ELR Citation: ELR 20316
No(s). 78-1522 (3d Cir. Apr 25, 1979)

The court remands a designation by the Administrator of the Environmental Protection Agency (EPA) of four areas of Pennsylvania as nonattainment because the air in those areas does not meet the national ambient air quality standards. As part of the process leading to the preparation of a state implementation plan (SIP) under the Clean Air Act, the areas of a state must be designated as attainment or nonattainment by EPA in accordance with whether they meet the Act's standards. In designating the Pennsylvania areas, EPA issued a final rule without providing for prior notice or comment as required by the Administrative Procedure Act (APA) on the ground that the urgency to prepare the SIP within the statutory deadline satisfied the APA's "good-cause" exemption. The court finds that EPA did not have sufficient justification for dispensing with the notice-and-comment period, and the failure to abide by the APA was not harmless error. Furthermore, providing for comments after promulgation did not substitute for the prior notice and comment required by the APA. The court therefore remands the four designations to EPA to conduct a limited legislative hearing providing petitioners with the opportunity for participation and comment.

Counsel for Petitioners
Blair S. McMillin, Robert A. Emmett
Reed, Smith, Shaw & McClay
747 Union Trust Bldg., P.O. Box 2009, Pittsburgh PA 15230
(412) 288-3131

Counsel for Respondent
Barbara H. Brandon; James W. Moorman, Ass't Attorney General; Bradford F. Whitman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2808

James N. Cahan; Joan Z. Bernstein, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-3766

Aldisert and Adams, JJ., concur.