Section 116 of the Clean Air Act of 1970 guaranteed to the individual States the right to set more stringent ambient air standards and more stringent industrial emission control requirements than the minimum Federal standards. The committee recognizes that without national guidance on prevention of significant deterioration and protection for States exercising their right to maintain clean air, that right will be meaningless. H.R. Rep. No. 95-294, at 136-137, 2 U.S. Code Cong. and Adm. News (1977) at 1214.

Finally, it recognizes the long-range transport phenomena:

Clearly, then, while emissions may not be "significant" in the area of origin, when transported to another area and combined with pollutants from other areas, air quality may be drastically degraded.

A policy of prevention of significant deterioration
which controls a new source's emissions to the maximum extent
practicable will help minimize the transport and buildup of
pollutants from one area to another. Moreover, by assuring
that one region of the country will not became the dumping
ground for another region's air pollution, more clean air
resources will be available in the first region for its own
economic and industrial development. The situation will be
avoided in which one area gets the economic benefits of
industrial growth while another area gets the pollution and
its further development is restricted.

H.R. Rep. No. 95-294, at 135-136, 2 U.S. Code Cong. and Adm.
News (1977) at 1214.

The issue of significance of the long-range transport of, or interstate impact of, air pollutants is a real issue, which the Administrator avoided discussing or analyzing in this case.

C. EPA Cannot Revise an Implementation Plan Where EPA Has Made No
Finding That the Tall Stacks Comply With Section 123 of the Clean
Air Act.

In addition to the lack of review for interstate pollution and prevention of significant deterioration, Pennsylvania and other states have noted that EPA has not made a finding that the tall stacks comply with the tall stack limitation contained in Section 123 of the Clean Air Act.

This Congressional concern with sulfur oxides and its by-products appears even more clearly in the House Committee's explanation of some of

the other 1977 Amendments, such as §123, 42 U.S.C. §7423, which explicitly disallows the use of "tall stacks" as a means of attaining ambient standards. The Committee Report relating to this section points out that SO2 emitted through tall stacks can travel substantial distances downwind, and that during this transport the SO2 can be converted into such derivative pollutants as sulfates, sulfites and sulfuric acid which research indicates

may be more toxic than SO2 itself. Such long-range transport of SO2

contributes to the formation of "acid rain."

also

The Environmental Protection Agency has found--and the National Academy of Sciences has confirmed--that sulfates, sulfites, and sulfuric acid appear to be 'more toxic than the parent compound [sulfur dioxide] and appear likely to be responsible for a substantial portion of adverse effects on health associated with stationary source combustion of fossil fuels." NAS has also found,

The application of tall stacks and/or intermittent
control systems will not reduce total emissions of sulfur
oxides to any significant degree; thus this strategy
does not decrease the total amount of sulfate in the
regional atmosphere.

H.R. Rep. No. 95-294, at 83, 2 U.S. Code Cong. and Adm.
News (1977) at 1161.

The debate on "tall stacks" (both the Avon Lake and Eastlake plants

have installed tall stacks) centered around the credit that could be given to dispersion from tall stacks to attain ambient air quality standards in a localized area and disperse emissions over a larger area.

Many industrial sources have argued that, under this
language (Section 110(a)(2) (B)], it should be permissible
for sources to use tall stacks and intermittent (or
supplemental) control measures to achieve and maintain the
desired air quality concentration for sulfur oxides.
Intermittent controls and other dispersion enhancement
techniques are techniques which seek to reduce concentrations
of pollutants not by reducing the amounts of pollutants
emitted into the air, but rather by relying on the dispersion
of pollutants throughout the atmosphere. Thus, pollutants
are dispersed away from high-concentration areas and toward
lower concentration areas.

H.R. Rep. No. 95-294, at 81, 2 U.S. Code Cong. and Adm. News
(1977) at 1159.

Tall stacks are used to elevate the releases of
emissions so that they will be dispersed more widely before
reaching ground level and thus will result in lower
ambient concentrations at ground level near the source.

Three courts of appeals have considered and rejected
these arguments by industry. In NRDC v. EPA, 489 F.2d 390
(5th Cir. 1974), the Court held that EPA could permit the
use of dispersion dependent techniques as a means of attaining
and maintaining national ambient air quality standards

[o]nly (1) if it is demonstrated that emission
limitations regulations included in the plan are
sufficient standing alone; or (2) if it is demon-
strated that emission limitation sufficient to meet
the standard is unachievable or infeasible, and that
the state has adopted regulations which will attain
the maximum degree of emission limitation achievable.
489 F.2d at 410.

Similar results were reached by the Sixth Circuit (Big
Rivers Electric Corp. v. EPA, 523 F.2d 16, (6th Cir. 1975))
and the Ninth Circuit (Kermecott Copper Corp. v. EPA, 526
F.2d 1149 (9th Cir. 1975)). In each of these cases, the U.S.
Supreme Court has denied petitioners' application for writ
of certiorari.

H.R. Rep. No. 95-294 at 81-82, 2 U.S. Code Cong. and Adm.
News (1977) at 1159-60.

The debate on tall stacks resulted in the enactment of Section 123. The enactment of Section 123 of the Clean Air Act does not change the Circuit Courts' decisions on the use of dispersion techniques to attain national ambient air quality standard.

The adoption of these provisions [tall stacks] is intended
to reaffirm the mandate of the 1970 amendments that
atmospheric loading through dispersion technology is not
an acceptable means of meeting State Implementation Plan
emission limitations. "Conference Agreement," House
Conference Rep. No. 95-564, 95th Cong., 1st Sess. 1977, at
144, 2 U.S. Code Cong. and Adm. News (1977) at 1524.

After the enactment of the 1977 Amendments, the Ninth Circuit Court of Appeals held that the law had not changed with respect to dispersion techniques:

The Clean Air Act...requires pollution sources
to achieve the highest emission control level that is
technologically and economically feasible.

Bunker Hill Co. v. EPA, 572 F.2d 1286, 1293 (9th Cir.
1977).

The Petitioners have requested EPA to consider the long-range transport of sulfur dioxide in this case, and its impact on sulfur oxide deposition as sulfate and acid rain. Any attempt to justify the suspension of enforcement of the existing emission limitations based on the beneficial effects of tall stacks is disingenuous.

D.

EPA Cannot Revise an Implementation Plan Where it Has Held No
Public Hearing Concerning the Suspension.

EPA has suspended the Chio implementation plan without a public hearing on the proposed suspension. The Petitioners concur with the Brief filed by Group Against Smog and Pollution,. (GASP), concerning this deficiency. See Brief of GASP at 7-12.

IV. THE ADMINISTRATOR'S ACTION MUST BE REVERSED TO PREVENT FURTHER HARM TO AIR QUALITY.

After six years of litigation over the sulfur dioxide emission limitations for Chio, final emission limitations and compliance schedule were affirmed by this Court in Cleveland Electric Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir. 1978). With respect to pollution from sources of sulfur dioxide, the Court noted in its opinion that:

The federal Clean Air Act program which produced

these standards is based primarily upon the adverse effect
which air pollution has upon human life and health.

Acute episodes of high pollution have clearly
resulted in mortality and morbidity. Often the
effects of high pollutant concentrations in these
episodes have been combined with other environmental
features such as low temperatures or epidemic diseases
(influenza) which may in themselves have serious or
fatal consequences. This has sometimes made it
difficult to determine to what extent pollution and
temperature extremes are responsible for the effects.
Nevertheless, there is now no longer any doubt that
high levels of pollution sustained for periods of
days can kill. Those aged 45 and over with chronic
diseases, particularly of the lungs or heart, seem
to be predominantly affected. In addition to these
acute episodes, pollutants can attain daily levels
which have been shown to have serious consequences
to city dwellers.

*****

There is a large and increasing body of evidence
that significant health effects are produced by
long-term exposures to air pollutants. Acute
respiratory infections in children, chronic res-
piratory diseases in adults, and decreased levels
of ventilatory lung function in both children and
adults have been found to be related to concentrations
of SO2 and particulates, after apparently suf-
ficient allowance has been made for such confounding
variable as smoking and socioeconomic circumstances.
Rall, Review of the Health Effects of Sulfur Oxides,
8 Env'tal Health Perspectives 97, 99 (1974).

It appears that present national air quality standards
have been set with little or no margin of safety. Adverse
health effects are set forth in the two following charts;
and the minimal or nonexistent margins of safety are
vividly portrayed....