Volpe, supra, at 416.
The agency must articulate a “rational connection
between the facts found and the choice’ made.”
Burlington Truck Lines v. United States, 371 U.S.
156, 168 (1962). While we may not supply a rea-
soned basis for the agency’s action that the agency
itself has not given, SEC v. Chenery Corp., 332 US.
194, 196 (1947), we will uphold a decision of less
than ideal clarity if the agency’s path may reason-
ably be discerned. Colorado Interstate Gas Co., V.
FPC, 324 U.S. 581, 595 (1945).
Bowman Transportation, Inc. Vv. Arkansas-Best
Freight System, Inc., 419 U.S. 281, 285-86 (1974).
Undertaking the review called for concerning the issue
in this case, we find that the agency took the following
actions:
1) At a meeting of EPA Region V staff representatives
on August 15, 1978, this court’s remand of the Pasquill-
Gifford dispersion coefficients was considered. EPA there-
after decided to continue to use the Class A coefficients
“until an alternative approach is sufficiently demonstrated
to. be more adequate.”
2) February 7, 1979, EPA published a Notice of Re-
consideration in 44 Fed. Reg. 7,798 (1979), concerning
1) the use of Class A coefficients at the four power plants
then concerned; and 2) extending the time necessary for
compliance with emission limitations.
3) EPA also considered and rejected the solution pro-
posed by appellants, namely, the use of Class B dispersion
8a
coefficients “as contrary to both dispersion theory and
available data.” It based the rejection in part upon data
taken from studies at the Karlsruhe Nuclear Research
Center in Germany. These studies, EPA found, supported
use of the Class A coefficients.
4) A period followed when EPA received and con-
sidered objections filed by the appellants claiming 1) in-
applicability of the Karlsruhe data and EPA’s mis-
interpretation of it; 2) EPA’s failure to consider all
alternatives; and 3) its failure to take into proper ac-
count “The enormous economic costs involved.”
5) On June 19, 1980, EPA announced and published
its intention to continue to employ the Pasquill-Gifford
Class A coefficients (See 45 Fed. Reg. 41,501 (1980) ).
It subsequently denied appellants’ motions to reconsider.
This court, of course, has no responsibility for deter-
mining the merits (or lack thereof) of the technical
' standard EPA has adopted. Our duty ends when we are
able to say that the agency has acted lawfully and that
the decision is not “arbitrary, capricious or an abuse of
discretion.” We find no violation of this standard on
review of this record. The instant petitions for review
are dismissed. :
ee a ‘ —
9a
UNITED STATES COURT OF APPEALS
SIXTH CIRCUIT
Nos. 76-2090, 77-1367, 76-2232, 77-1361, 76-2241,
77-1357, and 76-2278
CINNCINNATI GAS & ELECTRIC Co., COLUMBUS & SOUTH-
ERN OHIO ELECTRIC Co., DAYTON POWER & LIGHT Co.,
OHIO EDISON Co., OHIO POWER Co., SHELL OIL Co.,
AUSTIN POWDER Co., E. I. du PONT de NEMOURS & Co.,
Petitioners,
Vv.
ENVIRONMENTAL PROTECTION AGENCY and DoucGLas M.
CosTLE, ADMINISTRATOR OF THE ENVIRONMENTAL PRO-
TECTION AGENCY,
Respondents.
Argued Oct 21, 1977
Decided June 29, 1978
Louis E. Tosi, C. Randolph Light, Fuller, Henry, Hodge
& Snyder, Toledo, Ohio, Daniel W. Kemp, Cincinnati,
Ohio, for Cincinnati Gas & Elec. Co., Shell Oil Co., et al.
James Van Carson, Squire, Sanders & Dempsey, Cleve-
land, Ohio, for Austin Powder Co.
Carl B. Everett, Legal Dept., E. I. du Pont de Nemours
& Co., Wilmington, Del., for E. I. du Pont de Nemours &
Co.
i ee ee i ee
= —— - =
10a
Ronald C. Hausmann, E.P.A., Paul M. Kaplow, Dept.
of Justice, Washington, D.C., Mary Ann Muirhead, Region
V, E.P.A., Chicago, Ill., Ned Williams, Director, Ohio
E.P.A., Columbus, Ohio, for respondents.
Before PHILLIPS, Chief Judge, and EDWARDS and
PECK, Circuit Judges.
EDWARDS, Circuit Judge.
This opinion deals with certain additional issues pre-
sented in 23 industry petitions covering 32 major power
and industrial companies in Ohio objecting to the United
States EPA’s plan for control of SO, pollution in Ohio.
These additional issues concern only point sources of SO,
pollution in Ohio’s rural areas or areas with complex
terrain. This opinion should be read as supplementary to
the opinion of this court dated February 13, 1978, Cleve-
land Electric Illuminating Co., et al. v. Environmental
Protection Agency, et al., 572 F.2d 1150 (6th Cir. 1978).
Our focus herein is upon the following petitioners and
the designated facilities belonging to them. These peti-
tioners protest certain features of the United States EPA
model (MAXT-24) employed for predicting plant pollu-
tion in rural and complex terrain areas: .-
Nos. 76-2090, 77-1367:
Cincinnati Gas & Electric Co., all facilities (Hamil-
ton & Clermont Counties).
Columbus & Southern Ohio Electric Co., all facilities
(Athens, Coshocton, Pickaway Counties).
Dayton Power & Light Co., all facilities not covered
by opinion dated February 13, 1978 (Adams County).
Ohio Edison Co. (Jefferson County) Sammis Plant
only.
Ohio Power Co., all facilities (Washington and Mor-
gan Counties).
lla
No. 76-2278:
E. I. du Pont de Nemours & Co., all facilities (Hamil-
ton County).
Nos. 76-2282, 77-1361:
Shell Oil Co., all facilities (Washington County).
Nos. 76-2241, 77-1357: |
Austin Powder Co., all facilities (Vinton County).
The MAXT-24 model (Second Maximum 24-Hour Dis-
persion Model with Terrain Adjustments) is designed for
use in predicting SO, pollution resulting from single
sources located in rural areas. Unlike the RAM model
employed in urban areas, which we dealt with in Cleve-
land Electric Illuminating Co., supra, MAXT-24 does not
provide estimates of comparative contributions to total
SO, pollution from a number of point sources. The
MAXT-24 model treats each point source as an isolated
problem, and only general background SO, pollution data
are added into the formula.
In other respects the MAXT-24 model strongly re-
sembles the RAM model.* Thus, like RAM, MAXT-24
starts with a solid ascertainable data base, namely, the
established design capacity of the power or steam gen-
erating plants in question related to the sulfur content
of the fuel used by such plants. Emissions data are
developed from these factors. Subsequently, stack height,
wind, weather, and terrain data are added. Like RAM,
MAXT-24 employs a Gaussian plume formula and as-
sumes vertical and horizontal dispersion of the pollution
plume. It employs the Pasquill-Gifford stability classifi-
cations and coefficients.
Like RAM, the MAXT-24 model was designed by United
States EPA largely as a result of industry criticism of
1 See Cleveland Electric Illuminating Co., supra, Section 3, 572
F.2d at 1160-64.
, 12a
the use of rollback modeling. As was true in relation to
the RAM results, the results of use of MAXT-24 were
generally less strict than those contemplated by the 1972
and 1974 Ohio EPA SO, regulations.”
Indeed, the comments this court made in Cleveland |
Electric Illuminating Co., supra, in Section 3 of the
opinion are largely applicable to EPA’s adoption of
MAXT-24 and we cite and rely on said Section 3 in hold-
2 The following summary is drawn from Cleveland Electric Il-
luminating Co., supra, Appendix A, 572 F.2d at 1165-74:
OhioEPA Ohio EPA
US EPA 1976-77 1972 1974
MAX regs are: regs for: regs for:
1. less strict than 19 16 of petitioners’
facilities *
stricter than 1 5 -
ambiguous ”
compared with 3 2
2. less strict than 31 27 of Ohio counties
modeled entirely
with MAX
stricter than 3 *
ambiguous ”
compared with 5 6 es
3. less strict than 38 82 of Ohio counties
in which MAX
: was employed
stricter than 3 6 7
ambiguous ”
compared with 12 15 -
*Including facilities to the regulation of which petitioners do not
object.
> /.e., stricter for some stacks or facilities and less strict for others;
or employing different units of measurement, rendering comparison
impossible.
The 1972 Ohio EPA plan was submitted to United States
EPA on January 30, 1972, but was “withdrawn” by the Gov-
ernor of Ohio on August 27, 1972. The 1974 Ohio EPA plan
was submitted to United States EPA on September 22, 1974,
and was withdrawn on July 16, 1975. See Cleveland Electric
Illuminating Co., supra. 572 F.2d at 1156.
13a
ing that in general (and with one exception noted below)
the EPA’s adoption and use of the MAXT-24 model is
not arbitrary or capricious and, like the use of the RAM
model, must be affirmed by this court.
Despite the discussion above, we are not certain that
any of the petitions we deal with in this opinion seriously
disputes the general] validity of the MAXT-24 model.
What these petitioners clearly do contend is that the
MAXT-24 model results are badly skewed to their great
economic disadvantage by 1) the Class A assumption em-
ployed to estimate pollution dispersion in the least stable
wind condition, and 2) the failure of EPA to employ the
half ground displacement theory in estimating pollution
impact on hillly terrain.
I THE.CLASS A ASSUMPTION ISSUE
The MAXT-24 model makes use of a set of six co-
efficients for determining plume dispersal. The classes
of coefficients employed were based upon six different
weather conditions. The term Class A is employed to
describe both the least stable weather condition and the
set of assumptions which is based on the most direct and
- quickest impact of the pollution plume upon ground level
with the least prior dispersal.
The six Pasquill-Gifford coefficients employed in MAXT-
24 are derived from a Nebraska study made in the 1950’s
and are referred to by United States EPA as “time-
tested” What this defense appears to ignore, however, is
that petitioners in this instance (contrary to the general
attack upon the six coefficients employed in RAM) are
not objecting to the use of the coefficients; they are attack-
ing the accuracy of one set of them—the Class A set
associated with “gusty winds.” Specifically they claim
that the Class A assumption is fallacious in that it as-
sumes a longer period of downward draft than occurs in
fact and fails to make allowance for the lateral dispersal
which would accompany such a vertical wind at the point
of impact.
l4a
The lead brief for the utilities presents the case thus:
In all modeling of rural power plants, EPA utilized
dispersion coefficients under Class A stability eondi-
tions which have no support in data, which have been
repudiated by most modelers and which are demon-
strated inaccurate by this record. As applied to this
rulemaking, this seemingly simple assumption is ex-
ceedingly important because, for almost 1% of the
power plants in Ohio, it was the determining factor
in establishing emission limits.
The meaning of “Class A.”
Diffusion models can account for thousands of bits
of data. Most important are meterological data of
which stability classes are an aspect.
Specifically, stability classes are categorizations of
the atmosphere’s ability to disperse plumes. These
classes are divided into six categories ranging from
extreme dispersion of plumes (Class A) to minimum
dispersion (Class F). Under Class A, a plume is
assumed to disperse very rapidly to the ground level -
before there is any substantial dilution. This, in
turn, leads to predictions of high ground level con-
centrations. The fundamental issue, therefore, is
whether the Class A assumption describes the manner
in which plumes disperse at rural power plants and
whether the phenomena it depicts really occur.
Brief of Utility Petitioners at 31-32 (emphasis in
original).
Petitioners then detail the results of three separate
studies which they claim attack and undermine the va-
lidity of the Class A coefficients, and generally urge
substitution of Class B coefficients. These studies are
the privately financed study by Environplan, Inc., a
similarly produced study by Smith-Singer Meteorologists,
SSE eS ee ee erhrh Oc lL
15a
and a strongly critical report resulting from the Spe-
cialists’ Conference of February 22-24, 1977, sponsored
by United States EPA itself through the Argonne Na-
tional Laboratory.
To this argument the EPA’s response is as follows:
EPA properly determined that the “Class A” sta-—
bility factors should continue to be used until new
field data proved them incorrect.
Petitioners argue that EPA should have changed
the dispersion coefficients used in the rural MAX
(CRSTER) model for analyzing ground level con-
centrations caused by a source in very unstable
weather, known as “Class A” conditions. In the
remand comment period, the utility petitioners pre-
sented various theories that the model did not ac- °
curately reflect the way wind patterns in such
weather conditions affect dispersion patterns and
that therefore the model might be overestimating
ground level concentrations for a 3-hour analysis.
Petitioners argue that it was arbitrary or capricious
for EPA not to accept theories presented in their
comments.
EPA recognized in the STSD [Supplemental Tech-
nical Support Document] at 55 that there was a
growing concern among atmospheric modeling scien-
tists about the issue. EPA determined, however,
that until further studies could be done to substanti-
ate the theories, there was no experimental or field
data to justify changing the dispersion curves or to
determine how the dispersion equations should be
changed. And since petitioners did not submit any
data, no change could be made in the equations used.
Id.
EPA Brief at 48-49.
164
We are, of course, aware that decision-making (par-
ticularly in this highly technical area) is the primary
responsibility of the agency and not the responsibility of —
this court. See Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460
(1978). As we said in Cleveland Electric Illuminating
Co., supra:
Our standard of review of the actions of United
States EPA is whether or not the action of the
agency is “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.”
Clean Air Act Amendments of 1977, Pub.L. No. 95-
95, §305(a), 91 Stat. 775 (to be codified as 42
U.S.C. § 7607(d) (9) (A)). Thus, we are required
to affirm if there is a rational basis for the agency
action and we are not “empowered to substitute
[our] judgment for that of the agency.” Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 416
[91 S.Ct. 814, 28 L.Ed.2d 136] (1971).
572 F.2d at 1161.
On this present record we conclude the United States
EPA’s employment of the Class A assumption in deter-
mining pollution dispersion under “least stable’ wind
conditions in rural areas of complex terrain is not a
rational decision and is arbitrary and capricious.
As we read EPA’s position on this point, it is that no
better solution has been proposed. This answer, however,
ignores the Enviroplan and Smith-Singer studies. More
importantly, it ignores the conclusions of the experts’
conference convened by Argonne National Laboratory at
United States EPA’s own request.* The report of that
* This conference was initiated by United States EPA and one
of the participants was the Director of EPA Region V, which
Region includes Ohio. The conference occurred during the remand
Way
conference suggested “elimination of the A curve and the
use of the B curve for both A and B stability categories.”
See Report of the Specialists’ Conference on the EPA
Modeling Guideline, Feb. 22-24, 1977, Chicago, Illinois, at
§ 2.7.5: “Vertical Dispersion Estimates.”
By pointing out this proposed solution, we do not man-
date its acceptance by United. States EPA. Our ultima’e
action on this score is simply to remand this issue to
United States EPA for further study. This might result
in the writing of a new record which supplies the now
missing support for the use of Class A coefficients for
the least stable wind condition in rural counties, or it
might result in United States EPA’s adoption of use of
the Class B coefficients for the two least stable wind
conditions, or it might result in a new record which
supports a wholly new solution.
II THE TERRAIN ADJUSTMENT PROBLEM
The original MAXT-24 model assumed that the pollu-
tion plume moves downwind in a straight line from a
point determined by the height of the smoke stack plus
plume rise (“effective stack height”). Under that as-
sumption, if effective stack height is 600 feet and there
is a hill 800 feet high downwind, a receptor site located
600 feet up that ‘hill will therefore in theory receive the
full impact of the pollutants in the center of the plume.
Petitioners’ attack upon this set of assumptions is, we ©
believe, best stated by the Shell Oil Co. brief:
The reference to “the effect of the terrain on the
plume” is an easily understood concept. Since the
wind which blows the plume toward a hill (terrain)
period of this litigation, and three months before the finally
amended regulations were promulgated. We consider the Confer-
ence Report to be properly a part of the appellate record.
18a
cannot blow through the hill, it must blow up and
over the hill. This effect causes all the layers of air
above the wind at ground level, and hence the plume
itself, to be carried up and over the hill rather than
hitting directly into its side. A widely recognized
means of accounting for such a situation, and one
which EPA has used, is to incorporate mathematical
changes in the model which reduce the receptor height
by the one-half difference between stack base and
receptor elevation and limit the approach of the
center line of the plume to ten meters above the
receptor.
Shell and its consultant, Enviroplan,, recommended
this change to U.S. EPA. Moreover, this change
was supported in the modeling literature by two
other independent experts—Briggs and Egan. Also,
another consultant, Environmental Research & Tech-
nology, Inc. (“ERT”), recommended the same ad-
justment in a report submitted to EPA during the
comment period for Columbus & Southern Ohio Elec-
tric Co. See “A Technical Review of the U.S. EPA
Ohio State Implementation Plan for Sulfur Dioxide,”
January 1977, prepared for C&SOE. (App. 210-213.)
Indeed, this approach is so well recognized that EPA,
Region II, approved its use in sustaining a revision
of the implementation plan for Puerto Rico. See
40 Fed. Reg. 52410 (1975).
Brief of Shell Oil Co., at 19-20..
As to this argument, the EPA brief contains this
comment and admission:
Contrary to petitioners’ claims, EPA utilized avail-
able monitoring data wherever possible. As set forth
in detail in both the Final and the Supplemental
Technical Support Documents, EPA conducted valida-
tion studies of the dispersion model used to set
emission limitations for isolated, rural power plants.
19a
See STSD at 53-55, and the FTSD at 27-34. The
validation studies compared model predictions of SO.
ground level concentrations to actual air quality
monitor data. These comparisons indicated that for
sources located on flat terrain, the correlation be-
tween monitor data and predictions was quite good
with the model tending to underpredict, but that for
power plants located on hilly terrain, the compari-
sons showed consistent overpredictions.
EPA Brief at 45-46 (footnote omitted).
The EPA brief then goes on to assert that cootain
adjustments have been made in the model “so that it
could handle dispersion in hilly terrain more accurately,”
and then cited the Supplemental Technical Support Docu-
ment at page 55. The STSD materiai referred to follows:
The validation studies which compared model pre-
dictions of SO, ground level concentrations to actual
air quality monitor data indicated that in certain
situations the model overpredicted and needed modi-
fication. The problem usually occurred when air
quality monitors were at elevations higher than the
top of the stack. To correct this, terrain data used
in the model was limited in such a way that terrain
features were always assumed to be no higher than
the stack height of the source stack in question.
This was deemed to be an appropriate adjustment
because the validation study showed a high degree
of correlation between model’ predictions and sample
readouts from monitors positioned on terrain. lower
than stack height in elevation. When this assump-
tion was mathematically incorporated into the model,
the validation studies showed that the. model ac-
curately predicted the ground level concentrations
observed by the monitors.
Petitioners proposed a different method for modi-
fying the model to account for complex terrain situa-
20a
tions, but the proposal is not based on any valida-
tion studies of the CRSTER model. The Agency
has no way of determining if the proposal is a better
modification to the model than the modification
made by the Agency after the validation studies.
The Agency, therefore, has determined that the
model does not need further modifications because of
any information presented by the petitioners.
EPA Brief at 54-55.
While the record does not establish conclusively that
this adjustment made by United States EPA in the re-
mand period will prove a satisfactory solution to the
problem posed, neither does the record offer evidence to
the contrary. We note, of course, that United States EPA
has disowned the apparent implication in its brief that
it had made validation studies of this latest adjustment
for hilly terrain. And, in fact, our holding on this issue
should not be read as this court’s rejection of petitioners’
half ground displacement theory in favor of the United
States EPA adjustment outlined above. There may well
be occasion for the agency to continue to review this is-
sue. All we hold is that on the present record, we can-
not find that United States EPA’s present terrain ad-
justment in MAXT-24 is “arbitrary or capricious.”
For the reasons indicated above, the petitions of Day-
ton Power & Light Co. (Adams County facilities only),
Ohio Power Co. (all facilities), Columbus & Southern
Ohio Electric Co. (Coshocton County facility only), and
Austin Powder Co. (all facilities) are remanded to the
United States EPA for reconsideration of the employ-
ment of Class A coefficients in least stable wind condi-
tions in rural counties.
All petitions referred to at the beginning of this opin-
ion are denied to the extent that they attack the MAXT-
24 model as to the terrain adjustment feature.
2la
III OTHER ISSUES
that there is no merit to objections based
e to calibrate the MAXT-24 model (or failure to
reject its results because of claims of overprediction as
demonstrated by some monitor readings). See Cleveland
Electric Illuminating Co., supra, 572 F.2d at 1163-64,
numbered paragraph 7.
Shell contends that its emission limitation should be
expressed in terms of pounds SO, per hour rather than
pounds SO, per million British Thermal Units. The
Shell proposal would require the EPA either to assume
that stack gas temperature and exit velocity (the impor-
tant factors bearing on plume rise and thus ultimately
on ground level SO, concentration) are relatively con-
stant, or alternatively to monitor stack gas temperature
and exit velocity. Clearly, EPA considers policing such
a system to be an impossible task. EPA’s formula, by
contrast, requires only the use of fixed, easily ascertain-
able date—the plant’s design-rated capacity. We regard
EPA’s choice of formula, which minimizes administra-
tive costs while obeying the Clean Air Act’s command to
“insure attainment and maintenance” of national am-
bient air standards, 42 U.S.C. § 1857c-5(a) (2) (B)
(1970),* to be within the range of the agency’s dis-
cretion.
We have considered the other issues raised by Shell
and find them to be without merit.
Disputes between petitioners and EPA concerning ap-
propriate SO, background levels, emission data, or other
fact issues will not be decided by this court until com-
pletion of the administrative review of such issues which
was suggested by this court and agreed upon by the
parties.
4 Newly recodified at 42 U.S.C.A. § 7410(a) (2)(B) (1977 Pam-
phlet) .
22a
Based upon what has been said by this court in Cleve-
land Electric Illuminating Co. v. EPA, supra, and in this
opinion, and finding no other material issues, we dismiss
the following petitions in toto: Cincinnati Gas & Electric
Co:, Shell Oil Co.
Final dispositions in the petitions of Columbia & South-
ern Ohio Electric Co., Ohio Edison Co., and E. I. du
Pont de Nemours & Co. will be entered on resolution
of the remaining issues therein.
23a
UNITED STATES COURT OF APPEALS
SIXTH CIRCUIT
Nos. 76-2090, 77-1367
THE CINCINNATI GAS AND ELECTRIC COMPANY, et al.,
Petitioners,
V.
ENVIRONMENTAL PROTECTION AGENCY and
DouGLas M. CosTLe, Administrator of the
ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
June 29, 1978
Petition for Review of an Order of the
Environmental Protection Agency
Louis E. Tosi, C. Randolph Light, Fuller, Henry,
Hodge & Snyder, Toledo, Ohio, Daniel W. Kemp, Cin-
cinnati, Ohio, for petitioners.
Ronald C. Hausmann, E.P.A., Paul Kaplow, Land and
Natural Resources Div., Pollution Control Section, Dept.
of Justice, Washington, D.C., Mary Ann Muirhead, Re-
gion V, E.P.A., Chicago, Ill., for respondents.
John W. Edwards, Lane, Alton & Horst, Columbus,
Ohio, for amicus curiae Ohio Mining and Reclamation
Ass’n.
William W. Wehr, Freifield, Bruzzese, Wehr, Morland
& England, LPA, Stuebenville, Ohio, for amicus curiae
Ohio Coal Operators’ Ass’n, Inc.
24a
William J. Brown, Atty. Gen. of Ohio, Environmental
Law Section, David E. Northrop, Asst. Atty. Gen., Co-
lumbus, Ohio, for intervenor, State of Ohio.
Before PHILLIPS, Chief Judge, and EDWARDS and
PECK, Circuit Judges.
ORDER
On receipt and consideration of a motion for clari-
fication of this court’s opinion, dated February 13, 1978;
and
Believing that said opinion is self-explanatory, but un-
derstanding petitioners’ desire for certainty, we reprint
below the specific dispositive paragraphs of Cleveland
Electric Illuminating Co. v. EPA, 572 F.2d 1150 (6th
Cir. 1978) (Nos. 76-2090 et al.), numbered in sequence
of their appearance in the opinion.
1) The cases dealt with in this opinion’ present the
major general issues. Other individual cases, in ad-
1 This decision dismisses the objections to the regulations that
apply to the following facilities :
(a) Cleveland Electric Illuminating Co.—all facilities.
(b) Dayton Power & Light Co.—Montgomery County facilities
only.
(ec) Ohio Edison Co.—Lorain County facilities only.
(d) Toledo Edison Co.—all facilities.
(e) The Timken Co.—all steam generating units.
(f) White-Westinghouse Corp.—all facilities. (Although there
was some confusion on this point in the briefs, the record makes
clear that White-Westinghouse’s Franklin County facility is
subject to the RAM model. See EPA Final Technical Support
Document at IV-57.)
(g) Standard Oil Co. of Ohio—Lucas County steam generating
unite. ;
(h) Interlake, Inc.—all steam generating units.
(i) Coulton Chemical Corp.—all steam generating units.
id., at 1152 (emphasis added).
25a
dition to presenting one or more of the general issues,
also present specific issues of fact. These are reserved
pending a review of and reports on the factual dis-
putes between the United States EPA and the in- ©
dividual petitioners. |
2) No other material issues are presented.
3) One petition pending before this court from the
Northern Ohio Lung Association attacks United
States EPA’s failure to promulgate a separate im-
plementation plan for the “secondary standards” for
the ambient air. This petition will be the subject of
separate consideration.
4) Simliarly, this opinion does not govern any petitions
where the RAM model waz not used. We do not de-
cide any specific fact disputes raised by any petitioner
as to plants other than those treated in this opinion.®
Decision of these cases will follow.
* See note 1, supra.
5) For the reasons stated above, the decision of the Ad-
ministrator in imposing the SO, contro] plan is af-
firmed subject to the reservations indicated above.
Id., at 1165 (emphasis added).
The petitioners’ Motion to Clarify, filed February 27,
1978, states accurately that this court’s opinion dis-
posed of five issues, which it stated as follows:
(1) The appropriateness of the use of RAM (raised
in the joint RAM brief and incorporated by ref-
erence in the utilities’ brief),
(2) The claims for needed procedural safeguards of
cross examination on remand (raised in the utility
brief),
(3) The economic and technical arguments (raised in
the utilities’ brief), and
26a
(4) The urban/rural designation issue (raised in the
utilities, brief) .
(5) The urban dispersion coefficients used in RAM
(raised in the joint RAM brief).
Subsequently, said petition lists the following five is-
sues as unresolved:
(1) Failure of U.S. EPA to utilize monitor data in
regulation development (utilities’ brief),
(2) Improper use of Class A Assumption in the rural
model (utilities’ brief) ,
(3) Improper terrain adjustment features to the rural
mode! ( utilities’ brief),
(4) Failure of EPA to correct background and data
errors (utilities’ brief), and
(5) Invalidity of the plan for vagueness, and failure
to consider sulfur-in-coal variability (utilities’
reply brief).
Issues 2 and 3 are disposed of by this court’s opinion
issued this date in Cincinnati Gas & Electric Co. v. EPA,
578 F.2d 660 (6th Cir. 1978).
Issues numbered 1 and 5 above we deem disposed of
by affirmance of EPA’s employment of the RAM and
MAXT-24 models and the discussion in Cleveland Elec-
tric Illuminating Co. v. EPA, and Cincinnati Gas & Elec-
tric Co. v. EPA.
Issue number 4 we consider to be fact questions which
are subject to agreed-on administrative review. See Cin-
cinnati Gas & Electric Co. v. EPA.
For the information of these petitioners, and others,
we call attention to the fact that by order dated Feb-
ruary 9, 1978, the petition of the Northern Ohio Lung
Association (No. 76-2282) was remanded to the United
States EPA for further consideration. Northern Ohio
27a
Lung Ass’n v. EPA, 572 F.2d 1182 (6th Cir. 1978).
Additionally, as of today, an order is being entered deny-
ing the petition of the Ohio Mining & Reclamation As-
sociation and the Ohio Coal Operators’ Association, Inc.
(No. 77-3290) because it seeks relief which can only be
had from the Congress of the United States.
As of this present date, this court considers that the
United States EPA control plan for all Mahoning and
Summit County facilities belonging to certain petitioners
in these cases is under voluntary re-evaluation by United
States EPA due to factual disputes. As these and other
fact disputes are resolved, stipulations for dismissal!
should be submitted promptly to this court. When factual
disputes cannot be resolved, the parties should make
every effort promptly to stipulate the disputed issues, or.
failing that, to stipulate the opposing positions of the
parties on the issue or issues.
28a
[FRL 1579-5]
RECONSIDERATION OF THE USE OF PASQUILL-GIFFORD
DISPERSION COEFFICIENTS FOR STABILITY CLASS A IN
SETTING EMISSION LIMITATIONS FOR FOUR OHIO POWER
PLANTS; EVALUATIONS OF PUBLIC COMMENTS
On February 7, 1979, the Environmental Protection
Agency (EPA or the Agency) published a notice in the
Federal Register soliciting public comment on the agen-
cy’s reconsideration of the use of the Pasquill-Gifford
(P-G) dispersion coefficients (or curve) for class A
meteorological conditions in setting emission limitations
for four Ohio power plants. 44 FR 7798. The agency
published the notice in response to the decision of the
United States Court of Appeals for the Sixth Circuit in
Cincinnati Gas & Electric Co. v. EPA, 578 F. 2d 660
(1978). On June 29, 1978, the Court remanded to the
Agency its decision to use the P-G dispersion coefficients
for stability class A in modeling isolated rural power
plants.
The modeling had been performed by EPA to set emis-
sion limitations for sources in Ohio to assure attainment
and maintenance of the -national ambient air quality
standards for the pollutant sulfur dioxide. See 41 FR
36324, 41 FR 52455, and 42 FR 27588. The Court found
that the agency had not developed an adequate record to
support the use of the P-G curve for class A conditions.
Moreover, the Court held that the agency had not ade-
quately considered an alternative to the use of the P-G
class A curve proposed by the utilities during the rule-
making.
1In the February 7, 1979 notice, EPA solicited comment on
whether the four power plants whose emission limits were stayed by
the agency’s reconsideration would need more time to come into
compliance. The agency will propose new compliance schedules for
those plants in a separate Federal Register notice.
29a
In response to the Court’s decision, the agency recon-
sidered the use of the P-G dispersion coefficients for class
A conditions and evaluated the utilities’ proposal and the
P-G class B dispersion coefficients be used in place of the
class A dispersion coefficients. Based on field data not
previously considered by the agency and current disper-
sion theory, the agency found that the utilities’ proposal
would severely underestimate ground level concentrations
(44 FR 7798, February 7, 1979). Conversely, the agency
found that dispersion theory and the Karlsruhe field data
confirmed the agency’s use of the P-G class A dispersion
coefficients in setting emission limitations to assure at-
tainment and maintenance of the standards. The agency,
therefore, concluded that it is reasonable to use the P-G
class A curve to set emission limitations for the four
power plants at issue.”
Several utilities and utility consultants commented on
the agecny’s proposed decision to continue to use the P-G
class A dispersion coefficients. In general, commenters
challenged the agency’s proposal by criticizing the Karls-
ruhe field study data and continuing to argue that use
of the P-G class A curve on modeling sources with ele-
vated release points such as power plants will result in
unrealistically high ground level concentrations at loca-
tions unrealistically close to the source. However, in ad-
dition to their original hypothesis that the sigma-z com-
ponent of the P-G class A coefficients is too large, the
utilities and their consultants also argued for the first
time in their comments that the sigma-y component of
the P-G class A curve is too smail.
2 EPA review of its rural modeling analysis identified four power
plants where the class A conditions determined the emission limita-
tions. The emission limitations for all other rural power plants in
Ohio were not determined by class A conditions. The four plants
are Stuart (Dayton Power & Light Co.) Conesville (Columbus and
Southern Chio Electric Co.) Cardinal and Muskingum River (Ohio
Power).
30a
The utilities originally urged only one alternative to
the P-G class A curve, namely to substitute the P-G
class B curve for the P-G class A curve. See 44 FR
7798 (February 7, 1979). In response to the agency’s
notice, commenters submitted new proposed alternatives
to the P-G class A curve. Specifically, they urge the use
of the Brookhaven class B, curve, the Julich class A
curve, the Briggs curve, the F. B. Smith curve, the flutu-
ating plume model, and the smaller averaging times
method.
Commenters also criticized the agency for not evaluat-
ing actual air quality data available from power plant
monitoring systems. In response to this, the agency re-
viewed monitoring data from the John Sevier, Widows
Creek, Cumberland, Muskingum River, Big Bend, East
Bend, Conesville and Gibson power plants.
The agency finds that the utility comments are with-
out merit and that the utilities have not provided any
technical basis to support changing the agency’s proposed
finding. In fact, the monitor data which the utilities
asked EPA te review support the agency’s determination
that it should continue to use the P-G class A curve.
Moreover, the data establish that all of the utilities’ pro-
posals would underestimate maximum ground level con-
centrations and therefore would not assure attainment
and maintenance of the standards.
In addition to the utility comments and data, the
Agency reviewed the comments and recommendations of
the Specialists’ Conference on the EPA Modeling Guide-
line, ANL (1977), the American Meterological Society
(AMS) Workshop on Stability Classification Schemes
and Sigma Curves, Hanna et al. (1977), and the Na-
tional Commission on Air Quality Atmospheric Disper-
sion Modeling Panel, NCAQ (1980). These scientific
groups recommended additional study of the effects of tall
stack plume characteristics on ground level concentrations
and the suitability of the P-G curves for tall stack
sources. The Specialists Conference suggested that a pos-
3la
sible result from such additional study “might include
the: elimination of the A curve and the use of the B
curve for both A and B stability categories.” See § 2.7.5
“Vertical Dispersion Estimates.”. The AMS Workshop,
on the other hand, recommended the use of the Brook-
haven curves, rather than the P-G curves, for elevated
sources.
The agency has studied the use of the P-G class A dis-
persion coefficients and evaluated both suggested alterna-
tives as part of its response to the Court’s remand. Based
on EPA’s study, the agency has determined that the
available data demonstrate that the P-G class A dis-
person coefficients are reasnable means of setting emis-
sion limitations that will assure attainment and main-
tenance of the national air quality standards. In con-
trast, the available data establish that the suggested al-
ternatives underpredict ground level concentrations and
therefore can not provide a means to set emission limita-
tions adequate to assure attainment and maintenance of
the standards.
As stated in the February 7 notice, it is not the agen-
cy’s contention that better methods of representing dis-
persion should not be used when available and justified.
44 FR 7805. In fact, the agency continues to research
this area. However, the agency has not yet developed
a more accurate means for predicting ground level con-
centrations near rural power plants during class A me-
teorological conditions than the P-G class A dispersion
_ coefficients.
A. Original Utility Challenges, the Class B Alternative,
and the EPA Proposal
During the rulemaking on the sulfur dioxide emission
limitations, the utilities contended that the P-G class
A dispersion coefficients, which were developed from field
studies of emissions released near ground level, were in-
Eee a
32a
appropriate for use in modeling power plants with tall
stacks
Specifically, the utilities hypothesized that -the P-G
sigma-z values (controlling vertical dispersion) for class
A conditions were too large for estimating ground level
pollution concentrations caused by sources with tall
stacks.* The utilities contended that use of the P-G class
A sigma-z values for power plant modeling resulted in
overpredicting ground level concentrations.
However, as was explained’ in the February 7, 1979
notice, experimental research suggests that the sigma-z
values should be as large or larger for elevated releases
as compared to the sigma-z values for near ground level
releases. See Panofsky (1978). Vogt, et al. (1978) and
Weil (1978). Moreover, current dispersion theory is that
sigma-z values for emissions over rough terrain should
be equal to or larger than the sigma-z values for emis-
sions over smooth terrain. See F.B. Smith (1973) and
Pasquill (1974). 44 FR 7798. This is significant in that
the original field experiments used to derive the P-G
sigma-z values were conducted over prairie grass fields
(relatively smooth terrain with a characteristic surface
roughness length of less than 0:03 meters (m)) which
are much smoother than the average terrain where the
Ohio power plants are situated (surface roughness length
is in the range of 1.0 m).
In evaluating the utilities’ challenge to the class A
sigma-z values and their recommendation of P-G class
B, the agency reviewed the sigma-z values for the most
3 Each set of dispersion coefficients include a value representing
the vertical dispersion of the pollutant (sigma-z value) and a value
representing the horizontal dispersion (sigma-y value) in EPA’s
CRSTER modeling each class of meteorological conditions is asso-
ciated with a different set of dispersion coefficients Class A meteoro-
logical conditions are the most unstable(very light and variable
winds, clear sky and well developed mixing layer). Class B through
F represent increasingly more stable atmospheric conditions.
33a
unstable meteorological conditions which were determined
by three different experimenters in three different dis-
persion field studies. Table 1 in the February notice
sets forth the sigma-z values derived by the Brookhaven,
' . Julich and Karlsruhe experiments. 44 FR 7800. Unlike
the Pasquill-Gifford experiment, each of these experi-
ments involved elevated releases of tracer (approximately
100 m) over terrain with surface roughness length of
approximately 1.0 meters. These experiments, therefore,
more closely approximated the elevated release points and
terrain characteristics of the Ohio power plants.
The comparison of sigma-z values from these three
experiments with the sigma-z values in the P-G class A
and B curves showed that under unstable meteorological
conditions all three experiments measured sigma-z values
larger than the sigma-z values associated with the P-G
class B curve.* See Table 1, 44 FR 7800. The data dem-
onstrate that use of the P-G class B curve as a substitute
for class A would necessarily underpredict maximum
ground level concentrations reached during class A con-
ditions. Emission limitations based on the class B curve,
therefore, would not assure attainment and maintenance
of the standards. In short, without an analysis using the
P-G class A dispersion coefficients, the agency would not
be sure of setting emission limitations which would pro-
tect the standards during periods of unstable meteorologi-
cal conditions.
In addition, the agency noted that the Karlsruhe field
experiments determined sigma-z values during class A
conditions as large or larger than the P-G class A
sigma-z values. The Karlsruhe data therefore confirm
the P-G class A sigma-z values and the resulting ground
4 The Brookhaven sigma-z values set forth in Table 1 are for BNL
class B, meteorological conditions which are more stable than class
A conditions. 44 Fed. Reg. 7800 Brookhaven experimenters did not
derive sigma-z values for the most unstable stability class (class A).
34a
level concentrations. The Karlsruhe experiments also con-
firm the general locations of maximum ground level con-
centrations predicted by using the P-G class A dispersion
coefficients. 44 FR 7801. The agency therefore found
that the Karlsruhe data supported the use of the P-G
‘class A dispersion coefficients in setting emission limita-
tions for rural power plants.
B.. Utility Comments on EPA’s Proposal :
During the comment period, the utilities repeated their
earlier contention that use of the P-G class A curve for
rural power plants would result in model overprediction
and overly stringent emission limitations. The utilities
criticized the agency’s support for the use of the P-G
class A curve and suggested other alternatives which like
their original P-G class B proposal, would calculate lower
maximum ground level concentrations than using the
P-G class A dispersion coefficients. The utilities also
urged the agency to review any available monitoring data
recorded near power plants as a means of verifying the
accuracy of the P-G class A dispersion coefficients.
In response to this comment, the agency gathered the
available monitoring data suggested by comments and
reviewed it. Based on that review, the agency deter-
mined that most of the available data is not relevant for
evaluating the predictive accuracy of the P-G class A
dispersion coefficients because of the placement of the
monitors or because a supplementary control system was
used. However, the agency did compare all of the rele-
_ vant utility monitoring data with P-G class A modeling
predictions. The agency found that actually measured
sulfur dioxide concentrations during class A conditions
are as high or higher than the maximum predictions cal-
culated for the same monitor site using the P-G class A
dispersion coefficients. Actual utility data, therefore, sup-
ports the agency’s use of the P-G class A dispersion co-
efficients for modeling power plants in rural areas.
ee
35a
1. Utility Monitoring Data
Agency review of power plant monitoring data as sug-
gested by the commenters demonstrated that few of the
monitors were located at distances less than 2 km from
the source where maximum concentrations under class A
meteorological conditions are expected to occur. EPA
model anlyses using the P-G dispersion coefficients for the
four Ohio power plants predicted maximum concentra-
tions under class A conditions at distances 1.0 to 1.3 km
from the plant.’ Therefore, to verify the accuracy of
P-G class A model predictions, measurements from moni-
tors located close to the source are required.
The agency also found that several of the power plants
having monitors within 2 km of their stacks use sup-
plementary control systems.* This means that the plants
reduce their emission rate during periods of expected
high ground level pollution. An effective supplementary
control system reduces ground level concentrauons that
would otherwise occur under class A conditions without
the use of such a system. Appropriate comparison of
model predictions with monitor observations for these
plants (where operating loads are reduced) requires the
use of data reflecting the actual operation of the plants.
Such data, including actual hourly emissions and stack
effluent characteristics data and on-site meteorology, are
not readily available. Each of the model analyses the
agency has performed in evaluating available data has
relied on maximum operating load and national weather
service meteorological data. The agency, therefore, could
not use the data influenced by the use of supplementary
control systems to evaluate the predictive accuracy of the
P-G class A curve. |
5 The Karlsruhe data confirmed that maximum concentrations
under class A conditions occur within 1-5 km of the release point.
44 FR 7796. ?
6 The TVA plants at Widows Creek and Cumberland and the PSI
Gibson plant use such systems.
36a
Based on these considerations, the agency determined
that data from two power plants—TVA’s John Seiver
power plant and Ohio Power’s Muskingum River plant—
could be used to evaluate the predictive accuracy of mod-
eling with the P-G class A dispersion coefficients. See
Table 2. In addition, the agency found that data from
the monitoring system at the Muskingum River plant
could be used to check the model’s prediction of the loca-
tions of maximum concentrations under class A con-
ditions.
a. Accuracy of model predicted maximum concentra-
tions using P-G class A dispersion coefficients.—In order
to evaluate the accuracy of model predictions using the
P-G dispersion coefficients for class A stability, the
agency modeled the John Seiver ‘and Muskingum River
power plants. The agency used the MPTER model with
full load operating data provided by the power plants
and at least six years of meteorological data.? The agency
calculated the highest and second highest 3-hour ground
level concentrations at the monitor sites for each year of
meteorological data. See Table 3. The agency then com-
pared these model predictions with the highest and second
highest concentrations actually observed in a 3-hour pe-
riod during each of monitor operation. This comparison
showed that the monitors recorded maximum concentra-
tions of sulfur dioxide as high or higher than the maxi-
mum concentrations calculated by the model using the
P-G class A dispersion coefficients.
At John Sevier, the monitor has recorded sulfur di-
oxide concentrations for six years. In four of the six
years, the monitor recorded higher maximum concentra-
tions than the model calculated for any of the six years
of meteorological data.* Maximum levels of. 45, .40, .43,
8 Comparisons of monitor observations with model calculations
using meteorological data for identical years were performed for
1973 and 1974 at the John Sevier monitor Meteorological data were
not available for identical years to make such comparisons for addi-
tional years.
87a
.34, .28 and .17 ppm (parts per million) were actually
recorded. See Table 3. The model using the P-G class A
curve predicated a maximum of .32 ppm at the same lo-
cation. Second highest maximum concentration levels of
.39, .39, .31, .30, .22, and .15 ppm were recorded in the
six years of monitoring compared to the highest model
predicted second high maximum of .32 ppm.
At Muskingum River, the monitor has recorded sulfur
dioxide measurements for only two years. In those two
years, the monitor measured maximum concentrations of
.63 and .39 ppm, while the model calculated a maximum
concentration of .55 ppm based on seven years of mete-
orological data. The monitor recorded second high maxi-
mum concentrations of .41 and .20 ppm, compared to the
highest second high model prediction of .43 ppm.
Actual power plant measurements, therefore, compare
well with model calculations of maximum ground level
concentrations using P-G class A dispersion coefficients.
Moreover, the comparison establishes that the agency’s
modeling using P-G class A curves does not predict un-
realistically high concentraticns; rather, the agency’s
modeling accurately predicts sulfur dioxide concentrations
for class A meteorological conditions.
b. Accuracy of model predicted locations of maximum
ground level concentrations using P-G class A dispersion
coefficients.—The agency’s modeling using the P-G class
A dispersion coefficients predicted that maximum ground
level concentrations would occur between 1 and 1.3 km
from the source. Utilities challenged this contending that
for elevated-sources maximum concentrations will occur
further out from the-source. The utility monitoring data,
however, confirm the P-G class A predictions.
Data from the Muskingum River monitor system can
be used to investigate the location of maximum concen-
trations during class A meteorological conditions. At the
Muskingum River plant, four of the six continuous SO,
38a
monitors are located along a relatively straight line in
a northeasterly direction from the plant. The monitors
are located at distances of 1.7 km, 4.6 km, 8.5 km and
20.7 km from the plant along this radial. See Table 4.
Review of the monitoring data shows that the highest 3-
hour ground level concentration recorded by these moni-
tors was observed at the monitor closest to the plant.
See Table 5. Moreover, review of meteorological condi-
tions during this period shows that the maximum con-
centration occurred during class A conditions. In con-
trast, the maximum impacts observed at monitors located
further from the plant generally occurred during periods
of more stable (greater cloud cover and/or higher wind
speed) meteorological conditions.
The Muskingum River data, therefore, establish that
maximum concentrations do occur as close to the source
as predicted by the model using the P-G dispersion co-
efficients under class A conditions. Based on review of
the utility monitoring data, the agency finds that model-
ing with the P-G dispersion coefficients accurately pre-
dicts the magniture and location of maximum ground
level concentrations from power plants with tall stacks.
2. The Utility Challenge to the Karlsruhe Data
As explained in the February 7, 1979 notice, the agency
found that data from the Karlsruhe field experiments
support the use of the class A dispersion coefficients. 44
CR 7801. The Karlsruhe field experiments as reported by
Thomas et al. (1976) and Thomas and Nester (1976),
measured ground level concentrations of two dispersion
tracers, tritium (H,) and halogenated hydrocarbons
(CCl,), released from 10 meter heights over terrain
similar to the terrain surrounding the four Ohio power
plants. Based on the measured ground level concentra-
tions, sigma-z and sigma-y values were derived. Since
the original utility challenge focused on the sigma-z
values for the P-G class A curve, the agency compared
39a
sigma-z values and found that the Karlsruhe experi-
menters derived sigma-z values for class A conditions
comparable to the P-G class A sigma-z values. See Table
1 and Figures 1-3, 44 FR 7800, 7800-8. The agency con-
cluded that the Karlsruhe experimental data confirm the
‘general level and location of maximum ground level con-
centrations predicted by using the P-G dispersion coeffi-
cients (sigma-z and sigma-y) for class A meteorological
conditions. See Figures 4-6, 44 FR 7803-4.
The: utilities commented that the agency should not
rely on the Karlsruhe data. They fault the Karlsruhe
experiments for not using what the commenters contend
are more advanced procedures and methodology in de-
termining ground level concentrations and in deriving
the dispersion coefficients. They commented that the
Karlsruhe data are therefore suspect. However, com-
menters did not point to any data to support their con-
tention that the procedures actually used in the Karlsruhe
experiments would result in unreliable data. On the
contrary, as discussed above, utility monitors have actu-
ally measured maximum concentrations as high or higher
and as close to the source as predicted by the P-G class
A dispersion coefficients. This monitor data confirm the
Karlsruhe results as well as the use of the P-G class A
dispersion coefficients.
Moreover, additional Karlsruhe dispersion field studies
reported in 1979 employed some of the experimental pro-
cedures suggested by commenters and released tracer
from 195 meters. This data confirmed the earlier Karls-
ruhe results. Therefore, there is no basis for concluding
that the Karlsruhe experimental procedures in any way
“ In fact, the utility criticisms are contrary to their willingness
to accept the results of the Brookhaven and Julich experiments or
even the Pasquill-Gilford (for class B curves), all of which used
experimental procedures similar to or less advanced than the
Karisruhe procedures.
40a
resulted in false measurements. See Kiefer and Koelzer
(1979).
Specifically, commenters criticized the Karlsruhe ex-
periments for using non-bouyant tracer materials, a 100
meter release height, a manual sampling and collection
system instead of an automated system, for analyzing air
samples dissolved in toluene rather than directly sampling
the air for measuring ground level concentrations and
deriving .the sigma-z values from those measurements,
rather than directly measuring sigma-z values, and for
the mathematical analysis procedures chosen to derive the
sigma-z and sigma-y values. Each of these criticisms is
discussed below.
a. Non-buoyant tracer and 100 m release height.—
The utilities criticized the Karlsruhe experiments for
using a non-bouyand tracer released at 100 m meters.
The utilities point out that bouyant plumes, such as those
released from power plant stacks, normally attain heights
much higher than 100 meters (200-1,000 meters or
more). The utilities commented that unstable tempera-
ture gradients and building downwash would effect a non-
buoyant tracer released at 100 meters, increasing the
verticle dispersion of the tracer. Commenters argue that
the vertical dispersion rates (sigma-z values) derived
from the experiments would be too large for power plant
plumes.
However, the utility comment is contrary to both actual
monitor data and dispersion theory. First, the utility
monitor data demonstrate that under class A conditions,
maximum concentrations as high or higher than calculated
using the P-G class A curve and as close to the power
plant as predicted by the P-G class A curve have been
recorded. This data therefore confirm the use of the
sigma-z values derived by the Karlsruhe experiments as
well as the P-G class A sigma-z values.
4la
Second, experimental research indicates that the verti-
cal dispersion of power plant plumes increases with
height. The rate of verticle dispersion of the plume does
not decrease once the plume. rises to levels where the
temperature gradients are more stable but rather remains
constant or continues to increase. See Irwin (1979). The
sigma-z values therefore should not be smaller for sources
with elevated releases as compared to source releases near
ground level. See also Panofsky (1978), Vogt et al.
(1978), 44 FR 7799. a.
Finally, the later Karlsruhe dispersion field studies,
using a 195 meter release height, confirmed the large
sigma-z values measured by the earlier Karlsruhe experi-
ments and the P-G class A sigma-z values. In these later
Karlsruhe experiments, tracer was released from 195
meters, a higher release point than used for any of the
alternative curves proposed by the-utilities. See Table 1.
The 195 m Karlsruhe experiments therefore are the most
appropriate experimental work for evaluating dispersion
coefficients for power plants. These later experiments
measured vertical dispersion rates (sigma-z values) at
distances greater than 1.3 km which were larger than the
rates derived from the earlier 100 meter experiments.
The data therefore contradicts the utility contention and
support the earlier Karlsruhe results and the P-G class
A sigma-z values. See Kiefer and Koelzer (1979).
b. Manual sampling and collection system.—Comment-
ers criticized the Karlsruhe experiments for using a
manual sampling and collection system.. However, com-
menters offer no data to show that an automated system
would result in different measurements. In fact, the
1° Additional experimental studies were also conduced at 80, 100
and 160 meters. See Kiefer and Koelzer (1979). Results from the
195 m studies most closely approximate dispersion of pollutants
from tall stack sources such as power plants. The agency therefore
has relied upon the results of the 195 meter experiments in prefer-
ence to the others.
42a
later Karlsruhe field studies used an automated sampling
and collection system and the results confirm the earlier
Karlsruhe results. See Kiefer and Koelzer (1979).
ce. Use of toluene in sample analysis —Commenters
criticized the sample analysis method used by the Karls-
ruhe experiments. Specifically, the commenters criticized
the technique of dissolving the sampling in toluene before
analysis and commented that a direct analysis would be
more reliable. Commenters, however, do not demonstrate
that direct analysis of the air sample would be more
reliable than the technique used in Karlsruhe. ‘The use of
toluene in the analysis technique is necessary in order’ to
remove all of the tracer from the coilecting glass vessel
and assure measurement of the entire sample. In fact,
the methodology used by the Karlsruhe experimenters is
an accepted experimental technique and there is no basis
to conclude that it results in faulty data.
d. Deriving sigma-z values from ground level concen-
trations.—Commenters also criticized the Karlsruhe ex-
perimenters for deriving the dispersion coefficients from
ground level concentration measurements rather than
making direct measurements of the sigma-y and sigma-z
values. However, none of the dispersion field studies .
reviewed by the agency, including Brookhaven and Julich,
measured sigma-z and sigma-y values directly. Com-
menters do not point to any dispersion studies which
made direct measurements of sigma-y and sigma-z values
under unstable conditions. It is simply too costly to make
direct measurements under unstable meteorological con-
ditions. Therefore investigators have traditionally de-
rived the sigma-z and sigma-y values from ground level
tracer concentration measurements.
Commenters also failed to provide any data or theory
to establish that direct measurements would lead to dif-
ferent results. In short, while it might be preferable to
determine dispersion coefficient values under very un-
43a
stable conditions directly, as a practical matter, it is not
done.
e. Mathematical analysis procedures.—One commenter
criticized the mathematical method the Karlsruhe experi-
menters used to derive the sigma-y and sigma-z values.
The Karlsruhe experimenters used a method of determin-
ing dispersion coefficient values which smoothed out the
variation in ground level concentrations expected under
class A conditions. See Thomas and Nester (1978). The
commenters applied two different mathematical methods
to the Karlsruhe data and derivied smaller sigma-y values
than the Karlsruhe experimenters. However, the com-
menter chose methods which do not take into account the -
expected variations in concentrations under class A con-
ditions. Both the second moments and the cross-wind in-
tegrated ground level concentrations methods are more
appropriate for data sets with little variation. The in-
appropriateness of these methods is confirmed by the
commenter’s calculation of sigma-y values which de-
creased with distance from the source. Such a result is
contrary to the law of atmopheric physics that the hori-
zontal distribution of a plume can not decrease with
distance.
f. Other comments on the Karlsruhe data.—Comment-
ers made several other comments criticizing the Karlsruhe
data, One commenter cited the fact that in experiment
number 19.2, the Karlsruhe experimenters measured dif-
ferent ground level concentrations of simultaneously re-
leased tracers at co-located samplers. However, com-
menters do not provide any data or theory to establish
that the different measurements indicate faulty data. In
fact, the 10-30 percent variation in sigma-z values
derivied from these two measurements establish that the
variations in concentrations was small.
One commenter cited the fact that high background
levels of the tracer were measured during time periods
44a
when the experimenters indicated that the wind was not
transporting tracer in the direction of the monitor. The
commenter argues that this fact demonstrates the in-
accuracy of the experimental sampling system. However,
analysis of the cited time periods shows that while tracer
was not transported directly to the sampling site, tracer
materials were transported to the site by an indirect path
resulting from the changing wind direction. Therefore,
the tracer concentrations measured during these periods
of changing wind direction are as would be expected and
do not indicate any experimental inaccuracy.
Another commenter criticized the Karlsruhe experi-
ments because the distribution of crosswind concentra-
tions for the individual experimentation periods did not
fit perfect Gaussian curves and the maximum measured
concentrations did not fall on a straight line from the
tracer release point. Both of these criticisms assume un-
realistic experimental results. Given the variations ex-
pected in measurements made in a single experimentation
period of 20 to 30 minutes, a perfect Gaussian distribu-
tion is simply not expected. Moreover, given the chang-
ing transport wind associated with class A meteorological
conditions, maximum concentrations would not be ex-
pected to follow a straight line. Rather, concentration
measurements in a single experimentation period would
be expected to vary from a perfect Gaussian curve and
from a straight line from release point and this is ex-
actly what happened.
Another commenter criticized the Karlsruhe data be-
cause some measurements fell outside the confidence limits
specified by the experimenters. By definition, a percent-—
age of the measurements are expected to fall outside the
confidence limits. There is, however, no indication and
the commenter does not establish that the number of .
measurements falling outside confidence limits indicates
that the experiments were deficient.
45a
One commenter criticized the Karlsruhe data because
the ratio of sigma-z values to sigma-y values is greater
than one. The commenter contends that this indicates
that the sigma-z values are too large. However, the com-
menter does not support his assumption that this ratio
should equal one for the unstable meteorological condi-
tions associated with class A stability. Under the com-
menter’s assumption, the vertical distribution of the plume
would equal the horizontal distribution. However, under
class A conditions greater vertical than horizontal turbu- .
lence would be expected due to the convective forces
associated with unstable meteorological conditions. There-
fore, a ratio of sigma-z to sigma-y values which is greater
than one would be expected and is exactly what was
determined at Karlsruhe.
One commenter used two different theories to calculate
sigma-z values from.some of the Karlsruhe data. Again,
the result was to derive smaller sigma-z values from the
Karlsruhe data. The commenter based the derivation on
the publications of Irwin (1979) and Smith (1968).
Both Irwin and Smith have developed a relationship be-.
tween the standard deviation of the wind elevation angle
and the plume dispersion coefficients. The coramenter
applied the theories to elevation angle data from the
Karlsruhe experiments and derived smaller sigma-z values
than the Karlsruhe experimenters derived from their
measurements. However, the utility monitor- data dis-
cussed above demonstrate that the sigma-z values derived
by Karlsruhe and the P-G class A sigma-z values are not
too large. In other words, use of smaller sigma-z values
would conflict with actual monitor data.
Another commenter used the Karlsruhe data to derive
different dispersion coefficients than those derived by the
Karlsruhe experimenters. The commenter used his ver-
sion of the Karlsruhe dispersion coefficients to make a
comparison with P-G class A and class B dispersion co-
efficients. Mowever, the commenter does not explain or
46a
support his reworking of the Karlsruhe data. In the
February notice, the agency used the Karlsruhe disper-
sion coefficients exactly as derived and reported by the
Karlsruhe experimenters. Moreover, the utility monitor
data confirms the Karlsruhe results. There is no reason
to manipulate the Karlsruhe data and comparisons based
on the manipulated data are inappropriate. |
Commenters also criticized the agency for considering
Karlsruhe experiment’ number 19.2 and not considering
experiments number 19.1 and 19.3. Commenters contend
that experiment number 19.2 was not conducted under
class A conditions and that experiments number 19.1
and 19.3 were both class A experiments which should
have been considered.
In determining which experiments to consider as class
A experiments, the agency used the classification of ex-
periments set forth by the Karlsruhe experimenters. The
Karlsruhe experimenters listed the class A experiments
in Table 1, Thomas and Nester (1976). Experiment 19.2
was listed as class A based on the wind profile, even
_ though the vertical wind fluctuation and temperature
gradients factors were more class-B like. Moreover, the
dispersion coefficients derived from experiment 19.2
clearly fit in the class A category. See Table 1, 44 FR
7800 (February 7, 1979). Therefore, it was appropriate
for the agency to consider the results of experiment 19.2.
Experiments 19.1 and 19.3, on the other hand, were not
listed by the Karlsruhe experimenters as valid class A
experiments. During the sampling period, the wind car-
- vied the tracer material away from the sampling net-
work. Therefore, dispersion coefficients could not be de-
veloped from the ground level concentration measure-
ments because the tracer material was transported where
_there were no samplers. The Karlsruhe experimenters
simply could not use these two experiments. See Thomas
and Nestor (1976).
47a
Finally, commenters criticized the small number of
class A experiments conducted at Karlsruhe. In the
earlier Karlsruhe experiments, only two numbered ex-
periments (9 and 19) were conducted for which sigma-y
and sigma-z curves were developed by the investigators.
Commenters suggested relying on the Brookhaven or
Julich sets of curves which they contend were based on
larger numbers of experiments. However, the Brook-
haven curves were not based on any class A experiments
and the Julich curves were derived from two class A
experiments.
Review of the literature on the Brookhaven experi-
ments indicates that no curves were developed for the
most unstable class of conditions, class A. See Singer and
Smith (1966) and Smith (1973). According to the origi-
nal investigators, because the experiment site is located
on Long Island near the ocean, both the frequency and
duration of class A conditions is diminished. That is, the
sea breeze prevents extended periods of low wind speed
necessary for class A conditions. Singer and Smith how-
ever did develop a set of curves for sigma-y and sigma-z
which are based on more stable atmospheric conditions.
The most unstable class of conditions for which curves
were developed by the Brookhaven investigators was the
class labeled B2. While the Julich experimenters de-
veloped class A curves, they were based on the same num-
ber of experiments as the early Karlsruhe experiments.
Neither the Brookhaven nor Julich curves are based
on more experiments than the Karlsruhe curves. Fur-
thermore, the more recent 195 m Karlsruhe experiments,
which better approximate the tall stacks of the Ohio
power plants than either the Brookhaven or Julich ex-
periments, added to the number of Karlsruhe experiments
on Class A. The 195 m experiments confirm the results
of the earlir 100 m experiments at Karlsruhe. There-
fore, the Karlsruhe class A curves are based on more
48a
experiments and better approximate the heights of tall
stack plumes than any of the available alternatives.
8. The Challenge to the Sigma-y Values
In addition to the original hypothesis that the P-G
class A sigma-z values are too large, commenters sub-
mitted a new hypothesis: the sigma-y values (the hori-
zontal dispersion factors) in the P-G class A curve are
too small.‘ Commenters base their hypothesis on the
contention that larger sigma-y values are necessary to
accurately calculate one hour average maximum ground
level concentrations. Again, this contention conflicts with
the utility monitor data. In fact, the utility monitors
have recorded levels higher than the levels predicted by
using the P-G class A dispersion coefficients. Therefore,
based on the utility monitor data, use of larger sigma-y
values would necessarily underestimate maximum ground
level concentrations and could not be used to set emission
limitations that would assure attainment and mainte-
nance of the standards.
Commenters’ criticism of the P-G class A sigma-y
values rests on the fact that the values were derived from
tracer measurements of three to fifteen minutes in length.
Commenters postulate that one-hour tracer measurements
(resulting in larger sigma-y values) would more accu-
rately estimate maximum one-hour average ground level
concentrations. Based on this hypothesis, commenters
urge the agency to use a time scaling factor to increase
the P-G class A sigma-y values. However, the utility
monitor data establish that sigma-y values derived from
three to fifteen minute measurements accurately estimate
11 Larger sigma-y valves mean greater horizontal dispersion of
the pollutant. Smaller sigma-z values mean less vertical dispersion
and more channeling of the pollutant out to further distances before
it reaches ground level. Either greater horizontal dispersion or less
vertical dispersion of a plume would result in lower ground level
concentrations.
49a
maximum one-hour ground level concentrations. Based
on the utility monitor data, as well as the Karlsruhe data,
the agency finds that sigma-y values larger than the
P-G class A sigma-y values should not be used to set
emission limitations for Ohio power plants.
4. The Proposed Alternatives
In response to the agency’s February notice, com-
menters have also suggested new alternatives to the
P-G class A dispersion coefficients. Previously, the utili-
ties proposed the use of the P-G class B curve in place
of the P-G class A curve. In addition to the P-G class B
curve, commenters suggested that the Brookhaven class
B, or the Julich class A curve also would be acceptable
substitutes for the P-G class A dispersion coefficients.
Commenters also proposed using curves developed by
Briggs and F. B. Smith. One commenter suggested the
use of a fluctuating plume model and a method of cal-
culating concentrations with smaller averaging times as
a substitute for the agency’s modeling using the P-G
class A curve.
Ail of the proposed alternative curves would calculate
lower maximum ground level concentrations than the
P-G class A dispersion coefficients would calculate. The
fluctuating plume model and the smaller averaging time
methodology also calculate lower maximum ground level
concentrations than the agency’s modeling using the P-G
class A dispersion coefficients. The agency, however, finds
that its use of the P-G class A dispersion coefficients has
been confirmed by the utility monitoring data. There is
simply no basis for substituting the P-G class A curve
with any of the suggested alternatives. Nevertheless, the
agency has evaluated each of the proposed alternatives.
That evaluation is set forth below.
a. Brookhaven class B, and Julich class A curves.—
Both the Brookhaven class B, and Julich class A curves
50a
would calculate lower maximum ground level concentra-
tions than the P-G class A curve calculates. This is be-
cause both experiments derived sigma-z values smaller
than the P-G class A sigma-z values and sigma-y values
as large or larger than the P-G class A sigma-y values.
A smaller sigma-z value means less vertical spread of
the plume, namely, the plume is carried farther from the
source before it reaches ground level. The concentration
of the pollutant decreases with the distance traveled.
A larger sigma-y value means greater horizontal spread
of the plume which also decreases concentration of the
pollutant.
In the February 7, 1979 notice, the agency discussed
sigma-z values derived by the Brookhaven, Julich and
Karlsruhe experiments for unstable meteorological condi-
tions. The agency compared the sigma-z values with the
P-G class A and class B sigma-z values. Table 1, 44 FR
7780, and Figure 2. This comparison established that
the Karlsruhe experiments had derived sigma-z values
as large or larger than the P-G class sigma-z values. In
contrast, the Julich and the Brookhaven experiments
derived smaller sigma-z values for unstable conditions
than either the Karlsruhe or the P-G class 4 sigma-z
values.
In response to comments on the February 7 notice,
the agency made a similar comparison of the sigma-y
values determined by these same experimenters. See
Figure 1. This comparison establishes that the Julich
class A sigma-y values are much larger than either the
Karlsruhe or P-G class A sigma-y values for distances
greater than about 0.4 km. In contrast, Brookhaven class
B, sigma-y values are in fairly close agreement with the
P-G class A sigma-y values. ,
In order to evaluate the effects of the different sigma-y
and sigma-z values on calculations of ground level con-
centrations, the agency compared the maximum normal-
ized concentrations and the distance to maximum impacts
4
%,
i
5la
calculated by each set of dispersion coefficients. See Fig-
ure 3. The results of these comparisons demonstrate that
the P-G class B, Julich class A and Brookhaven class B,
all calculate lower maximum ground level concentrations
than calculated by either the P-G or Karlsruhe class A
curves. In addition, these curves calculate maximum
concentrations at distances farther from the source than
calculated by either the P-G or Karlsruhe class A curves.
See Figure 4. Based on the utility monitor data which
confirm the agency’s use of the P-G dispersion coefficients,
the agency finds that use of the Brookhaven class B, or
the Julich class A curves would underestimate maximum
ground level concentrations and could not be used to set
emission limitations which would assure attainment and
maintenance of the standards.
b. Briggs and F. B. Smith curves.—Commenters also
suggested that the agency use curves developed by Briggs
and F. B. Smith in place of the P-G class A curves.
However, the agency finds that both suggestions are with-
out merit. According to Briggs (1979), the Briggs curve
is based on the Brookhaven class B, curve for distances
greater than 500 meters from the source (where sigma-z
equals about 100 meters). Since maximum concentra-
tions under class A conditions are expected to occur at
distances greater than 500 meters, the Briggs curve is
equivalent to the Brookhaven class B, curve and is un-
acceptavle for the reasons discussed above.
The F. B. Smith curve is a theoretically developed
curve which was specifically developed for ground level
sources. It utilizes smaller sigma-z values than the P-G
class A sigma-z values. As discussed above, use of smaller
sigma-z values than the P-G class A values would result
in the underprediction of maximum ground level concen-
trations. The agency, therefore, could not rely on the
F. B. Smith curve to set emission limitations which
would assure attainment and maintenance of the
standards.
52a
c. A fluctuating plume model and smaller averaging
times method.—One commenter proposed the use of a
“fluctuating plume model” as the use of averaging times
smaller than one hour to calculate concentrations. Both
would result in lower maximum ground level concentra-
tions than the P-G class A curves. Based on the utility
monitor data, the agency finds that these suggestions
therefore are inappropriate.
A fluctuating plume model is a Gaussian-type disper-
sion model (like the agency’s CRSTER model) ; however,
modeling assumptions in the fluctuating plume model in-
crease the horizontal dispersion of the plume and result
in lower calculated maximum ground level concentrations
than would be calculated using CRSTER with the P-G
class A dispersion coefficients. In effect, the fluctuating
plume model is like using the agency’s model with a
larger sigma-y dispersion coefficient. As discussed above,
sigma-y values larger than the P-G class A sigma-y
values would result in lower ground level concentrations.
The utility monitor data establishes that larger sigma-y
values would necessarily cause underpredictions of sulfur
dioxide levels.
The sam? commenter also suggested a technique of
caleulatirg one-hour ground level concentrations by using
segmented averaging periods smaller than one hour.
The commenter’s method calculates a one-hour average
by summing and averaging 20-minute average concen-
trations rather than calculating one-hour average con-
centrations. This technique results in lower ground level
concentrations. However, the commenter does not pro-
vide any data to support the contention that using 20-
minute averages will result in more accurate ground level
concentrations. In fact, this contention is contrary to
the utility monitor data which shows that the summing
and averaging of one-hour average calculations used in
EPA’s modeling are accurately predicting maximum
three-hour ground level concentrations.
53a
5. Other Data Submitted by Commenters
The following data were submitted or referenced by
commenters in support of the allegation that use of the
P-G class A coefficients results in overpredictions. How-
ever, upon review, the agency found that the data are
either not relevant to the predictive accuracy of the P-G
class A dispersion coefficients or do not support the com-
menter’s contention.
a. TVA data.—Several commenters recommended that
EPA review monitoring and modeling data available
from three TVA power plants, Paradise, Johnsonville
and John Sevier. In addition, one commenter submitted
a document prepared by a utility consultant entitled
“Summary Report: A comparison of predicted and meas-
ured sulfur dioxide concentrations at the Paradise,
Johnsonville and John Seiver power plants.”
Review of the data for these three power plants dem-
onstrate that oniy one plant [John Sevier] had a moni-
tor located at a distance where maximum ground level
concentrations would be expected to occur during class A
meteorological conditions. Therefore, there is only one
TVA monitor from this study which provides data which
can be used to evaiuate the accuracy of dispersion models
in simulating class A ground level concentrations. Data
from that monitor has been used and it confirms the P-G
class A predictions. See agency’s evaluation of the Sevier
data in section 1.
The Agency also reviewed the utility consultant’s re-
port and found the information so incomplete as to make
evaluation of the purported results impossible. In addi-
tion, since the report does not evaluate model predictions
during class A conditions or investigate the accuracy of
dispersion coefficients, any conclusions regarding the ac-
12 This monitor was located at 1.86 km at an asimuth of 227
degrees from the plant.
54a
curacy of the P-G class A dispersion coefficients would
be inappropriate.
b. Muskingum River data.—One commenter cited
Mills’ validation study of the CRSTER model, “Improve-
ments to the Single Source Model, Volume 3: Further
Analysis of Modelling Results” (1977), as evidence that
the model overestimated concentrations for class A con-
ditions. The study was performed during 1976 at the
Muskingum River power plant. However, at the time the
study was done, the closest monitor to the Muskingum
River plant was 4.6 km away. The next closest monitor
was 5.2 km away. Both were located too far from the
source to measure high concentrations caused during
class A meteorological conditions. .EPA’s modeling for
Muskingum River demonstrated that the class A con-
centration which dictated the power plant’s emission lim-
itation occurred at a receptor located at 1.3 km from the
plant in a completely different direction from the two
monitors. Therefore the monitoring data from the 1976
study do not evaluate the predictive accuracy of the P-G
class A dispersion coefficients.
In January of 1978 the Muskingum River monitor net-
work was expanded to include a monitor at 1.7 km from
the plant. High concentrations would be expected at this
distance during class A meteorological conditions. EPA
reviewed the data from the new monitor and found that
the SO, concentrations recorded confirmed the use of the
P-G class A dispersion coefficients. See discussion of
Muskingum data in Section 1.
c. Big Bend.—One commenter recommended that EPA
review. Vaughan’s 1978 study of the Big Bend power
plant. The commenter alleges that Big Bend field data
were obtained under conditions more analogous to the
Ohio power plants than the conditions at Karlsruhe.
Based on Vaughan’s analysis of the Big Bend data, the
commenter contends that the P-G class A sigma-z values
55a
are too large and that:P-G class B or P-G class C sigma-z
values would provide a better estimation of vertical
dispersion.
However, the Big Bend power plart is located near
Tampa, Florida on the Gulf of Mexico. Review of the
study establishes that atmospheric conditions at the Big
Bend plant during the fiedd study period were signifi-
cantly effected by its location near the Gulf. A large
body of water often has a stabilizing influence on atmos-
pheric conditions near the shoreline. The unstable me-
teorological conditions associated with class A stability
were suppressed during the period of time the field study
was conducted. Therefore, most of Vaughan’s observa-
tions were for neutral or near neutral conditions. For
this reason, the field data collected in the Big Bend
study are simply not relevant to the predictive accuracy
of the P-G class A sigma-z curve.
Moreover, it is not surprising that Vaughan found that
the sigma-z values of P-G class B and P-G class C pro-
vided a good fit to the datz collected at Big Bend. Since
most of the observations were made during neutral con-
ditions, P-G class B, C or D would theoretically better
approximate these conditions. This, however, does not
indicate that the P-G class A sigma-z values are in any
way deficient.
d. East Bend.—One commenter submitted a compari-
son of theoretically- determined .sigma-z values for the
proposed site of the East Bend power plant with sigma-z
values determined by the P-G class A and class B curves.
The commenter contends that this comparison shows that
the P-G class A sigma-z values are too large and that the
P-G class B values compare favorably to the theoretically
determined values.
However, the commenter used a theoretical means of
determining dispersion coefficients which the agency is
developing and which is still in the experimental stage
56a
and unverified. The Agency’s ongoing research in the
area of dispersion coefficients was discussed in the Febru-
ary 7, 1979 notice (44 FR 7805). The Agency is re-
searching a method of determining dispersion coefficients
from on-site measured meteorological data. Accurate
application of the methodology depends on the use of
exact meteorological measurements. Contrary to specific
EPA guidance on the data required, the commenter col-
lected and used data which did not meet. these require-
ments. The commenter’s theoretical comparison employ-
ing an unverified experimental scheme, therefore, is
faulty and does not indicate that the P-G class A sigma-z
values are inaccurate.
e. Gibson data.—One commenter submitted a com-
parison of model predicted values under P-G class A
conditions with monitored values measured at the Gib-
son power plant in southwestern Indiana. The com-
menter concluded that the comparison showed predicted
concentrations were significantly higher than the actually
measured levels. Review of the Gibson data shows that
only one of the three Gibson monitors is located at a dis-
tance where maximum ground level concentrations would
be expected to occur during class A meteorological condi-
tions. This monitor is located at 1.8 km from the plant.
However, even for the relevant monitor, the commenter’s
comparison is faulty.
In making a comparison, the commenter found the
highest one-hour model predictions under class A condi-
tions and compared these with monitor measurements
recorded during the same exact tinhe periods. This com-
parison fails to identify the maximum monitored values
recorded at the Gibson monitors. The comparison, there-
fore, is biased toward showing the model overpredicting.
As recommended in EPA’s Guidance on Air Quality .
Models, an appropriate study of the predictive accuracy —
of the model would compare the highest 3-hour levels
calculated by the model with the highest 3-hour levels
57a
recorded by a monitor. at the site. Commenter’s study,
therefore, is contrary to that recommendation and does
not support a conclusion that the model is overpredicting.
There are also serious questions regarding the reli-
ability of the Gibson monitor data. According to state
officials, the Gibson monitor data has not been quality
assured and should not be relied upon. In addition, dur-
ing the period of time the data was collected, Gibson’s
operation may have been limited to keep concentrations
below the national ambient air quality standards. Ac-
cording to the operators of the Gibson plant, the moni-
toring network is used as part of a supplementary con-
trol system. Therefore, comparisons of this monitor data
with model predictions which are based on full load
parameters would be inappropriate.
f. Conesville data.—In June of 1979, Columbus and
Southern Ohio Electric Company (CSOE) set up four
SO. monitors at distances between 1.0 to 1.4 km from
its Conesville plant. On December 14, 1979, CSOE sub-
mitted data for the first three months of operation.
The agency reviewed the data and has submitted com-
ments to CSOE on the placement of the monitors. Given
the extremely limited amount of data collected under
class A conditions (three three-hour periods) and the
short period of data collection (three months), the agency
determined that at this time the data is too limited to
evaluate the predictive accuracy of the P-G class A dis-
persion coefficients: CSOE, however, did provide an ex-
tremely limited comparison of predicted concentrations
for the periods of observed class A conditions. Those
comparisons demonstrate that for the periods of meas-
ured maximum three hour concentrations, the maximum
observed 3-hour concentrations (highest and~second high-
est concentrations) were unpredicted using all of the
methods proposed by CSOE including the agency’s model-
ing methodology with the P-G class A curve.
58a
g. The remand procedures.—Commenters also crit-
icized the agency for not following the rulemaking proce-
dures set forth in Section 307(d) of the Clean Air Act.
However, the agency has determined that Section 307 (d)
is not applicable to the development of a response on the
class A remand since that activity did not constitute “the
promulgation or revision of an implementation plan”
within the meaning of section 307(b) (1) (B).
On June 29, 1978, the Court remanded the clasis A is-
sue to the agency “for further study”. The Court found
that the agency’s use of the P-G dispersion coefficients
under class A conditions was not adequately supported
by the record. The Court remanded the issue with three
options: (1) to supply the record supporting the agency’s
use of the P-G class A coefficients, (2) to modify the co-
efficients with a new supporting record, or (3) to adopt
the class B proposal suggested by the utilities. The
agency re-evaluated the use of the P-G class A disjpersion
coefficients and has determined that the P-G class A co-
efficients are appropriate for setting emission limitations.
The agency’s response to the remand, therefore, consists
of the compilation of a supplemental record to support
the originally promulgated emission limitations ffor the
four power plants at issue. The agency’s response: to the
remand has not involved either the development of new
coefficients or the substitution of different coefficiemts for
the class A coefficients, either of which would have re-
quired the promulgation of new emission limitatiions in
the implementation plan and therefore would have been
subject to the procedures of Section 307(d). Instead, the
agency has reaffirmed its original implementatiom plan
and developed a supplemental record in support of the
decision.
Commenters have not been prejudiced by the proce-
dures the agency used in responding to the Court’s re-
mand. The agency has followed a course similar to ‘section
307(d) procedures. The agency provided a detailled no-
LS NRO RNC PAGE STAI AD A SENN I AMUN a hE Re
oe
59a
tice of its proposed decision when it published its re-
consideration of the use of the P-G dispersion coefficients
for class A conditions and solicited comments. The
agency also has made available all of the data and ma-
terials it evaluated in its reconsideration and all the pub-
lic comments. Finally, the agency has considered a!l of
the comments and evaluated all of the data submitted or
referenced by commenters, including, where possible, up-
dated data submitted by commenters after the close of
_ the comment period. In short, commenters have had an
adequate opportunity to comment on the agency’s deci-
sion and to submit data for consideration by the agency.
C. Conclusion
The agency has reviewed the use of the P-G class A
dispersion coefficients to set emission limitations for the
Stuart, Cardinal, Muskingum River, and Conesville
power plants in Ohio. As part of that review the agency
has reconsidered the theoretical arguments previously
submitted by the Ohio utilities and reviewed field data
not considered by .the agency during the rulemaking.
The agency has also reviewed all comments submitted on
the agency’s February 7 notice and has evaluated new
alternatives and further data, as suggested by the
commenters.
Commenters have not provided any technical basis to
support changing the agency’s proposed findings. In fact,
utility monitor data support the agency’s determination
that it should continue to use the P-G class A dispersion
coefficients. Moreover, the data establish that all of the
alternatives proposed by commenters are contrary to ex-
perimental and monitor data. In short, the proposed al-
ternatives cannot be accepted by the agency and the
latest experimental and utility monitor data support the
continued use of the P-G class A dispersion coefficients.
Dated: June 16, 1980.
Barbara Blum,
Acting Administrator.
60a
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Table 3. Highest and second highest 3-hour SO, concentrations
observed and calculated at the closest monitor site at the
John Sevier and Muskingum River power plants.
Monitor Model
___Obeerved Calculated
Year Highest Second Year Highest Second
John Sevier
1973 17 16 1964 382 32
1974 .23 22 1970 26 18
1975 45 389 1971 24 21
1976 40 39 1972 .29 25
1977 43 31 1973 .23 16
1978 34 © 30 1974 21 Ps
Muskingum River
: 1978 39 .20 1964 43 29 "
1979 63 Al 1971 33 25
‘ 1972 40 84
. 1973.40 34
; ! 1974 36 30
1975 55 43
1976 Al B34
Table 4. Muskingum River Power Plant SO, monitors
Height
Distance Azimuth above
from from Stack
Stacks * Stacks * Base
Monitor Name (No.) (km) ot (m)
Center Bend (5) 1.7 37 74
Hackney (2) 4.6 41 74
Rich Valley (3) 8.5 36 105
Caldwell (4) 20.7 33 132
Beverly (1) 5.2 138 56
Mount Olivet (6) 6.1 240 108
* Stacks 1 and 2 are located 645m apart along a 240° azimuth.
Distances and azimuths indicated are from the centroid of the
two stacks.
62a
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63a
ENVIRONMENTAL PROTECTION AGENCY
[40 CFR Part 52]
[A-5-FRL 1061-3]
APPROVAL AND PROMULGATION OF
IMPLEMENTATION PLANS; OHIO
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
SUMMARY:. This rule restarts compliance schedules
and revises attainment dates in the federally promulgated
Ohio state implementation plan for three power plants. .
Compliance with the emission limitations for the three
power plants was stayed pending the Environmental
Protection Agency’s reconsideration of its original use
of the Pasquill-Gifford (P-G) class A dispersion coeffi-
cients in setting emission limitations for these plants.
The United States Court of Appeals for the Sixth Cir-
cuit remanded the class A record to the agency on June
29, 1978. Cincinnati Gas and Electric Company v. EPA,
578 F.2d 660 (6th Cir. 1978). On June 19, 1980, EPA
published. its reconsideration of the class A issue and
affirmed its original use of the P-G class A coefficients
in setting emission limitations. for these power plants
(45 FR 41501). Thus, on June 19, 1980, EPA affirmed
the emission limitations for the power plants that were
originally promulgated by EPA on August 27, 1976.
41 FR 36324, 40 CFR 52.1881, et seq. In order to bring
the three power plants into compliance with their emis-
sion limitations, EPA is restarting the original com-
pliance schedules. The new starting date for the com-
pliance schedules is June 19, 1980. The attainment date
for these plants is June 19, 1983. EPA is also publish-
ing for comment in today’s Federal Register a proposed
alternative compliance schedule for the Conesville power
plant based on the stated intention of Columbus and
64a
Southern Ohio Electric Company to install a coal wash-
ing facility to achieve compliance. If CSOE chooses not
to install a coal washing facility to achieve compliance,
it must comply with the original compliance schedule.
EFFECTIVE DATE: June 19, 1980.
FOR FURTHER INFORMATION CONTACT: Debra
Marcantonio, U.S. Environmental Protection Agency,
Region V, Air Programs Branch, 230 South Dearborn
Street, Chicago, Illinois 60604, (312) 886-6039.
SUPPLEMENTARY INFORMATION: On June 29,
1978, the U.S. Court of Appeals for the Sixth Circuit
remanded to EPA for its further consideration the
agency’s use of the Pasquill-Gifford dispersion coefficients
in setting emission limitations for isolated rural sources
in Ohio. Cincinnati Gas and Electric Company v. EPA,
578 F.2d 660 (1978). The agency published its pre-
liminary findings on its review of the original class A
record on February 7, 1979. 44 FR 7798. The agency
stated that its preliminary review of additional scientific
data supported EPA’s original decision to use the class A
coefficients in setting emission limitations for isolated
rural power plants in Ohio. Review of the agency’s
modeling determined that only four Ohio power plants
had emission limitations which were determined by P-G
class A conditions. These power plants are Stuart (Day-
ton Power and Light Company), Conesville (Columbus
and Southern Ohio Electric Company), Cardinal and
Muskingum River (Ohio Power Company).
The Court’s remand effectively stayed compliance with
the originally promulgated emission limitations for. the
four plants pending the agency’s reconsideration of the
original class A record. 44 FR 7798 (February 7, 1979).
However, since the agency’s preliminary findings sup-
ported the original use or class A, the agency solicited
comment on whether these utilities would need more t‘me
than allowed under the current compliance schedule to
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bring their sources into compliance with their original
emission limitations... 44 FR 7798. The original attain-
ment date for these four plants was June 17, 1980. 40
CFR 52.1875 (1979). EPA stated in the February 7,
1979 notice that, if necessary, it would amend the SIP
to give the utilities more time to comply.?
On June 19, 1980, EPA published its evaluation of
comments on the February 7, 1979 notice and its final
determination on use of the P-G class A coefficients.
45 FR 41501. EPA found that the scientific evidence
and utility monitor data supported the agency’s original
decision to use the P-G class A coefficients in setting
emission limitations for the four Ohio power plants.
Therefore, the agency reaffirmed the originally promul-
gated emission limitations for the four plants on June
19, 1980, and these sources are now required to come
into compliance with those emission limitations? 45 FR
41509 (June 19, 1980).
In response to EPA’s February 7, 1979 notice, only
Dayton Power and Light Company indicated that it
1 The current emission limitations for these plants are as follows:
Stuart—3.16 lbs. SO,/MBTL; Conesville—5.66 Ibs. SO,/MBTU;
Cardinal—4.76 lbs. SO,/MBTU; and Musingum River—6.48 lbs.
SO,/MBTU. See 40 CFR § 52.1881. These are some of the highest
emission limitations in the federally promulgated Ohio SO, plan.
2 Restarting compliance schedules and revising attainment dates
following a remand is proper under the Clean Air Act Section
110(a)(2)(A) 42 U.S.C. § 7410(a)(2)(A). The United States
Court of Appeals for the Sixth Circuit affirmed exactly such an ac-
tion following remand of particulate matter regulations in Ohio.
Northern Ohio Lung Association v. EPA, 572 F.2d 1143 (1978).
3 Ohio Power Company and Columbus and Southern Ohio Electric
Company filed petitions for reconsideration of the agency’s June 19,
1980 determination on class A. Both requested a stay of the deci-
sion pending the agency’s reconsideration or, if the agency denies
the reconsideration, pending judicial review. The agency will re-
spond to the petitions and requests for stay in a separate Federal
Register notice.
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would not need more time to comply. Dayton Power and
Light stated that its Stuart power plant is in compliance
with the originally promulgated emission limitation.
There is, therefore, no need to restart the compliance
schedule or revise the attainment date for the Stuart
power plant. However, in order to bring the Conesville,
Muskingum River and Cardinal plants into compliance,
the agency is restarting the original compliance sched-
ules for these plants. This means that these plants will
have to comply with the same interim compliance mile-
stones used for all other SO, sources in the state of Ohio.
These plants will also have the same three year period
for attainment as used for all other SO, sources in Ohio.
In addition to restarting the original compliance
schedules, the agency is proposing to promulgate an al-
ternative compliance schedule for the Conesville plant.
On January 23, 1980, Columbus and Southern Ohio Elec-
tric Company (CSOE) submitted to EPA a proposed coal
washing compliance program and schedule to meet its
original emission limitation. EPA reviewed the CSOE
schedule and determined that it is as expeditious as prac-
ticable and provides for compliance within three years of
approval. In addition, the coal washing program allows
CSOE to continue burning Ohio coal and still meet its
emission limitation. EPA is publishing for comment in
the proposed rules section of today’s Federal Register
the CSOE coal washing compliance schedule as an alter-
native to the original compliance schedule in 40 CFR
§2-1882(b). If CSOE chooses to comply by installing a
coal washing facility, it would have to meet the interim
dates in the coal washing compliance schedule. If CSOE
chooses not to install a coal washing facility, it will be
subject to the interim dates of the original compliance
schedule. EPA is proposing to make the coal washing
schedule subject to the same starting date as the original
schedule.
eras 67a
The agency has determined that the appropriate start-
ing date for the original compliance schedules for these
plants is June 19, 1980. Accordingly, the new attain-
ment date for these plants is June 19, 1983. The Court’s
remand in effect required the agency to stay compliance
for the “class A” power plants until the agency re-
sponded to the remand. The utilities, however, were on
notice that the stay would be lifted once the agency’s
responded to the remand. The utilities were also on
notice that the agency was considering reaffirming their
original emission limitations. 44 FR 7798 (February 7,
1979). In fact, the agency specifically asked the utilities
to comment on whether they would need more time to
comply with their original emission limitations. There-
fore, the utilities had fair warning that they could be
required to comply with their original emission limitz -
tions once the agency responded to the remand. Further
delay in moving these plants toward compliance with
emission limitations that were promulgated in 1976 is
unwarranted and would be contrary to the public
interest.*
The agency has determined that it is unnecessary to
provide for further comment on the original compliance
schedules. Both the utilities and the pu
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.