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timely fashion, EPA announced an extension to the comment period until October 12, 1979 (44 F.R. 47959, August 16, 1979).

On October 15, 1979, EPA proposed a suspension of the compliance requirement with the emission limitations in 40 C.F.R. §52.1881(b) for these two plants, which compliance requirement was due to become effective on October 19, 1979, (44 F.R. 59247). In response to this proposed suspension, three public commentators noted that EPA did not have the legal authority in the Clean Air Act to suspend a requirement of a state implementation plan without formally revising the plan. These comments are part of the rulemaking record in this matter, Docket No. 5A-79-1. On January 4, 1980, EPA published its final rule which "temporarily suspends the October 19, 1979, compliance date," and which amends the compliance schedule contained in 40 C.F.R. $52.1882 (b) by suspending the compliance schedule. The suspension of any requirement of a state implementation plan is governed by Section 110(1) of the Clean Air Act, 42 U.S.C. $7410(1), which states:

(1) Except for a primary nonferrous smelter order
under section 7419 of this title, a suspension under sub-
section (f) and (g) of this section (relating to emergency
suspensions), an exemption under section 7418 of this title
(relating to certain Federal facilities), an order under
section 7413(d) of this title (relating to compliance
orders), a plan promulgation under subsection (c) of
this section, or a plan revision under subsection (a) (3)
of this section, no order, suspension, plan revision, or
other action modifying any requirement of an applicable
Implementation plan may be taken with respect to any
stationary source by the State or by the Administrator.
(emphasis supplied)

EPA has not promulgated any action which fits any of the enumerated exceptions listed in Section 110(i).

* On May 7, 1980, EPA published a corrective notice (45 F.R. 30069) regarding the action taken on January 4, 1980.

SUMMARY OF ARGUMENT

On January 4, 1980, the Administrator of the Environmental Protection Agency promulgated a revision of the compliance schedule and, as a practical matter, a suspension of the emission limitations for sulfur dioxide for Cleveland Electric Illuminating Company's Avon Lake and Eastlake power plants. This action constituted a revision of the Ohio implementation plan. Under Section 110 (i) of the Clean Air Act, the Administrator was required to comply with procedural and substantive requirements of the Act in taking this action. The Administrator has failed to comply with a number of provisions of the Act and therefore this action must be reversed.

The Administrator of EPA has acted arbitrarily and capriciously in taking this action since the evidence of record shows overwhelmingly that it will result in violations of national ambient air quality standards for sulfur dioxide. Both monitored air quality data and modelling results indicate such violations.

The Administrator's action will result in continued harm to air quality both in the vicinity of the two plants in question and at great distances downwind. Accordingly, the more restrictive emission limitations which were to have gone into effect should not be suspended pending their review. In taking its challenged action, EPA has acted contrary to various provisions of the Clean Air Act, namely: (1) Sections 110(a) (2) (E) and 126 (interstate air pollution); (2) Section 110 (a) (2) (B) (attainment and maintenance of national ambient air quality standards); (3) Sections 160 to 169 (prevention of significant deterioration); and (4) Section 123 (tall stacks); and (5) Section 110 (a) (1) and (c) (procedural requirements for plan revision). The prohibition of Section 110(i) was designed to apply in precisely this kind of case--where EPA has arbitrarily and capriciously suspended a requirement of an implementation plan without fully revising the plan.

SCOPE OF REVIEW

This matter is before this Court as a rulemaking matter under Section 307(b) of the Clean Air Act, 42 U.S.C. $7607. EPA is required

to establish a rulemaking record pursuant to Section 307 (d) of the Clean Air Act, 42 U.S.C. $7607 (d), which states:

(d) (1)

(B)

This subsection applies to-

**

the promulgation or revision of an implementation plan by the Administrator under Section 7410(e) of this title,

*

(N) such other actions as the Administrator may determine. EPA has established a rulemaking docket, for this matter at Docket No. 5A-79-1 and has designated its action as a "final rule." Although EPA does not label this action as a revision to the implementation plan of the state of Ohio, the challenged suspension modifies the implementation plan, as published at 40 C.F.R. $52.1882 (Subpart KK-Chio), and is, accordingly, a final action of the Administrator.

Section 307 (d) (9), 42 U.S.C. §7607 (d) (a) establishes the standard

of review to reverse an EPA action in this matter:

(9) In the case of review of any action of the Administrator this subsection applies, the court may reverse any such action found to be-

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(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right; or

(D) without observance of procedure required by law,
if (i) such failure to observe such procedure is arbitrary
or capricious, (ii) the requirement of paragraph (7) (B)
has been met, and (iii) the condition of the last sentence
of paragraph (8) is met.

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ARGUMENT

I.

SECTION 110(1) OF THE CLEAN AIR ACT DOES NOT ALLOW SUSPENSIONS OF
IMPLEMENTATION PLANS, ABSENT COMPLIANCE WITH SUBSTANTIVE AND
PROCEDURAL REQUIREMENTS OF THE ACT.

The Clean Air 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 (1). 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. §§7410 and 7601, is without merit, given the detailed procedures set forth in the Act and the overriding prohibition in Section 110(1), which prohibits a plan change which does not meet those procedural requirements. No procedure or authority is provided in the Act for a "suspension."

1.

Section 110 (i) of the Act, 42 U.S.C. §7410(i), states:

(i) Except for a primary nonferrous smelter order under section 7419 of this title, a suspension under subsection (f) or (g) of this section (relating to emergency suspensions), an exemption under section 7418 of this title (relating to certain Federal facilities), an order under section 7413(d) of this title (relating to compliance orders), a plan promulgation under subsection (c) of the section, or a plan revision under subsection (a)(3) of this section, no order, suspension, plan revision, or other action modifying any requirement of an applicable Implementation plan may be taken with respect to any stationary source by the State or by the Administrator.1 (emphasis supplied)

Apparently in reaction to the indiscriminate grants of variances
and delays in compliance schedules by the states and the EPA,
Congress amended the Clean Air Act in 1977 to include the prohibition
in Section 110(i), 42 U.S.C. §7410(1), and to include the delay
(Cont'd)

Unless the Administrator's action falls within one of the listed exceptions, the Administrator cannot modify or suspend any requirement of an applicable implementation plan.

A timetable for compliance and emission limitations are such requirements of an implementation plan to which the Congressional prohibition applies, and they cannot be suspended, modified, or revised without revision of state implementation plan in accordance with Section 110(a) or 110(c) of the Act. See Section 110(a)(2)(B), 42 U.S.C. §7410(a)(2)(B). The fact that these provisions have been promulgated as part of the regulation indicates that they are such requirements. The compliance schedule for the Cleveland Electric Illuminating Company plants at Eastlake and Avon Lake are part of the lawfully promulgated state implementation plan for sulfur dioxide. See 40 C.F.R. §52.1882. The emission limitations for these two plants were duly promulgated at 40 C.F.R. §52.1881(b)(35) and (38).

In addition, EPA's own interpretation of the procedure necessary for a state to revise an implementation plan compliance schedule supports the Petitioners' contention that EPA has acted unlawfully in taking the challenged action. EPA published a notice to clarify its established policy requiring submission of plan revisions to EPA when a state modifies provisions of a state implementation plan, 44 Fed. Reg. 67675 (Nov. 27, 1979):

Footnote (Cont'd)

compliance mechanism in Section 113(d), U.S.C. §7413(d), as the
only means by which a source could obtain a "variance" from existing
requirements and only if the source met specified criteria within
the Act. See H.R. Rep. No. 95-294, at 53-61, 2 U.S. Cong and Adm.
News (1977) at 1131-1139. The availability of specific statutory
relief to those sources who sought variances explains the prohibitory
nature of Section 110 (i). EPA's suspension is, in effect, a variance
which is prohibited by Section 110 (i). Section 110 of the Clean
Air Act requires public hearings, which EPA has failed to provide
for this action. More importantly, EPA must make an affirmative
demonstration that this action will not interfere with the attain-
ment and maintenance of ambient air quality standards in Chio and in
other states as well. This is expressly required by Section
110(a)(2) (E), 42 U.S.C. §7410(a) (2) (E) .

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