Congress intended that monitoring would impose
a certain discipline on the use of modeling
techniques which would be the principal device
relied upon for the projection of the impact
of air quality of emissions from a regulated
source. Unless the employment of modeling
techniques can be held to earth by a continual
process of confirmation and reassessment,
their use would inspire little confidence
as a means of realistic projection of air
quality.

Alabama Power Company, et al. v. Costle, 606-F.2d 1068, 1087 (D.C.

Cir., as amended Dec. 14, 1979.)

The Court earlier noted that:

"* EPA asserts, the development and evaluation
of modeling techniques lie on the frontiers

of scientific knowledge. This calls on EPA

to proceed in the area with care and
flexibility appropriate to such intricate
and novel subject matter." Id. at 1086.

Accordingly, CEI undertook a rigorous statistical analysis that compared the predictions produced by the Urban RAM model with the actual measurements, and found that the Urban RAM model overpredicted by large margins the highest measured concentrations at each of the monitor sites around the power plants for all concentration averaging times under the National Ambient Air Quality Standards.

Following these studies, CEI filed with EPA a "Petition

For Revision Of The Sulfur Dioxide Plan For The State of Ohio" on February 15, 1978, wherein CEI requested EPA to revise the emission limitations for the Eastlake and Avon Lake power plants.

The purpose

of the Petition was to apprise EPA of the following new evidence developed after EPA had promulgated its original emission limitations for the Avon Lake and Eastlake plants:

(1) Ambient air quality measurements which showed

no violations of the National Ambient Air Quality

Standards in the vicinity of the two plants;

(2) Statistical comparisons of measured and predicted concentrations showing that the concentrations predicted by the Urban RAM model, and upon which the original emission limitations were based, considerably overstated actual measured concentrations; and

(3) Plans to use new, good engineering practice stacks in accordance with Section 123 of the Clean Air

Act in place of the considerably shorter stacks upon
which EPA had developed the original emission
limitations.

This data lead EPA to conclude that its Urban RAM model resulted in unnecessarily stringent emission regulations. Accordingly, EPA proposed a revision of the emission limitations for the Avon Lake and Eastlake plants on June 12, 1979. [44 Fed. Reg. 33711 (June 12, 1979).] At that time, US EPA stated:

The emission limitations originally promulgated
for the Avon Lake and Eastlake plants were
determined through dispersion modeling using
the Urban version of the RAM model. CEI has

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consistently maintained that the use of the
Urban RAM results in overly stringent emission
restrictions for the two plants. Until the
CEI petition was submitted, there have been
no data to support the claim...The data,
however, do indicate that the Urban RAM is
inappropriate for setting emission limitations
for the two plants.

Id. The data to which EPA referred included the statistical analysis showing that the Urban RAM model predicted concentrations which would have been more than twice the National Ambient Air Quality Standards even though there were no actual, empirical measurements of sulfur dioxide concentrations in excess of the applicable National Ambient Air Quality Standards.

However, EPA did not agree with CEI's request for the setting of emission limitations for the Avon Lake and Eastlake plants on the basis of the Rural RAM model the other model utilized by EPA in the original rule-making and approved by this Court in The Cleveland Electric Illuminating Company v. EPA, supra. The Agency felt that the Rural RAM model did not properly take into account a phenomenon known as "lake breeze". Accordingly, EPA proposed a revision to the SIP to require CEI to meet emission limitations slightly more stringent than CEI could attain with its then current supplies of coal, provided CEI undertakes additional studies in cooperation with EPA on the effect of "lake breeze". [44 Fed. Reg. 33712 (June 12, 1979).] This study was proposed by EPA in order to provide information necessary to develop an air quality dispersion model specific to the Avon Lake and Eastlake plants.

Specific

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details on this comprehensive, costly, highly technical study were recently embodied in a Federal Register Notice calling for public comment on the details of this plan. [45 Fed. Reg. 11855 (February 22, 1980).]

III.

DELAY OF COMPLIANCE DATE AT THE

AVON LAKE AND EASTLAKE PLANTS.

Several individuals and/or organizations requested EPA to extend the comment period on the June 12, 1979 proposed revision to the SIP, which the EPA did on August 16, 1979 by extending the comment period until October 12, 1979. [Fed. Reg. 47959 (August 16, 1979).] This extension of the comment period therefore made it impossible for EPA to complete final rule-making on the proposed revision before the October 19, 1979 date by which CEI would have had to come into compliance with the proposed-to-be-revised emission limitations. Consequently, at the request of CEI, EPA proposed

a temporary suspension of the October 19, 1979 compliance date, and solicited public comment thereon. [44 Fed. Reg. 59247 (October 15, 1979).] After evaluating the comments submitted by various parties, including the Commonwealth of Pennsylvania, EPA finalized its October 15, 1979 proposed action. [45 Fed. Reg. 1023 (January 4, 1980).] In that action, EPA announced that the compliance date for the Avon Lake and Eastlake plants would be June 17, 1980, which is the attainment date set forth in the original emission limitations

approved by this Court in Cleveland Electric Illuminating Company V. EPA. 45 Fed. Reg. 1023 (January 4, 1980). In taking this action, EPA cited several provisions in the Clean Air Act to support the suspension, and noted that it would be inappropriate to require CEI to comply on October 19, 1979 with regulations which EPA had proposed to revise because the method utilized to develop those regulations had been found to be "inappropriate". The EPA reasoned that CEI's compliance on October 19, 1979 with proposed-to-be-revised emission limitations would require CEI to make massive shifts from current supplies of coal to other kinds of lower sulfur coal, which would "...cause economic disruption in order to meet an emission. limitation which may become obsolete in the near future." 45 Fed. Reg. 1024 (January 4, 1980). (Emphasis supplied)

IV.

ARGUMENT.

Because CEI would have had to make a massive shift in coal supplies if it were required to meet the proposed-to-be-revised emission limitations on October 19, 1979, and because the proposed regulations, upon finalization, would have allowed CEI to continue to burn most of its current supplies of coal in conformance with the SIP, it was entirely reasonable for EPA to suspend the October 19, 1979 compliance date pending completion of the rule-making on the proposed revision to the SIP. To do otherwise would have been an arbitrary act on the part of EPA.