ELR Citation: ELR 20016
No(s). 84-2364 (7th Cir. Nov 4, 1985)

The court holds that the Environmental Protection Agency's (EPA's) rejection of Illinois' proposal to redesignate two counties near Chicago, which contain significant sources of ozone precursors but do not violate the air quality standards for ozone, as attainment areas under Clean Air Act §107 was arbitrary and capricious for failure to set out the agency's rationale. The court first rejects, in a footnote, EPA's argument that the Chamber of Commerce lacks standing. The impact of the decision on the economic interests of the Chamber's members appears sufficient to confer standing, but in any event the Chamber would be heard as amicus curiae. The court also rules that no adjudicatory hearing is required prior to EPA action on a proposed state redesignation.

The court then considers and rejects several reasons why EPA might have overturned the proposed redesignations. None of the possible theories for designating nonattainment areas squares with the fact that (1) EPA apparently originally approved designation of individual counties in the Chicago urban area as separate nonattainment areas, but now seems to argue that the entire urban area should be considered a single nonattainment area, (2) EPA approved redesignation of two other counties upwind of Chicago to attainment status despite the fact that they contain significant sources of ozone precursors, but argues that nonattainment areas should be drawn to combine air quality violations and the sources causing them, and (3) EPA did not include nonattainment areas downwind of the sources in Chicago itself in the Chicago nonattainment area. The court notes that the statute would allow EPA to base attainment of ozone precursors within the area. Also, EPA may treat a group of counties in the Chicago urbanized area as a single nonattainment area. However, in order to do any of these, EPA must amend its present guidelines or otherwise clearly explain its actions. The court rejects petitioner's argument that redesignation of the counties will not impair EPA's ability to ensure emission reductions within them necessary to attain the air quality standards downwind, but vacates the EPA decision, remanding for reconsideration and clarification.

A dissent argues that the reasons for EPA's decision, while not well-explained, can be seen in the record and would affirm.

Counsel for Appellants
Robert T. Sharp
Environmental Protection Agency
1200 Churchill Rd., Springfield IL 62706
(217) 782-5544

Counsel for Appellees
John C. Ulfelder
Office of General Counsel
401 Main St. SW, Washington DC 20460
(202) 382-7615

Before CUDAHY and COFFEY, Circuit Judges, and PELL, Senior Circuit Judge.