# Petition — United States Steel Corporation v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0972%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1035 ## Text ELLED Supreme Court, U. & j 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 10 10 13 Appendix il 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 iV 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. ho 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. 4 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 6 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 7 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. I. 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 9 207 (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 10 $ 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 11 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. i2 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 13 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. 14 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 15 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- 16 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 ae 17 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 18 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. 19 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. Al 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. A2 I 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.) A3 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; (C) do not meet a national secondary ambient air quality 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 A4 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. II 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.) AS 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. A 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. A6 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). — A7 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 A8 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 A9 (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. B 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 X \. Xx X x* 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 Xx x* x* 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. (c) After notice required by this section, the agency shall 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; (C) in excess of statutory jurisdiction, authority, 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 un [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0972%3A1. Public record. Not legal advice.