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U.S. Steel Corp. v. EPA

Citation: 9 ELR 20311
No. Nos. 78-1922, -1927, 595 F.2d 207/13 ERC 1149/(5th Cir., 05/03/1979)

The Fifth Circuit Court of Appeals sets aside the Environmental Protection Agency's (EPA's) designation of non-attainment areas in Alabama pursuant to § 107(d) of the Clean Air Act after determining that the Agency failed to follow the procedures required by the Administrative Procedure Act (APA). Although the designations are only a preliminary step in the state implementation plan (SIP) revision process mandated by the 1977 amendments to the Act, the controversy over their validity is ripe for judicial review because EPA's Emissions Offset Ruling strictly limits construction or modification of facilities within the designated areas. The court also rules that jurisdiction over the petition for review under § 307(b) is properly vested in the courts of appeal rather than the district courts, since the designations were based on a sufficiently substantial record. Turning to the merits, the court concludes that the designations were rules within the meaning of the APA and that the Agency failed to comply with the notice and comment requirements of § 553 of the APA. EPA has not made a strong enough showing of good cause to invoke the "impracticability" exception to these requirements. The asserted need to comply with a short statutory timetable is unavailing since the designations were not finally promulgated until a month after the statutory deadline and the Agency has not demonstrated that the provision of notice and some opportunity for comment was impracticable. Nor did EPA's acceptance of comments after the designations were made cure this deficiency, since post-promulgation comments do not ensure affected parties an adequate opportunity to participate in and influence agency decision making at an early stage. In specifying the procedures to be undertaken by the Agency on remand, the court offers its assessment that the Act does not require a moratorium on all new construction in non-attainment areas for which revised SIP provisions are not in place after July 1, 1979. In the court's view, EPA may continue to enforce its Offset Ruling as incorporated by the 1977 amendments until the relevant SIP revisions are completed despite the fact that the statute provides that this authority is to terminate on June 30, 1979.

Counsel for Petitioner
James Ross Forman, III
Thomas, Taliaferro, Forman, Burr & Murray
1600 Bank for Savings Bldg., Birmingham AL 35203
(205) 251-3000

Counsel for Respondent
James M. Cahan
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before GODBOLD, Circuit Judge, SKELTON,* Senior Judge, and RUBIN, Circuit Judge.