# Petition — Indianapolis Power & Light Co. v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1168%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1044 ## Text a preme Court, U.S. ELLED QCT 380 1979 IN THE Supreme Court of the Gnited OCTOBER TERM, 1979 0 Ee ee No. 29-69] INDIANAPOLIS POWER & LIGHT COMPANY anp INDIANAPOLIS CHAMBER OF COMMERCE INC., Petitioners, VS. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT JERRY P. BELKNAP, BRYAN G. TABLER, 1313 Merchants Bank Building, Indianapolis, Indiana 46204, Telephone: (317) 638-1313, Attorneys for Petitioners. Marcus E. Woops, ARNOLD A. GORDUS, Indianapolis Power & Light Company, Post Office Box 1595B, Indianapolis, Indiana 46206, Telephone: (317) 261-8261, BARNES, HICKAM, PANTZER & Boyp, 1313 Merchants Bank Building, Indianapolis, Indiana 46204, Telephone: (317) 638-1313, Of Counsel. Gunthorp-Warren Printing Company, Chicago e Financial 6-6565 “Migtrama porn i Cl TPs ge ei laut ALAS pf ee sence eeceeees RP MO OI ee eee ee ee Rs i Questions Presented for Review..................... ee te kaos tre cece EE re eer I. II. The Court of Appeals’ Disregard of a Valid State Court Judgment Conflicts with Applicable Decisions of This Court, with 28 U. S.C. § 1738, and with the Principles of Collateral Estoppel. If Allowed to Stand, It Will Drastically Reorder the System of Cooperative Federalism Estab- lished by the Clean Air Act................ The Court Below Has Interpreted 42 U.S.C. § 7607(d) and the “Good Cause” Exceptions to the Notice and Comment Procedures of 5 U.S. C. § 553, Questions of Central Importance to the Administration of the Clean Air Act, in a Way That Directly Conflicts with Decisions Rendered Upon Nearly Identical Facts by the Courts of Appeals for the Third and Fifth ee ies Sk cain seis cece es I Se Sa ys i Appendix A. B. _ ea Judgment of the Court of Appeals........... Opinion of the Court of Appeals............. Opinion of the Court of Appeals in the Related Case of United States Steel Corporation v. United States Environmental Protection Agency...... “4 fh WwW NY NO — mA eS il Judgment of the Hancock Circuit Court....... A32 Findings of Fact and Conclusions of Law of the oe Be er ore A35 Relevant Portions of the Order of the Admin- istrator, EPA, Published at 43 Fed. Reg. 8962, I eI an Eats bee ans A52 Relevant Portions of the Order of the Admin- istrator, EPA, Published at 43 Fed. Reg. 45993, CE a NT in ae lanes os kee awe A65 Relevant Portions of the Administrative Proce- ew eas Vis 5 a bo wd pw eae OS A74 y SR RS er eee eee ey Tes eee A76 Se hs cc ee RVs aS he en ee 8A A76 Relevant Portions of the Clean Air Act........ A77 Relevant Portions of the Indiana Rulemaking eee ee Pee: Pe pe re ee eee ee A106 ili TABLE OF AUTHORITIES Cases Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. We ROOED “Siw oS nase he Cok ees be ee eas PR Ae 12 Commissioner v. Estate of Bosch, 387 U. S. 456 (1967).. 12 Consumers Union of the United States v. Consumer Product Safety Commission, 590 F. 2d 1209 (D.C. Cir. 1978), cert, granted, 47 U.S. L. W. 3747 (May 14, 1979)... 11 ~Deposit Bank v. Board of Councilmen of Frankfort, 191 s & gs RR etre eres yt ee sore ee 13 Durfee v. Duke, 375 U.S. 106 (1963)............... 10 Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940).. 12 Huron Holding Corp. v. Lincoln Mine Operating Co., 312 Se. a Oe EE Stk a ee ro we ak CRS EE ROE he as 13 Indiana & Michigan Electric Co. v. EPA, 509 F. 2d 839 4. LR, > ee re ert es, Semen 7 eee ee ern 11 Montana v. United States, 47 U.S.L.W. 4190 (Feb. Oe ret ee re Pree na 10, 11 Nill v. Comparet, 16 Ind. 107 (1861)................ 13 Parklane Hosiery, Inc. v. Shore, 47 U. S. L. W. 4079 (Jan. et Ss PAREN CRE ORED LA wees bees 10, 11 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)..... 10 Sea-Land Services, Inc. v. Gaudet, 414 U. S. 573 (1974).. 11 Sharon Steel Corporation v. Environmental Protection Agency, S57 F. de 377 (SGC. F979)... 2.2.6... 14 Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84 (Sth Cir.), cert. denied, 434 U.S. 832 SES sa ise eae a OA ea Sean wee oe 11 iV Train v. Natural Resources Defense Council, 421 U.S. 60 CEPTS) ccavisivesine coun ten pee eee 8,9, 11 Union Electric Co. v. EPA, 427 U.S. 246 (1976) Pe Pe er re es ey ym eS ey: United States Stee] Corporation v. U.S. Environmental Protection Agency, 595 F. 2d 207 (Sth Cir. 1979).... 14 United States Statutes Administrative Procedure Act, 5 U. S.C. § 551 et seq. § U. BC. See woes ns eee eee dy'dy ay 14 5 U.S.€. SRG cs sn kaksee eee 6 SU. 3 €. §S350G).. ieee 6 S$ US. Bia a inocu eae eee 3 28 U.S.C. © BGBR. oo ous cwcaeceeteee eee 4,12 28 U3. C. 3 1B a wo 00a 5 sees eee 2% 7, 9,29 Clean Air Act U. S. C. § 7401 et seq. § 107, 42 U. 2 C.. 8 Pile cose nc ceesee ean y § 107(4), 42 U. 3 GC. § Tara =. wes 0 5c.. a ae Fe § 107(d) (1), 42 U.S.C. § 7407(d) (1) ......... 4 §$ 107(d) (2), 42 U.S.C. § TA07EE) GE) ......... 4 § 107(d}(S), 42 U.S.C. § F4O7CE)(S) ....5.... 15 $109, 42.U. 3. § POR iia cn sew ewiwssss sup ees 3 $120, 42 Wa. OP erie veassecascacaes 3 § 110(a) (2), 42 U.S.C. § 7410(a)(2) ......... 8 § 110(c), 42 CAS. Ge § PRR) x nn cc cee cannes 12 Si7k, 2 WSC. Se ko eee eans senses $ 172, @ VU. 3 C.. 2 Pe ee uae sence eehas 3 $§ 172-178, 42 U. S.C. §§ 7502-7506........... 4 $ U7, 42 U.S0. 9 Willes csc0e tes ces vas cess 3 § SO7T(B), 42 Ui. eC. § Fe 6 ese eve nsee sess 5 § 307(b) (1), 42 U.S.C. § 7607(B) (1) ......... 5 Vv Serene, Ge OU. oO. § GOT) once feet sce e 14 § 307(d) (1), 42 U.S.C. § 7607(d)(1) ......... 3 § 307(d) (9), 42 U.S.C. § 7607(d)(9) ..... 2, 3, 6, 14 Code of Federal Regulations ne a ge a we wy ek veka eg was kw wba ak ocm #40 40 09 le a The Federal Register So Pee. Ree, S962 (iharen 3, 1978)... 2. ok ceca 2 Indiana Statutes I IG sy a'n-a Baia poaees a ho oP eww a Sew 4,3 NL gata, SG re hae ke thle eee as 12 Oe aT Oe Geo wis a) ke 0 a eee 10 Miscellaneous R. Stern & E. Gressman, Supreme Court Practice 448 (Sth ait aad sha ge k sh oa a RS OSL Ae ow R'Os 15 IN THE Supreme Court of the Anited States OCTOBER TERM, 1979. INDIANAPOLIS POWER & LIGHT COMPANY anp INDIANAPOLIS CHAMBER OF COMMERCE, INC., 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 Indianapolis Power & Light Company and Indian- apolis Chamber of Commerce, Inc. pray that a writ of certiorari issue to review the judgment of the Court of Appeals for the Seventh Circuit in this case. ORDERS AND OPINIONS BELOW The opinion of the Court of Appeals in /ndianapolis Power & Light Company and Indianapolis Chamber of Commerce, Inc. v. U. §. Environmental Protection Agency is not officially reported but is reprinted in the Appendix at pages A2-A11 and 2 is unofficially reported at 13 ERC 1461. The same court's opinion in the related cases of United States Steel Corporation and Youngstown Sheet and Tube Company v. U.S. EPA is not yet reported but is in the Appendix at pages A12-A31. The order of the United States Environmental Protection Agency (“EPA”) reviewed by the Seventh Circuit appears at 43 Fed. Reg. 8962 (March 3, 1978) and is reprinted in the Appendix at A52-A64. JURISDICTION The judgment of the Court of Appeals (Appendix, Al) was entered on August 2, 1979. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). QUESTIONS PRESENTED FOR REVIEW Pursuant to its obligation under § 107 of the Clean Air Act to designate areas which do not meet national air quality standards, EPA promulgated a list of designations submitted by an Indiana agency, which list an appropriate Indiana court adjudicated to have been unlawfully issued without compliance with requirements of notice and hearing mandated by Indiana law. In addition, EPA made the designation immediately effec- tive, dispensing with publication of proposed rulemaking and acceptance of prior public comments. The Court of Appeals for the Seventh Circuit held that neither it nor EPA need honor the decision of the Indiana court. It also ruled that EPA’s procedure was justified under “good cause” exemptions in 5 U. S.C. § 553 and that judicial review thereof was limited by 42 U.S.C. § 7607(d) (9). The questions presented for review are: 1. Whether, despite the fuii faith and credit mandate of 28 U.S.C. § 1738, the principle of collateral estoppel by judgment, and the system of cooperative federalism ordained in the Clean Air Act, the Seventh Circuit prop- erly affirmed EPA’s promulgation of an area classification 3 list submitted by the Indiana agency pursuant to Clean Air Act Section 107(d), when there was a final judgment from an Indiana court of general jurisdiction holding the sub- mitted list to be void as an act of the State for noncom- pliance with Indiana law requirements of notice and hear- ing. 2. Whether the failure of EPA to comply with the Administrative Procedure Act requirements for notice and comments 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 EPA had by statute 60 days following submission to EPA by the states of suggested designations to promulgate designations of the attainment status of various areas under the Clean Air Act. 3. Whether the limitations on judicial review of pro- cedural defects in EPA rulemaking set forth in 42 U.S.C. § 7607(d)(9) are applicable to rulemaking procedures which Congress omitted from the enumeration in 42 U.S.C. § 7607(d)(1) of those proceedings to which the subsection applies. Question 1 above is presented in this Petition only. Questions 2 and 3 are also presented in the Petition in No. 79-486, United States Steel Corporation and Youngstown Sheet and Tube Company v. U.S. EPA. STATUTES INVOLVED The provisions of the Clean Air Act, 42 U.S.C. § 7401 et seq., primarily involved herein, §§ 7407, 7409, 7410, 7501, 7502, and 7607, are set forth at Appendix, A77-A106. The relevant portions of the Administrative Procedure Act, 5 U.S.C. $551 et seg., §§ 553 and 706, are set forth at Appendix, A74-A76. 4 28 U.S. C. § 1738 is set forth at Appendix, A76. 28 U.S. C. §$ 1652 is set forth at Appendix, A76-A77. Pertinent provisions of the Indiana rulemaking statute, IC 4- 22-2-1 et seq., are set forth at Appendix, A106-A111. STATEMENT OF THE CASE The Clean Air Act Amendments of 1977 (P.L. 95-95, 91 Stat. 685 (August 7, 1977)), require a combined state-federal effort to classify each area of the country as to whether its air quality meets the national ambient air quality standards. Section 107(d)(1) of the Act, 42 U.S.C. § 7407(d) (1), directs each State to submit to EPA, within 120 days of enactment of the 1977 Amendments, a list of those areas of the State that as of August 7, 1977, did not meet a national ambient air quality standard, a list of those areas with air quality better than re- quired by the national standards on that date, and .a list of those areas which cannot be classified for lack of information. Section 107(d)(2) requires EPA, within 60 days of receiving a State’s list of designations, to promulgate it, or after further proceedings, to promulgate it with modifications deemed neces- sary. Designation of an area as nonattainment triggers imposi- tion of severe constraints on sources located or planning to locate in that area. 42 U.S. C. §§ 7502-7508. On December 2, 1977, and January 17, 1978, staff members of the Indiana Air Pollution Control Division submitted to EPA a list of recommended attainment status designations for the entire State. Both submissions proposed that Marion County be classified nonattainment for sulfur dioxide. On March 3, 1978, without providing prior public notice or opportunity for public comment, the EPA Administrator published as final, immedi- ately effective rules a list of Section 107 designations for the entire United States. 40 C.F.R. Part 81. Marion County was classified nonattainment for sulfur dioxide. (40 C.F. R. § 81.315, Appendix, A63.) The Administrator invited post hoc 5 public comments by May 2, 1978, which was also the last date for filing a petition for judicial review of the rule. 42 U. S.C. $ 7607(b) (1). On April 28, 1978, Indianapolis Power & Light Company, which operates sulfur dioxide-emitting generating stations in Marion County, petitioned the Court of Appeals for the Seventh Circuit to review and set aside EPA’s March 3, 1978, final regulation designating Marion County as nonattainment for sulfur dioxide. Indianapolis Chamber of Commerce, Inc. was later granted leave to intervene as a petitioner. Jurisdiction in the Court of Appeals was founded upon 42 U.S. C. § 7607(b). On October 5, 1978, while the review petition was pending, EPA republished the classification at issue, stating that the evidence supported a finding that the air quality in Marion County was not in compliance with the national primary ambient standard for sulfur dioxide. (Appendix, A65-A73.) In the Court of Appeals, Petitioners assailed EPA’s classifica- tion of Marion County as nonattainment on three grounds. First, Petitioners pointed out that the rule should be set aside as being without basis and as issued otherwise than in accordance with law, because the Indiana decuments relied upon by EPA as the sole basis for the rule were not promulgated in accordance with the Indiana rulemaking statute, IC 4-22-2-1 et seq., were accord- ingly void as utterances of the State, and could not be adopted by EPA as State action under Clean Air Act Section 107(d). Second, Petitioners contended that the March 3, 1978, classifica- tion should be set aside as violating the prior notice and com- ment requirements of 5 U.S. C. § 553. Third, Petitioners main- tained that EPA’s classification of Marion County as nonattain- ment was not the product of reasoned decisionmaking. The Court of Appeals heard argument on Petitioners’ case on April 18, 1979, together with argument on petitions filed by United States Steel Corporation and Youngstown Sheet and Tube Company to review EPA’s contemporaneous designation of part of Lake County, Indiana, as nonattainment. 6 Concurrently, as was noted in the briefs of both Petitioners and Respondent below, Petitioners challenged in State court the Indiana Air Pollution Control Board’s transmittal of the classi- fications for noncompliance with State rulemaking procedures. On May 6, 1979, the Circuit Court of Hancock County, Indi- ana, rendered a final judgment in that suit. Sustaining Petitioners’ interpretation of State law, the State court declared the classi- fication list submitted to and adopted by EPA “absolutely void and of no effect as an act of the State of Indiana or for any other purpose,” and enjoined State officials from taking or withhold- ing any action premised on Marion County’s having been duly designated a nonattainment area. (Appendix, A32.) Pursuant to the Court of Appeals’ request at oral argument, Petitioners advised it of the State court judgment on May 15, 1979, by submitting as additional authority both the State court’s judg- ment and its detailed findings of fact and conclusions of law. (Appendix, A35-A51.) On August 1, 1979, the Court of Appeals issued an opinion denying the petitions of United States Steel Corporation and Youngstown Sheet and Tube Company to set aside EPA’s Lake County nonattainment designation. (Appendix, Al2.) The court held that the agency had “good cause” to dispense with proposed rulemaking and prior public comment under 5 U. S. C. $§ 553(b)(B) and 553(d)(3). As an alternative ground of decision, the court ruled that Clean Air Act Section 307(d) (9), 42 U.S.C. § 7607(d) (9), which restricts reversal of EPA rule- making for procedural errors, applied and mandated affirm- ance. On August 2, 1979, the Court of Appeals issued an unsigned Order rejecting Petitioners’ challenges to EPA’s March 3, 1978, classification of Marion County. (Appendix, A2.) Citing its day-old opinion in United States Steel, et al. v. EPA, the court summarily dismissed Petitioners’ contention that EPA’s March 3, 1978, regulations were adopted in contravention of the Ad- ministrative Procedure Act. The court then rejected Petitioners’ 7 position that the Indiana Air Pollution Control Board’s attain- ment status designations were invalid under State law. In the first place, the court ruled, this contention was waived by Peti- tioners’ failure to raise it during the comment period, which began after EPA’s promulgation of the final rules and coincided with the time for seeking judicial review thereof. Secondly, the Court of Appeals declined to respect the decision of the Circuit Court of Hancock County, stating that as “a decision of a nisi prius court, it is not binding on us . . . unless the decision is affirmed on appeal,” and opining that the State court's interpre- tation of the State rulemaking statute was doubtful. Lastly, the court ruled that Section 107(d) of the Clean Air Act does not authorize the Administrator to disapprove attainment status designations submitted to him merely because the State authori- ties “may not have complied strictly with state procedural re- quirements.” (Appendix, A6-A7.) REASONS FOR GRANTING THE WRIT I The Court of Appeals’ Disregard of a Valid State Court Judg- ment Conflicts with Applicable Decisions of This Court, with 28 U.S.C. § 1738, and with the Principles of Collateral Estoppel. If Allowed to Stand, It Will Drastically Reorder the System of Cooperative Federalism Established by the Clean Air Act. By choosing to ignore the final judgment of the Indiana court, the Court of Appeals has violated the express mandates of 28 U. S.C. § 1738 (1976) and this Court, both of which re- quire federal courts to give final judgments of State courts full faith and credit. In addition, in rendering its decision, the Court of Appeals disregarded the state-federal division of jurisdiction provided by Congress in the Clean Air Act and articulated by this Court in Union Electric Co. v. EPA, 427 U.S. 246 (1976). Petitioners were thereby denied any effective review of the 8 EPA’s nonattainment designation and were denied the important State law remedies expressly reserved to them in Union Electric, supra. This Court has had occasion to construe the Clean Air Amendments of 1970 (P. L. 91-604, 84 Stat. 1676 (December 31, 1970)). E.g., Union Electric Co., supra; Train v. Natural Resources Defense Council, 421 U.S. 60 (1975). The heart of the 1970 Amendments, this Court has held, is the requirement that each State formulate a plan to achieve federally established air quality standards. Under Section 110(a)(2) of the Act, the EPA Administrator is required to approve a State plan which provides for the timely attainment of national air quality stand- ards and which satisfies that section’s other specifically enumer- ated requirements. Union Electric Co., supra, at 250, 256, 265. Applying this principle, this Court held in Union Electric that the Administrator lacks authority to disapprove a State- submitted plan on the ground that compliance therewith would be economically or technologically infeasible or on any ground except the plan’s failure to meet the specific criteria set forth in Section 110(a)(2)(A)-(H). Since matters extraneous to those criteria cannot be considered by the Administrator in exercising his approval authority, this Court held that neither may a federal court of appeals consider such matters in exercising its Section 307(b) reviewing authority. Union Electric, at 256, 265-66. Rather, “sources objecting to such a[n infeasible] state scheme must seek their relief from the State.” Union Electric, at 265 n. 14. If State law permits, a source may “take its claims of economic or technological infeasibility to the state courts.” Union Electric, at 266-67. This Court has thus construed the congressional scheme as giving the State courts the ultimate authority to determine the validity of the State action to be approved or acted upon by the Administrator. In the case at bar, Petitioners properly availed themselves of the State law remedies stressed by the Court in Union Electric as the only available remedies. But the Court of 9 Appeals wholly eviscerated that remedy by denying full faith and credit to the State court judgment on the lawfulness of the State’s portion of the joint state-federal effort called for by the Clean Air Act. Indeed, the Court of Appeals went even further. After deciding that the Administrator has no authority under Section 107(d) to disapprove a purportedly official State sub- mittal because it might be void under State law, the lower court proceeded itself to consider the State law question and to de- cide it, without mentioning any reason grounded in State law, squarely contrary to a final State court judgment on the precise issue.’ (Appendix, A7 n. 4). The result is a situation which neither the scheme of the Clean Air Act nor constitutional federalism can tolerate: The Court of Appeals has upheld EPA’s promulgation of an Indiana classification which should serve as the basic premise of Clean Air Act Implementation Plan provisions to be developed by the State, while the State court has held the classification invalid and has enjoined State officials from acting upon the classification. Clearly, the mechanism of state-federal cooperation articu- lated in Union Electric and Train vy. NRDC, supra, cannot op- erate without regard for the full faith and credit requirement of 28 U.S.C. § 1738. That statute commands federal courts to accord a State court judgment the same full faith and credit— the same collateral estoppel effect—it merits in the rendering 1. As noted in the Statement of the Case, the Court of Appeals also stated that Petitioners’ attack on the procedures followed by the State board “comes too late” since this point was not raised with EPA. (Appendix, A6.) At this juncture, the court may have nodded. Petitioners were, after all, challenging a final, immediately effective rule and were also challenging EPA’s failure to give any notice or accept any comments before making the rule effective. The court may have been referring to the opportunity for comment EPA allowed after the designation became effective, but at this point the chance for meaningful dialogue had passed. Further, it should be noted that the Court of a ang unprecedented “waiver” theory is inconsistent with its view that EPA has no authority to consider State law objections to State submisions. If this extraordinary for- feiture theory is to be the law in notice and comment rulemaking, it should be this Court that says so. 10 State. Durfee v. Duke, 375 U.S. 106 (1963). Here a State court of general jurisdiction? reviewed the record purported to constitute a solemn, official act of the State, found it instead merely to reflect the unauthorized action of errant State em- ployees, and declared it void as an act of the State. The Court of Appeals, reviewing less than the whole record, held the same act to be cognizable as official State action. The mandate of full faith and credit at 28 U.S.C. § 1738 does not countenance this denigration of State judicial proceedings, and the delicately balanced division of State and federal responsibilities Congress set up in the Clean Air Act cannot tolerate such a disregard for the laws and judicial proceedings of the States. The collateral-estoppel-by-judgment rule has been equally violated. This Court recently applied the doctrine of collateral estoppel to bar a party from relitigating issues decided against it in a prior suit against a federal agency not a party to the second action. In Parklane Hosiery, Inc. v. Shore, 47 U.S. L. W. 4079 (Jan. 9, 1979), at 4080-81, n.5, the Court described collateral estoppel and the related doctrine of res judicata as follows: Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. In Montana v. United States, 47 U.S. L.W. 4190 (Feb. 22, 1979), the Court held the U.S. Government collaterally es- topped from relitigating in federal court a question decided adversely to its privy in a prior State court judgment. The same principles apply in the case at bar, and the decision below conflicts with them. Here the issue whether the classifica- 2. The Hancock Circuit Court is such a court. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 414 (1923); IC 33-4-4-3. 11 tion adopted by EPA as Indiana action in fact constituted valid State action was actually litigated and decided in the State court and was necessary to the outcome there since it was the only thing at issue. (Appendix, A35-A5).) Parklane Hosiery, Inc., supra, and Montana v. United States, supra, bar not only the State court defendant but also its privies from relitigating the issue in federal court. On March 3, 1978, EPA uncritically adopted and promulgated a purported State classification without seeking or even giving opportunity for submittal of other in- formation on the subject. Accordingly, the question whether the underlying papers were duly submitted by the State or by someone else is at once fundamental to the validity of EPA’s action and a pure matter of State law upon which EPA, as the mere recipient of the papers, can Shed no light not al- ready cast by the responsible State officials and the State At- torney General, whose task it was to defend in State court the validity of the classification transmitted to and adopted by EPA. In these circumst ‘ices, binding EPA to the State court judgment is proper because its legal interests are entirely congruent with the State agency’s interests. Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 91-101 (Sth Cir.), cert. denied, 434 U.S. 832 (1977); cf. Consumers Union of the United States v. Consumer Product Safety Commission, 590 F. 2d 1209, 1217-23 (D.C. Cir. 1978), cert. granted, 47 U.S. L. W. 3747 (May 14, 1979). Indeed, under the Clean Air Act, EPA has no independent legal interest in State-submitted attainment designations or implementation plans. EPA gets what it gets from the State, however flawed or deficient. Union Electric Co., supra at 266-67; Train v. NRDC, supra at 79; Indiana & Michigan Electric Co. v. EPA, 509 F. 2d 839, 847 (7th Cir. 1975). Accordingly, EPA’s purely derivative interest must be concluded by the State court judgment. Sea-Land Serv- ices, Inc. v. Gaudet, 414 U.S. 573, 593-95 (1974). EPA may have been at liberty to take steps to make attainment status designations for Indiana in the face of the State’s failure timely 12 to perform its task of recommending designations. See 42 U.S. C. § 7410(c). However, it was not free, nor was the Court of Appeals free, to determine on its own the validity of the sub- mission as a legal act of the State of Indiana. This Court should grant the writ to make unmistakably clear what is fairly implicit in Union Electric—that derivative interests of federal agencies in State administrative proceedings are necessarily concluded in State court proceedings involving their State level counterparts. The Court of Appeals offered only cursory justification for its disregard of the State court judgment. Citing this Court’s decision in Commissioner v. Estate of Bosch, 387 U.S. 456 (1967), the court below remarked that “[bJeing a decision of a nisi prius court, [the state court judgment] is not binding on us... unless the decision is affirmed on appeal.” (Appendix, A7.) This completely misses the point. The Court of Appeals was not deciding a question of State law as it would in a diversity action;® it should have been considering the effect of a State court judgment. Under Indiana law, the judgment of the Circuit Court of Hancock County was final and the possibility of an appeal in no way changed the situation. Until annulled or re- versed on appeal, that judgment is binding upon the parties as 3. Even if some strained logic could furnish a reason for the Court of Appeals to have reconsidered the State law question settled by the Hancock Circuit Court, Fidelity Union Trust Co. v. Field, 311 U.S. 169 (1940), Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967) itself, and 28 U.S.C. § 1652 all provide that the opinion of a State trial court must be respected by a federal court unless other persuasive State law data convinces the court that the highest court of the State would decide otherwise. The Court of Appeals looked to no such data; instead it decided the Indiana statu- tory question solely by reference to this Court’s opinion in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), which is quite irrelevant to Indiana law because it is based on the Federal Administrative Procedure Act, which differs from the Indiana Act in defining a “rule” subject to rulemaking procedure. IC 4-22-2-3 says that a rule includes “any classification . . . designed to have or having the effect of law or interpreting, supplementing or implementing any statute.” Area classifications implementing the Clean Air Act cannot by any stretch escape this definition. 13 to every question directly decided. Nill v. Comparet, 16 Ind. 107, 109 (1861). Full faith and credit requires that it be given the same effect here. Application of the principle of collateral estoppel leads to the same conclusion. As this Court stated in Deposit Bank v. Board of Councilmen of Frankfort, 191 U.S. 499 (1903): “It is urged that the state judgment upon which the Federal decree of 1808 is based was afterwards reversed by the highest court of Kentucky, and, therefore, the foun- dation of the decree has been removed, and the decree itself must fall. But is this argument sound? When a plea of res judicata is interposed, based upon a former judgment be- tween the parties, the question is not what were the reasons upon which the judgment proceeded, but what was the judgment itself; was it within the jurisdiction of the court between the same parties, and is it still in force and effect? The doctrine of estoppel by judgment is founded upon the proposition that all controversies and contentions involved are set at rest by a judgment or decree lawfully rendered which, in its terms, embodied a settlement of the rights of the parties. * * * We are unable to find reason or authority supporting the proposition that because a judgment may have been given for wrong reasons or has been subse- quently reversed, that it is any the less effective as an es- toppel between the parties while in force.” (191 U.S. 510-511.) (Emphasis added.) This holding was approved in Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941). 14 II The Court Below Has Interpreted 42 U.S.C. § 7607(d) and the “Good Cause” Exceptions to the Notice and Comment Procedures of 5 U. 8. C. § 553, Questions of Central Import- ance to the Administration of the Clean Air Act, in a Way That Directly Conflicts with Decisions Rendered Upon Nearly Identical Facts by the Courts of Appeals for the Third and Fifth Circuits. The court below ruled that tight statutory deadlines and the States’ need for immediate guidance in the preparation of im- plementation plans gave EPA “good cause” to dispense with the notice and comment requirements of 5 U.S.C. § 553. This question is of immense importance to administration of the Clean Air Act and other statutes that prescribe deadlines for agency action. The court below also ruled that the limitations on judicial review of agency rulemaking contained in 42 U.S.C. § 7607 (d)(9) apply even though the rulemaking at issue here is without the scope of 42 U.S. C. § 7607(d). This tour de force unsettles the rulemaking procedures of the Clean Air Acct. These rulings both conflict directly with the decisions in Sharon Steel Corporation v. Environmental Protection Agency, 597 F.2d 377 (3d Cir. 1979) and United States Steel Cor- poration v. United States Environmental Protection Agency, 595 F. 2d 207 (Sth Cir. 1979). As noted above, these important rulings first were announced by the court below in its opinion in United States Steel Corpora- tion and Youngstown Sheet and Tube Company vy. United States Environmental Protection Agency, (Appendix, Al2), and were applied in the present case simply by reference to that decision. United States Steel Corporation and Youngstown Sheet and Tube Company have petitioned this Court to issue a writ of certiorari to review these rulings. United States Steel Corporation 15 v. United States Environmental Protection Agency, No. 79-486 (petition filed September 21, 1979). Their petition ably expli- cates the reasons why this Court should review these questions. To spare the Court needless repetition, Petitioners hereby in- corporate by reference pages 8-19 of that petition. R. Stern & E. Gressman, SUPREME CourT PRACTICE 448 (5th Ed. 1978). CONCLUSION The Court of Appeals below decided two questions important to administration of the Clean Air Act in conflict with Third and Fifth Circuit decisions. The Court of Appeals also sought to redetermine the validity of State action on which the agency order involved was founded, in ihe face of a State court judg- ment holding the action invalid for want of notice and hearing required by State law. The questions raised by the decision below are of both im- mediate and continuing importance. In Indiana alone there are 460 separate entries (ninety-two areas times five pollutants) on the classification lists called for by Section 107(d). Since the Section 107 classification process is a continuing one, 42 U. S.C. § 7407(d) (5), the questions raised herein are likely to recur again and again within Indiana and the rest of the Seventh Circuit. Moreover, the decision below raises serious questions pertinent to the process of state implementation plan develop- ment, approval, and judicial review under the Clean Air Act. The Clean Air Act Amendments of 1977 require wholesale re- visions of the State plans on a nationwide basis. The process is nearing conclusion, with EPA continually issuing approvals, disapprovals, and conditional approvals. It is fair to expect State courts and federal appeals courts to receive a virtual deluge of review petitions within the near future. The decision below has unsettled the law applicable to these proceedings in the Seventh Circuit—made it different from the law in the Third and Fifth Circuits—and the guidance of this Court is urgently needed. 16 The writ should accordingly be granted to resolve the conflict among the Circuits, to dispel uncertainties in an important area of the law, and to compel proper recognition of the function of the State in administration of the Clean Air Act. Respectfully submitted, JERRY P. BELKNAP, BRYAN G. TABLER, 1313 Merchants Bank Building, Indianapolis, Indiana 46204, Telephone: (317) 638-1313, Attorneys for Petitioners. Marcus E. Woops, ARNOLD A. GORDUS, Indianapolis Power & Light Company, Post Office Box 1595B, Indianapolis, Indiana 46206, Telephone: (317) 261-8261, BARNES, HICKAM, PANTZER & BoyD, 1313 Merchants Bank Building, Indianapolis, Indiana 46204, Telephone: (317) 638-1313, Of Counsel. Al APPENDIX. Unpublished Per Curiam Order UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 August 2, 1979 Before Hon. LATHAM CASTLE, Senior Circuit Judge Hon. WALTER J. CUMMINGS, Circuit Judge Hon. RoBERT A. SPRECHER, Circuit Judge INDIANAPOLIS POWER & LIGHT , COMPANY, Petitioner, INDIANAPOLIS CHAMBER OF Petition for Enforce- COMMERCE, INC., ment of an Order of Intervenor, . the United States No. 78-1555 ou Environmental Pro- tection Agency. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. } This cause came on to be heard on the transcript of the record from the United States Environmental Protection Agency, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court that the judgment of the United States Environmental Protection Agency in this cause appealed from be, and the same is hereby, AFFIRMED, with costs, in accordance with the order of this court entered this date. A2 UNITED STATES COURT OF APPEALS Unpublished Order Not to Be Cited per Circuit Rule 35 For the Seventh Circuit Chicago, Illinois 60604 Argued April 18, 1979 Decided August 2, 1979 Before Hon. LATHAM CASTLE, Senior Circuit Judge Hon. WALTER J. CUMMINGS, Circuit Judge Hon. RoBERT A. SPRECHER, Circuit Judge INDIANAPOLIS POWER & LIGHT CoMm- ) PANY AND INDIANAPOLIS CHAMBER OF COMMERCE, INC. ae ; . ‘ Petition for Review of an Order of the No. 78-1555 VS. - United States En- vironmental Protec- tion Agency. Petitioners, - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. J ORDER On March 3, 1978, the Administrator of the Environmental Protection Agency approved the determination of the State of Indiana that air quality in Marion County, Indiana, did not meet the standards required by the Clean Air Act (42 U.S.C. § 7401 et seq.) because of concentration of sulfur dioxide (Pet. App. Al, A5). On October 5, 1978, he again designated Marion County as a nonattainment area for the primary sulfur dioxide standard. At the same time he reclassified Marion County as attainment for the secondary sulfur dioxide standard." (EPA App. B1, B4.) A3 Petitioners have challenged the designation principally on the ground that it was based on an illegal Indiana classification. Most of the other grounds raised by petitioners in their attack on the EPA’s designation were rejected in the recent cases of United States Steel Corporation v. United States Environmental Protection Agency, 7th Cir. Nos. 78-1563 and 1564, and Oscar Mayer and Company, Inc. v. Costle, 7th Cir. No. 78- 1548, decided by this Court by opinion of July ............ , 1979, and order of July ............ , 1979, respectively. We affirm the decisions of the Administrator. Proceedings of Indiana Air Pollution Control Board Support Nonattainment Designation. The statutory scheme was fully described in our aforemen- tioned opinion and order and will not be redescribed herein. When the Administrator published the attainment status desig- nation for the entire Marion County on March 3, 1978, he was adopting the recommendation of the Indiana Air Pollution Con- trol Board (see Pet. App. A3). This is the board designated by the Indiana legislature as the air pollution agency for the state for all purposes of the federal Clean Air Act. Indiana Code 13-7-2-10. Therefore, under Section 107(c) of the Clean Air Act (42 U.S.C. 7447(c)) it was the “appropriate State authority” for the EPA Administrator to consult before making his designation.? On December 2, 1977, Harry D. Williams, the Director of the Air Pollution Control Division of the Indiana State Board of Health sent the EPA a November 23, 1977, Draft Support Document (Pet. App. A25-A34) with respect to nonattainment areas in Indiana (Pet. App. A24). This showed a 1. For sulfur dioxide, the pollutant involved in this case, the EPA regulations establish a primary annual standard at 80 micro- (Footnote continued on next page.) (Footnote continued from preceding page.) grams per cubic meter and a primary maximum 24-hour concen- tration standard of 365 micrograms per cubic meter (40 C. F.R. 50.4). The secondary standard is not involved in this petition for review. 2. In their reply brief petitioners concede that the Indiana Air Pollution Control Board is “the legitimate Indiana authority” to make designation recommendations to the EPA (Reply Br. 9). A4 nonattainment sulfur dioxide designation for Marion County (Pet. App. A27, A32). This Draft Support Document was formally submitted to an EPA Regional official in Chicago by Ralph C. Pickard, Technical Secretary of the Pollution Control Board of Indiana on December 5, 1977 (Pet. App. A24, A106). On January 17, 1978, Mr. Pickard sent a copy of a more detailed Support Document (Pet. App. A36-A102) to EPA Regional Administrator Alexander. Mr. Pickard noted that the prior recommended designations had not been amended but that “the order of discussion of the specific counties and supporting data differs slightly from the original submittal.” (Pet. App. A106; EPA Br. Exhibits 1-2). Another enclosure or list entitled “Proposed Indiana Nonattainment Areas” stated that “Preliminary modeling studies were utilized to designate * * * Marion [County] as [a] nonattainment region in accordance with U.S. EPA guidelines” (Pet. App. 106, 107, 109). On January 23, 1978, EPA Region V submitted a report to EPA officials designating attainment and nonattainment areas in its six-state region. This report also showed that Marion County’s sulfur dioxide exceeded both EPA’s primary and secondary standards (Pet. App. A110, A114). Mr. Williams’ December 2, 1977, submittal of the November 23, 1977, Draft Support Document was ratified by the Indiana Air Pollution Control Board on December 14, 1977 (Pet. App. A103), and the Board reconfirmed its approval of the January 17 version of the Support Document on January 25, 1978, after a public hearing thereon. As the Technical Secretary of the Board stated, the Support Document submitted on January 17 differed from the earlier submission that it designated Jefferson County as attainment rather than nonattainment of sulfur dioxide, Also on January 25, in order to put EPA on notice of its concerns, the Board adopted a motion that Marion County be listed as unclassifiable for sulfur dioxide but nevertheless did not change the previous recommendations that it be designated AS as nonattainment. The letter describing this action stated that the Board’s staff would present its concerns to the EPA during the public comment period following EPA’s publication of the nonattainment designations (Pet. App. A120-121.) At a February 22, 1978, meeting the Indiana Air Pollution Control Board adopted a motion requesting the EPA to advise the Board whether it could modify the January 17 Support Document or could recall it (Pet. App. A122). Two days later the EPA advised the Board that since the EPA Administrator had already signed the nonattainment area designations nation- wide [on February 23] any modification or recall with respect to Indiana’s January 17 submittal would require Indiana to submit additional technical information during the 60-day public com- ment period following the March 3, 1978, promulgation of a nationwide attainment status, or would require Indiana to formally petition for redesignation pursuant to Section 107(d) (5) of the Clean Air Act (42 U.S.C. § 7407(d)(5)) and simultaneously submit sufficient technical support to justify a repromulgation (Pet. App. A123). On March 9, 1978, the Board wrote the EPA that on January 25 the Board had adopted the nonattainment area designations and Support Document submitted to the EPA on January 17 by Technical Secretary Pickard. The letter also stated that at its February 22 meeting, the Board moved to change Marion County from nonattainment sulfur dioxide to unclassified even though the enclosed supplemental Support Document had only recommended modifying slightly the boundaries of the non- attainment designation area for Marion County and even though there was no support in the technical documents for designating Marion County as unclassified. (EPA App. B54 and EPA Br. 10.) On June 12, 1978, Technical Secretary Pickard wrote the EPA that at its March 22 meeting the Board “reaffirmed its March 9 comment that Marion County [sulfur dioxide] should be changed from nonattainment to unclassified.” However, A6 Pickard added that the Board was not petitioning EPA to make this change “since Air Pollution Control Division staff cannot provide adequate technical support for said redesignation.” (EPA App. B55-56.) As previously noted, on October 5, 1978, after a 60-day comment period and after consideration of challenges to the validity of the monitored data, the EPA Administrator reaffirmed his March 3, 1978, promulgation of Marion County as nonattainn:ent because “The overwhelming weight of evidence supports primary SO: nonattainment in Marion County... .” For want of testing he reclassified Marion County as attainment with respect to the secondary standard for sulfur dioxide. (EPA App. B4.) As a result, Indiana must determine what revisions must be made in its 1972 Air Pollu- tion Control Implementation Plan (SIP) so that the air quality in Marion County will improve sufficiently to meet the national primary sulfur dioxide standards by the December 31, 1982, statutory deadline for national primary standard compliance (42 U.S.C. § 7502(a)(1).) At the time of the oral argument we were not advised whether Indiana has as yet submitted a revised plan setting forth new requirements to be imposed on pollution sources or whether EPA has approved such a plan.’ Petitioners’ main argument is that the Administrator’s desig- nation of Marion County as a nonattainment area was based upon Indiana recommendations that assertedly fall short of certain procedural requirements imposed by state law. However, in petitioners’ comments to EPA attacking the designation of Marion County as a nonattainment area, they did not challenge the authority of the Board to submit the recommended desig- nations or the procedures followed by the Board. Therefore, their attack on the designation by the Board comes too late. Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 394; Weyerhauser Company v. Costle, 590 F.2d 1011, 1028 n. 15 (D.C. Cir. 1978); 42 U.S.C. § 7607(d) (7) @B). 3. The deadline for such revising of the SIP was July 1, 1979. Section 172(a)(1) of the Act (42 U.S.C. § 7562(a)(1)). A7 Subsequent to the oral argument we were advised that the Circuit Court of Hancock County, Indiana, has decided that in making its recommendations to EPA the Indiana Air Pollution Control Board did not properly comply with Indiana law (Indianapolis Chamber of Commerce, Inc. and Indianapolis Power & Light Company vy. Air Pollution Control Board of the State of Indiana, Cause No. 38084, decided May 11, 1979) and that its designation of Marion County as a nonattainment area is therefore void. That court’s findings of fact and conclusions of law supporting its injunction against the Board’s Marion County sulfur dioxide nonattainment area designation were those submitted by Indianapolis Power & Light Company. Being a decision of a nisi prius court, it is not binding on us (Commis- sioner V. Estate of Bosch, 387 U.S. 456, 465) unless the decision is affirmed on appeal.* If, as a result of the final outcome of the Indiana litigation, the Indiana Air Pollution Control Board develops different supporting technical information, the EPA Administrator will evaluate the new submission and possibly change the Marion County designation under Section 107(d)(5) (42 U.S.C. 7407(d)(5)). However, Section 107(d) does not give him the authority to disapprove the prior Indiana designation of Marion County as a sulfur dioxide nonattainment area merely because the Indiana Air Pollution Control Board may not have com- plied strictly with state procedural requirements. 4. The Indiana Attorney General is presently considering an appeal. We certainly doubt that the documents sent by the Air Pollution Control Board to the EPA and upon which the EPA designated Marion County as nonattainment for sulfur dioxide can be deemed “rules” within Indiana Code 4-22-2-3 so that under IC 4-22-2-5 they must be submitted to the Indiana Attorney General and approved by the Governor and filed with the Secretary of State before they can be effective as urged by petitioners. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414. A8 The EPA Administrator's Designation of Marion County as a Nonattainment Area is Neither Arbitrary nor Capricious. In addition to arguments that have been rejected by this Court in United States Steel Corporation v. United States Envi- ronmental Protection Agency and Oscar Mayer & Company, Inc. Vv. Costle, supra, petitioners contend that the EPA’s desig- nation of Marion County as a nonattainment sulfur dioxide area is arbitrary and capricious. This is one of the grounds for which a court may reverse an action of the Administrator. Section 307(d)(9)(D) (i) of the Clean Air Act (42 U.S.C. § 7607 (d)(9)(D)(i). Petitioners’ argument may not be sustained. The controversy centers on the validity of the monitoring results underlying the nonattainment designation. As the Government notes (Br. 16), petitioners have commented extensively before the Indiana Air Pollution Control Board and the EPA concern- ing the former’s January 17, 1978, recommended sulfur dioxide nonattainment designation for Marion County and the Board’s technical Support Document.® Although the state agency later sought to withdraw the nonattainment designation, it acknowl- edged that it had no technical support for doing so (EPA App. B54-56). Moreover, both the state agency and the EPA deter- mined that the monitoring data relied upon by the State is valid for the purpose of designating Marion County asa sulfur dioxide nonattainment area. Petitioners have disregarded the monitor- ing information supporting that designation. In its first Draft Support Document the Indiana Air Pollution Control Division explained that in designating sulfur dioxide nonattainment areas such as Marion County within Indiana its staff “has followed a set of criteria designed to accommodate (a) the exact EPA, Region V, guidelines, (b) physical 5. See EPA App. B16-B20, B74-B78 and Record Document Nos. 34 (44) and (51) for comments before the Indiana agency. See EPA App. B44-B46-B49-B51 and Record Document Nos. 26 and 27 for comments before the EPA. 6. As explained in its March 3, 1978, decision, in making non- attainment determinations the EPA “considered all available moni- toring data where it was determined to be valid” (Pet. App. A3). A9 realities that produced “freak and unavoidable” violations of the air quality standards, and (c) isolated, non-comply- ing emission sources causing the violations (which could be eliminated in the future by corrective enforcement action permitted by existing SIP)” (Pet. App. A30). As a result, this draft showed all Marion County to be non- attainment as to sulfur dioxide (Pet. App. A32). As shown in the state agency’s Support Document, the Board relied upon monitoring data and modeling studies in recom- mending that Marion County be designated as a nonattainment area (Pet. App. A80). These are the methods specified by Section 171(2) of the Clean Air Act (42 U.S.C. 7501(2)) for determining areas to be designated nonattainment under Section 107(d) (42 U.S.C. § 7407(d)). Thus in that Support Document the following explanation is given for determining whether Marion County should be a nonattainment area for sulfur dioxide: “Violations of the primary short-term SOz standards were indicated by the 1976 November 27, 28, and 29 data from Marion County SAROAD site 5240-033-HO1 at 7436 Mann Road, which is a suburban site. Annual average SO. estimates using 1975 average emissions and 1975 actually sampled SOz results indicate concentrations as high as 119°ug/m? in the southwest industrial region of the city. Projected 24-hour and 3-hour levels by this CDM study, using U.S. Environmental Protection Agency ap- proved statistical transformations (Larsen’s transforma- tions), are well in excess of NAAQS ceilings. Preliminary short-term estimates also agree with these projections and tend to suggest potentially high SOs levels within the county’s industrial area. These estimates were made using 1975 emission figures supplied to the Indiana Air Pollution Control Division by the various emission sources within the county in August 1977. Final results of the Indiana Air Pollution Control Division studies showing potential SO» levels in Indianapolis will be available after the accuracy of these emission figures is established by mutual consul- tations between the sources, the city agency, and the State Air Pollution Control Division.” (Pet. App. A80.) ALO Although the City of Indianapolis’ Air Pollution Control Divi- sion subsequently criticized the aforesaid November 1976 moni- toring data because of an alleged monitor malfunction, the Indiana Air Pollution Control Board did not reverse its non- attainment designation and did not change its final technical report. The Indiana Air Pollution Control Board refused to alter the nonattainment designation based on the City of Indian- apolis Air Pollution Control Division’s claim of November 1976 monitor malfunction because the city agency “could not produce strip chart recordings and logs for the high SOz days in ques- tion” (Pet. App. A142). Therefore the EPA found there was insufficient evidence to discount the monitoring violations shown in the final technical report. (Pet. App. Al43; EPA App. B52- B53.) In opposing the Indiana Air Pollution Control Board’s use of its modeling to support the Marion County nonattainment designation, petitioners offered their own monitoring studies in an effort to show that the area of Marion County was cleaner than required. However, EPA rejected petitioners’ studies because of at least four serious technical deficiencies. (EPA App. B27-B28.) In adhering to the Marion County nonattainment classifica- tion for sulfur dioxide in October 1978, the EPA Administrator stated: “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 viola- tions of the 24-hour primary SO: standard and the accuracy and validity of dispersion models which predicted viola- tions 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 SO2 standard. These results have been supplemented by urban RAM runs which predicted short- term violations of the SO. standard. The overwhelming weight of evidence supports primary SOe nonattainment in All 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.” (EPA App. B4.) Such data reinforces the Administrator's March 1978 primary sulfur dioxide nonattainment designation for Marion County and “is pertinent to show the validity of the EPA actions.” American Petroleum Institute v. EPA, 540 F.2d 1023, 1034 (10th Cir. 1964); see also Amoco Oil Co. v. EPA, 501 F. 2d 722, 729 and n. 10 (D.C. Cir. 1974). These authorities were followed in our Oscar Mayer & Company decision, supra at 7n. 10. Since Marion County has been designated as a nonattainment sulfur dioxide area, under Section 172(b)(3) of the Act (42 U.S.C. § 7502(b)(3)) the Air Pollution Control Division has prepared a new draft report for the Indiana Air Pollution Con- trol Board and the State, using the latest methods for determin- ing sulfur dioxide concentrations in Marion County. This showed that “sources in Marion County would cause violations of 24- hour primary NAAQS [national ambient air quality standards] for SOz at several locations in the [deadline] year 1982.” Consequently a revised SIP will be prepared for Indiana in order to protect the health and welfare of Marion County resi- dents. (EPA Br. Exhibits 3-4.) Petitioners will be able to com- ment on the revised SIP by participating in the state hearings thereon and by commenting on the proposed federal action once the SIP is submitted to EPA. This further undercuts petitioners’ claim that EPA has acted in an arbitrary and capricious fashion in thus far adhering to the Indiana Air Pollution Control Board’s recommended designation of Marion Couity as a sulfur dioxide area. At present the EPA Administrator has no justification for rejecting Indiana’s technically supported recommendation that Marion County be designated a nonattainment area for sulfur dioxide purposes. The March 3, 1978, decision of the EPA Administrator is affirmed. Al2 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. 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 Al3 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).? 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) do not meet, or in the judgment of the State may not in the time period required by an applicable implementation plan 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 suifur oxides or particulate matter; or (Footnote continued on next page.) Al4 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- 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 (Footnote continued from preceding page.) (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. 2. The statutory deadline for promulgating these designations was February 3, 1978. As mentioned later in the text, infra p. 9, th’ (Footnote continued on next page.) Al5 certain 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. Il 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- (Footnote continued from preceding page.) 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 Sieel 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. 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 function 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 (Footnote continued on next page.) Al6 tion on two grounds. First, we hold that the agency had “good cause” to postpone the proceeding within the meaning of section 553’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 procedural 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 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. — (Footnote continued from preceding page.) agency’s designation of attainiment 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. Al7 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 which the due and required execution of the agency functions would be prevented by its undertaking public rule-making proceedings.” /d. 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 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). Als 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 given 60 days after the date on which states were required to provide lists of nonattainment areas to promulgate final desig- nations of nonattainment areas. 42 U.S.C. § 7407(d)(2). More importantly, the states were required to have promul- gated implementation plans for designated nonattainment areas by January 1, 1979. 42 U.S.C. § 7502 (annotation) [Pub. L. 85-85, § 129(c)]. These plans are to provide for attainment in these areas “as expeditiously as practicable . . . [but] not later than December 31, 1982.” 42 U.S.C. § 7502(a)(1). Furthermore, the development of these plans is a time-consuming process, requiring formal involvement by the public, local gov- ernments and state legislative bodies as well as the redevelop- ment of current emissions inventories. Jd. at § 7502(b). These Al9 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. Stecl 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- 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. A20 (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,”® the need for the states to begin promptly their own planning process,® and the continuing adverse impact on health that any 6. For example, the state of Wisconsin’s designation of Madison had to be altered. See Oscar Mayer Co. v. 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 vy. 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 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 gttuse.” A House Oversight Committee approved the Department of Agriculture’s use (Footnote continued on next page.) ee A2l further delays would entail,"’ we hold that the administrator (Footnote continued from preceding page.) 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 cf the results is shown in the following table: ESTIMATES OF ADVERSE HEALTH EFFECTS ATTRIBUTABLE TO SULFUR OXIDE EXPOSURES IN THE EASTERN UN!ITED 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...... Rae 8.2 24.4 33.8 Increased number (millions ) of asthma attacks.......... y Ee 8 8.8 11.5 Thousands of lower respiratory diseases in children......... 48.0 0 486.0 888.0 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). (Footnote continued on next page.) A22 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 altogether 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.) 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 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 years behind the January 1, 1978 implementation date. Further, the Third Circuit’s approach to this problem strikes us as unsound. Recogniz- (Footnote continued on next page.) A23 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- 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: (Footnote continued from preceding page.) ing that the remand of the proceedings might “endanger the Con- gressional scheme for the control of air pollution,” the [hird 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. 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. A24 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. Even if this rulemaking procedure is not one of those specified in subsection(d),’* the legislative report’s reference to the legis- 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 “nonaitainment” is an integral part of the promulgation of implementation plans and of regulations designed to prevent significant deterioration of air quality. (Footnote continued on next page.) A25 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 fave 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 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. (Footnote continued from preceding page.) See especially 42 U.S.C. § 7407(d)(1), stating that the desig- nations are “[fjor 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. A26 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."* Il 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 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 13. Numerous pending challenges to the attainment designations were dropped as a result of the EPA’s revision of the designations. See Bethlehem Steel Co. v. EPA, No. 78-1556 (7th Cir., Nov. 28, 1978); Central Phosphate, Inc. v. Costle, No. 78-1929 (Sth Cir., October 16, 1978); CF Chemicals, Inc. v. Costle, No. 78-1931 (Sth 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 vy. 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 etiective 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., Apiil 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. A27 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 §. 2d 1150, 1160-64 (6th Cir.), cert. denied, ee, Smee 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- 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 A28 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 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- A29 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... . The northern portion of Lake County, Indiana, is heavily industrialized with a significant number of large SOz emis- sion sources and relatively few continuous SO2 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 SOs. A30 A31 Clearly, therefore, the EPA treats the designation process as Accordingly, the petitions to set aside the § 7407(d) designa- defining areas with problematic air quality and not merely pin- tions are denied. pointing those areas which contain problematic sources. Since “the construction of a statute by those charged with its execu- tion should be foilowed unless there are compelling indications Teste: that it is wrong,” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969), we must accept the EPA’s interpretation of OE SRS REE EINES CN EES “angen the designation process. Accordingly, the petitioners’ conten- Clerk of the United States Court of tions here that the problems of air quality found within Lake Appeals for the Seventh Circuit 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. A true Copy: 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 SOs 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 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. A32 IN THE HANCOCK CIRCUIT COURT State of Indiana ois County of Hancock INDIANAPOLIS CHAMBER OF COM- ) MERCE, INC. and INDIANAPOLIS POWER & LIGHT COMPANY, Plaintiffs, Vs, - Cause No. 38084 AIR POLLUTION CONTROL BOARD OF THE STATE OF INDIANA, Defendant. ) JUDGMENT The Court, having examined the record, and being duly advised, now enters summary judgment for the plaintiff Indian- apolis Power & Light Company and against the defendant in the above cause. It is hereby ORDERED, ADJUDGED and DECREED that: 1. Plaintiff Indianapolis Power & Light Company is entitled to and is hereby granted judgment against defendant Air Pollu- tion Control Board of the State of Indiana. 2. All action of or on behalf of the State of Indiana in implementing Section 107(d) of the Clean Air Act, as amended, 42 U.S.C. A. § 7407(e), by classifying Indiana counties as to whether their ambient air meets or does not meet national ambient air quality standards promulgated under the federal Clean Air Act, as amended, is and may only be, under the laws of the State of Indiana, administrative action subject to the laws of the State of Indiana governing issuance of rules, regulations and standards by agencies of the State of Indiana. 3. The actions taken by or on behalf of the Air Pollution Control Board of the State of Indiana in sending to the U.S. Environmental Protection Agency documents classifying Marion A33 County and other Indiana counties as to whether the ambient air in such counties meets or does not meet national ambient air quality standards under the federal Clean Air Act, as amended, which actions purported to be taken in implementation of Section 107(d) of the Clean Air Act, as amended by the Clean Air Act Amendments of 1977, 42 U. S.C. A. § 7407(d), were taken in violation of, and without compliance with, the applicable statutes governing the adoption of administrative rules, regulations and standards, and such actions and such docu- ments are accordingly, absolutely void and of no effect as an act of the State of Indiana or for any other purpose, and Marion County has not been duly classified or identified as a non-attain- ment area for any purpose under the Clean Air Act, as amended, 42 U.S.C. A. §§ 7401 et seq. 4. Defendant Air Pollution Control Board of the State of Indiana and its respective members, agents, employees, staff and representatives are permanently enjoined from taking any step or action and from withholding or refusing to take any step or action, or refusing to grant any permit, on the basis or ground that Marion County, Indiana, has been duly classified, designated, or identified as a “nonattainment area” for any pur- pose under the Clean Air Act, as amended, 42 U.S.C. A. §§ 7401 et seq. Dated this 6 day of May, 1979. /s/ Ronald L. Gottschalk Ronald L. Gottschalk Judge, Hancock Circuit Court Copies to: Michael Schaefer, Esquire, Assistant Attorney General, Office of the Attorney General, 219 State House, Indianapolis, Indiana 46204 Jerry P. Belknap, Esquire, Barnes, Hickam, Pantzer & Boyd, 1313 Merchants Bank Building, Indianapolis, Indiana 46204 George J. Lewis, Esquire, Lineback & Lewis, P. C., 2 Masonic Building, Greenfield, Indiana 46140 A34 State of Indiana ” County of Hancock I, Shirley Riddle, Clerk of Hancock County, do hereby certify this to be a true and correct copy of Judgment as the same appears on record in this office in Order Book 69 Page 44. Witness my hand and seal at Greenfield, Indiana this 11 day of May 1979, /s/ Shirley Riddle Clerk of Hancock County A35 IN THE HANCOCK CIRCUIT COURT State of Indiana County of Hancock o INDIANAPOLIS CHAMBER OF COM- ) MERCE, INC. and INDIANAPOLIS POWER & LIGHT COMPANY, Plaintiffs, VS. - Cause No. 38084 AIR POLLUTION CONTROL BOARD OF THE STATE OF INDIANA, Defendant. 5 PLAINTIFF INDIANAPOLIS POWER & LIGHT COM- PANY’S PROPOSED FINDINGS OF FACT AND CON- CLUSIONS OF LAW [AS ADOPTED BY THE COURT] This matter comes before the Court on plaintiff Indianapolis Power & Light Company’s Motion for Summary Judgment. Based upon the pleadings, affidavits, exhibits and admissions filed in this action, and being duly advised in the premises, the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Plaintiff Indianapolis Power & Light Company (“IPL’’) is an Indiana corporation engaged as a public utility in gen- erating and distributing electric energy to and for the public in Marion County, Indiana, and adjoining areas, and in generat- ing and distributing steam to and for the public in the central core of the City of Indianapolis. IPL’s headquarters and prin- cipal place of business are located in the City of Indianapolis, Marion County, Indiana. IPL is a member of the Indianapolis Chamber of Commerce, Inc. and is the electric and steam utility company serving the City of Indianapolis, Marion County, and A36 the Indianapolis Chamber of Commerce referred to in the Verified Complaint, as amended, filed herein by plaintiff Indian- apolis Chamber of Commerce, Inc. In such capacity, IPL owns and operates three generating facilities located in Marion County, each of which necessarily in its operation emits or con- tributes to the formation of sulfur dioxide, particulate matter, carbon monoxide, nitrogen oxides, and ozones. 2. (a) Defendant APC Board is an agency of the State of Indiana and was created by the Indiana Air Pollution Control Law, IC 13-1-1. (b) The APC Board is authorized by IC 13-1-1-5 to: . adopt and promulgate rules and regulations which shall create air quality basins based upon scientific study of geographical topographical, meterorological data, and shall adopt and promulgate standards for ambient air quality for each basin. ... (c) Rulemaking power of the APC Board is subject to, among others, the requirements of IC 4-22-2-1 to 4-22-2-12 and IC 13-7-7-1 to 13-7-7-4. (d) The Indiana Environmental Management Board (the “Management Board”) is an agency of the State of Indiana created by IC 13-7-2. (e) The APC Board and the Mangement Board are author- ized under IC 13-7-5-1(e) to: Act for the state in the adoption of standards pursuant to any federal law regarding environmental protection. . . (f) The Clean Air Act, 42 U.S.C. A. §§ 7401 et seq. (1977 Supp.) as amended by the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 712 (Aug. 7, 1977) and the Safe Drinking Water Amendments of 1977, Pub. L. No. 95-190, § 14, 91 Stat. 1399 (Nov. 16, 1977) is a federal law regarding environmental protection, and is hereinafter called “Clean Air Act.” (g) Ralph C. Pickard is, and [was] at all times pertinent hereto, the Technical Secretary of the APC Board. Ralph C. A37 Pickard is not and never has been a member of the APC Board or the Management Board, but is a member of the staff of both such boards. (h) Harry D. Williams is, and was at all times pertinent hereto, employed by the Indiana State Board of Health as the Director of the Air Pollution Control Division of the Indiana State Board of Health. Harry D. Williams is not, and was not at any time pertinent hereto, a member of the APC Board or the Management Board, but is a member of the staff of the APC Board. 3. (a) On or about December 2, 1977, a member of the staff of the APC Board sent or caused to be sent to Region V of the U. S. Environmental Protection Agency (“EPA’’) a list of each of Indiana’s 92 counties, which list purported to set forth, pursuant to Section 107(d) of the Clean Air Act, as amended, 42 U.S.C. A. § 7407(d)(1) classifications as to whether national ambient air quality standards (“NAAQS”) promulgated under the Clean Air Act were or were not met in such respective counties on August 7, 1977, or as to whether such counties could not be so classified on the basis of available information. (b) The list of county classifications referred to in paragraph 3(a) and sent to EPA was set forth in a document entitled “Proposed Nonattainment Areas in Indiana A Support Document Modeling & Data Analysis Section Air Pollution Control Division November 23, 1977” (c) A copy of the list of county classifications sent to EPA on or about December 2, 1977, is attached to the Complaint in this action as Exhibit 1. (d) On or about December 8, 1977, in Indianapolis, a member of the staff of the APC Board gave to Robert Miller, an official of EPA, another list of each of Indiana’s 92 counties, A38 which list purported to set forth, pursuant to 42 U.S.C.A. $ 7407(d)(1), classifications as to whether NAAQS were or were not met in such respective counties on August 7, 1977, or as to whether such counties could not be so classified on the basis of available information. (e) The list of county classifications referred to in paragraph 3(d) of these Findings of Fact and sent to EPA was set forth in a document bearing the same title and date as the list referred to in paragraph 3(b). (f) A copy of the list referred to in paragraphs 3(d) and (e) hereof is attached to the Complaint in this action as Exhibit 2. (g) With respect to whether Marion County had on August 7, 1977, attained or not attained NAAQS for the respective pollutants for which NAAQS have been promulgated under the Clean Air Act, both lists of county classifications given to EPA and referred to above contained the following classifications: (i) Total suspended particulate matter—Primary and secondary NAAQS not attained. (ii) Sulfur dioxide—Primary and secondary NAAQS not attained. (iii) Carbon monoxide—Primary NAAQS not attained in central business district. (iv) Ozone (Photochemical oxidants) — Primary NAAQS not attained. (v) Nitrogen oxides—NAAQS attained. 4. (a) At the time the same two lists of county classifi- cations referred to in paragraph 3 were sent to EPA, the APC Board had not directed or authorized anyone to send them to EPA. (b) At the time the same two lists of county classifications were Originally sent to EPA, the APC Board had not reviewed or approved them. (c) Prior to the time the same two lists of county classifi- cations were originally sent to EPA, the APC Board had not even authorized or directed that such lists be prepared. A39 (d) At the time the same two lists of county classifications were Originally sent to EPA, no member of the APC Board had seen them. (e) At the time the same two lists of county classifications were sent to EPA, the Management Board had not seen them, had not reviewed them, had not authorized or directed that they be prepared, and had not authorized that either list be sent to EPA as an act of the State of Indiana. (f) At the time the same two lists of county classifications were sent to EPA, neither their contents nor their existence had been the subject of any public notice or announcement. 5. (a) By letter dated November 17, 1977, Harry D. Wil- liams informed William E. Allis, Administrator of the Air Pollution Control Division of the City of Indianapolis, that “the state will propose to the U.S. EPA that Marion County be designated as a nonattainment area” for particulate matter, sulfur dioxide, carbon monoxide and ozone, and sent a copy of such letter to Robert Miller of EPA. Mr. Williams stated in such letter of November 17, 1977, that monitored air quality data for the year 1976 shows that Marion County is a non- attainment area for sulfur dioxide. (b) William E. Allis wrote a member of the staff of the APC Board on November 28, 1977, stating that he did not recognize Marion County to be a nonattainment area for sulfur dioxide or carbon monoxide and requested copies of all monitoring data in 1976 for each month in which a violation of NAAQS occurred. (c) On December 7, 1977, Mr. Allis was provided access to data showing NAAQS violations. For 1976 the only sulfur dioxide NAAQS recorded by any of the monitors in the Marion County air quality sampling network was shown to have occurred on November 28, 29, and 30 in a location in southwestern Marion County on Mann Road. (d) Mr. Allis informed Harry D. Williams or his subordi- nates that the reported violations of sulfur dioxide NAAOS for A40 November 28-30, 1976, were erroneous and invalid because the monitoring device at the Mann Road monitoring site had been in a state of disrepair in late November, 1976. 6. (a) On December 14, 1977, the APC Board held a meeting and was informed that the list of county classifications had been transmitted to EPA. (b) The APC Board was not advised at its December 14; 1977, meeting that William E. Allis, the head of the agency responsible for gathering the data, had repudiated the November 28, 29, 30, 1976, recorded violations of sulfur dioxide NAAQS in Marion County. (c) At its December 14, 1977, meeting the APC Board authorized that the list of county classifications be officially submitted to EPA, (d) Prior to ratifying transmission to EPA of the lists of county classifications, the APC Board did not take into account with respect to Marion County or any other county the matters required by IC 13-7-7-2 to be taken into account by it in adopting rules, regulations or standards. (e) At its meeting on December 14, 1977, the APC Board also adopted and resolved to hold a public heaving on the list of county classifications and appointed H. Earl Capehart, Jr., the Chairman of the APC Board, as hearing officer. (f) Ralph C. Pickard and Robert Miller of EPA told the APC Board on December 14, 1977, that the State was required to submit the list of county classifications in order to implement Section 107 of the Clean Air Act. 7. (a) On December 20, 1977, Mr. Allis informed Harry D. Williams that all the citations of sulfur dioxide NAAQS violations in Marion County for the period of January, 1975, through June, 1977, were erroneous. The errors cited were as follows: (i) A 1977 violation of the annual average standard was based on only five readings. A4l (ii) A 1977 violation of the annual average standard was supposed to be based on sampling data for the period January-June, 1977, but no readings from January were included in the averaging. (iii) The only 1976 violations were the result of the broken monitor at Mann Road. (iv) A 1975 annual average was based on only 26 days of data on a continuous monitor and s, therefore, invalid, (v) A 3-hour standard violation in 1975 was indicated as a result of an error in transcribing the data. (b) On December 23, 1977, Stephen B. Dixon, one of Harry D. Williams’ subordinates, wrote William E. Allis responding to his November 28, 1977, request for data indicating NAAQS violations in Marion County. For sulfur dioxide violations, he cited only the 1975 violations and 1976 violations referred to in paragraph 7(a) above, and he cited no 1977 violations. (c) Mr. Dixon stated in his December 23, 1977, letter that computer modeling of sulfur dioxide levels in Marion County had not been completed as of such date so that he could not supply modeling information requested by Mr. Allis. (d) On January 13, 1978, Harry D. Williams wrote William FE. Allis and acknowledged that “the computer printouts for 1975 indicated problems that did not really exist.” 8. No monitored violation of a sulfur dioxide NAAOS was recorded in Marion County on August 7, 1977. 9. On January 14, 1978, Robert L. Duprey of EPA wrote to Ralph C. Pickard the letter attached to the Complaint in this action as Exhibit 3, stating that EPA had completed its evalua- tion of Mr. Williams’ December 2, 1977, submittal and that: The designations of the State of Indiana will be those submitted by you on December 2, 1977, with the exception of those noted above (unless the problems are resolved by January 19, 1978). A42 10. Public notice of the public hearing held on January 17, 1978, did not appear in a newspaper of general circulation in Marion County 21 days prior to January 17, 1978. 11. (a) On January 17, 1978, a public hearing on the county attainment/nonattainment classifications was held at the offices of the Indiana State Board of Health, 1330 West Michi- gan Street, Indianapolis, Indiana, and H. Earl Capehart, Jr. presided as hearing officer. (b) At the public hearing Ralph C. Pickard appeared and read into the record a statement on behalf of the Air Pollution Control Division of the State Board of Health, the APC Board, or himself, including the following: Quality assured sampler data were used to designate Lake, Marion, and Wayne Counties as “nonattainment” areas. Preliminary modeling studies were utilized to desig- nate part of all of Lake, LaPorte, Marion, Porter, and Vigo Counties as nonattainment regions in accordance with U.S. EPA guidelines. (c) At the public hearing Mr. Pickard stated that revisions or additions to the technical support document previously sub- mitted to EPA had been developed. (d) The revisions or additions to the list of county classifi- cations referred to above in paragraphs 11(c) were conveyed to Robert L. Duprey or other representatives of EPA the same day, January 17, 1978. At this time the APC Board had not approved or disapproved such revisions or additions and had not authorized such matter to be sent to EPA on behalf of the State of Indiana. (e) The record of the public hearing was held open for additional written submissions until January 20, 1978. (f) The documents at Exhibits 1 and 2 of the Complaint in this action ratified by the APC Board on December 14, 1977, do not contain any reference to, summary of, or detail of, model- ing studies for the Marion County sulfur dioxide classification. A43 12. (a) On January 25, 1978, the APC Board held a meeting and Mr. Pickard reported to the APC Board that EPA Region V had already drafted for promulgation in the Federal Register, pursuant to 42 U.S.C. A. § 7407(d) (2), its classifi- cations of Indiana counties and had on January 23, 1978, sent such classifications to EPA’s headquarters in Washington, D. C. (b) Also at the January 25, 1978, APC Board meeting Ralph C. Pickard recommended that the APC Board ratify his January 17, 1978, submission to EPA of the revisions to the list of country classifications referred to in paragraphs 11(c)- (d), and the APC Board resolved to accept such revisions. (c) The APC Board action referred to in paragraph 12(b) occurred before the hearing officer conducting the public hearing on January 17, 1978, had reported on the hearing and before he had delivered to the APC Board any findings and recom- mendations. 13. (a) Also at the January 25, 1978, meeting of the APC Board, H. Earl Capehart, Jr. gave a report and recom- mendations as the hearing officer conducting the January 17, 1978, public hearing on the attainment/nonattainment classifica- tions of Indiana counties, but noted that he had not completed review of all the testimony or comments submitted in written form. (b) The minutes of the January 25, 1978, APC Board meeting, as approved by the APC Board at its March 22, 1978, meeting, show the following: Mr. Capehart moved that Marion and Vigo Counties be designated as unclassifiable areas and that Gibson County be designated as an attainment area with respect to the sulfur dioxide. Mr. Watson seconded, and the motion carried. 14. On February 3, 1978, Mr. Pickard received a letter from EPA in Chicago stating that it had already submitted to EPA headquarters in Washington, D.C., the list of county A44 classifications for Indiana and including a copy of such sub- mittal. 15. (a) The minutes of the February 22, 1978, APC Board meeting show that at such meeting the APC Board resolved that Marion County and Vigo County be classified for sulfur dioxide as “unclassifiable” instead of as “nonattainment, in part.” (b) On March 9, 1978, a new “technical support document (dated February 22, 1978)” was sent to EPA. Such document and the March 9, 1978, letter transmitting it are attached to the Complaint in this action as Exhibit 4. (c) The “technical support document (dated February 22, 1978)” as Exhibit 4 to the Complaint in this action was not the subject of any public notice, public comment or pul'ic - hearing. (d) The technical support document (dated February 22, 1978) attached to the Complaint in this action as Exhibit 4 and sent to EPA shows that parts of the [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_1168%3A1. Public record. Not legal advice.