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U.S. Steel Corp. v. EPA

Citation: 9 ELR 20560
No. Nos. 78-1563, -1564, 605 F.2d 283/13 ERC 1449/(7th Cir., 08/01/1979)

Contrary to decisions of the Third and Fifth Circuits, the Seventh Circuit Court of Appeals upholds, against procedural and substantive challenges, the Environmental Protection Agency's (EPA's) designation of non-attainment areas under § 107(d) of the Clean Air Act. The court rejects petitioners' assertion that the Agency violated the procedural requirements of the Administrative Procedure Act (APA) by not providing for notice and comment prior to the effective dates of the designations. Given the tight statutory timetable for promulgation of these designations, the fact that they are a necessary precursor to state formulation of revised implementation plans, and the continuing adverse health impact that further delays would entail, EPA had "good cause" within the meaning of the APA to exempt the designations from the requirements regarding prior notice and comment. In addition, even if the Agency had violated these requirements, the court would not reverse EPA's action in view of § 307(d)(9) of the Clean Air Act. This provision limits judicial reversal for procedural violations to situations where (1) the violation is arbitrary; (2) objections to the procedures used were raised during the comment period; and (3) there is a substantial likelihood the rules would have been significantly different if the correct procedures had been followed. None of these prerequisites is present in this case. Finally, the court rejects the charge that EPA should have designated a smaller portion of northern Lake County, Indiana as a non-attainment area. The Agency reasonably determined that the designation process was designed to define broad areas with problematic air quality rather than to pinpoint areas containing the principal offending sources. The petitions to set aside the non-attainment designations are therefore denied.

Counsel for Petitioners
Jay A. Lipe
Rooks, Pitts, Fullagar & Poust
1 Canal Center, 430 W. Randolph St., Chicago IL 60606
(312) 372-5600

Counsel for Respondent
Raymond W. Mushal
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2773

Mary Ann Muirhead
Office of the Regional Counsel, Environmental Protection Agency, Region V
230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Before CASTLE, Senior Circuit Judge, CUMMINGS and SPRECHER, Circuit Judges.