The court finds this provision [Section 110(1)] controlling in this instance. As the Second Circuit observed in Friends of the Earth v. Carey, 535 F.2d 165, 169 (1976):

Since abatement and control of air pollution

through systematic and timely attainment of the air
quality standards is Congress' overriding objective,
a plan, once adopted by a state and approved by the
EPA, becomes controlling and must be carried out by
the State. Modifications are permitted by the Act only
cautiously and grudgingly. The EPA is authorized to
approve revisions of the original plan §110(f), pro-
vided it 'can satisfy the stringent conditions' imposed
by that provision, Train v. N.R.D.C., 421 U.S. 60, 90,
95 S.Ct. 1470, 1487, 43 L.Ed. 2d 731, 752 (1975). In
all other cases full compliance with the plan is man-
dated. See, id. at 89-90, 95 S.Ct. at 1486-1487, 43
L. Ed. 2d at 751-752.

In accordance with the foregoing statement of the law, the Regional Administrator's affirmance thereof, see 41 Fed. Reg. 32304 (Aug. 2, 1976), and the explicit provisions of Section 110(i), supra, it is the opinion of the court that Rule 203 (g), as adopted in the State of Illinois Implementation Plan and approved by the Administrator, is and will continue to be enforceable until such time as a revision is submitted to the Administrator for approval pursuant to Section 110 (a) (3) of the Clean Air Act, 42 U.S.C. §7410(a) (3).

14 ERC at 1272

Thus, even the invalidity of the state regulation was no bar to enforcement of the federal implementation plan requirement in federal

courts.

The Clean Air Act provides substantive rights to states which are affected by air pollution emanating from another state. See Section 110(a)(2) (E), 42 U.S.C. §7410(a)(2) (E). The primary mechanism for the exercise of these rights is through the review of state implementation plans. By unprecedented action to suspend a requirement of an approved plan, without a thorough review of the action by an appropriate revision to a plan, EPA has annulled the Petitioners' substantive rights.

II. EVEN IF EPA HAD THE LEGAL AUTHORITY TO SUSPEND THE IMPLEMENTATION PLAN, THE RECORD BEFORE THE ADMINISTRATOR DOES NOT PROVIDE A FACTUAL BASIS FOR SUSPENDING THE IMPLEMENTATION PLAN REQUIREMENTS.

A. EPA Should Not Have Proposed Any Revision to the Implementation Plan Where EPA Knew That the Proposed Revision Would Not Protect the National Ambient Air Quality Standards for Sulfur Dioxide.

In February, 1978, the Cleveland Electric Illuminating Company submitted a petition for the revision of the sulfur dioxide plan for the state of Ohio, affecting its generating stations at Avon Lake and Eastlake. In its petition, CEI alleged that it was building taller stacks in accordance with Section 123 of the Clean Air Act at its two plants. CEI also alleged that the sulfur dioxide ambient air quality data, as monitored around the two plants, demonstrated that ambient air quality standards were being attained and maintained around the plants. CET requested a revision of the sulfur dioxide implementation plan to significantly relax the emission limitations for the various boilers at these two plants to a level where no sulfur dioxide control would be required. (EPA App. 1-58).

Attached to the petition was an affidavit, executed by Richard A. Soucie, the general supervisor of the fuel buying section at Cleveland Electric Illuminating Company. Mr. Soucie averred that "CEI has executed contracts for the delivery of, or has received formal proposals for the delivery of, or has requested formal proposals for the delivery of over 6,200,000 annual tons. This annual tonage figure represents the amount of low sulfur coal necessary to meet CEI's compliance requirements if CEI's petition for plan revisions (with respect to the requirements for the Eastlake and Avon Lake plants) is not accepted by U.S. EPA." (EPA App. 18). Attached to his affidavit is a summary of existing and proposed coal contracts for low sulfur coal. There is no reason in the

record that compliance with the existing limitations could not have been achieved within a short time.

In response to this petition, Robert L. Duprey, the Director of the Air and Hazardous Materials Division of EPA's Region V office, wrote to CEI, in a letter, dated May 25, 1978:

Insufficient information has been provided by CEI
to support a revision of the SIP.

The CEI request was based on three areas of addi-
tional data assembled and described by CEI as :
(1) new good engineering practice (GEP) stacks,
(2) model validation studies, and (3) additional
monitoring data. The information submitted is
incomplete and is not adequate to support a
revision.

First, no documentation was presented which
demonstrates that a building downwash problem
has existed at either the Avon Lake or Eastlake
Generating Stations. It should also be noted
that the modelling analyses conducted by the
U.S. Environmental Protection Agency (USEPA)
for these facilities did not analyze or assume
that any building downwash occurred at either
facility. Note: if building downwash were to
be modelled, calculated ground level concentra-
tions would be expected to be greater than
concentrations calculated by the modelling techniques
which were used by USEPA in the SIP development pro-
cess for the CEI facilities.

It should be noted that in recent Clean Air Act
Amendments (section 123) that emission limitation
requirements based on stack height increases should
not be allowed.

The validation studies conducted by Enviroplan for
CEI are based on very limited monitoring data.
Furthermore, the monitoring sites upon which data
for validation is dependent were selected by Enviro-
plan, using modelling techniques similar to those of
rural RAM. Note: Enviroplan has indicated that
rural RAM underpredicts sulfur dioxide (SO2) concen-
trations compared to observations at those selected
monitoring locations. Also, because monitoring sites
based on urban RAM suggested locations were not
established and because sufficient data and monitoring
coverage are not available, it has not been adequately
demonstrated that urban RAM is not appropriate for
analyses of the Avon Lake and Eastlake facilities.

Finally, the spatial distribution and temporal coverage
of the data from the CEI monitoring sites are insufficient
(particularly in the vicinity of the Eastlake facility)
to substantiate that maximum SO2 concentrations in the
vicinity of the of the CEI facilities have been monitored.
It has not been demonstrated that available monitoring
data are sufficient to ascertain that the maximum impacts
of the CEI facilities or highest SO2 concentrations in
the affected areas are being observed and reported.

(EPA App. 59-60)
(emphasis supplied)

In the course of requesting information from CEI and reviewing the information submitted, EPA prepared a number of memoranda, which noted the deficiencies in the CEI proposal. One memorandum notes: "Enviroplan is not responding to the issues (see above-referenced letters and telcoms) (e.g. spacial resolution, location of monitors, use of atmospheric physics in analyses, discussion of caused-effect reality, etc.). These submittals are not validation studies as would be defined by AQ model guidelines." (EPA App. 81) "Enviroplan has yet to show that they are not comparing apples with oranges (or lemons), or that their proposed model revisions better approximate reality." (EPA App. 82)

"CEI proposes to claim credit as a result of stack height increases beyond GEP [good engineering practice] stack heights and/or heights of existing stacks claimed by CEI to have a building induced downwash problem....CEI has not demonstrated that an excessive building downwash problem exists based on appropriate field or physical modelling studies." (EPA App. 85)

Finally, a summary of the U.S. EPA's review of CEI's petition for SIP revision was prepared by the staff of EPA. This summary concluded that: "Therefore, based on the fact that the proposed SIP revision does not appropriately address the site specific cause-effect relationships pertinent to the areas in question and because the proposed SIP revision

does not demonstrate that the NAAQS will be attained and maintained, U.S. EPA must deny the CEI petition for revision of the Ohio SIP for SO2 at the CEI's Avon Lake and Eastlake power plants." (EPA App. 96) (emphasis supplied) The basis for this conclusion was carefully analyzed in the summary memorandum. It relied on six factors:

1. The CEI proposed rural RAM model underpredicted monitored SO2 concentrations.

2. No monitoring was conducted by CEI in the areas of expected maximum impact of SO2 emissions.

3.

No rationale was presented to demonstrate where the highest concentrations would occur.

4. Meteorological conditions associated with maximum measured concentrations agreed better with urban RAM than with rural RAM predictions.

5. The lake-induced fumigation analysis was completely inappropriate in that only the effluent from one stack at Eastlake was considered.

6. No maps or tables indicating physical receptors, meteorological conditions and concentrations which would determine the emission limits were provided. (see EPA App. 92-96)

Despite the overwhelming conclusion by EPA Region V staff and by EPA's research staff at Research Triangle Park that the CEI proposal to relax emission limits was unsupported, EPA announced on June 6, 1979, that EPA was proposing to revise the emission limitations for the Cleveland Electric Illuminating Company plants. (EPA App. 102-104) Prior to this announcement in the press, there was no staff memorandum within EPA justifying or approving the proposed emission relaxations.

CEI's petition to relax the sulfur dioxide emission limitation had been subjected to exhaustive review by EPA. Prior to its proposal to relax the sulfur dioxide emission limitations for the Cleveland Electric Illuminating Company's Eastlake and Avon Lake plants on June 12, 1979, (44 F.R. 33711), EPA knew it could not approve the proposed relaxed limitations based on the rural RAM model presented by CEI. By April,