VI. Laboratory Results on Reaction Kinetics of Nitrogen Oxides

IX. Modelling the Long-Range Transport and Deposition of Pollutants

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APPENDIX II

Material Submitted by Stephen M. Leonard, Massachusetts Department of the Attorney General

Enclosed please find, as per your request, a number of the papers in Pennsylvania v. EPA, Nos. 80-3147 and 80-3148, the action which is now pending before the U.S. Court of Appeals for the Sixth Circuit and which challenges EPA's suspension of sulfur dioxide emission limitations for two power plants in the Cleveland area. These papers should give you a good idea of the issues being raised; if you have any questions, give me a call.

Sincerely,

Snoon Grand

Susan F. Brand

Assistant Attorney General

Environmental Protection Division

SFB: ec

Enclosures

The Commonwealth of Massachusetts submits this memorandum in support of the Commonwealth of Pennsylvania's Motion for a Stay of EPA's Suspension of the Ohio Implementation Plan. Massachusetts has been denied leave to intervene as a party herein, but has been granted leave to file a brief as amicus curiae.

Massachusetts concurs in the arguments put forward by Pennsylvania in its Memorandum of Law in Support of Motion for Stay, and makes the following additional comments. The challenged action by the Environmental Protection Agency ("EPA") with respect to the two Cleveland Electric Illuminating Company power plants amounts to a revision of the emission limitations and the compliance schedule for sulfur dioxide for those sources, both of which are part of Ohio's state implementation plan. 40 C.F.R. $52.1881(b) (35) & (38) and

$52.1882.

The more restrictive emission limitations which were

to have gone into effect by October 19, 1979, have been lifted, and the limitations applicable prior to that date have been permitted to remain in effect. Stated otherwise, the compliance schedule has been revised, since the October 19, 1979, deadline has been eliminated, and a June 17, 1980, deadline is apparently now in effect.

The Clean Air Act ("the Act") provides a tight, detailed, comprehensive scheme for the promulgation and revision of state implementation plans. See Section 110 of the Act, 42 U.S.C. $7410. Unless the procedural requirements of the Act are followed, neither a state nor the Administrator of EPA may change the terms of a plan, including emission limitations and compliance schedules (with certain exceptions not applicable here). See Section 110 (i) of the Act, 42 U.S.C. §7410(i). EPA's assertion that it has the implied authority to "suspend" plan provisions, by virtue of Sections 110 and 301 of the Act, 42 U.S.C. SS7410 and 7601, is without merit, given the detailed procedures set forth in the Act and the overriding prohibition in Section 110 (i), which prohibits a plan change which does not meet those procedural requirements. Certainly no special procedure is provided in the Act for a "suspension", as EPA

1/ EPA does not contend that it has complied with the procedural requirements for a plan revision under Section 110 (e).

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