TABLE OF AUTHORITIES CASES Alabama Power Co. v. Costle, 606 F.2d 1068 (D.C. Cir. 1979) American Federation of S.,C., & M Employees v. City of Buckeye Power, Inc. v. EPA, 525 F.2d 80, 83 (6th Cir. 1975) Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150 76th Cir. 1978) Ohio Environmental Council v. U.S. District Court, 565 F.2d 393 (6th Cir. 1977) Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470 (1975) STATUTES Clean Air Act, Section 110 40 C.F.R. $ 52.1881(b) 40 C.F.R. S 52.1882 (b) Page 12,13 12 3,6,8,9 13,14 12 3,9,12,1 ADMINISTRATIVE REGULATIONS 2 1,2 1,7,8,9,10,11,12,14 45 Fed. Reg. 1022-24 (Jan. 4, 1980) 44 Fed. Reg. 59247 (Oct. 15, 1979) 44 Fed. Reg. 47959 (Aug. 16, 1979) 44 Fed. Reg. 33711-12 (June 12, 1979) 41 Fed. Reg. 36324 (Aug. 27, 1976) 41 Fed. Reg. 11855 (Feb. 22, 1980) 7 7 5,6 2 7 The Petitioner, the Commonwealth of Pennsylvania, filed on March 3, 1980, a petition to review, and to modify or set aside, what is denominated as final action of the Administrator of the U. S. Environmental Protection Agency ("EPA"). Pursuant to Fed. R. App. P. 18, Petitioner has further moved this Court for a stay of the rule promulgated by the EPA on January 4, 1980, at 45 Fed. Reg. 1022, amending 40 C.F.R. § 52.1882 (b), relating to sulfur dioxide emission limitations for The Cleveland Electric Illuminating Company's ("CEI") Avon Lake and Eastlake power plants. CEI has filed a Motion to Intervene pursuant to Fed. R. App. P. 15(d) and subject to the granting of said motion CEI files the within Memorandum in Opposition to Petitioner's Motion to Stay. II. BACKGROUND On August 27, 1976, the EPA promulgated regulations establishing a State Implementation Plan for the control of sulfur dioxide for the State of Ohio. ("SIP") [41 Fed. Reg. 36324 (August 27, 1976).] In setting the emission limitations for CEI's Avon Lake and Eastlake Power Plants, EPA did not base the emission limitations on the need to control actually measured concentrations of sulfur dioxide produced by the emissions from those plants, but rather, calculated the emission limitations on the basis of an air quality dispersion model simulation of sulfur dioxide concentrations predicted to occur in the vicinity of the two plants.l The use of this model lead to emission limitations of 1.43 pounds of sulfur dioxide per million BTU at the Eastlake plant in Lake County, Ohio, and 1.15 pounds of sulfur dioxide per million BTU at the Avon Lake Plant in Lorain County, Ohio [40 CFR §52.1881(b) (35) (vi) and 40 CFR $52.1881 (b) (38) (iii).] The SIP required CEI to meet these emission limitations by October 19, 1979, if CEI utilized low-sulfur fuels as its compliance strategy, or by June 17, 1980, if CEI chose 1. The National Ambient Air Quality Standards are expressed as annua! arithmetic or geometric means. There is a short-term concentration limit as well for each pollutant. -3 flue gas desulfurization equipment as its compliance strategy. [40 CFR $52.1882(b)(4)(iii)(G), and 40 CFR §52.1882(b)(4)(iv) (D).] The latter date of June 17, 1980 is the "attainment date" for purposes of $110(a) (2) of the Clean Air Act. This Court generally upheld the EPA's use of the Urban RAM air quality dispersion model for the setting of emission limitations in general, but the Court also specifically noted that the record before it "...does not present positive proofs of the accuracy of RAM's predictions." Cleveland Electric Illuminating Company v. EPA, 572 F.2d 1150, 1163 (6th Cir., 1978). Elsewhere, this Court concluded that EPA's study to confirm the accuracy of its air quality dispersion modeling techniques "...falls short of showing RAM's predictive perfection". Id., at 1163. This Court also expressed its hope that EPA would develop "...a better method of establishing a control strategy...than the RAM model...." Id. Consistent with this Court's call for "a better method of establishing a control strategy...than a RAM model...," CEI constructed an ambient air quality monitoring network to make realworld, empirical measurements of sulfur dioxide in the vicinity of its Avon Lake and Eastlake plants with a view to checking on the reliability and accuracy of the model used by EPA. This program was done because of CEI's concern that the EPA model had not undergone a confirmation process of the kind recently suggested by the D. C. Circuit: |