ELR Citation: ELR 20621
No(s). 78-1302 (8th Cir. May 20, 1981)

The Eighth Circuit Court of Appeals joins the Third, Fifth, Ninth, and District of Columbia Circuits, 9 ELR 20316, 20311, 10 ELR 20985, 20963, in setting aside the Environmental Protection Agency's (EPA's) designation of nonattainment areas pursuant to §107(d) of the Clean Air Act for failure to adhere to the notice and comment requirements of §553 of the Administrative Procedure Act (APA). The designation of portions of the Mesabi Iron Range in Minnesota as nonattainment, which was followed by public notice and an opportunity to comment, cannot be sustained under the "good cause" exemption from §553. The court reasons that the Clean Air Act's 1979 deadline for making such designations is inadequate reason to implement a final rule without prior notice and comment. The court also notes that an offer to receive comments for 60 days after the rule's promulgation cannot substitute for prior notice as required by the APA. In remanding the designations to allow an opportunity for proper participation and comment, the court rules that the challenged designations will remain in effect and that revised designations will be substituted for the existing ones pending completion of the administrative proceedings.

Counsel for Petitioner
Edward Fride
Hanft, Fride, O'Brien & Harries
1200 Alworth Bldg., Duluth MN 55802
(218) 722-4766

Counsel for Respondents
Dorothy Attermeyer
Environmental Protection Agency, Region 5
230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Eldon G. Kaul, Alan R. Mitchell
Minnesota Pollution Control Agency
1935 W. County Rd., B-2, Roseville MN 55113
(612) 296-7373

Joined by Gibson and Ross, JJ.