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the stay only applies to the period before the deadline for final attainment under the SIP.

Second, in the Ohio Environmental Council case, this Court recognized that "...the final attainment date passed months ago, and the EPA, far from being on the verge of approving a variance, has in fact returned the variance to the State as inadequate. (emphasis added)" Id. at 398. In the case at bar, however, EPA has proposed to approve a revision and relaxation of the emission limitations.

Finally, in the instant case EPA has in fact proposed an imminent administrative action which would make the enforcement of the original emission limitations, as sought by Petitioner, moot. EPA specifically noted in its final action that completion of the administrative rule-making could make the "emission

limitation...obsolete in the near future." 45 Fed. Reg. at 1024 (January 4, 1980). A stay would force compliance with unreasonable emission limitations which are about to be "obsolete".

Thus, Petitioner's reliance on this Court's decision in

Ohio Environmental Council v. U.S. District Court, supra. is misplaced as is its standing to seek a stay of the temporary deferral

of the compliance date to the final court approved attainment date of June 17, 1980.

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V.

CONCLUSION

This is not a case where the final deadline for attainment of standards has passed. We have nothing more than EPA, under its enabling authority under the Clean Air Act, granting a temporary deferral of a compliance date in the period before the deadline for final attainment under the SIP June 17, 1980 date under Section 110(c) of the Clean Air Act.

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CERTIFICATE OF SERVICE

This is to certify that copies of the foregoing Memorandum of Intervenor The Cleveland Electric Illuminating Company In

Opposition To Petitioner's Motion To Stay have on this date been sent by certified mail, return receipt requested, to the following:

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 80-3147

THE COMMONWEALTH OF PENNSYLVANIA

Petitioner,

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, DOUGLAS M. COSTLE,

Respondent.

RESPONDENT's MEMORANDUM IN OPPOSITION TO

PETITIONER'S MOTION FOR STAY

On February 29, 1980, the Commonwealth of Pennsylvania filed a Petition for Review with this Court, under Section 307(b)(1) of the Clean Air Act, 42 U.S.C. $7607(b)(1), challenging a final action of the Administrator of the United States Environmental Protection Agency (EPA) to extend the compliance date for meeting sulfur dioxide emission limitations at two Cleveland Electric Illuminating Company (CEI) plants in Ohio. In addition, Petitioner filed a Motion for Stay Pending Review and a supporting memorandum.

The agency

contends that Pennsylvania has not met the criteria necessary to justify the extraordinary relief it seeks and therefore requests that the Court deny the Motion.

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II

STATEMENT

41

In August, 1976, EPA promulgated a State Implementation Plan for Ohio to control sulfur dioxide (SO2) emissions. Fed. Reg. 36324 (August 27, 1976). See Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir. 1978), cert. denied 436 U.S. 911 (1978). The plan requires that the National Ambient Air Quality Standards must be acheived by the June 17, 1980, attainment date. 40 C.F.R. 52.1875(a), note (f). However, the plan provides that if a source elects to comply with its SO2 emission limitation by switching to low-sulfur coal, compliance with the emission limitation must be achieved by October 19, 1979. 40 C.F.R. 52.1882(a)(4)(iii)(g). CEI elected to comply at its East Lake and Avon Lake plants by switching to lower sulfur coal.

Emission limitations of 1.43 pounds S02 per million BTU and 1.15 pounds S02 per million BTU were promulgated for the East Lake and Avon Lake power plahts. 40 C.F.R. 52.1881 (b) (35) (vi) and 52.1881(b) (38) (iii). Those emission limitations were based on computer air quality dispersion modeling analysis using the urban RAM model. See Cleveland Electric Illuminating Co. v. EPA. supra at 1160-1164. Throughout the rulemaking and subsequent litigation, CEI contended that the urban RAM was inappropriate for the two plants. However, the Company was not able to submit any actual data to substantiate its claim. Therefore, EPA applied the urban version of the RAM