## Facts

- After the Clean Air Act Amendments of 1970, Ohio and Kentucky submitted state implementation plans (SIPs) to attain national ambient air quality standards.
- The EPA Administrator approved the SIPs with minor exceptions.
- Public utility companies operating power plants in Ohio and Kentucky petitioned for direct appellate review, challenging the approvals.
- The utilities argued the EPA approved the SIPs without allowing federal-level participation through submission of written data, views, or arguments under APA § 553.
- The utilities also contended the EPA failed to address claims that certain SIP requirements were technologically or economically impossible to meet.
- The utilities further argued the EPA was required to prepare an environmental impact statement (EIS) under NEPA before approving the SIPs.
- Petitioners sought supplementation of the administrative record (including transcripts of state public hearings) and a remand to require proper procedures.

## Issues

1. Whether EPA approval of SIPs is rulemaking subject to APA § 553 notice-and-comment requirements, including an opportunity for interested parties to submit written data, views, and arguments.
2. Whether the EPA must conduct full evidentiary hearings at the SIP-approval stage on regulated entities’ technological or economic “impossibility” claims.
3. Whether NEPA requires the EPA to prepare an EIS before approving SIPs.

## Decision

- The court held that EPA approval of the Ohio and Kentucky SIPs constituted rulemaking and violated APA § 553 because the Administrator did not permit participation by interested parties through submission of written data, views, or arguments.
- The court held the Administrator was not required to conduct full-scale, trial-type hearings on individual petitioners’ impossibility claims at the plan-approval stage.
- The court held NEPA did not require an EIS as a precondition to EPA approval of the SIPs.
- The court vacated the approvals to the extent they were procedurally defective and remanded to the EPA for further proceedings consistent with APA rulemaking procedures.

## Legal Principles

- EPA approval of state implementation plans under the Clean Air Act is treated as APA rulemaking subject to § 553 procedural requirements.
- APA rulemaking requires a meaningful opportunity for interested persons to participate through submission of written data, views, or arguments, and an agency statement of basis and purpose adequate to support review.
- Claims of technological or economic infeasibility do not require adjudicatory, evidentiary hearings at the SIP-approval stage and may be raised in later compliance or enforcement contexts.
- NEPA’s EIS requirement does not necessarily apply to EPA actions whose purpose and function are directed toward environmental improvement, including SIP approvals in these circumstances.

## Conclusion

The Sixth Circuit required the EPA to follow APA notice-and-comment-type participation procedures when approving state air quality implementation plans, while rejecting demands for trial-type hearings on regulated parties’ infeasibility claims and holding that NEPA did not require an environmental impact statement for these SIP approvals.


Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973)