ELR Citation: ELR 20287
No(s). s. 78-3204 et al (6th Cir. Apr 17, 1980)

The Sixth Circuit Court of Appeals dismisses petitions challenging the procedure and methodology used by the Environmental Protection Agency (EPA) in designating a number of areas in Ohio as nonattainment for sulfur dioxide under the 1977 Clean Air Act Amendments. The court rejects the charge that EPA violated the notice and comment requirements of §553 of the Administrative Procedure Act, concluding that the Agency properly invoked the good cause exception provided by §553(b)(B) when it declined to offer an opportunity for prior public comment. Noting that there is a conflict among the circuits on this precise question, the court states that those courts taking the opposite view have ignored the congressional sense of urgency which underlies the Clean Air Act Amendments of 1977 and have not been sufficiently sensitive to the public interest in achieving national ambient air quality standards. The court in addition rejects petitioners' contentions that EPA acted arbitrarily in using modeling data that assume full capacity operation of all sources in the area on the second worst day of the year and in disregarding monitoring data showing actual air quality. The court reserves for later decision challenges to specific nonattainment designations as mistaken or demonstrably erroneous.

Counsel for Petitioners
Victor E. DeMarco, James C. Sennett, James C. Hagy, James L. Wamsley III
Jones, Day, Reavis & Pogue
1700 Union Commerce Bldg., Cleveland OH 44115
(216) 696-3939

Van Carson, William H. Baughman Jr.
Squire, Sanders & Dempsey
1800 Union Commerce Bldg., Cleveland OH 44115
(216) 696-9200

Louis E. Tosi, John P. Murtagh
Fuller, Henry, Hodge & Snyder
300 Madison Ave., Toledo OH 43603
(419) 255-8220

Counsel for Respondent
Paul M. Kaplow
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2831

Ronald Hausmann
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0766

Mary Ann Muirhead
Environmental Protection Agency, Region V
230 S. Dearborn St., Chicago IL 60604
(312) 353-2205

Before: EDWARDS, Chief Judge, PHILLIPS and PECK, Senior Circuit Judges.