Petition — United States Steel Corporation v. United States Environmental Protection Agency

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SEP 21 1979 j

IN THE | MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1979

No. 6 7) -486

UNITED STATES STEEL CORPORATION, AND

YOUNGSTOWN SHEET AND TUBE COMPANY,

Petitioners,

VS.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

JAY A. LIPE,

JAMES T. HARRINGTON,

LAURENCE A. MCHUGH,

DixiE L. LASWELL,

ROOKS, PITTS, FULLAGAR and Pousrt,

430 West Randolph Street,

Chicago, Illinois 60606,

312/372-5600,

Attorneys for Petitioners.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

De bau dincuccece

Riumewe Ome (opinion Below ...... cece cence

Jurisdiction

Statutory Provisions Involved ...................05.

me wae mcane

Reasons for Granting the Writ ..................005.

I. The Decision of the Court Below Is in Direct

Conflict with Decisions Rendered upon Identical

Facts by the United States Courts of Appeal for

the Third and Fifth Circuits ...............

II. The Conflict Among the Circuits Raises Issues

of Extreme and Immediate Importance to All

Persons Subject to USEPA Rulemaking ......

A. The Holding of the Seventh Circuit as to

“Good Cause” Renders*the Administrative

Procedure Act and the Administrative

Procedure Provisions of the Clean Air Act

Ineffective as Procedural Safeguards to

USEPA Rulemaking ................

The Decision of the Seventh Circuit Re-

garding the Applicability of 42 U.S.C.

§ 7607(d) (9) Causes Uncertainty in Pend-

ing and Future USEPA Rulemaking and

Raises the Question of Whether the Admin-

istrative Procedure Act Applies to Any

WaeerA Rulemaking .................

Il]. The Decision of the Court of Appeals for the

Seventh Circuit Below Was Clearly Erroneous . .

Conclusion

Re ee ee ee a oe ar a a a a er

aon WO NY NN WN

Appendix

The Opinion of the Court of Appeals for the

Seventh Circuit, entered August 1, 1979...... Al

Relevant portions of the Order of the Admin-

istrator, USEPA, published at 43 Fed. Reg. 8962,

oe SE ee cc eek he ee a eel A21

Relevant portions of the Order of the Admin-

istrator, USEPA, published at 43 Fed. Reg.

PPA, PEE Fy AGED oo sch evac ve ciakawss A34

ee ED I Vien cs corre cae eens A43

The decision of the Court of Appeals for the

Third Circuit in Sharon Steel Corporation and

Bethlehem Steel Corporation v. Environmental

Protection Agency, 597 F.2d 377 (April 25,

STE ) tid as oad oe a CR oN on ee oe eo ee A75

The decision of the Court of Appeals for the

Fifth Circuit in United States Steel Corporation

and Republic Steel Corporation vy. Environ-

mental Protection Agency, 595 F. 2d 207 (May

ee ere eee con ee pa eer ee A85

ili

TABLE OF AUTHORITIES.

Cases.

City of New York v. Diamond, 379 F. Supp. 503 (S. D.

PA Me MN cr stu eae haath 66 hear e keene cakes 18

Kelly v. Department of Labor, 339 F. Supp. 1095 (E. D.

Re SEE Se EO REA 6 5 RS Tee Ch CR eR 18

Statutory Provisions.

Administrative Procedure Act, 5 U.S.C. § 551 et seq.

UE ays sk ake cen ees 6, 14

Rr ee Nios ee eee 8, 15

Rh Te Bre es evs ov eewconwn 7,8, 13

SR 5 bk oh vce koesiw kee ok cas 8, 15

Oh ee as Fc hn bh ens 16, 18

BUS. BIS: yo cc eee ixcds nce <4

SUS CS FOI nek sv vchnn's xa whsvncwe'en 14

Clean Air Act, 42 U. S. C. § 7401 et seq.

WT ooo iv ee ohne pak teni 5

MER Ce We oo a ek ces 15

S43. 9.0. S THAI os ss 6

REGS SOT eke. Cis en ae a 6

SE A ore ee 6

WRT CS I oivik cov eh chien veaees 15

42 U.S.C. § 7607(d) .7, 9, 10, 11, 12, 13, 14, 16, 17,19

AOU. B. © STRIP ov 5 vec cats 10, 14, 15, 16

42 U.S.C. § 7607(d)(1)(N) ......eeeeee 9, 11, 13, 18

OPUS CS SS ig ool 16

42 U. SC. & TORTI). oii vend 9, 15, 16

| OU GS-8 Tt ke ho ok ee 9,15

| 42 U.S.C. § 7607(d)(9) 7, 10, 11, 13, 14, 16, 17, 18, 19

| te Bee ee | a ae nee 11, 16

Miscellaneous.

43 Fed. Reg. 8962, Biaseh 3, SUPE «24 seein clive wees 6,8

43 Fed. Reg. 45993, October 5, S76 .0 sae caeasasae 7

43 Fed. Reg. 33352, Fee By FF «on 5a cee cerweesass 11

Executive Order 12044, March 3, 1978 (43 Fed. Reg.

12661, 3 U.S.C. § Se, OP soc es ee 12,n.4

43 Fed. Reg. 56158, November 30, 1978 ............ 12

44 Fed. Reg. 47559, August 14, 1979 .............. 15

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

UNITED STATES STEEL CORPORATION, AND

YOUNGSTOWN SHEET AND TUBE COMPANY,

Petitioners,

VS.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Petitioners United States Steel Corporation (“U. S. Steel’)

and Youngstown Sheet and Tube Company (“Youngstown”)

respectfully pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Seventh Circuit entered in this proceeding on August

1, 1979.

ORDERS AND OPINIONS BELOW.

The opinion of the Court of Appeals, not yet reported, ap-

pears in Petitioners’ Appendix (“Pet. App.”) p. Al. The Orders

of the United States Environmental Protection Agency

(“USEPA”) appear at 43 Fed. Reg. 8962 (March 3, 1979)

and at 43 Fed. Reg. 45993 (October 5, 1978). Relevant por-

tions of those Orders appear in Pet. App. pp. A21 and A34

respectively.

JURISDICTION.

The judgment of the Court of Appeals for the Seventh Cir-

cuit was entered on August 1, 1979, and this petition for cer-

tiorari was filed within 90 days of that date. This Court's juris-

diction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED.

The issues herein arise under the provisions of the Adminis-

trative Procedure Act, 5 U.S.C. § 551 et seg., and the Clean

Air Act, 42 U.S.C. § 7401 et seg. The relevant portions of

5 U.S.C. §§ 553, 706; 42 U.S.C. §§ 7407, 7408, 7409,

7410, 7501, 7502, and 7607 are reproduced in the Appendix

hereto at pp. A43-A74.

QUESTIONS PRESENTED.

In promulgating its designation of those areas of the country

which had failed to attain the National Ambient Air Quality

Standards promulgated under the Clean Air Act, USEPA dis-

pensed with publication of proposed rulemaking and prior pub-

lic comment and made the designations immediately effective.

The Court of Appeals for the Seventh Circuit held that USEPA’s

action was justified under the “good cause” exemptions in 5

U.S.C. § 553(b)(B) and (d)(3) and that the limitations on

the scope of judicial review of procedural defects in USEPA

rulemaking contained in 42 U.S.C. § 7607(d)(9) were ap-

plicable, even though the activity under review was not one to

which 42 U. S.C. § 7607(d) was made specifically applicable.

The questions presented are:

Questions Supporting the Issuance of the Writ.

1. Whether the failure of USEPA to comply with the Ad-

ministrative Procedure Act requirements for notice and com-

ments prior to rulemaking was excused, contrary to decisions

of the United States Court of Appeals for the Third and Fifth

Circuits, by the “good cause” of statutory deadlines and self-

imposed delay, where USEPA had by statute 60 days following

submission to USEPA by the states of suggested designations

to promulgate designations of the attainment status of various

areas under the Clean Air Act.

2. Whether the limitations on judicial review of procedural

defects in USEPA rulemaking set forth in 42 U.S.C. § 7607

(d)(9) are applicable to rulemaking proceedings which Con-

gress omitted from the enumeration in 42 U.S.C. § 7607(d)

(1) of those proceedings to which the subsection applies.

Question to Be Urged Upon the Granting of the Writ.

3. Whether the designation of the northern portion of Lake

County, Indiana as an area which had failed to attain the

National Ambient Air Quality Standards for sulfur dioxide as

of August 7, 1977, was arbitrary and capricious where such

designation was based upon recorded violations of the standards

at only one monitoring station and no air quality modeling had

been performed using current emission levels of sulfur dioxide.

STATEMENT OF THE CASE.

The action below arose by a petition to review an order of

the Administrator, USEPA, promulgated pursuant to Section

107(d) of the Clean Air Act, 42 U.S.C. § 7407(d). Jurisdic-

tion in the Court of Appeals was founded upon 42 U.S.C.

§$7607(b) which provides for judicial review of final actions

of the Administrator in the United States Couris of Appeal.

The 1977 Amendments to the Clean Air Act (P. L. 95-95,

91 Stat. 685 (August 7, 1977) ), in new § 107(d), 42 U.S.C.

§$ 7407(d) (Pet. App. pp. A46-A47) required USEPA to de-

termine those areas not in compliance with the National Am-

bient Air Quality Standards as of August 7, 1977.’ 42 U.S.C.

§ 7407(d)(1). Each State was to submit to USEPA, within

one hundred twenty days of the passage of the 1977 Amend-

ments, a list identifying the attainment status of all areas of the

State. The deadline was December 5, 1977. Pursuant to 42

U.S.C. § 7407(d)(2), the Administrator was to promulgate

each such list, within sixty days after submittal by the State,

“with such modifications as he deems necessary.” Pet. App. p.

A4?7.

Pursuant to these requirements, the Indiana Air Pollution

Control Division of the State Board of Health submitted a draft

copy of Indiana’s designations, indicating that a final version

would be transmitted by December 5, 1977. Pet. App. p. A3.

The designations as submitted listed the northern portion of

Lake County, Indiana as a nonattainment area for sulfur di-

oxide. Pet. App. p. A4. Petitioner U.S. Steel operates a fully

integrated steel mill, known as its Gary Works, located in Gary,

1. The background of events leading to the adoption of this

provision is discussed in Part I of the opinion below, Pet. App. pp.

A1-A4. It is also discussed in the opinions of the Third and Fifth

Circuits which are reproduced at Pet. App. pp. A75-A84, and A85-

A101 respectively.

aaa eam acta a i nas ee ei, fi

Lake County, Indiana. Petitioner Youngstown Sheet and Tube

Company operates a fully integrated steel mill, known as its

Indiana Harbor Works, located in East Chicago, Lake County,

Indiana. Both sources are located in the designated nonattain-

ment area and necessarily emit sulfur dioxide in the process of

producing steel.

On March 3, 1978, one month late, USEPA promulgated the

designations of nonattainment for all areas of the country. 43

Fed. Reg. 8962. Pet. App. pp. A21-A33. This promulgation

designated the northern portion of Lake County, Indiana, as

nonattainment for sulfur dioxide. Pet. App. p. A32. The promul-

gation of March 3, 1978 was not one of proposed rulemaking.

Rather, USEPA made the designations immediately applicable

and effective, and solicited public comment by May 2, 1978.

Pet. App. p. A21.

The effect of this action was twofold. First, it required the

State to amend its implementation plan for sulfur dioxide in

Lake County on a very tight schedule or face the potential loss

of federal funds (42 U.S.C. § 7506) and a ban on construc-

tion of new sources in the area. (42 U.S.C. § 7410(a) (2)

(1)). Second, it required that the USEPA “offset” policy (42

U. S.C. § 7502, n.) would be applied to new construction or

modification of emission sources in the area.

USEPA justified its admitted failure to comply with the

statutory requirements of 5 U. S. C. § 553 on the basis of “good

cause.” The “good cause” expressed in support of dispensing

with notice of proposed rulemaking and prior opportunity for

public comment was stated to be the need for immediate guid-

ance to the States in their preparation of revisions to their im-

plementation plans, and the tight statutory schedule. 3 Fed.

Reg. at 8962, Pet. App. p. A23.

On May 1, 1978, U.S. Steel and Youngstown filed their

separate Petitions for Review of this Order in the Court of Ap-

peals below. On October 5, 1978, USEPA republished the at-

tainment status designaticn at issue with one minor change not

relevant to the proceedings below. 43 Fed. Reg. 45995, Pet.

App. pp. A34-A42.

During the course of the appeal below, USEPA filed two

separate motions to consolidate the appeals of U.S. Steel and

Youngstown Sheet & Tube. Both were cenied. Nevertheless,

when the separate appeals were set for oral argument, the court

below, sua sponte, consolidated the appeals for purposes of oral

argument.

On August 1, 1979 the Court of Appeals issued its consoli-

dated opinion (Pet. App. p. 1) affirming the Order of USEPA

at issue on three grounds. First, the court held that the agency

had “good cause” to dispense with notice of proposed rulemaking

and opportunity for prior public comment under 5 U.S.C.

§§ 553(b)(B) and 553(d) (3). Second, the court held that it

was precluded from reversing the agency decision by reason of

the provisions of 42 U.S.C. § 7607(d)(9) which section

“limits the circumstances in which rules promulgated by the

EPA may be reversed for procedural errors.” Pet. App. p. A5.

Finally, as to the substantive issue the court held that the Order

at issue was not arbitrary and capriciovs.

It is important to note that the issue of the applicability of

42 U.S.C. § 7607(d) was neither briefed nor argued before

the court below. No questions from the bench during the course

of oral argument raised this issue. The issue therefore arose for

the first time as a result of the holding in the opinion below.

Petitioners did not file a motion for rehearing en banc below.

Regarding the sua sponte application of 42 U.S.C. § 7607(d)

(9), the court below, in footnote 14 to its opinion, (Pet. App.

p. Al5), noted the direct conflict between its decision and those

of the Courts of Appeal for the Third and Fifth Circuits, and

referred the reader back to footnote 11, the last sentence of

which stated that the opinion “has been circulated among all

judges of this Court in regular service. A majority did not favor

a rehearing en banc on the question of this difference among

circuits.”

REASONS FOR GRANTING THE WRIT.

THE DECISION OF THE COURT BELOW IS IN DIRECT

CONFLICT WITH DECISIONS RENDERED UPON IDEN-

TICAL FACTS BY THE UNITED STATES COURTS OF AP-

PEAL FOR THE THIRD AND FIFTH CIRCUITS.

As noted above, the USEPA promulgation on March 3, 1978

at 43 Fed. Reg. 8962, Pet. App. p. A21 contained attainment

status designations for all areas of the country. Numerous appeals

in various circuits arose as a result of these designations (See,

e.g. footnote 13 to the opinion below, Pet. App. p. Al5). A

common issue was the validity, under the Administrative Pro-

cedure Act (“APA”), of USEPA’s action in dispensing with

the requirements of notice of proposed rulemaking and oppor-

tunity for pre-promulgation public comment required under 5

U. S. C. $$ 553(b) and 553(c).

On April 25, 1979, in the consolidated cases of Sharon Steel

Corporation V. Environmental Protection Agency and Bethlehem

Steel Corporation vy. Environmental Protection Agency, 597

F. 2d 377 (Pet. App. p. A75), the United States Court of Ap-

peals for the Third Circuit entered an opinion reversing USEPA’s

promulgation insofar as it designated certain areas in Penn-

sylvania as nonattainment for particulate matter, and remanding

the proceedings, holding that USEPA’s action in dispensing with

notice of proposed rulemaking and opportunity for public com-

ment was in violation of 5 U. S. C. § 553 in that the agency’s

statement of “good cause” was insufficient under 5 U. S. C.

$$ 553(b)(B) or (d)(3). Thereafter, on May 3, 1979, in the

consolidated cases of United States Steel Corporation v. United

States Environmental Protection Agency and Republic Steel

Corporation Vy. Environmental Protection Agency, 595 F.2d

207 (Pet. App. p. A85), the United States Court of Appeals

for the Fifth Circuit also reversed and remanded USEPA’s non-

attainment designations, relating to certain areas in Alabama,

for failure to comply with the APA requirements for notice of

proposed rulemaking and opportunity for pre-promulgation pub-

lic comment. In both cases, the courts declined to determine the

substantive issues because of the remand on the procedural issue,

and thus the specific facts of each case never reached con-

sideration, Because the facts giving rise to the procedural issues

were identical in each case, the decision of the Seventh Circuit

is in direct conflict with those of the Third and Fifth Circuits.

The decision of the Seventh Circuit conflicts in principle with

those of the Third and Fifth circuits in another important aspect.

In the 1977 Amendments to the Clean Air Act, Congress added

a new subsection (d) to Section 307. 42 U. S. C. § 7607(d),

Pet. App. p. A46. This subsection sets forth provisions for ad-

ministrative procedure and judicial review which are designed to

be a substitute for the APA. See, 42 U. S. C. § 7607(d) (1) (N).

Among these are provisions which require that all procedural

objections be raised before the Agency (§ 7607(d)(7)(B)) and

the requirement of the last sentence of § 7607(d)(8) which

states that procedural errors, to be a ground for reversal, must be

“so serious . . . that there is a substantial likelihood that the rule

would have been significantly changed if such errors had not

been made.” Pet. App. p. A73. Both of these requirements are

incorporated into § 7607(d)(9) as prerequisites for reversal

of any agency action based upon procedural defects.

However, the applicability of the procedural requirements

and limitations of § 7607(d) is limited to those actions of

USEPA specifically enumerated in § 7607(d) (1) (A)-(N). The

promulgation of the designation at issue is not one of them. In-

deed, pursuant to the first clause of § 7607(d)(1)(N), the

Administrator could have made § 7607(d) applicable, but did

not do so. Nevertheless, the court below held, sua sponte, that

the limitations on review of procedural defects contained in

$ 7607(d)(9) were applicable to the Agency action under

review, Pet. App. p. Al4, noting that the contrary decisions

of the Third and Fifth Circuits neither mentioned nor applied

the special review provisions of § 7607(d)(9). Pet. App. p.

A15, fn. 14. This conflict itself warrants the grant of certiorari.

II.

THE CONFLICT AMONG THE CIRCUITS RAISES ISSUES

OF EXTREME AND IMMEDIATE IMPORTANCE TO ALL

PERSONS SUBJECT TO USEPA RULEMAKING.

It is essential, to assure the public generally and affected parties

a meaningful opportunity to participate in the rulemaking

process, for this Court to resolve the conflict between the cir-

cuits on the “good cause” issue.

In addition, the action of the Seventh Circuit in applying 42

U. S. C. § 7607(d)(9) to the proceedings below, if allowed

to stand, would render it impossible for persons who desire to

participate in rulemaking proceedings under the Clean Air Act

to know with certainty the rules which govern either the pro-

ceeding itself or any subsequent judicial review. It is now un-

clear, even under the Seventh Circuit’s decision, whether USEPA

rulemaking not enumerated under § 7607(d) (i) is governed by

(a) the APA, (b) § 7607(d) of the Clean Air Act, or (c) some

undetermined judicial hybrid of the two. However, if the opinion

of the Seventh Circuit stands, it is clear that different procedures

will apply in the Seventh Circuit than in the Third and Fifth

Circuits, and unclear as to what procedures will apply in the

remaining Circuits.

A. The Holding of the Seventh Circuit as to “Good Cause”

Renders the Administrative Procedure Act and the Ad-

ministrative Procedure Provisions of the Clean Air Act

Ineffective as Procedural Safeguards to USEPA Rule-

making.

The Seventh Circuit opinion held that USEPA had “good

cause” to dispense with notice and public comment because of

the tight statutory deadline imposed by the Clean Air Act,? and

the need for immediate guidance to the States in the preparation

of their revised Implementation Plans.* Pet. App. pp. A7-A9.

First, it should be noted that USEPA, by promulgating the

designation at issue on March 3, 1978 instead of February 3,

had already missed the statutory deadline by a month. The

urgency of the statutory deadline was largely self-inflicted since

Indiana had submitted its list on or about the statutorily re-

quired date. Pet. App. p. A3.

However, the holding presents an ominous portent when

viewed in the light of the Clean Air Act as a whole, and of

USEPA’s record thereunder. The Clean Air Act is replete with

tight statutory deadlines applicable to USEPA, and the 1977

Amendments did nothing to cure this problem. It is a matter

of public record that USEPA has had problems complying with

these deadlines. By way of example, the Agency's most recent

regulatory Agenda, published at 44 Fed. Reg. 33332-33342,

2. The Court apparently failed to consider the fact that USEPA

could have unilaterally extended this deadline. Under § 7607(d)

(1)(N), USEPA may make the provisions of § 7607(d) applicable

to such other actions “as the Administrator may determine.” In

regard to actions to which § 7607(d) applies, USEPA may also

extend any statutory deadline for promulgation of rules for up to

six months under § 7607(d)(10). Thus USEPA could have pub-

lished the Indiana designations as proposed rulemaking in December,

1977 or January, 1978 and extended the promulgation date to

provide for adequate review.

3. USEPA and, apparently, the court felt that the States would

benefit more by having the designations be immediately effective

subject to possible revision following a sixty day period of public

comment than by publishing the designations as proposed rulemaking

to be made final following a thirty day period of public comment.

Petitioners believe this is a distinction without a difference, a view

shared by the Circuit Courts for the Third and Fifth Circuits. Pet.

App. pp. A75, A85. Indeed, numerous changes were made follow-

ing the public comment period. Pet. App. p. A15, n. 13. Certainly,

little or no “immediate guidance” to the States resulted as to those

areas the designations of which were revised in October, 1978. Pet.

App. p. AlS.

June 8, 1979, sets forth numerous examples of Agency inability

to meet statutory deadlines.*

If the Agency is to be excused in the instant case from com-

plying with the APA requirements of notice and public comment

because of a tight statutory deadline, then it would appear that

virtually any rulemaking could be subject to the Agency’s dis-

pensing with notice and public comment for “good cause.” A

widespread use of the “good cause” exemption could effectively

eliminate public participation in USEPA rulemaking, not only

under the Clean Air Act, but also under at least nine other

statutes under which USEPA has rulemaking authority and which

contain statutory deadlines. See, 43 Fed. Reg. 56158, Novem-

ber 30, 1978.

Even in those situations where § 7607(d) clearly applies to

the rulemaking in question, the application of the “good cause”

4. Executive Order 12044, March 23, 1978, 43 Fed. Reg.

12661, 5 U.S.C. § 553, n., requires all agencies to adopt proce-

dures to improve regulations, including the publication, twice a

year, of a list of regulations in progress and their status. Pursuant

to this Order, USEPA publishes an “Agenda of Regulations.” The

Agenda itself does not set forth the applicable deadline. However,

reference to the sections of the Clean Air Act pursuant to which

the regulations are being adopted reveals numerous overdue regu-

lations. Some examples are:

a. Regulations regarding acceptable stack heights for credit

under State Implementation Plans were to have been promul-

gated by January 4, 1978. 42 U.S.C. § 7423. The anticipated

date is September, 1979. 44 Fed. Reg. 33334, June 8, 1979.

(The State Implementation Plan revisions were required to be

adopted by January 1, 1979. Pet. App. p. A7-A8)

b. The 1977 Amendments required USEPA to promulgate,

by August 7, 1978, a list of categories of major stationary

sources not yet controlled by New Source Performance Stand-

ards. 42 U.S.C. § 7411(f). As of the publication of the June

8, 1979 Agenda, this list was not expected to be promulgated

until June, 1979. 44 Fed. Reg. at 33334.

c. The 1977 Amendments required USEPA to promulgate,

by January 4, 1978, regulations establishing a noncompliance

penalty program. 42 U.S.C. § 7420. These regulations were

anticipated to have been promulgated in July, 1979. 44 Fed.

Reg. 33334, June 8, 1979.

(Footnote continued on next page.)

a aa

exception would defeat the procedural safeguards in § 7607(d).

Section 7607(d)(1)(N) states that subsection (d) of § 7607

“shall not apply in the case of any rule or circumstance referred

to in paragraphs (A) or (B) of subsection 553(b) of title 5 of

the United States Code.” 5 U. S. C. § 553(b)(B) sets forth

one of the “good cause” exceptions relied upon by USEPA

below and upheld by the court. Thus, in situations in which

USEPA finds “good cause” to dispense with notice and public

comment under 5 U. S. C. § 553(b)(B), neither the APA nor

§ 7607(d) of the Clean Air Act would apply.

The conflict created by the decision below and the decisions

of the Third and Fifth Circuits presents an issue which will have

an enormous impact on the administration of the Clean Air Act.

It impacts the public, the Agency, those who are subject to its

rulemaking, and the courts charged with reviewing its deter-

minations.

B. The Decision of the Seventh Circuit Regarding the Ap-

plicability of 42 U.S.C. § 7607(d)(9) Causes Uncer-

tainty in Pending and Future USEPA Rulemaking and

Raises the Question of Whether the Administrative Proce-

dure Act Applies to Any USEPA Rulemaking.

The decision of the Court below applied the limitations of

§ 7607(d)(9) without stating whether the basic procedural

requirements of § 7607(d) also apply.

A careful review of § 7607(d) makes it clear that Congress

intended that section to provide for a comprehensive set of

procedural safeguards governing those rulemaking functions to

which it applies. The procedural requirements set forth therein

are much more detailed than those found in the APA. Section

(Footnote continued from preceding page.)

d. Regulations regarding State/local consultation were re-

quired to be promulgated by January 4, 1979. 42 U.S.C.

§ 7421. The anticipated date was June, 1979. 44 Fed. Reg.

33334, June 8, 1979.

7607(d) imposes more procedural duties upon the Agency

than does the APA. Conversely, it requires the public and

affected parties to be more diligent in the particularity of their

comments. Viewed within this context, the limitations on the

scope of judicial review of procedural defects found in

§$ 7607(d)(9) make sense. There are many procedural re-

quirements in § 7607(d) which will be unlikely to substantially

affect the substantive merit of the rulemaking involved.

In contrast, the only procedural requirements in 5 U. S. C.

$ 553 are those relating to notice of proposed rulemaking and

opportunity for a public comment period of at least thirty days.

The limitations on the scope of judicial review of procedural

defects in § 7607(d)(9) simply do not make sense when

applied to proceedings under the APA.

Despite this, the court below, while recognizing that the rule-

making at issue was not one of those enumerated in § 7607

(d)(1), held that the limitations on judicial review of pro-

cedural errors in § 7607(d)(9) applied “to all rulemaking by

the EPA whether or not it is in the explicit categories covered

by .. . section 7607(d).” Pet. App. p. Al4. The court so held,

without addressing the bulk of the § 7607(d) requirements and

despite the introductory clause of § 7607(d)(9) which speci-

fically limits the applicability of that subsection to actions of

USEPA to which § 7607(d) applies. Pet. App. p. A73.

The decision below therefore either unmistakably amends

the standard of review found in the APA at 5 U.S.C.

§ 706(2)(D), (Pet. App. p. A45) or requires that § 7607(d)

be followed in all rulemaking. It would amend the APA by

engrafting upon that standard the limitations on judicial review

of procedural errors set forth in the Clean Air Act at 42

U.S.C. § 7607(d)(9). If this decision stands, the public is

now faced with two Administrative Procedure Acts: one ap-

plicable to USEPA and a separate version applicable to all

other agencies. The distinction is meaningful. While petitioners

are cognizant of case law under the APA to the effect that

procedural defects which constitute “harmless error” do not

call for a remand in all cases, the difference in proof required

to show that an error was “harmful” and that required to

show that an error was “so serious and related to matters of

such central relevance to the rule that there is a substantial

likelihood that the rule would have been significantly changed

if such errors had not been made” (42 U.S.C. § 7607(d) (8) )

is most significant. In addition, petitioners are aware of no

requirement under the APA that all procedural objections must

be raised below with reasonable specificit, in order to be pre-

served on appeal, as is required under § 7607(d)(7)(B).

These questions are far from academic. USEPA is pres-

ently reviewing the revised implementation plans submitted

by the States under the 1977 Amendments. Pursuant to 42

U.S.C. § 7410, USEPA may either approve or disapprove

these revisions. The approval or disapproval of a State sub-

mitted implementation plan by USEPA is a rulemaking func-

tion not enumerated in § 7607(d)(1) and thus not subject to

the procedures of § 7607(d). Such approval or disapproval is,

however, directly appealable to the Circuit Court of Appeals

under 42 U. S.C. § 7607(b). Thus it is critical that the proper

procedures to be followed before the agency and the applicable

standard of judicial review be known.

Under 5 U.S.C. § 553(b), USEPA should soon be pub-

lishing notice of proposed rulemaking with regard to these plans

which will trigger a public comment period of not less than

thirty days. 5 U. S.C. § 553(c) and (d). In the case of Indiana,

USEPA, on August 14, 1979 at 44 Fed. Reg. 47559, published

Notice of Receipt of the State’s revisions to its plan, which

notice promised that notice of proposed rulemaking and an op-

portunity for public comment would be forthcoming at a later

date. Similar procedures will be followed regarding other States.

Petitioners, and all other persons who will be subject to these

revised plans, as well as the States and the interested public,

should be able to ascertain what rules will govern their submis-

sion of comments. It is not enough to say that such is governed

by the APA. Because of the existing conflict, that means some-

thing different to persons living in Pennsylvania and Alabama

than it does to someone in Indiana. Petitioner U. S. Steei oper-

ates plants in the Third, Fifth and Seventh Circuits. Petitioner

Youngstown, and its parent company, Jones & Laughlin Steel

Company, operate plants ‘n the Third and Seventh Circuits. The

present conflict would require them, and others similarly situated,

to operate under conflicting rules in what will be essentially

identical procedural contexts. Petitioners also operate facilities

in other circuits, including the Sixth, Eighth and Tenth. Persons

in those circuits have no guidance at all as to which procedural

rules will apply.

This issue, of course, goes beyond the USEPA’s rulemaking

regarding approval or disapproval of the revisions to the State

plans. Numerous rulemaking efforts required of USEPA are

omitted from the enumeration in § 7607(d). The conflicting

precedura] rules created by the Seventh Circuit decision below

could cause chaos in rulemaking proceedings for years to come

unless it is resolved expeditiously.

It is crucial to both USEPA and all who appear before it

that there be a clear understanding of the governing rules. Cer-

tain important questions need answering. Is § 7607(d)(9) to

be applied to rulemaking not enumerated in § 7607(d)(1)? If

so are all the other procedural requirements of § 7607(d) to be

applied so that § 7607(d) (9) is not applied out of context? Will

USEPA be required to keep a docket, provide for oral presenta-

tion and transcripts, and hold the record open for thirty days

after completion of the comment period (§ 7607(d)(5)) or

be required to reopen the proceedings for comments on pro-

cedural defects which were not discoverable or did not arise

until after the close of the public comment period (§ 7607

(d)(7)(B))? Would the provisions of § 7607(d)(10) which

permit USEPA, under certain conditions, to unilaterally extend

statutory deadlines for rulemaking, be applicable to proceedings

otherwise governed by the APA?

Petitioners strongly urge that the issue raised by the action

of the Seventh Circuit in lifting § 7607(d) (9) out of context and

applying it in such a way as to judicially amend the APA is

one of national importance in the future administration of the

Clean Air Act and deserves the attention of this Court.

III.

THE DECISION OF THE COURT OF APPEALS FOR THE

SEVENTH CIRCUIT BELOW WAS CLEARLY ERRONEOUS.

Petitioners’ procedural challenges below were rejected on two

grounds. First the court felt that USEPA had demonstrated

“good cause” to dispense with notice of proposed rulemaking

and prior public comment. Second, the court held that even in

the absence of a sufficient showing of good cause, Congress in-

tended the limitations on review of procedural errors in 42

U. S. C. § 7607(d) (9) “to extend to all rulemaking by the EPA

whether or not it is in the explicit categories covered by all the

provisions of section 7607(d).” Pet. App. p. Al4.

The invocation of the “good cause” exemption in this case

not only was not justified, but also caused counter-productive

results. The list submitted to USEPA by Indiana was sent on or

about December 5, 1977 (Pet. App. p. A3), the statutory dead-

line. The USEPA promulgation was not published until March

3, 1978. Pet. App. p. A21. Despite the statement that the desig-

nations were immediately effective, EPA also stated that it was

“soliciting comments for 60 days and will publish revised desig-

nations as appropriate.” Pet. App. p. A21. It is difficult to con-

ceive of how this procedure could aid in meeting the statutory

deadline, which had passed a month prior to promulgation, or

in giving to the States “immediate guidance as to the attainment

status of the areas designated under section 107(d).” Pet. App.

p. A23. All this told the States was that the designations were

final for the time being. All of them were subject to revision

following review of the public comments, and indeed a number

were revised. Pet. App. p. A15, n. 13. There was therefore ab-

solutely no “immediate guidance” gained by use of this proce-

dure that would not have also been obtained had USEPA earlier

published the designations as proposed rulemaking and made

them final following the minimum 30 days public comment

period required under 5 U.S.C. § 553(d). Pet. App. p. A44.

Nothing was gained toward the “legislative requirements of

expeditious promulgation.” Pet. App. p. A9. What was lost was

the right of interested persons to make their views known to

the Agency prior to final rulemaking. Courts have historically

been suspicious of attempts to provide for public comment only

after interested parties are faced with a fait accompli. See, City

of New York vy. Diamond, 379 F.Supp. 503 (S.D.N. Y.

1974); Kelly v. Department of Labor, 339 F. Supp. 1095 (E. D.

Cal. 1972).

Even more puzzling is the Seventh Circuit's application of

42 U.S.C. § 7607(d)(9). As discussed early, that subsection

was adopted as merely one part of the overall scheme of ad-

ministrative procedure set forth in § 7607(d). Nevertheless, if

the opinion below stands, § 7607(d)(9) is applicable to all

USEPA rulemaking under the Clean Air Act, despite the fact

that by its own terms, it is not. The promulgation of the desig-

nations at issue under § 7407(d) is not one of the actions to

which § 7607(d) is applicable, and USEPA did not choose it

to be applicable under § 7607(d)(1)(N). Had Congress

wished to make § 7607(d)(9) applicable to all USEPA rule-

making, it could have easily done so.

The court below ignored the plain language of the statute

and relied on legislative history which indicated that Congress,

in adopting § 7607(d) (9), intended to prevent rulemaking from

“bogging down” in procedural arguments. Pet. App. p. Al3.

However, those Congressional concerns were expressed in rela-

tion to the procedures required under § 7607(d), which as

discussed previously, are much more detailed and demanding

than the procedural requirements of the APA. Congress was

thus explaining the inclusion of § 7607(d)(9) in § 7607(d).

It was not considering the modification of the APA by § 7607

(d) (9).

The clearly erroneous nature of the decision below warrants

the grant of certiorari.

CONCLUSION.

This case presents issues clearly worthy of the Court’s imme-

diate consideration. Both the conflict between the circuits and

the importance of the issues to future proceedings under the

Clean Air Act support the need for prompt resolution. The

alternative is procedural confusion which can give rise to need-

less litigation and delay in achieving the goals of the Clean Air

Act. Petitioners therefore respectfully urge the Court to grant

certiorari.

Respectfully submitted,

JAY A. LIPE,

JAMES T. HARRINGTON,

LAURENCE A. MCHUGH,

DixiE L. LASWELL,

Rooks, PITTs, FULAGAR AND

PoustT,

430 West Randolph Street,

Chicago, Illinois 60606,

312/372-5600,

Attorneys for Petitioners.

APPENDIX.

IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Nos. 78-1563 and 78-1564

UNITED STATES STEEL CORPORATION, and YOUNGSTOWN SHEET

AND TUBE COMPANY,

Petitioners,

VS.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

Petitions for Review of an Order from the

United States Environmental Protection Agency

ARGUED APRIL 18, 1979—Decided AuGusT 1, 1979

Before CASTLE, Senior Circuit Judge, CUMMINGS and

SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge. This case arises from the Environ-

mental Protection Agency’s promulgation of a list designating

those areas which do not meet national primary or secondary

ambient air quality standards. The petitioners attack these

designations on both substantive and procedural grounds.

We find both claims to be without merit, and we uphold the

agency’s designations.

Under the Clean Air Act, 42 U.S.C. § 7401-7626, the

Administrator of the EPA was required to promulgate national

primary and secondary ambient air quality standards. 42

U.S.C. § 7409(a). The Administrator has promulgated these

standards and they are codified at 40 C.F.R. § 50.1-50.11

(1978). After these standards were established, the states had a

statutory responsibility to develop implementation plans to

achieve these standards, See 42 U.S.C. § 7410. The Act re-

quired the state plans to provide for the attainment of these

standards no later than 1975. However, in 1977 it became clear

that these standards had not yet been achieved. Accordingly,

Congress amended the Act to restructure the scheme for attain-

ing these standards. Clean Air Act Amendments of 1977,

P. L. 95-95, 91 Stat. 685 (August 7, 1977). These amendments

pushed the primary standard compliance deadline forward to

1982. 42 U.S.C. § 7502(a)(1). Further, to insure that this

deadline would be met, Congress established a new implementa-

tion process. This implementation process was to begin with a

combined state and federal effort for the designation of those

areas not in compliance with air quality standards. 42 U.S.C.

§ 7407(d)(1).1 The designation of an area as “nonattainment”

1. The text of the provision is set out below:

List of noncomplying regions

(d)(1) For the purpose of transportation control planning, part D

of this subchapter (relating to nonattainment), part C of this sub-

chapter (relating to prevention of significant deterioration of air

quality), and for other purposes, each State, within one hundred and

twenty days after August 7, 1977, shall submit to the Administrator

a list, together with a summary of the available information, identify-

ing those air quality control regions, or portions thereof, established

pursuant to this section in such State which on August 7, 1977—

(A) do not meet a national primary ambient air quality

standard for any air pollutant other than sulfur dioxide or

particulate matter;

(B) Gv not meet, or in the judgment of the State may not in

the time period required by an applicable implementation plan

(Footnote continued on next page.)

imposes upon the state the obligation to include certain more

stringent provisions in its implementation plan. 42 U.S.C.

§ 7502.

Under the scheme established by § 7407(d)(1), the states

were required to submit to the EPA, within one hundred and

twenty days after the passage of the Act, a list identifying the

attainment status of all air quality control regions within the

state. Pursuant to this requirement, Harry D. Williams, director

of the Air Pollution Control Division of the Indiana State Board

of Health submitted a draft copy of the state of Indiana’s desig-

nations, indicating that a final copy would be sent on December

5, 1977, the statutory deadline. The final report designated por-

(Footnote continued from preceding page.)

attain or maintain, any national primary ambient air quality

standard for sulfur dioxide or particulate matter;

standard;

(D) cannot be classified under subparagraph (B) or (C) of

this paragraph on the basis of available information, for ambient

air quality levels for sulfur oxides or particulate matter; or

(E) have ambient air quality levels better than any national

primary or secondary air quality standard other than for sulfur

dioxide or particulate matter, or for which there is not sufficient

data to be classified under subparagraph (A) or (C) of this

paragraph.

(2) Not later than sixty days after submittal of the list under

paragraph (1) of this subsection the Administrator shall promulgate

each such list with such modifications as he deems necessary. When-

ever the Administrator proposes to modify a list submitted by a

State, he shall notify the State and request all available data relating

to such region or portion, and provide such State with an oppor-

tunity to demonstrate why any proposed modification is inappropriate.

(4) Any region or portion thereof which is not classified under

subparagraph (B) or (C) of paragraph (1) of this subsection for

sulfur dioxide or particulate matter within one hundred and eighty

days after August 7, 1977, shall be deemed to be a region classified

under subparagraph (D) of paragraph (1) of this subsection.

(5) A State may from time to time review, and as appropriate

revise and resubmit, the list required under this subsection. The

Administrator shall consider and promulgate such revised list in

accordance with this subsection

tions of Northern Indiana in which petitioners operate steel

works as nonattainment areas.

The EPA published its list of attainment designations, based

on the state's submissions, on March 3, 1978. 43 Fed. Reg.

8962.° This list accepted the state of Indiana's designation of

cerain portions of Northern Indiana as “nonattainment.” Fur-

thermore, the EPA indicated that although these designations

were to be immediately effective, it was soliciting comments on

these designations for 60 days. Comments were submitted by the

petitioners in this case and by other interested parties, and on

October 5, 1978, the EPA reaffirmed its designation of certain

portions of Northern Indiana as nonattainment, although it did

make alterations in designations with respect to other areas.

43 Fed. Reg. 46007.

Petitioners contend that the EPA’s promulgation of these

attainment designations violated the procedural requirements of

5 U.S.C. § 553 by not providing for notice and comment prior

to the effective dates of the designations.* We reject this conten-

2. The statutory deadline for promulgating these designations

was February 3, 1978. As mentioned later in the text, infra p. 9, this

failure to meet the deadline may have been due in part to late

submissions by states.

3. The threshold issue posed by this contention—viz., that the

designations constituted rulemaking—is not without difficulty, despite

the Fifth Circuit’s unanalyzed assertion that “the designations clearly

come within the broad statutory definition.” United States Steel Corp.

v. EPA, No. 78-1922, at 7-8 (Sth Cir., May 3, 1979). The Adminis-

trative Procedure Act defines a “rule” as “an agency statement of

general or particular applicability and future effect designed to

implement, interpret, or prescribe law or policy ... .” 5 U.S.C.

§ 551(4). Although the words “or particular applicability” perplex-

ingly appear to expand this definition beyond useful perimeters, the

legislative history demonstrates that these words were added late in

the consideration of the act to prevent legislative-type promulgations

from falling outside the definition of “rule” when they were directed

to “named persons.” S. Rep. No. 248, 79th Cong. 2d Sess. 283

n.1 (1946); K. Davis, Administrative Law Treatise § 5.02, at

295-96 (1958). Thus, where a general statement of policy is directed

to a group of multiple, but specified, parties, the statement is a rule.

(Footnote continued on next page.)

tion on two grounds. First, we hold that the agency had “good

cause” to postpone the proceeding within the meaning of section

5§53’s specific exemption. Second, we find that even if the

agency lacked “good cause” within the terms of section 553, we

are precluded from reversing by the Clean Air Act. The Act

limits the circumstances in which rules promulgated by the

EPA may be reversed for procedurai errors.

Section 553(d) of the Administrative Procedure Act contains

two “good cause” exceptions. The first, section 553(b)(B)

provides that notice of, and public comment on, agency rules

may be dispensed with “when the agency for good cause finds

_.. that notice and public procedure thereon are impracticable,

unnecessary or contrary to the public interest.” The second,

section 553(d) (3), provides that “[t]he required publication or

service of a substantive rule shall be made not less than 30

days before its effective date except . . . (3) as otherwise

provided by the agency for good cause found and published with

the rule.” Accordingly, in a case such as the one before us

where a regulation is made effective before notice and comment,

the agency could rely on either “good cause” provision. Thus,

the EPA made its attainment designations immediately effective,

stating:

The States are now preparing revisions to their State

implementation plans (SIPs) as required by sections 110

(a)(2)(1) and 172 of the Act. This enterprise, which

(Footnote continued from preceding page. ) .

However, a designation, such as the one in this case, that applies

solely to a specific, delimited situation is an entirely different matter.

Indeed, the EPA’s designation of areas as nonattainment Is directly

analogous to the Secretary of Transportation’s designation of areas

in public parks as necessary routes for the construction of highways,

a sae which the Supreme Court termed as “plainly not an

exercise of a rulemaking function.” Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 414 (1971). Under this theory, the

agency’s designation of attainment areas would not be subject to the

requirements of section 553. Since the agency, however, has termed

these designations as rules, we need not reach this issue.

must be completed by January 1, 1979, requires that the

States have immediate guidance as to the attainment status

of the areas designated under section 107(d). Congress

has acknowledged this by imposing a tight schedule on the

designation process and requiring EPA to promulgate the

list within 180 days of the enactment of the amendments.

Under these circumstances it would be impracticable and

contrary to the public interest to ignore the statutory sched-

ule and postpone publishing these regulations until notice

and comment can be effectuated. For this good cause, the

Administrator has made these designations immediately

effective.

The agency's statement of “good cause” does not reveal on

which of the two provisions the agency was relying. Although at

least two commentators have suggested that the two provisions

provide the same standard of good cause,‘ we believe that the

standards are distinct and that the agency action, while justifiable

under the (b)(B) standard, is unquestionably justifiable under

the broader standard set out by (d) (3).

Turning first to whether the agency action here was justified

under the narrower (b)(B) standard, we find that such justifica-

tion existed under the impracticability standard embodied in the

statutory language of the first good cause exception. The legis-

lative history of this impracticability standard reveals that

Congress intended this exemption to operate when the regular

course of rulemaking procedure would interfere with the

agency’s ability to perform its functions within time constraints

imposed by Congress. Early versions of this provision allowed

public participation to be dropped where it was “impracticable

because of unavoidable lack of time or other emergency.”

S. Doc. No. 248, 79th Cong., 2d Sess. 140, 148, 157 (1946).

The exception was broadened by the elimination of this quali-

fying language. The Senate and House Reports interpreted

“impracticable” in this broader formulation as a situation “in

4. See K. Davis, Administrative Law of the Seventies § 6.01-11

at 207 (1976); Bonfield, Public Participation in Federal Rulemaking

Relating to Public Property, Loans, Grants, Benefits, or Contracts,

118 U. Pa. L. Rev. 540, 599-600 (1970).

—

which the due and required execution of the agency functions

would be prevented by its undertaking public rule-making

proceedings.” Jd. at 200, 258.

Two other courts have agreed that the “good cause” exception

may be utilized to comply with the rigors of a tight statutory

schedule. In Clay Broadcasting Corp. v. United States, 464 F. 2d

1313 (Sth Cir. 1972), rev’d on other grounds sub nom.

National Cable Television Assn., Inc. v. United States, 415 U. S.

336 (1974), the court held that the FCC had good cause to

dispense with rulemaking before altering a license fee schedule

since

(1) wide-spread notice in fact would be provided affected

parties; (2) a first of the month effective date was re-

quired for administrative pro-ration of yearly fees; and

(3) that in accordance with Congressional directives the

Commission wanted the fee schedule to cover as much of

fiscal 1971 as reasonably possible.

Id. at 1320. Likewise, in Energy Reserves Group v. FEA, 447

F. Supp. 1135 (D. Kan. 1978), the Court found that promul-

gation without rulemaking proceedings of regulations defin-

ing a congressional exemption to its oil price control scheme

was justified under the “good cause” exemption. Congress

required these regulations to be promulgated in 15 days, leading

the court to find “good cause” to rely on “the legislative require-

ment of expeditious promulgation.” Jd. at 1150...

The legislative scheme involved in this case also confronted

the EPA with a series of tight statutory deadlines. The EPA was

give: 60 days after the date on which states were required to »

provide lists of nonattainment areas to promulgate final desig-

nations of nonattainment areas. 42 U.S.C. § 7407(d)(2).

More importantly, the states were required to have promul-

gated implementation plans for designated nonattainment areas

by January 1, 1979. 42 U.S.C. § 7502 (annotation) [Pub.

L. 85-85, § 129(c)]. These plans are to provide for attainment

in these areas “as expeditiously as practicable . . . [but] not

later than December 31; 1982.” 42 U.S.C. § 7502(a)(1).

Furthermore, the development of these plans is a time-consuming

process, requiring formal involvement by the public, local gov-

ernments and state legislative bodies as well as the redevelop-

ment of current emissions inventories. /d. at § 7502(b). These

deadlines were a response to the failure of the states to meet

prior attainment deadlines and represent Congressional concern

over the seriously adverse health consequences of continued

nonattainment.® H. Rep. No. 294, 95th Cong., Ist Sess. 207-211

5. Ironically, much of the Congressional concern over delays in

meeting ambient air quality standards was directed at the failure of

the petitioners in this case to reach compliance. The only specific

example of nonattainment given by the House Report was contained

in the following passage:

The committee is also mindful of the fact that several

categories of major polluters have not complied with emissions

limits in nonattainment areas. The 1975 subcommittee hearings

reflect this disturbingly high incidence of non-compliance. In

particular, the following testimony is of great concern:

Mr. Rogers: Let’s see, we have had the law 5 years

now. Could you tell me company by company, how many

of your plants are in compliance presently and how many

are not?

Mr. Armour [Interlake, Inc.]: I think we have to define

in compliance with what.

Mr. Rogers: The Clean Air Act?

Mr. Armour: We do not have any in compliance.

Mr. Anderson [Bethlehem Steel Corp.]: None.

Mr. Jaicks [Inland Steel Co.]: None.

Mr. Mallick [U. S. Steel Co.]: None.

Mr. Tucker [National Steel Corp.]: We have no plants

in compliance.

Mr. Jaicks: It sounds terrible. But these are hard value

money expenditures.

H. Rep. No. 294, 95th Cong., Ist Sess. 210-11 (1977). Given that

the strict deadlines were intended to force compliance by U. S. Steel

and others, we are hesitant to allow U.S. Steel to again delay

compliance through its procedural challenges. We note that if we

were to remand in this case, the entire deadline scheme would be

thrown into complete disarray. State Implementation Plans, which

were scheduled to be (and presumably were) formulated by January

1, would have to be further delayed while the EPA proceeded with

yet another notice and comment period, and after promulgation of

those designations states would have to repeat the hearing-consulta-

(Footnote continued on next page.)

PP ON REISS IOP

(1977). Thus, the EPA was properly concerned that these

explicit deadlines be met. This concern was magnified by the

fact that some states, such as Wisconsin, were almost 2 months

late in submitting their proposed designations. See Oscar Mayer

Co. v. Costle, No, 78-1548 (7th Cir. 1978) (decided with this

case). Since some of these designations had to be rejected by

the EPA,° more time was required between the state submission

and EPA publication. Adding one month for comment and four

months to review and respond to these comments,’ compliance

with notice and comment procedures would have delayed

promulgation by five months or more, leaving the states with

less than 6 months to formulate implementation plans. Thus,

given the “legislative requirement of expeditious promulgation,”®

(Footnote continued from preceding page.)

tion process in order to resubmit implementation plans. In the Fifth

Circuit’s remand of the rulemaking now before us, the court delayed

the state deadline until nine months after the second “final” promul-

gation. This, of course, would (given four months to receive and

evaluate comments) throw off the statutory scheme by almost two

years. See United States Steel Corp. v. EPA, No. 78-1922 (Sth Cir.,

May 3, 1979). Thus, remand in this case would permit U. S. Steel to

continue the very procrastination which Congress sought to end.

6. For example, the state of Wisconsin’s designation of Madison

had to be altered. See Oscar Mayer Co. Vv. Costle, No. 78-1548 (7th

Cir. 1978) (decided with this case).

7. This is the time that it actually took the EPA to review these

comments. The Third Circuit in its computation of the time that

pre-promulgation notice and comment would have required in this

case allowed the EPA only ninety days to evaluate. Sharon Steel

Corp. v. EPA, No. 78-1522 (3d Cir., April 25, 1979). We see no

reason to adopt this apparent presumption that the EPA was dilatory

or inefficient in reviewing the comments. As discussed further in

note 14 infra, we believe that the Third Circuit ignored applicable

law in its remand of the designations at issue in this case. and we

have declined to adopt its reasoning or its result. See also note

11 infra.

8. Other cases finding that the agency had sufficient opportunity

to meet deadlines and still supply prior comment opportunity are

distinguishable in that they involved much longer time periods than

the instant case. In American Iron & Steel Institute v. EPA, 568

F. 2d 284 (3d Cir. 1977), the EPA knew of its duty to promulgate

regulations three years before the deadline. Likewise in Consumer

(Footnote continued on next page.)

Al0

the need for the states to begin promptly their own planning

process,® and the continuing adverse impact on health that any

further delays would entail,’® we hold that the administrator

(Footnote continued from preceding page.)

Union of U.S., Inc. v. Sawhill, 393 F. Supp. 639 (D. D.C.), aff'd,

523 F.2d 1404 (Emer. Ct. App. 1975) there was more than one

year between passage of the act and the final deadline.

9. The need to supply information promptly to facilitate planning

has been recognized by Congress as creating “good cause.” A House

Oversight Committee approved the Department of Agriculture’s use

of the exception to make last-minute changes in acreage allotments

and marketing quota regulations without prior comment in order to

facilitate farmers’ planting decisions. Staff of House Comm. on

Gov’t Operations, 85th Cong., Ist Sess., survey and study of Adminis-

trative Organizations, Procedure and Practice in the Federal Agen-

cies 26-27 (Comm. Print 1957), as cited in Bonfield, supra note 3,

at 595.

10. The magnitude of this impact was set out in the most

compelling terms by the House Report on the amendments:

In one of these studies, the National Environmental Research

Center (1974) evaluated the potential public health effects of

increased emissions of sulfur oxides from steam electric power-

plants, attributable largely to increased use of coal in the

absence of sulfur oxide stack gas cleaning. Excess mortality and

illness rates were calculated by obtaining a damage function for

each of five health effects associated with sulfur oxide exposure.

Damage functions were based upon published results from

studies in 2 to 6 geographic areas per adverse health effect.

Population size and exposure for each electric power region east

of the Mississippi River were considered, and estimates of

illness attributable to sulfur oxides were derived. A portion of

the results is shown in the following table:

ESTIMATES OF ADVERSE HEALTH EFFECTS

ATTRIBUTABLE TO SULFUR OXIDE

EXPOSURES IN THE EASTERN UNITED STATES

Estimate of illness attributable

to acid sulfates

Adverse health effects _Standards met Standards not met

1975 1980 1975 1980

Million days of aggravated

heart and lung disease...... aa 4a 24.4 33.8

Increased number (millions)

of asthma attacks.......... 2.5 8 8.8 11.5

Thousands of lower respiratory

diseases in children......... 48.0 0 486.0 888.0

(Footnote continued on next page.)

carne AY aes eee

All

had “good cause” to exempt these designations from § 553."

Even if the EPA’s actions here were not justified by the

impracticability standard of the § 553(b)(B) exemption, we

nonetheless hold that it had “good cause” within the meaning of

553(d)(3). We disagree that the phrase “good cause” should

be interpreted similarly in both provisions. First, Congress inten-

tionally added modifying language giving specific instances of

good cause to 553(b)(B), i.e., where notice and comment are

“impracticable, unnecessary, or contrary to the public interest.”

That language is missing in (d) (3). Furthermore, since (d) (3)

only dispenses with prior notice and comment, and not notice

and comment although there is sound reason to believe that

“good cause” should encompass more situations in (d)(3) than

in (b)(B). Finally, the legislative history of (d)(3) shows that

Congress considered a broader category of “good cause” for

(Footnote continued from preceding page.)

As shown, nonattainment of air quality standards in a wide

and densely populated region could result in a phenomenal

health impact, measured in terms of millions of days of aggra-

vated disease, asthma attacks and lower respiratory disease

episodes. Obviously, these are only projections, not predictions,

of the impact of increased sulfur oxide emissions in an area

that is already heavily impacted with emission sources. (1977

House hearings, American Lung Association, pp. 3-4).

H. Rep. No. 294, 95th Cong., Ist Sess. 209 (1977). The Fifth

Circuit in United States Steel v. EPA, No. 78-1922 (Sth Cir., May 3,

1979), discussed and rejected at notes 11 & 14 infra, declined to

apply the “good cause” exception in its review of the EPA rule under

review here, holding that it was a “safety valve to be used where

delay would do real harm” and citing as an example regulations

designed to alleviate gas shortages and consequent violence at gas

stations. See Reeves v. Simon, 507 F.2d 455, 458-59 (Emer. Ct.

App. 1974), cert. denied, 420 U.S. 991 (1975). We are at a loss to

understand how gas shortages and fistfights constitute “real harm”

whereas mortality and illness resulting from continued high levels of

air pollution do not.

11. Of course, a remand at this point would intolerably delay

the implementation of the statutory scheme and completely frustrate

the Congressional purpose. For example, the Fifth Circuit in United

States Steel v. EPA, No. 78-1922 (Sth Cir. May 3, 1979), admitted

that this remand would delay state implementation plans by more

(Footnote continued on next page.)

Al2

this exemption than those specified in the three instances set out

in (b)(B). The House Report on the APA stated:

Many rules . . . may be made operative in less than

30 days because of inescapable or unavoidable limitations

of time, because of the demonstrable urgency of the condi-

tions they are designed to correct, and because the parties

subject to them may during the usually protracted hearing

and decision procedures anticipate the regulations.

S. Doc. No. 248, 79th Cong., 2d Sess. 260 (1946). In par-

ticular, the reference to “demonstrable urgency” appears to per-

mit findings of “good cause” in more situations than (b)(B)

would permit, and certainly such urgency exists in this case

where any delay in the EPA’s designation would run the risk

of delaying the formulation of state implementation plans and

the consequent health detriment of delayed nonattainment.

Even if the agency’s procedures here were not in technical

compliance with § 553 of the APA, we would still not be able

to reverse the Administrator’s action in this case. We have al-

(Footnote continued from preceding page.)

than seven months. Slip op. at 14. This admission was somewhat

conservative since the new time scheme dictated by the court to

replace the Congressional scheme would have involved at least 13

months from the date of decision not counting the notice and com-

ment period which we have suggested would add four to five more

months. See text accompanying note 7 supra. Thus, the Fifth

Circuit’s remand will set back the schedule by almost two vears

behind the January 1, 1978 implementation date. Further, the Third

Circuit’s approach to this problem strikes us as unsound. Recogniz-

ing that the remand of the proceedings might “endanger the Con-

gressional scheme for the control of air pollution,” the Third Circuit

attempted to resolve this difficulty by leaving the designations in

effect except as to the two petitioners in the case before the court.

Sharon Steel Corp. v. EPA, No. 78-1522, slip op. at 9 (3d Cir.

April 25, 1979). If the rule is defective, however, we see no reason

why anyone, whether they filed suit or not, should be subject to it.

We, of course, have found the designation procedure valid and

decline to follow the Third and Fifth Circuits. See also note 14 infra.

(Footnote continued on next page.)

Al3

ready noted the Congressional concern manifest in the Clean

Air Act that national attainment be achieved as expeditiously

as practicable. This concern was reflected in the desire that

the due administration of the statutory scheme not be im-

peded by endless litigation over technical and procedural irregu-

larities. As the House Report to the Amendments stated:

Under the flexible procedures specified by the commit-

tee, disputed questions of classification may arise concern-

ing, for example, whether a given question involves “facts”

or “policy” or whether a given fact is “legislative” or “‘ad-

judicative.” To prevent rulemaking from bogging down in

arguments about such matters, and to underline that the

agency is authorized to adopt rule-making procedures to

the individual case, the committee has limited the extent

to which the Administrator’s decisions on such procedural

matters may be reversed during judicial review.

H. Rep. No. 294, 95th Cong., Ist Sess. 322 (1977).

Accordingly, the following limitations on review were enacted.

Section 7607(d) (9) provides:

In the case of review of any action of the Administrator

to which this subsection applies, the court may reverse any

such action found to be—

(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)

[that “only an objection to a . . . procedure which was

raised .. . during the period for public comment. . .” may

be raised during judicial review] has been met, and (iii)

the condition of the last sentence of paragraph 8 [that the

procedural errors “were so serious and related to matters

of such central relevance to the rule that there is a sub-

stantial likelihood that the rule would have been signifi-

cantly changed if such errors has not been made”] is met.

(Footnote continued from preceding page.)

This opinion has been circulated among all judges of this Court in

regular service. A majority did not favor a rehearing in banc on the

question of this difference among circuits.

Al4

Even if this rulemaking procedure is not one of those specified

in subsection(d),’* the legislative report’s reference to the légis-

lative-adjudicative distinction (a procedural issue which is not

addressed in subsection (d) and which relates to the propriety

of any rulemaking at all) suggests that Congress meant this

limitation on review of procedural errors to extend to all rule-

making by the EPA whether or not it is in the explicit categories

covered by all the provisions of section 7607(d). Thus, section

7607(e) provides:

Nothing in this chapter shall be construed to authorize

judicial review of regulations or orders of the Administra-

tor under this chapter [i.e., the Clean Air Act of 1970],

except as provided in this section.

Applying section 7607(d) (9) to the alleged procedural errors

in this case, we find that none of the prerequisites for reversal

have been satisfied. First, given the statutory time constraints

and the delays that would be occasioned by prior notice and

comment, we cannot say that it was arbitrary and capricious for

the Administrator to postpone notice and comment until after

the effective date. Second, we find no evidence in the record that

the petitioners ever raised these procedural matters in the notice

and comment period. The only issues raised by them during

12. Arguably these designations fit within the subsection’s appli-

cation to “the promulgation or revision of an implementation plan

by the Administrator under section 7410(c) .. .” or to the “promul-

gation or revision of regulations under subtitle C of subchapter I of

this chapter (relating to prevention of significant deterioration of ait

quality and protection of visibility).” 42 U.S.C. § 7607(d)(1)(B).,

(1). The designation of areas as “attainment” or “nonattainment” is

an integral part of the promulgation of implementation plans and of

regulations designed to prevent significant deterioration of air quality.

See especially 42 U.S.C. § 7407(d)(1), stating that the desig-

nations are “[f]or the purpose of . . . part C of this subchapter

(relating to prevention of significant deterioration of air quality ).”

Subchapter C, for example, (42 U.S.C. § 7470-91) sets out the

provisions applicable to areas designated “attainment.” 42 U.S. C.

§ 7471. Likewise, state implementation plans must have special

provisions for nonattainment areas. 42 U.S.C. §§ 7501-08. Thus,

no regulations with respect to implementation plans under subchapter

C or subchapter D (§§ 7501-08) can be promulgated without these

designations.

Al5

that period related to the substantive validity of the designations.

Finally, we cannot say that the rule under review would have

been any different if notice and comment had occurred before

the effective date. It is important to realize that the rule under

review here is the rule as finally promulgated in October 1978

and reflects many final changes made in the rule as a result of the

EPA’s consideration of submitted comments. Compare 43 Fed.

Reg. 8963 (1978) with 43 Fed. Reg. 45988 (1978). Given

that the agency was clearly willing to consider, fully and objec-

tively, all comments in the post-promulgation period, there is

no reason to believe that its consideration of the comments

would have been any different if completed before the effective

date. Thus, we cannot make the required finding that the rule

would have been different if the notice and comment period

had occurred earlier."*

Ill

The petitioners also challenge the designation of the north-

ern portion of Lake County, Indiana as “nonattainment,” argu-

ing that the failure of the designation to delimit an even smaller

portion of Lake County as the only nonattainment area was

arbitrary and capricious. The designation was based on the

13. Numerous pending challenges to the attainment designations

were dropped as a result of the EPA’s revision of the designations.

See Bethichem Steel Co. v. EPA, No. 78-1556 (7th Cir., Nov. 28,

1978); Central Phosphate, Inc. v. Costle, No. 78-1929 (5th Cir.,

October 16, 1978); CF Chemicals, Inc. v. Cestle, No. .78-1931 (5th

Cir., Oct. 16, 1978); Occidental Oil Shale, Inc. v. EPA, No. 78-

1325 (10th Cir., October 6, 1978); National Zinc Co. v. EPA, No.

78-1327 (10th Cir., Oct. 6, 1978); Gulf Oil Corp. v. EPA, No.

78-1323 (10th Cir., Oct. 6, 1978); Board of County Comm'rs v.

EPA, No. 78-1326 (10th Cir., Oct. 6, 1978).

14. The two cases reaching contrary results and remanding these

designations to the EPA for notice and comment prior to effective

issuance neither mention nor apply the special review provisions of

section 7607(d)(9)(D). Sharon Steel Corp. v. EPA, No. 78-1522

(3d Cir., April 25, 1979); United States Steel Corp. v. EPA, No.

78-1922 (Sth Cir., May 3, 1979). Since we believe this provision to

be applicable and controlling, we reach a different result than these

cases. See footnote 11 supra.

Al6

following data. First, violations of sulfur dioxide primary stand-

ards were monitored at the Hammond continuous monitor dur-

ing April 1976 as well as April and May 1977. Second, “the

results of short-term modeling studies carried out for various

sources in the area using the 1974 emissions . . . [indicated] the

potential of reaching some very high level values . . .” in the

northern portion of Lake County. See Indiana Air Pollution

Control Division, Proposed Nonattainment Areas in Indiana:

A Support Document, IV-183 (1977) [Pet. Appendix at 56].

Since monitors only indicate air quality at the monitoring site

alone, modeling studies are necessary to extrapolate from the

monitor data to determine air quality throughout a larger region.

The use of such studies to assess air quality throughout wide

regions has been approved in Cleveland Electric Illuminating

Co. v. EPA, 572 F. 2d 1150, 1160-64 (6th Cir.), cert. denied,

Eofigh ATs OS Wi icirninine REP ERPS

The petitioners forward three arguments as to why this fac-

tual basis is insufficient to support the designation under review.

First, they point out that the modeling studies were based on

1974 data and did not take into account any emission reductions

that may have occurred since then. Second, the petitioners rely

on their own modeling studies. Petitioner Youngstown cites its

own study, prepared by Arthur D. Little, Inc., as allegedly sup-

porting the conclusion that the major contributors to this high

monitor reading were two oil refineries near the Hammond

monitor and that other sources in the area are not major con-

tributors. Petitioner United States Steel likewise claims that its

own study, prepared for it by Equitable Environmental Health,

concludes that the days on which violations were recorded at

the Hammond monitor were days on which the prevailing wind

direction would preclude any impact by the petitioner’s source

and that on the days that the wind would have permitted such

an impact, no violations were recorded. Finally, the petitioners

cite the conclusion of a subsidiary EPA official that data for the

Lake County area was insufficient and that, pending more ex-

Al7

tensive studies, only the area directly around the Hammond

monitor should be designated nonattainment.

We do not find these arguments to be a persuasive basis for

overturning the designations. First, the petitioners’ argument

that the modeling was based on outdated data is not compelling.

Any strength that it might have could only be based on peti-

tioners’ assertion that improvements in emissions have been

effected since 1974. There is, however, no support for this

assertion in the record. Petitioners’ comments on the proposed

designations do not even make this assertion, much less provide

any factual support for it. Indeed, the comments do not squarely

raise the objection that the data is too old, and thus the peti-

tioners are arguably precluded from raising this objection be-

fore this court. Finally, since the designation of an area as non-

attainment triggers the requirement that the state engage in

comprehensive current monitoring in order to define more pre-

cisely the attainment status of various regions, see 42 U.S.C.

§ 7502(b)(3), the use of three-year-old data to make this

initial designation can hardly be said to be arbitrary or capri-

cious,

Nor do we find that the petitioners’ studies compel a different

conclusion. The gist of these studies is that other sources were

the principal contributors to the measured excesses. This argu-

ment assumes that the designation process is designed to define

those areas in which the principal offending sources are con-

tained. The statute does not expressly state the standards or

methods by which areas are to be designated. Although one

method would be to designate the areas containing the principal

offenders as nonattainment, another approach would be to look

simply at the expected air quality throughout a region and des-

ignate noncomplying areas, regardless of the origin of the non-

compliance, as “nonattainment.” The EPA has clearly adopted

the latter approach. In its response to comments made before

issuance of the final designations, the EPA stated:

The purpose of the designations is to identify air quality

problem areas for which the States and EPA must seek

Al8

solutions . . . . The area designation . . . thus does not

in and by itself dictate the applicable new or existing source

requirement. There are essentially three reasons for this.

First, because air pollution emissions are transported

from one area to another, the sources that cause or con-

tribute to a violation, or affect a clean locality, may be in

different locations from the violation or clean locality it-

self. Controls will therefore often have to apply to sources

outside of the area that the controls are intended to protect.

Second, States may choose to impose requirements over

a broader or narrower geographic region than the precise

area where sources exist that directly contribute to particu-

lar concentrations of a pollutant. For example, for reasons

of equity, simplicity of administration, or to allow more

growth in clear areas, states may choose to make their

revised emission limitations applicable statewide, rather

than restricting the requirement to sources that directly

cause or contribute to violations.

Finally, section 107(d) of the Act provides that attain-

ment status designations were to be made within a very

short time period, and were to be composed of air quality

control regions (or portions thereof), which are often

based on State, county, or other political jurisdictional

boundaries. This process is bound to include pockets where

the air quality does not correspond to the designation of

the area. These anomalies can be taken into account in

the more elaborate and thorough proceedings required

under the Act for development of plans and issuance of

individual permits.

43 Fed. Reg. 40413 (Sept. 11, 1978) (emphasis added).

The EPA specifically used this approach with respect to the

designation at issue here. In reply to comments on the Lake

County designation, the EPA stated:

Ten commenters requested revisions to the size of the

sulfur dioxide (SOz) primary nonattainment area in Lake

County . . . . [EJach commenter recommended that the

city where the commenter was located be excluded from the

nonattainment area . . . [because] most of the heavy in-

dustry in the area was not responsible for the violations

which were monitored... .

Al9

The northern portion of Lake County, Indiana, is heavily

industrialized with a significant number of large SOz emis-

sion sources and relatively few continuous SOz monitors

in operation. Despite the scarcity of the monitors, violations

of the standard have been monitored. For this reason, the

area must remain nonattainment for SO:.

Clearly, therefore, the EPA treats the designation process as

defining areas with problematic air quality and not merely pin-

pointing those areas which contain problematic sources. Since

“the construction of a statute by those charged with its execu-

tion should be followed unless there are compelling indications

that it is wrong,” Red Lion Broadcasting Co. v. FCC, 395 U.S.

367, 381 (1969), we must accept the EPA’s interpretation of

the designation process. Accordingly, the petitioners’ conten-

tions here that the problems of air quality found within Lake

County may be traced to sources other than the petitioners and

in a definable area are irrelevant to the designations adopted by

the EPA. The monitored exceedances and the modeling studies

demonstrated, and petitioners do not really contest, that the air

quality in northern Lake County did not meet applicable stand-

ards, and that is sufficient to support the designations regardless

of the source of the noncompliance.

The petitioners finally rely on the conclusion of an EPA

employee to support their conclusion that a smaller area should

have been designated nonattainment. Specifically petitioners cite

a report by Gerald Regan, Chief of the Air Surveillance Branch

for Region V of the EPA, made after reading the research

study submitted by United States Steel discussed above and in

which he recommended that the nonattainment designation be

restricted to the “immediate vicinity” of the Hammond monitor.

However, he also stated in this report that “it is probable that

the primary SOz standard is being exceeded at locations other

than the . . . [monitoring] site in Hammond.” As we note above,

those probable excesses are sufficient to support nonattainment

designations, and thus any suggestion by Mr. Regan to limit

the nonattainment area must be based on the theory, which

A20

we have rejected, that the designation process is designed to

pinpoint the principal offending sources. Therefore, nothing in

this recommendation provides any reason to overturn the desig-

nations under review.

Accordingly, the petitions to set aside the § 7407(d) designa-

tions are denied.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

A21

43 F.R. 8962

RULES AND REGULATIONS

[6560-01]

Title 40—Protection of Environment

CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY

SUBCHAPTER C—AIR PROGRAMS

[FRL 856-5]

PART 81—AIR QUALITY CONTROL REGIONS, CRITERIA,

AND CONTROL TECHNIQUES

Section 107—Attainment Status Designations

Agency: Environmental Protection Agency.

Action: Final rule.

Summary: This rulemaking sets forth the attainment status of

all States in relation to the national ambient air quality standards

(NAAQS). The tables following this rulemaking indicate, on a

State-by-State, pollutant-by-pollutant basis, the attainment status

of every area as submitted by the appropriate State agency and

approved, or as designated by the Environmental Protection

Agency (EPA). No distinctions are made as to the severity of

the violations recorded in the areas designated as nonattainment

in these tables. These designations are immediately effective.

EPA is soliciting comments for 60 days and will republish re-

vised designations as appropriate.

Dates: Effective Date: Immediately. Comments Due: May 2,

1978.

Address: General comments on these designations should be

addressed to Norman L. Dunfee, Chief, Control Programs Op-

erations Branch (MD-15), Office of Air Quality Planning and

Standards (OAQPS), Research Trangle Park, N. C. 27711.

Comments relative to specific State designations should be

directed to the appropriate EPA Regional Office, contact as

listed below:

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A22

Tom Devine, Chief, Air Branch, EPA Region I, JFK Fed-

eral Building, Boston, Mass. 02203 (Connecticut, Maine,

Massachusetts, New Hampshire, Rhode Island, Ver-

mont).

William Baker, Chief, Air Branch, EPA Region II, 26

Federal Plaza, New York, N. Y. 10007 (New York,

New Jersey, Puerto Rico, Virgin Islands).

Howard Heim, Chief, Air Branch, EPA Region III, Curtis

Building, Sixth and Walnut Streets, Philadelphia, Pa.

19106 (Delaware, Maryland, Pennsylvania, Virginia,

West Virginia, District of Columbia).

Tom Helms, Chief, Air Branch, EPA Region IV, 345

Courtland Street, NE., Atlanta, Ga. 30308 (Alabama,

Georgia, Florida, Kentucky, Mississippi, North Caro-

lina, Tennessee, South Carolina).

Jack Chicca, Chief, Air Branch, EPA Region V, 230

South Dearborn Street, Chicago, Ill. 60604 (Indiana,

Illinois, Michigan, Minnesota, Ohio, Wisconsin).

Jack Divita, Chief, Air Branch, EPA Region VI, 1201 Elm

Street, Dallas, Tex. 75270 (Arkansas, Louisiana, Okla-

homa, New Mexico, Texas).

Art Spratlin, Chief, Air Branch, EPA Region VII, 1735

Baltimore Streets, Kansas City, Mo. 64108 (Nebraska,

Iowa, Kansas, Missouri).

Robert DeSpain, Chief, Air Branch, EPA Region VIII,

1860 Lincoln Street, Denver, Colo. 80295 (Montana,

Utah, North Dakota, South Dakota, Wyoming, Colo-

rado).

Allyn Davis, Chief, Air Branch, EPA Region IX, 215

Fremont Street, San Francisco, Calif. 94105 (California,

Nevada, Arizona, Hawaii, American Samoa, Northern

Mariana Islands).

Clark Gaulding, Chief, Air Branch, EPA Region X, 1200

Sixth Avenue, Seattle, Wash. 98101 (Alaska, Washing-

ton, Oregon, Idaho).

FOR FURTHER INFORMATION CONTACT:

Norman L. Dunfee, USEPA, Research Triangle Park, N. C.

27711, phone 629-5226 (FTS) or 919-541-5226 (com-

mercial).

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A23

SUPPLEMENTARY INFORMATION:

The Clear Air Act (CAA) Amendments of 1977 place addi-

tional requirements on the States and EPA. Among them, the

Amendments added section 107(d), which directed each State,

within 120 days after the Amendments were enacted, to submit

to the Administrator a list of the NAAQS attainment status of

all areas within the State. The Administrator was required under

section 107(d)(2) to promulgate the State lists, with any nec-

essary modifications, within 60 days of their submittal.

The States are now preparing revisions to their State imple-

mentation plans (SIPs) as required by sections 110(a) (2) (1)

and 172 of the Act. This enterprise, which must be completed

by January 1, 1979, requires that the States have immediate

guidance as to the attainment status of the areas designated

under section 107(d). Congress has acknowledged this by im-

posing a tight schedule on the designation process and requiring

EPA to promulgate the list within 180 days of the enactment

of the amendments. Under these circumstances it would be im-

practicable and contrary to the public interest to ignore the

statutory schedule and postpone publishing these regulations

until notice and comment can be effectuated. For this good

cause, the Administrator has made these designations imme-

diately effective.

The Agency recognizes, however, the importance of public

involvement in the designation process. It is therefore, soliciting

public comment on this rule by May 2, 1978.

Comments received will be considered carefully and revisions

to the designations will be made where appropriate. The criteria

used in making these designations include the following.

AIR QUALITY DATA

Section 107(d) of the CAA specified that designations should

be based upon air quality levels as of enactment of the Amend-

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A24

ments (August 7, 1977). States were required by EPA guidance

to consider the most recent four quarters of monitored ambient

air quality data available. If this data showed no standards vio-

lations, then the previous four quarters of monitoring data were

to be examined to assure that the current indication of attain-

ment was not the result of a single year’s data reflecting unrep-

resentative meteorological conditions, In the absence of sufficient

monitored air quality data, other evaluation methods were used,

including air quality dispersion modeling.

GEOGRAPHIC SIZE

The Act specified that the designation areas could be based

on air quality control regions (AQCRs) or any subportions of

these areas. EPA advised States they could divide AQCRs into

various nonattainment, attainment, or unclassified portions, i.e.,

county. subcounty, or other geographic areas as long as the area

could be clearly defined in a written narrative. Additionally, a

different geographic area could be used in designating the status

for each pollutant.

POLLUTANT SPECIFIC CONSIDERATIONS

Subsections 107(d)(1) (A)-(E) of the CAA Amendments

specified the possible categories for area designations. For both

total suspended particulates (TSP) and sulfur dioxide (SOz), an

area could be designated as: (1) Not meeting the primary

NAAQS, (2) not meeting the secondary NAAQS, (3) unclassi-

fiable, and (4) attainment. For carbon monoxide (CO), photo-

chemical Ox, and nitrogen dioxide (NOz), designations of: (1)

Not meeting primary NAAQS, and (2) attainment/unclassified

were possible. The attainment and unclassified designations for

CO/O./NO:z are combined into one column for the tables pre-

sented in this notice because both designations are set forth by

subsection 107(d)(1)(E) of the CAA. No designations regard-

ing the secondary NAAQS for these pollutants were necessary

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A25

since the primary standards and secondary standards are iden-

tical.

The criteria used in designation of the status of each pollutant

used in addition to ambient air quality data is discussed below:

PHOTOCHEMICAL OXIDANTS

There are 105 urban areas in the United States with popu-

lations great[43 F.R. 8963]er than 200,000. The major urban

areas (except Honolulu, Hawaii, and Spokane, Wash.) are

where the oxidant problem is most severe. Honolulu has re-

corded eight consecutive quarters of data without a violations

justifying and attainment designation. There is sufficient un-

certaintly regarding conditions in Spokane to warrant an un-

classifiable designation for the present time. The other 103

urban areas, where over 100,000,000 people reside, consistently

experience photochemical oxidant levels above the NAAQS.

Due to these factors, higher priority is being given in the SIP

planning process to these urban areas. Of these, only six urban

areas do not have oxidant ambient air quality monitoring data.

The other 97 urban areas experienced oxidant violations based

on ambient data. Since 97 of the 105 urban areas greater than

200,000 with monitoring data recorded violations, the six cities

without data were presumed to be nonattainment for oxidants.

Additionally, a comprehensive analysis was performed by

OAOQPS and other factors considered by EPA for each of the

six urban areas. These analyses substantiated the presumptive

nonattainment designation and these areas will be required to

monitor during the 1978 oxidant season (summer-fall) to de-

termine the magnitude of their oxidant problem.

TOTAL SUSPENDED PARTICULATES

Given the spatially limited nature of TSP violations, no gen-

eral area size criteria were possible. However, States were ad-

vised that designations along political boundaries such as city

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A26

limits or county lines were practical from an air quality manage-

ment standpoint.

The problem of designating for rural fugitive dust areas re-

quired special consideration. EPA’s fugitive dust policy recog-

nizes the generally greater health impact due to fugitive dust in

urban areas in contrast to rural areas. In urban areas, the wind-

blown soil contains various manmade toxic pollutants. But,

rural windblown dust is usually not significantly contaminated

by industrial pollutants. Therefore, for the purpose of these des-

ignations, any rural areas experiencing TSP violations which

could be attributed to fugitive dust could claim attainment of

the TSP NAAQS. Rural areas for this purpose are defined as

those which have: (1) A lack of major industrial development

or the absence of significant industrial particulate emissions, and

(2) low urbanized population densities.

CARBON MONOXIDE

A designation of nonattainment for the entire urban core area

of a city experiencing monitored CO violations was desirable,

but smaller area designations were acceptable since CO viola-

tions are most pervasive in downtown areas of high traffic density.

SULFUR DIOXIDE AND NITROGEN DIOXIDE

Generally where EPA promulgated a designation for SO:

the minimum area was to be the county in which the violating

monitoring site was located. If States had monitoring data to

substantiate the size areas they designated, they would be ac-

ceptable by EPA regardless of size.

AIR QUALITY CONTROL REGION (AQCR) REDESIGNATIONS

Section 107 of the CAA also provided for redesignation of

the existing AQCR boundaries where a State determined that

the redesignated areas would promote more efficient air quality

management. Several States exercised this option in defining

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A27

their designation areas. Part 81 under Title 40 of the Code

of Federal Regulations presently contains descriptions of all

existing AQCRs and these descriptions, where feasible, will be

modified in a future FEDERAL REGISTER notice to reflect the

State revisions. The exact descriptions of all AQCR boundaries

are available from either the appropriate State or EPA Regional

Office.

EFFECT OF THE DESIGNATIONS

Section 107(d)(1)(A)-(E) sets out attainment status cate-

gories to which reference is made in Parts C (Prevention of

Significant Deterioration (PSD) ) and D (Nonattainment) of the

CAA. Section 171(2) in Part D defines “nonattainment area”

to include any area identified under subparagraphs 107(d) (1)

(A)-(C), while giving the Administrator authority to add other

areas Lased on monitoring or calculations. Similarly, areas des-

ignated under subparagraphs 107(d)(1)(D) or (E) are de-

scribed in section 161, Part C, as PSD areas.

The section 107(d) designations are meant to provide a start-

ing point for States in their efforts to correct existing air quality

problems and to implement programs under the 1977 CAA

Amendments. For example, a designation as a nonattainment

area, in general, means that an applicable SIP must be revised,

pursuant to section 172, to provide for attainment of the NAAQS

as expeditiously as practicable, but not later than December 31,

1982 (December 31, 1987, under certain conditions for photo-

chemical oxidants and/or carbon monoxide). Under section 172

(b)(6) the revised SIPs must require permits, in accordance

with the provisions of section 173, for the construction and op-

eration of major new or modified stationary sources. To be ap-

proved by the Administrator under section 110(a)(2)(1), a

SIP must contain a prohibition against major new source con-

struction in nonattainment areas after June 30, 1979, where

emissions from the source would contribute to increases in pol-

lutants for which a NAAQS was being exceeded, unless the SIP

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A28

meets the requirements of Part D at the time of the permit

application. Under section 129 of the Amendments, EPA’s emis-

sion offsets policy, as modified, continues to apply to major new

source construction in nonattainment areas prior to July 1, 1979.

But the designation of an area as nonattainment or attainment

must be considered only a point of departure and not a final,

inflexible end in itself. The designations will have only limited

significance for new source preconstruction review, for three

reasons. First, new sources, wherever they proposed to locate,

must be reviewed for their impact on all nearby areas as well

as that in which they would locate. If an area on which a new

source would impact is designated differently than the one in

which it is locating, the designation of the latter would not

necessarily determine the rules to which the source would be

subject. Second, PSD rules apply in any area where at least one

NAAQS is attained, and since virtually every area in the country

shows attainment for at least one pollutant, the PSD review will

be a requisite virtually everywhere. Finally, case-by-case new

source review is necessitated to account for the possibility that

an area with a particular designation may encompass “pockets”

which do not fit that designation.

These section 107(d) designations are subject to revision

under Section 107(d)(5) whenever sufficient data is available

to warrant a redesignation. Both the State and EPA can initiate

changes to these designations, but any State redesignation must

be submitted to EPA for concurrence. EPA will promulgate any

revised list in accordance with the requirements for this initial

promulgation.

EPA REVIEW

The State submittals were reviewed by EPA for consistency

with the criteria set forth in this notice. Where EPA differed

with a State designation, section 107 of the CAA provides that

EPA should notify the State and allow the submission of addi-

tional information. If EPA and the state could not reach agree-

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A29

ment, an EPA designation would replace the State submitted

designation. Also, in the case where a State failed to designate

for any State or portion thereof the EPA would designate for

the State as needed.

EPA considered all available monitoring data where it was

determined to be valid. All EPA designations contained in the

following tables were [43 F.R. 8964] made within the criteria

contained in this notice except in a limited number of cases

where the State designations were replaced by unclassifiable

designations by the appropriate Regional Offices on the basis

that a major source in each county was utilizing a possibly un-

authorized dispersion technique. Since EPA has not finalized its

tall stack policy regulations to implement Section 123, it is

presently unknown whether the sources can claim full credit for

their existing stacks.

EPA designations are indicated in the following tables by the

asterisks accompanying the designations: * means a Federal

EPA designation replaced a State recommendation, This * is

used where either the designation status or the area size was

modified by EPA: ** meais solely a Federal designation where

a State failed to submit their own recommendation. In some

instances, the descriptions of the designated areas submitted by

the States were so lengthy as to prohibit their publication in the

limited space available in the tables presented below. Exact

descriptions of all areas designated are available at the appro-

priate Regional Offices or the State in question. In some of the

following tables, States reference AQCRs by their appropriate

number instead of their title. An Appendix A is included in the

regulatory section of this rulemaking which gives both the

AQCR name and number for ease of reference.

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A30

A summary of the approved designations for the 3215

counties or county equivalents covered by these designations is

presented below:

TSP SO: CO Ox NC:

Number of counties either totally or

partially approved or designated

by EPA as nonattainment .... 421 101 190 607 8

Dated: February 23, 1978.

DouGLas M. COSTLE,

Administrator.

Part 81 of Chapter I, Title 40 of the Code of Federal Regula-

tions is amended by adding Subpart C and Appendix A as

follows:

Subpart C—Section 107 Attainment Status Designations

Sec. Sec.

81.300 Scope. 81.321 Maryland.

81.301 Alabama 81.322 Massachusetts.

81.302 Alaska. 81.323 Michigan.

81.303 Arizona. 81.324 Minnesota.

81.304 Arkansas. 81.325 Mississippi.

81.305 California. 81.326 Missouri.

81.306 Colorado. 81.327 Montana.

81.307 Connecticut. 81.328 Nebraska.

81.308 Delaware 81.329 Nevada.

81.309 District of Columbia. 81.330 New Hampshire.

81.310 Florida. 81.331 New Jersey.

81.311 Georgia. 81.332 New Mexico.

81.312 Hawaii. 81.333 New York.

81.313 Idaho. 81.334 North Carolina.

81.314 Illinois. 81.335 North Dakota.

81.315 Indiana. 81.336 Ohio.

81.316 Iowa. 81.337 Oklahoma.

81.317 Kansas. 81.338 Oregon.

81.318 Kentucky. 81.339 Pennslyvania.

81.319 Louisiana. 81.340 Rhode Island.

81.320 Maine. 81.341 South Carolina.

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A31

Sec. Sec.

81.342 South Dakota. 81.350 Wisconsin.

81.343 Tennessee. 81.351 Wyoming.

81.344 Texas. 81.352 American Samoa.

81.345 Utah. 81.353 Guam.

81.346 Vermont. 81.354 Northern Mariana

81.347 Virginia. Islands.

31.348 Washington. 81.355 Puerto Rico.

81.349 West Virginia. 81.356 U. S. Virgin Islands.

APPENDIX A—Air Quality Control Regions (AQCRs).

AUTHORITY: Secs. 107, 301 of the Clean Air Act, as amended

(42 U.S. C. 7407, 7601).

Subpart C—Section 107 Attainment Status Designations

§ 81.300 Scope.

Attainment status designations as approved or designated by

the Environmental Protection Agency (EPA) pursuant to

Section 107 of the Act are listed in this subpart. Area designa-

tions are subject to revision whenever sufficient data becomes

available to warrant a redesignation. Both the State and EPA

can initiate changes to these designations, but any State rede-

signation must be submitted to EPA for concurrence.

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

A32

[43 F.R. 8992]

§ 81.315 Indiana.

INDIANA — SO2

Designated Area

Does Not

Meet

Primary

Standards

Does Not

Meet

Secondary

Standards

Cannot Be

Classified

National

Standards

Dearborn County

Gibson County

Jefferson County

Lake County

An area bounded by

Lake Michigan on the

north, the Indiana-IIlinois

State line on the west,

U.S. 30 on the south, and

the Lake-Porter County

line on the east.

The remainder of Lake

Co.

LaPorte County

An area bound in the

north by Lake Michigan

& the Indiana-Michigan

State line, in the west by

the LaPorte Porter

County Line, & in the

south & east by I-94

The remainder of LaPorte

County

Marion County

xX*

X* EPA designations replace State designations

Federal Register, Vol. 43, No. 43—Friday, March 3, 1978

INDIANA — SO. Continued

A33

Does Not} Does Not Better

Meet Meet Than

Primary |Secondary| Cannot Be| National

Designated Area Standards | Standards Classified Standards

Porter County

An area bound in the X X

north by Lake Michigan,

in the west by the Lake-

Porter Co. line, in the

south by I-80-90 & in the

east by the LaPorte-

Porter County line

The remainder of Porter Xx

Co.

Vigo County X

Warrick County Sg

Wayne County X

All portions of all other X

Indiana Counties

X* EPA designations replace State designations

Federal Register, Vol. 43, No. 43—-Friday, March 3, 1978

A34

[43 F.R. 45993]

[6560-01]

Title 40—Protection of Environment

CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY

Subchapter C—Air Programs

[FRL 972-2]

PART 81—AIR QUALITY CONTROL REGIONS, CRITERIA,

AND CONTROL TECHNIQUES

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

SUMMARY: This rulemaking responds to comments and makes

necessary amendments to the designations of attainment status

relative to the national ambient air quality standards (NAAQS)

for Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

This rulemaking supplements the national EPA rulemaking of

September 11, 1978 (43 FR 40412), and incorporates by refer-

ence EPA’s position on certain general issues raised in comments

on the designations found in the supplementary information

section of that rulemaking.

DATE: Effective date—October 5, 1978.

FOR FURTHER INFORMATION CONTACT:

Thomas Mateer, Air Programs Branch, U. S. Environmental

Protection Agency, 230 South Dearborn Street, Chicago, Ill.

60604, 312-353-2334.

SUPPLEMENTARY INFORMATION: The Clean Air Act

Amendments of 1977 (the 1977 Amendments), Pub. L. 95-95,

added section 107(d) to the Clean Air Act (the Act) which

directed each State to submit to the Administration a list of

the NAAQS attainment status of all areas within the State. The

Administrator was required under section 107(d) (2) to promul-

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A35

gate the State lists, with any necessary modifications. For each

standard, areas are classified as either not meeting the standard

(nonattainment areas), meeting the standard (attainment

areas), or lacking sufficient data to be classified (unclassifiable

areas). The U.S. Environmental Protection Agency (EPA or

the Agency) published these lists in the FEDERAL REGISTER on

March 3, 1978 (43 FR 8962), and invited the public to sub-

mit comments to the Agency by May 2, 1978.

Certain issues raised in these comments were similar to those

raised by others throughout the nation. These issues are

addressed in the national EPA promulgation. Additional issues

which are specific to the States in EPA region V are addressed

in this action. Several of the comments have caused EPA to

modify earlier designations. In some cases, the designation has

been changed by redefining the boundaries of the area; in others,

the designation itself has been changed but no new nonattain-

ment areas have been designated in counties which were pre-

viously attainment or unclassifiable.

For good cause, the amendments to designations made final

today are being made effective immediately. As discussed in the

national EPA rule-making, the only effect of these designations

is to identify problem areas for which State planning must be

completed by a statutory deadline. These designations impose no

obligation on any source. There would therefore be no point

in deferring the effective date. The issues raised in the comments

are discussed below by State.

* * *

[43 F.R. 45994]

INDIANA

The Agency received a total of 24 comments on designations

in the State of Indiana. Also, the State of Indiana on June

12, 1978, petitioned the Agency under section 107(d) (5) of the

Clean Air Act to revise the designations for several counties, in

some cases revising its previous recommendations. Normally,

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A36

the Agency's approval or disapproval of such a petition would

be proposed as rulemaking and subsequently promulgated; how-

ever, since Indiana's petition was submitted in time to be re-

viewed along with all of the other comments on designations

and since there is no prejudice to sources in areas where the

designation is revised, the State’s recommendations in the peti-

tion were reviewed and are discussed below in conjunction with

all other comments on the same areas.

* * *

[43 F.R. 45995]

SULFUR DIOXIDE (SO2)

Ten commenters requested revisions to the size of the sulfur

dioxide (SOz} primary nonattainment area in Lake County.

With the exception of the State of Indiana, each commenter

recommended that the city where the commenter was located

be excluded from the nonattainment area, for the following

reasons: Relatively few monitors within the area registered viola-

tion of the SO: national ambient air quality standards (NAAQS)

and most of the heavy industry in the area was not responsible

for the violations which were monitored. Commenters generally

believed that sources unfairly placed within the nonattainment

area would suffer potentially serious adverse impacts due to

restrictions on economic growth and unnecessarily restrictive

emission limitations.

The northern portion of Lake County, Ind., is heavily indus-

trialized with a significant number of large SOz emission sources

and relatively few continuous SOz monitors in operation. Despite

the scarcity of the monitors, violations of the standard have been

monitored. For this reason, the area must remain in nonattain-

ment area for SO. Also, the impact of the designation need not

be adverse to emission sources not causing or contributing to

violations of the standard as explained in more detail in the

national EPA rulemaking.

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A37

The State of Indiana comment recommended redescription

of the southern boundary of the Lake County non-attainment

area (currently U. S. 30 between the Illinois State line and the

Porter County line) to U. S. 30 east from the Illinois State line

to the intersection of U.S. 30 and I-65, north along 1-65 to

the intersection of I-65 and I-94, and east along 1-94 to the

Porter County line. The area recommended by the State of

Indiana encompasses all significant emission sources and is

therefore acceptable. The southern boundary of the Lake County

nonattainment area for SOs is revised as noted above.

Two commentors recommended that the designation for

Porter County be changed from partial nonattainment for SO: to

attainment for the full county. The State of Indiana recom-

mended that the nonattainment area (the area bounded by Lake

Michigan on the north, by the Lake-Porter County line on the

west, by I-80-90 on the south, and by the La Porte-Porter County

line on the east) be redesignated as unclassifiable. On June

12, 1978, the State of Indiana petitioned EPA under 107(d) (5)

of the Clean Air Act, to revise the Porter County designation

from attainment in part to attainment for the entire county. In all

cases commenters noted that the original designation was based

on computer dispersion modeling utilizing the urban version of

the RAM model, rather than on monitored violations of the

SO: air quality standards. All commenters indicated that the

rural version of the RAM model would be more appropriate for

use in Porter County.

Upon evaluation, EPA concurred in that assessment and the

Indiana Division of Air Pollution Control] remodeled Porter

County untilizing the rural [43 F.R. 45996] version of RAM.

While the results of the rural RAM model showed no predicted

violations of the primary or secondary NAAQS for SOz EPA

noted certain technical deficiencies in the modeling. The model-

ing performed by Indiana did not utilize maximum allowable

emission rates in determining whether there would be attainment

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A38

of the 3-hour and 24-hour SO: standards, and background con-

centrations of SOz were not adequately considered. For the

above reasons, we cannot concur that the State’s rural RAM

modeling of Porter County demonstrates attainment of the SO»

NAAQS, however, that portion of Porter County designated as

nonattainment in the March 3 promulgation will be redesignated

as unclassifiable. The remainder of Porter County will remain

attainment.

One commenter recommended that the portion of La Porte

County designated as primary and secondary nonattainment for

sulfur dioxide be reclassified as attainment. The State of Indiana

recommended that Center, Scipio, Kankakee, New Durham, and

Pleasant Townships and the area north and west of I-94 be

redesignated as unclassifiable. On June 12, 1978, the State of

Indiana formally petitioned under 107(d)(5) of the Clean Air

Act for a redesignation of La Porte County from nonattainment

in part to attainment for the entire county. There have been

measured violations of the SO: NAAQS in the nonattainment

portion of La Porte County and additionally, the rural RAM

analysis of northern Porter County conducted by the Indiana

DAPC predicted nonattainment. For the above reasons revision

of the designation is not supported at the present time.

One commenter recommended reclassifying Wayne County

from primary nonattainment of the SOe standard to unclassi-

fiable stating that during at least one excursion, the company’s

electrostatic precipitators were out of service. The State of

Indiana recommended changing the boundaries of the nonattain-

ment area from the full county, to Webster, Boston, Center,

Franklin, and Wayne Townships only. The State’s recommenda-

tion was formalized in the June 12, 1978, 107(d) (5) petition.

Since electrostatic precipitators are control devices used pri-

marily for particulate control, their breakdown would be expected

to have a negligible effect on SOs. Moreover, of the three mon-

itored excursions of the SOz standard, only one occurred during

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A39

a period of precipitator malfuction. Therefore the evidence

supports the nonattainment designation for Wayne County,

however, the recommendation of the State of Indiana to revise

the geographic boundaries of the primary nonattainment area is

accepted since all major sources and their areas of major impact

are included in the area designated.

Four commenters recommended redesignation of Marion

County from nonattainment for primary and secondary SO:

standards to unclassifiable. Commenters challenged the validity

of the monitored data which demonstrated violations of the 24-

hour primary SO» standard and the accuracy and validity of dis-

persion models which predicted violations of the annual and

short-term primary SO: standards. Upon evaluation EPA finds

that the monitored data is valid and the dispersion modeling

done for Marion County used an accepted model (CDM), which

predicted annual violations of the SO» standard. These results

have been supplemented by RAM runs which predicted short-

term violations of the SO2 standard. The overwhelming weight

of evidence supports primary SOz nonattainment in Marion

County and that designation will remain unchanged. Since

secondary violations have been neither monitored nor predicted

by dispersion modeling, Marion County is being reclassified as

attainment for the secondary SO: standard.

One commenter recommended redesignation of Vigo County

from primary SO: nonattainment to attainment. The commenter

submitted a dispersion modeling report as evidence of attain-

ment. The State of Indiana submitted the same report with a

recommendation that Vigo County be changed from primary

nonattainment to unclassifiable This recommendation was

formalized in the State’s June 12, 1978, petition The modeling

report disputed the appropriateness of the urban RAM model in

Vigo County, recommending in its place a modified version of

rural RAM. The Agency reviewed the modeling report and

determined that it does not meet the Agency’s modeling stand-

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A40

ards. Computer dispersion studies using acceptable mode’ag

procedures have predicted primary SO. standard violations.

Therefore, revision of the designation is not supported at this

time.

One commenter recommended that the designation of Gibson

County be revised from unclassifiable for SOz to attainment.

The State of Indiana also requested redesignation of Gibson

County from unclassifiable to attainment in its June 12, 1978,

petition. The commenter submitted a modeling study of Gibson

County, indicating attainment of SO2 standards. However, a

previous USEPA modeling analysis of air quality in Gibson

County indicated a potential for violations of the SO: NAAQS.

Due to the number of unanswered questions concerning air qual-

ity in Gibson County, the designation for Gibson County should

remain unclassifiable.

On June 12, 1978, the State of Indiana also petitioned that

Jefferson County be redesignated from unclassifiable for SO2

to attainment. A dispersion modeling study was submitted in

support of the petition. A dispersion modeling study submitted

by the State to region V, USEPA, indicated violations of the

secondary standard. Region V is currently preparing an analysis

of Jefferson County to resolve the discrepancies between these

two studies. Until that analysis is completed, the SO2 designa-

tion for Jefferson County will remain unclassifiable for the pri-

mary standard, and will be revised to nonattainment for the

secondary standard.

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A4l

[43 F. R. 46008]

§ 81.315 Indiana

INDIANA — SOz

Designated Area

Does Not

Meet

Primary

Standards

Does Not

Meet

Secondary

Standards

Better

Than

Cannot Be| National

Classified | Standards

Dearborn County

Gibson County

Jefferson County

Lake County

An area bounded on the

north by Lake Michigan,

on the west by the

Indiana-Illinois State

line, on the south by

U.S. 30 from the State

line to the intersection

of I-65 then following

I-65 to the intersection

of I-94 then following

I-94 to the Lake-Porter

County line, & on the

east by the Lake-Porter

County line.

The remainder of Lake

County

LaPorte County

An area bound on the

north by Lake Michigan

& the Indiana-Michigan

State line, on the west by

LaPorte-Porter County

line, & on the south &

east by I-94

X* EPA designations replace State designations

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

A42

INDIANA — SOz2 Continued

Does Not) Does Not Better

Mect Meet Than

Primary Secondary} Cannot Be| National

Designated Area Standards Standards| Classified | Standards

The remainder of LaPorte

County X

Marion County X

Porter County

An area bound on the

north by Lake Michigan,

on the west by the Lake-

Porter County line, on

the south by I-80 & 90

& on the east by the

LaPorte-Porter County

line

The remainder of Porter

Co. xX

Vigo County X

Warrick County X*

Wayne County

The area included within X

Boston, Center, Franklin,

Wayne & Webster

Townships

The remainder of Wayne

County X

All portions of all other

Indiana Counties X

X* EPA designations replace State designations

Federal Register, Vol. 43, No. 194—Thursday, October 5, 1978

———_—

~ ont rer

A43

5 U.S.C. § 553. Ruling making

(a) This section applies, according to the provisions thereof,

except to the extent that there is involved—

(1) a military or foreign affairs function of the United

States; or

(2) a matter relating to a agency management or per-

sonnel or to public property, loans, grants, benefits, or

contracts.

(b) General notice of proposed rule making shall be pub-

lished in the Federal Register, unless persons subject thereto are

named and either personally served or otherwise have actual

notice thereof in accordance with law. The notice shall include—

(1) a statement of the time, place, and nature of public

rule making proceedings;

(2) reference to the legal authority under which the

rule is proposed; and

(3) either the terms or substance of the proposed rule

or a description of the subjects and issues involved.

Except when notice or hearing is required by statute, this sub-

section does not apply—

(A) to interpretative rules, general statements of policy,

or rules or agency organization, procedure, or practice; or

(B) when the agency for good cause finds (and incor-

porates the finding and a brief statement of reasons therefor

in the rules issued) that notice and public procedure thereon

are impracticable, unnecessary, or contrary to the public

interest.

give interested persons an opportunity to participate in the rule

making through submission of written data, views, or arguments

with or without opportunity for oral presentation. After con-

sideration of the relevant matter presented, the agency shall in-

A44

corporate in the rules adopted a concise general statement of their

basis and purpose. When rules are required by statute to be made

on the record after opportunity for an agency hearing, sections

556 and 557 of this title apply instead of this subsection.

(d) The required publication or service of a substantive rule

shall be made not less than 30 days before its effective date,

except—

(1) a substantive rule which grants or recognizes an

exemption or relieves a restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause

found and published with the rule.

(e) Each agency shall give an interested person the right to

petition for the issuance, amendment, or repeal of a rule.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 383.

5 U.S. C. § 706. Scope of review

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law, in-

terpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action.

The reviewing court shall—

(1) compel agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privi-

lege, or immunity;

or limitations, or short of statutory right;

ee ee ee

oe ee ee | ee ee

ees

A45

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a case

subject to sections 556 and 557 of this title or other-

wise reviewed on the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the reviewing

court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due

account shall be taken of the rule of prejudicial error.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.

42 U.S. C. § 7407. Aijr quality control regions

(a) Each State shall have the primary responsibility for

assuring air quality within the entire geographic area comprising

such State by submitting an implementation plan for such State

which will specify the manner in which national primary and

secondary ambient air quality standards will be achieved and

maintained within each air quality control region in such State.

(b) For purposes of developing and carrying out implementa-

tion plans under section 7410 of this title—

(1) an air quality control region designated under this

section before December 31, 1970, or a region designated

after such date under subsection (c) of this section, shall

be an air quality control region; and

(2) the portion of such State which is not part of any

such designated region shall be an air quality control region,

but such portion may be subdivided by the State into two

or more air quality control regions with the approval of the

administrator.

A46

42 U. S. C. § 7407 (Cont.)

31, 1970, after consultation with appropriate State and local

authorities, designate as an air quality control region any inter-

state area or major intrastate area which he deems necessary

or appropriate for the attainment and maintenance of ambient

air quality standards. The administrator shall immediately notify

the Governors of the affected States of any designation made

under this subsection.

(d)(1) For the purpose of transportation control planning,

part D of this subchapter (relating to nonattainment), part C

of this subchapter (relating to prevention of significant deteriora-

tion of air quality), and for other purposes, each State, within

one hundred and twenty days after August 7, 1977, shall submit

to the Administrator a list, together with a summary of the

available information, identifying those air quality control

regions, or portions thereof, established pursuant to this section

in such State which on August 7, 1977—

(A) do not meet a national primary ambient air quality

standard for any air pollutant other than sulfur dioxide or

particulate matter;

(B) do not meet, or in the judgment of the State may

not in the time period required by an applicable implemen-

tation plan attain or maintain, any national primary ambient

air quality standard for sulfur dioxide or particulate matter;

quality standard;

(D) cannot be classified under subparagraph (B) or

for ambient air quality levels for sulfur oxides or particu-

late matter; or

(E) have ambient air quality levels better than any

national primary or secondary air quality standard other

than for sulfur dioxide or particulate matter, or for which

a rt Oe SR in, BE ot a A mt

A47

42 U.S. C. § 7407 (Cont.)

there is not sufficient data to be classified under subpara-

graph (A) or (C) of this paragraph.

(2) Not later than sixty days after submittal of the list under

paragraph (1) of this subsection the Administrator shall pro-

mulgate each such list with such modifications as he deems

necessary. Whenever the Administrator proposes to modify a

list submitted by a State, he shall notify the State and request

all available data relating to such region or portion, and provide

such State with an opportunity to demonstrate why any proposed

modification is inappropriate.

(4) Any region or portion thereof which is not classified

under subparagraph (B) or (C) of paragraph (1) of this sub-

section for sulfur dioxide or particulate matter within one

hundred and eighty days after August 7, 1977, shall be deemed

to be a region classified under subparagraph (D) of paragraph

(1) of this subsection.

(5) A State may from time to time review, and as appropriate

revise and resubmit, the list required under this subsection. The

Administrator shall consider and promulgate such revised list

in accordance with this subsection.

(e)(1) Except as otherwise provided in paragraph (2), the

Governor of each State is authorized, with the approval of the

Administrator, to redesignate from time to time the air quality

control regions within such State for purposes of efficient and

effective air quality management. Upon such redesignation, the

list under subsection (d) of this section shall be modified ac-

cordingly.

(2) In the case of an air quality control region in a State, or

part of such region, which the Administrator finds may signifi-

cantly affect air pollution concentrations in another State, the

Governor of the State in which such region, or part of a region,

is located may redesignate from time to time the boundaries of

so much of such air quality control region as is located within

A48

42 U. S. C. § 7407 (Cont.)

such State only with the approval of the Administrator and with

the consent of all Governors of all States which the Administra-

tor determines may be significantly affected.

(3) No compliance date extention granted under section

7413(d)(5) of this title (relating to coal conversion) shall

cease to be effective by reason of the regional limitation pro-

vided in section 7413(d)(5) of this title if the violation of such

limitation is due solely to a redesignation of a region under this

subsection.

July 14, 1955, c. 360, Title I, § 107, as added Dec. 31, 1970,

Pub.L. 91-604, § 4(a), 84 Stat. 1678, and amended Aug. 7,

1977, Pub.L. 95-95, Title I, § 103, 91 Stat. 687.

42 U.S.C. § 7409. National primary and secondary ambient

air quality standards

(a)(1) The Administrator—

(A) within 30 days after December 31, 1970, shall

publish proposed regulations prescribing a national pri-

mary ambient air quality standard and a national secondary

ambient air quality standard for each air pollutant for

which air quality criteria have been issued prior to such

date; and

(B) after a reasonable time for interested persons to sub-

mit written comments thereon (but no later than 90 days

after the initial publication of such proposed standards)

shall by regulation promulgate such proposed national pri-

mary and secondary ambient air quality standards with

such modifications as he deems appropriate.

(2) With respect to any air pollutant for which air quality

criteria are issued after December 31, 1970, the Administrator

shall publish, simultaneously with the issuance of such criteria

and information, proposed national primary and secondary am-

bient air quality standards for any such pollutant. The pro-

A ne lagalll

ee ee ts Le ee ee ee

A49

42 U.S. C. § 7409 (Cont.)

cedure provided for in paragraph (1)(B) of this subsection

shall apply to the promulgation of such standards.

(b)(1) Nationa! primary ambient air quality standards, pre-

scribed under subsection (a) of this section shall be ambient air

quality standards the attezinment and maintenance of which in

the judgment of the Administrator, based on such criteria and

allowing an adequate margin of safety, are requisite to protect

the public health. Such primary standards may be revised in the

same manner as promulgated.

(2) Any national secondary ambient air quality standard pre-

scribed under subsection (a) of this section shall specify a level

of air quality the attainment and maintenance of which in the

judgment of the Administrator, based on such criteria, is

requisite to protect the public welfare from any known or antici-

pated adverse effects associated with the presence of such air

pollutant in the ambient air. Such secondary standards may be

revised in the same manner as promulgated.

August 7, 1977, promulgate a national primary ambient air

quality standard for NOz concentration over a period of not

more than 3 hours unless, based on the criteria issued under

section 7408 (c) of this title, he finds that there is no significant

evidence that such a standard for such a period is requisite to

protect public health.

(d)(1) Not later than December 31, 1980, and at five-year

intervals thereafter, the Administrator shall complete a thorough

review of the criteria published under section 7408 of this title

and the national ambient air quality standards promulgated un-

der this section and shali make such revisions in such criteria

and standards and promulgate such new standards as may be

appropriate in accordance with section 7408 of this title and sub-

section (b) of this section .The Administrator may review and

revise criteria or promulgate new standards earlier or more

frequently than required under this paragraph.

ASO

42 U. S. C. § 7409 (Cont.)

(2)(A) The Administrator shall appoint an independent

scientific review committee composed of seven members includ-

ing at least one member of the National Academy of Sciences,

one physician, and one person representing State air pollution

control agencies.

(B) Not later than January 1, 1980, and at five-year inter-

vals thereafter, the committee referred to in subparagraph (A)

shall complete a review of the criteria published under section

7408 of this title and the national primary and secondary am-

bient air quality standards promulgated under this section and

shall recommend to the Administrator any new national am-

bient air quality standards and revisions of existing criteria and

standards as may be appropriate under section 7408 of this

title and subsection (b) of this section.

of areas in which additional knowledge is required to appraise

the adequacy and basis of existing, new, or revised national

ambient air quality standards, (ii) describe the research efforts

necessary to provide the required information, (iii) advise the

Administrator on the relative contribution to air pollution con-

centrations of natural as well as anthropogenic activity, and

(iv) advise the Administrator of any adverse public health, wel-

fare, social, economic, or energy effects which may result from

various strategies for attainment and maintenance of such na-

tional ambient air quality standards.

July 14, 1955, c. 360, Title I, § 109, as added Dec. 31, 1970,

Pub.L. 91-604, § 4(a), 84 Stat. 1679, and amended Aug. 7,

1977, Pub.L. 95-95, Title I, § 106, 91 Stat. 691.

42 U.S.C. § 7410. State implementation plans for national

primary and secondary ambient air quality standards

(a)(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator, within nine

AS1

42 U.S. C. § 7410 (Cont.)

months after the promulgation of a national primary ambient air

quality standard (or any revision thereof) under section 7409

of this title for any air pollutant, a plan which provides for

implementation, maintenance, and enforcement of such primary

standard in each air quality control region (or portion thereof)

within such State. In addition, such State shall adopt and sub-

mit to the Administrator (either as a part of a plan submitted

under the preceding sentence or separately) within nine months

after the promulgation of a national ambient air quality secon-

dary standard (or revision thereof), a plan which provides for

implementation, maintenance, and enforcement of such secon-

dary standard in each air quality control region (or portion

thereof) within such State. Unless a separate public hearing is

provided, each State shall consider its plan implementing such

secondary standard at the hearing required by the first sentence

of this paragraph.

(2) The Administrator shall, within four months after the

date required for submission of a plan under paragraph (1),

approve or disapprove such plan or each portion thereof. The

Administrator shall approve such plan, or any portion thereof,

if he determines that it was adopted after reasonable notice and

hearing and that —

(A) except as may be provided in subparagraph (1),

(i) in the case of a plan implementing a national primary

ambient air quality standard, it provides for the attainment

of such primary standard as expeditiously as practicable

but (subject to subsection (e) of this section) in no case

later than three years from the date of approval of such

plan (or any revision thereof to take account of a revised

primary standard); and (ii) in the case of a plan imple-

menting a national secondary ambient air quality standard,

it specifies a reasonable time at which such secondary

standard will be attained;

AS2

42 U.S. C. § 7410 (Cont.)

(B) it includes emission limitations, schedules, and time-

tables for compliance with such limitations, and such other

measures as may be necessary to insure attainment and

maintenance of such primary or secondary standard, in-

cluding, but not limited to, transportation controls, air

quality maintenance plans, and preconstruction review of

direct sources of air pollution as provided in subparagraph

(D);

tion of appropriate devices, methods, systems, and proce-

dures necessary to (i) monitor, compile, and analyze data

on ambient air quality and, (ii) upon request, make such

data available to the Administrator;

(D) it includes a program to provide for the enforce-

ment of emission limitations and regulation of the modifi-

cation, construction, and operation of any stationary

source, including a permit program as required in parts C

and D of this subchapter and a permit or equivalent pro-

gram for any major emitting facility, within such region

as necessary to assure (i) that national ambient air quality

standards are achieved and maintained, and (ii) a pro-

cedure, meeting the requirements of paragraph (4), for

review (prior to construction or modification) of the loca-

tion of new sources to which a standard of performance

will apply;

(E) it contains adequate provisions (i) prohibiting any

stationary source within the State from emitting any air

pollutant in amounts which will (1) prevent attainment

or maintenance by any other State of any such national

primary or secondary ambient air quality standard, or

(IL) interfere with measures required to be included in the

applicable implementation plan for any other State under

part C of this subchapter to prevent significant deteriora-

tion of air quality or to protect visibility, and (ii) insuring

eri Sean Ae ME ee

A53

42 U.S. C. § 7410 (Cont.)

compliance with the requirements of section 7426 of this

title, relating to interstate pollution abatement;

(F) it provides (i) necessary assurances that the State

will have adequate personnel, funding and authority to

carry out such implementation plan; (ii) requirements for

installation of equipment by owners or operators of sta-

tionary sources to monitor emissions from such sources;

(iii) for periodic reports on the nature and amounts of

such emissions; (iv) that such reports shall be correlated by

the State agency with any emission limitations or standards

established pursuant to this chapter, which reports shall be

available at reasonable times for public inspection; (v) for

authority comparable to that in section 7603 of this title,

and adequate contingency plans to implement such author-

ity; and (iv) requirements that the State comply with the

requirements respecting State boards under section 7428

of this title;

(G) it provides, to the extent necessary and practicable,

for periodic inspection and testing of motor vehicles to en-

force compliance with applicable emission standards;

(H) it provides for revision, after public hearings, of

such plan (i) from time to time as may be necessary to

take account of revisions of such national primary or sec-

ondary ambient air quality standard or the availability of

improved or more expeditious methods of achieving such

primary or secondary standard; or (ii) except as provided

in paragraph (3)(C), whenever the Administrator finds

on the basis of information available to him that the plan

is substantially inadequate to achieve the national ambient

air quality primary or secondary standard which is imple-

ments or to otherwise comply with any additional require-

ments established under the Clean Air Act Amendments

of 1977;

A54

42 U.S. C. § 7410 (Cont.)

(1) it provides that after June 30, 1979, no major sta-

tionary source shall be constructed or modified in any non-

attainment area (as defined in section 7501(2) of this title)

to which such plan applies, if the emissions from such

facility will cause or contribute to concentrations of any

pollutant for which a national ambient air quality standard

is exceeded in such area, unless, as of the time of applica-

tion for a permit for such construction or modification, such

plan meets the requirements of part D of this subchapter

(relating to nonattainment areas) ;

(J) it meets the requirements of section 7421 of this title

(relating to consultation), section 7427 of this title (re-

lating to public notification), part C of this subchapter

(relating to prevention of significant deterioration of air

quality and visibility protection); and

(K) it requires the owner or operator of each major

stationary source to pay to the permitting authority as a

condition of any permit required under this chapter a fee

sufficient to cover—

(i) the reasonable costs of reviewing and acting

upon any application for such a permit, and

(ii) if the owner or operator receives a permit for

such source, whether before or after August 7, 1977,

the reasonable costs (incurred after August 7, 1977)

of implementing and enforcing the terms and condi-

tions of any such permit (not including any court

costs or other costs associated with any enforcement

action).

(3)(A) The Administrator shall approve any revision of an

implementation plan applicable to an air quality control region

if he determines that it meets the requirements of paragraph (2)

and has been adopted by the State after reasonable notice and

public hearings.

LBP LN mt BP et a ie SAMA Be one

ee ee :

A55

42 U.S. C. § 7410 (Cont.)

(B) As soon as practicable, the Administrator shall, consist-

ent with the purposes of this chapter and the Energy Supply and

Environmental Coordination Act of 1974, review each State’s

applicable implementation plans and report to the State on

whether such plans can be revised in relation to fuel burning

stationary sources (or persons applying fuel to such sources)

without interfering with the attainment and maintenance of any

national ambient air quality within the period permitted in this

section. If the Administrator determines that any such plan can

be revised, he shall notify the State that a plan revision may be

submitted by the State. Any plan revision which is submitted by

the State shall, after public notice and opportunity for public

hearing, be approved by the Administrator if the revision re-

lates only to fuel burning stationary sources (or persons supply-

ing fuel to sources), and the plan as revised complies with para-

graph (2) of this subsection. The Administrator shall approve

or disapprove any revisions no later than three months after its

submission.

thereof) approved under this subsection, nor the Administrator

in the case of a plan (or portion thereof) promulgated under

subsection (c) of this section, shall be required to revise an

applicable implementation plan because one or more exemptions

under section 7418 of this title (relating to Federal facilities),

enforcement orders under section 7413(d) of this title, suspen-

sions under section 7410(f) or (g) of this title (relating to

temporary energy or economic authority) or orders under sec-

tion 7419 of this title (relating to primary nonferrous smelters)

have been granted, if such plan would have met the require-

ments of this section if no such exemptions, orders, extension, or

variances had been granted.

(4) The procedure referred to in paragraph (2)(D) for re-

view, prior to construction or modification, of the location of

new sources shall (A) provide for adequate authority to prevent

A56

42 U.S. C. § 7410 (Cont.)

the construction or modification of any new source to which a

standard of performance under section 7411 of this title will ap-

ply at any location which the State determines will prevent the

attainment or maintenance within any air quality control region

(or portion thereof) within such State of a national ambient air

quality primary or secondary standard, and (B) require that

prior to commencing construction or modification of any such

source, the owner or operator thereof shall submit to such State

such information as may be necessary to permit the State to

make a determination under clause (A).

(5) (A) (i) Any State may include in a State implementation

plan, but the Administrator may not require as a condition of

approval of such plan under this secttion, any indirect source

review program. The Administrator may approve and enforce,

as part of an applicable implementation plan, an indirect source

review program which the State chooses to adopt and submit as

part of its plan.

(ii) Except as provided in subparagraph (B), no plan prom-

ulgated by the Administrator shall include any indirect source

review program for any air quality control region, or portion

thereof.

(iii) Any State may revise an applicable implementation

plan approved under this subsection to suspend or revoke any

such program included in such plan, provided that such plan

meets the requirements of this section.

(B) The Administrator shall have the authority to promul-

gate, implement and enforce regulations under subsection (c)

of this section respecting indirect source review programs which

apply only to federally assisted highways, airports, and other

major federally indirect sources and federally owned or oper-

ated indirect sources.

means a facility, building, structure, installation, real property,

ee eee

irae laa” at id A MS Pa AAP a WR tell OP sa et

A57

42 U.S. C. § 7410 (Cont.)

road, or highway which attracts, or may attract, mobile sources

of pollution. Such term includes parking lots, parking garages,

and other facilities subject to any measure for management of

parking supply (within the meaning of subsection (c)(2)(D)

(ii) of this section), including regulation of existing off-street

parking but such term does not include new or existing on-

street parking. Direct emissions sources or facilities at, within,

or associated with, any indirect source shall not be deemed

indirect sources for the purpose of this paragraph.

(D) For purposes of this paragraph the term “indirect source

review program” means the facility-by-facility preconstruction or

pre-modification review of indirect sovrces of air pollution, in-

cluding such measures as are necessary to assure, or assist in

assuring, that a new or modified indirect source will not attract

mobile sources of air pollution, the emissions from which would

cause or contribute to air pollution concentrations—

(i) exceeding any national primary ambient air quality

standard for a mobile source-related air pollutant after the

primary standard attainment date, or

(ii) preventing maintenance of any such standard after

such date.

(E) For purposes of this paragraph and paragraph (2)(B),

the term “transportation contro] measure” does not include any

measure which is an “indirect source review program.”

(6) No State plan shall be treated as meeting the require-

ments of this section unless such plan provides that in the case

of any sources which uses a supplemental, or intermittent con-

trol system for purposes of meeting the requirements of an order

under section 7413(d) or section 7419 of this title (relating to

primary nonferrous smelter orders), the owner or operator of

such source may not temporarily reduce the pay of any employee

by reason of the use of such supplemental or intermittent or other

dispersion dependent control system.

A58

42 U.S. C. § 7410 (Cont.)

(b) The Administrator may, wherever he determines neces-

sary, extend the period for submission of any plan or portion

thereof which implements a national secondary ambient air

quality standard for a period not to exceed 18 months from the

date otherwise required for submission of such plan.

(c)(1) The Administrator shall, after consideration of any

State hearing record, promptly prepare and publish proposed

regulations setting forth an implementation plan, or portion

thereof, for a State if—

(A) the State fails to submit an implementation plan

which meets the requirements of this section,

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to be in

accordance with the requirements of this section, or

the Administrator or such longer period as he may pre-

Scribe, to revise an implementation plan as required pur-

suant to a provision of its plan referred to in subsection

(a) (2) (H) of this section.

If such State held no public hearing associated with respect to

such plan (or revision thereof), the Administrator shal] provide

opportunity for such hearing within such State on any proposed

regulation. The Administrator shall, within six months after the

date required for submission of such plan (or revision thereof),

promulgate any such regulations unless, prior to such promulga-

tion, such State has adopted and submitted a plan (or revision)

which the Administrator determines to be in accordance with

the requirements of this section. Notwithstanding the preceding

sentence, any portion of a plan relating to any measure described

in the first sentence of section 7421 of this title (relating to

consultation) or the consultation process required under such

section 7421 shall not be required to be promulgated before the

date eight months after such date required for submission.

(0+ et le. “Wein.

ellie Bar at

AS9

42 U.S. C. § 7410 (Cont.)

(2)(A) The Administrator shall conduct a study and shall

submit a report to the Committee on Interstate and Foreign

Commerce of the United States House of Representatives and

the Committee on Public Works of the United States Senate not

later than three months after June 22, 1974, on the necessity

of parking surcharge, management of parking supply, and pref-

erential bus/carpool lane regulations as part of the applicable

implementation plans required under this section to achieve and

maintain national primary ambient air quality standards. The

study shall include an assessment of the economic impact of

such regulations, consideration of alternative means of reducing

total vehicle miles traveled, and an assessment of the impact of

such regulations on other Federal and State programs dealing

with energy or transportation. In the course of such study, the

Administrator shall consult with other Federal officials including,

but not limited to, the Secretary of Transportation, the Federal

Energy Administrator, and the Chairman of the Council on

Environmental Quality.

(B) No parking surcharge regulation may be required by

the Administrator under paragraph (1) of this subsection as a

part of an applicable implementation plan. All parking surcharge

regulations previously required by the Administrator shall be

void on June 22, 1974. This subparagraph shall not prevent the

Administrator from approving parking surcharges if they are

adopted and submitted by a State as part of an applicable im-

plementation plan. The Administrator may not condition ap-

proval of any implementation plan submitted by a State on such

plan’s including a parking surcharge regulation.

ary 1, 1975, the effective date or applicability of any regula-

tions for the management of parking supply or any requirement

that such regulations be a part of an applicable implementation

plan approved or promulgated under this section. The exercise

of the authority under this subparagraph shall not prevent the

A60

42 U.S. C. § 7410 (Cont.)

Administrator from approving such regulations if they are

adopted and submitted by a State as part of an applicable im-

plementation plan. If the Administrator exercises the authority

under this subparagraph, regulations requiring a review or analy-

sis of the impact of proposed parking facilities before construc-

tion which take effect on or after January 1, 1975, shall not

apply to parking facilities on which construction has been initi-

ated before January 1, 1975.

(D) For purposes of this paragraph—

(i) The term “parking surcharge regulation” means a

regulation imposing or requiring the imposition of any tax,

surcharge, fee, or other charge on parking spaces, or any

other area used for the temporary storage of motor vehicles.

(ii) The term “management of parking supply” shall

include any requirement providing that any new facility

containing a given number of parking spaces shall receive

a permit or other prior approval, issuance of which is to

be conditioned on air quality considerations.

(iii) The term “preferential bus/ carpool lane” shall in-

clude any requirement for the setting aside of one or more

lanes of a street or highway on a permanent or temporary

basis for the exclusive use of buses or carpools, or both.

(E) No standard, plan, or requirement, relating to manage-

ment of parking supply or preferential bus/carpool lanes shall

be promulgated after June 22, 1974, by the Administrator

pursuant to this section, unless such promulgation has been sub-

jected to at least one public hearing which has been held in the

area affected and for which reasonable notice has been given

in such area. If substantial changes are made following public

hearings, one or more additional hearings shall be held in such

area after such notice.

(3) Upon application of the chief executive officer of any

general purpose unit of local government, if the Administrator

Aél

42 U. S. C. § 7410 (Cont.)

determines that such unit has adequate authority under State

or local law, the Administrator may delegate to such unit the

authority to implement and enforce within the jurisdiction of

such unit any part of a plan promulgated under this subsection.

Nothing in this paragraph shall prevent the Administrator from

implementing or enforcing any applicable provision of a plan

promulgated under this subsection.

(4) In the case of any applicable implementation plan con-

taining measures requiring—

(A) retrofits on other than commercially owned in-use

vehicles,

(B) gas rationing which the Administrator finds would

have seriously disruptive and widespread economic or

social effects, or

spaces, :

the Governor of the State may, after notice and opportunity for

public hearing, temporarily suspend such measures notwithstand-

ing the requirements of this section until January 1, 1979, or

the date on which a plan revision under subsection (a) (2) (1)

of this section is submitted, whichever is earlier. No such suspen-

sion shall be granted unless the State agrees to prepare, adopt,

and submit such plan revision as determined by the Admini-

strator.

(5)(A) Any measure in an applicable implementation plan

which requires a toll or other charge for the use of a bridge

located entirely within one city shall be eliminated from such

plan by the Administrator upon application by the Governor of

the State, which application shall include a certification by the

Governor that he will revise such plan in accordance with

subparagraph (B).

(B) In the case of any applicable implementation plan with

respect to which a measure has been eliminated under subpara-

A62

42 U. S. C. § 7410 (Cont.)

graph (A), such plan shall, not later than one year after August

7, 1977, be revised to include comprehensive measures (in-

cluding the written evidence required by part D of this sub-

chapter), to:

(i) establish, expand, or improve public transportation

measures to meet basic transportation needs, as expedi-

tiously as is practicable; and

(ii) implement transportation control measures neces-

sary to attain and maintain national ambient air quality

standards,

and such revised plan shall, for the purpose of implementing

such comprehensive public transportation measures, include

requirements to use (insofar as is necessary) Federal grants,

State or local funds or any combination of such grants and funds

as may be consistent with the terms of the legislation providing

such grants and funds. Such measures shall, as a substitute for

the tolls or cliarges eliminated under subparagraph (A), provide

for emissions reductions equivalent to the reductions which may

reasonably be expected to be achieved through the use of the

tolls or charges eliminated.

of meeting the requirements of subparagraph (B) shall be sub-

mitted in coordination with any plan revision required under

part D of this subchapter.

(d) For purposes of this chapter, an applicable implementa-

tion plan is the implementation plan, or most recent revision

thereof, which has been approved under subsection (a) of this

section or promulgated under subsection (c) of this section and

which implements the requirements of this section.

A ecb, A MOM NER Ia bt A cenit an sh Aras laces id

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betes

A63

42 U. S.C. § 7501. Definitions

For the purpose of this part and section 7410(a)(2)(1) of

this titlke—

(1) The term “reasonable further progress” means annual

incremental reductions in emissions of the applicable air pol-

lutant (including substantial reductions in the early years fol-

lowing approval or promulgation of plan provisions under this

part and section 7410 (a) (2) (I) of this title and regular reduc-

tions thereafter) which are sufficient in the judgment of the

Administrator, to provide for attainment of the applicable na-

tional ambient air quality standard by the date required in sec-

tion 7502 (a) of this title.

(2) The term “nonattainment area” means, for any air

pollutant an area which is shown by monitored data or which is

calculated by air quality modeling (or other methods determined

by the Administrator to be reliable) to exceed any national

ambient air quality standard for such pollutant. Such term in-

cludes any area identified under subparagraphs (A) through

(3) The term “lowest achievable emission rate” means for

any source, that rate of emissions which reflects—

(A) the most stringent emission limitation which is

contained in the implementation plan of any State for

such class or category of source, unless the owner or

operator of the proposed source demonstrates that such

limitations are not achievable, or

(B) the most stringent emission limitation which is

achieved in practice by such class or category of source,

whichever is more stringent.

In no event shall the application of this term permit a proposed

hew or modified source to emit any pollutant in excess of the

amount allowable under applicable new source standards of

performance.

A64

42 U.S. C. § 7501 (Cont. )

(4) The terms “modifications” and “modified” mean the same

as the term “modification” as used in section 7411(a)(4) of

this title.

July 14, 1955, c. 360, Title I, § 171, as added Aug. 7, 1977,

Pub.L. 95-95, Title I, § 129(o), 91 Stat. 746.

42 U. S.C. § 7502. Nonattainment plan provisions

(a)(1) The provisions of an applicable implementation plan

for a State relating to attainment and maintenance of national

ambient air quality standards in any nonattainment area which

are required by section 7410(a) (2) (1) of this title as a precon-

dition for the construction or modification of any major station-

ary source in any such area on or after July 1, 1979, shall pro-

vide for attainment of each such national ambient air quality

standard in each such area expeditiously as practicable, but,

in the case of national primary ambient air quality standards,

not later than December 31, 1982. @

(2) In the case of the national primary ambient air quality

standard for photochemical oxidants or carbon monoxide (or

both) if the State demonstrates to to’ the satisfaction of the

Administrator (on or before the time required for submission

of such plan) that such attainment is not possible in an area

with respect to either or both of such pollutants within the period

prior to December 31, 1982, despite the implementation of all

reasonably available measures, such provisions shall provide for

the attainment of the national primary standard for the pollutant

(or pollutants) with respect to which such demonstration is

made, as expeditiously as practicable but not later than Decem-

ber 31, 1987.

(b) The plan provisions required by subsection (a) of this

section shall—

(1) be adopted by the State (or promulgated by the

Administrator under section 7410(c) of this title) after

reasonable notice and public hearing;

A65

42 U. S. C. § 7502 (Cont.)

(2) provide for the implementation of all reasonably

available control measures as expeditiously as practicable;

(3) require, in the interim, reasonable further progress

(as defined in section 7501(1) of this title) including such

reduction in emissions from existing sources in the area

as may be obtained through the adoption, at a minimum,

of reasonably available control technology;

(4) include a comprehensive, accurate, current inven-

tory of actual emissions from all sources as provided by

rule of the Administrator) of each such pollutant for each

such area which is revised and resubmitted as frequently

as may be necessary to assure that the requirements of

paragraph (3) are met and to assess the need for additional

reductions to assure attainment of each standard by the

date required under paragraph (1);

(5) expressly identify and quantify the emissions, if

any, of any such pollutant which will be allowed to result

from the construction and operation of major new or

modified stationary sources for each such area:

(6) require permits for the construction and operation

of new or modi

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