ELR Citation: ELR 20388
No(s). 73-1552 (6th Cir. Apr 18, 1974)

In a suit brought under §307 (b)(1) of the Clean Air Act, the 6th Circuit Court of Appeals vacates an amendment by EPA to the Michigan implementation plan since the change constitutes a "revision" rather than a "clarification," and EPA has not complied with the informal rulemaking requirements of the Administrative Procedure Act. The change was substantial and thus a "revision" because it indirectly foreclosed the possibility of the state making use of the plan's variance provision. EPA has not argued that promulgation of the amendment was based on the purposes of exigency, and the lack of notice and opportunity for public comment cannot be justified on the grounds that they are impracticable, unnecessary or contrary to the public interest given the substantial impact of the regulation. The court remands the matter to EPA.

Counsel for Plaintiff
Arvin E. Upton
Henry V. Nichel
Harry H. Voight
LeBoeuf, Lamb, Leiby & MacRae
1757 N Street, NW
Washington, DC 20036

Leon S. Cohan
Peter A. Marquardt
Detroit Edison Company
2000 Second Avenue
Detroit, MI 48226

Counsel for Defendant
Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
James R. Walpole
Department of Justice
Washington, DC 20530