## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1795

___________ Missouri Limestone Producers * Association, Inc.; Missouri Ag * Industries Council, Inc.; * Steven R. Rudloff, * * Petitioners, * * v. * * Petition for Review of an Order Carol M. Browner, Administrator, * of the United States Environmental * Environmental Protection Agency. Protection Agency; Dennis Grams, * Regional Administrator of the United * States Environmental Protection * Agency, Region VII, * * Respondents, * * Steve Mahfood, Director, Missouri * Department of Natural Resources, * * United States Environmental Protection * Agency, * * Respondent. *

___________ Submitted: November 18, 1998 Filed: January 13, 1999

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Before McMILLIAN, WOLLMAN, and HANSEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge. The Missouri Limestone

Producers Association and the Missouri Ag Industries Cou ncil (Petitioners) seek review of a final action of the federal Environmenta l Protec tionAgency (EPA), which approved Missouri’s revision of its stat e implementat ionplan (SIP) under the Clean Air Act, 42 U.S.C. §§ 7401-7671q. W e deny the petition for review.
I.
Misso uri adopted four area-specific airborne, or “fugitive,” dust regulations as part of it s original SIP in 1972. The regulations were federally enforceable becaus e the SIP was formally approved by the EPA. In 19 90, Missouri revised the regulations. It replaced the four area-specific rules with one consistent, statewide rule. See Mo

. Code Regs. t it. 10, § 10-6.170 (1990). The EPA did not approve the new rule , however, because the Mi ssouri Department of Natural Resources (MDNR) submitted only that the EPA remove the four area-specific rules, rather than replace them with th e new statewide rule. This would have virtually eliminated federally enforceabl e fugitive-dust

regulations in Missouri, which was unacceptable because the EPA may not approve a SIP revision that lessens air-quality standards. As a result, Missouri’s state-enforced fugitive-dust rule differed from the federally enforced ones.

To eliminate the discrepancy, in February 1997 the MDNR submitted that the EPAreplace the 1972 rules with the current statewide rule. Petitioners brought a n appea lto the Missouri Air Conservation Commission (MACC), a subagency of th e MDNR, c hallenging the decision to submit the SIP revision to the EPA. After notice and a public comment peri od, the EPA formally approved the SIP revision despite the-3-

pen ding appeal. See Approval and Promulgation of Implementation Plans; State o f Missouri, 63 Fed. Reg. 3037 (1998) (to be codified at 40 C.F.R. Part 52).
Petitioners seek revie w of the EPA action under 42 U.S.C. § 7607(b)(1). They allege that their appeal to the MACC deprived the EPA of authority to approve the SIP revision under 40 C.F.R. Part 51, Appendix V. In the alternat ive, Petitioners claim that the action was invalid because the MDNR did no t hold public hearings on the decision to submit the SIP revision and because the EPA did not disclose sufficient factua l information about the revision.
II.
Petitioners contend that our review of the EPA action falls within 42 U.S.C. § 7607(d)(9). S ection 7607 applies when the EPA promulgates federal implementation pla ns, however, not when it approves state implementation plans. See 42 U.S.C. § 7607(d)(1)(B) (citing 42 U.S.C. § 7410(c)) (describing proper EPA procedure fo r promulgating federal implementation plans). Here, the EPA acted pursuant to it s gene ral authority under the Administrative Procedure Act (APA), 5 U.S.C. § 553

. Accordingly, the deferential standards of the APA govern our review. See Wester n States Petroleum Ass’n v. EPA , 87 F.3d 280, 283 (9th Cir. 1 996); National Steel Corp. v. Gorsuch , 700 F.2d 314, 320 (6th Cir. 1983); South Terminal Corp. v. EPA , 504 F.2d 646, 655 (1st Cir. 1974). We will set aside an agency action only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). Thi s sta ndardof review gives agency decisions “a high degree of judicial deference. ” Dubois v. Thomas , 820 F.2d 943, 948-49 (8th Cir. 1987); see also Mueller v. EPA , 993 F.2d 1354, 1356 (8th Cir. 1993); Mausolf v. Babbitt , 125 F.3d 661, 667 (8th Cir

. 1997 ), cert. denied , 118 S. Ct. 2366 (1998). We also consider whether any error s committed by the agency were prejudicial. See 5 U.S.C. § 706.-4-

Firs t, Petitioners argue that the EPA failed to comply with the Clean Air Ac t regulations that govern approval of SIP revisions. The regulations require that th e EPAreceive a formal request from the proper designee of the state before approving
aSIP revision. See 40 C.F.R. Part 51, Appendix V, § 2.1(a). The request mus t demonstrate that the revision has been adopted “in final form.” Id. § 2.1(b).
The MACC has the authority to adopt and amend Missouri’s air-quality rules. SeeMo. Code Regs. tit. 10, § 10-1.010(2)(A) (1998). The MDNR, however, has the sp ecific responsibility to “submit revisions of the State Implementation Plan to th e United Sta

tes Environmental Protection Agency for approval.” Id. § 10-1.010(2)(B). Therefore, the MDNR was the prop er agency to submit Missouri’s SIP revision to the EPA. On ce the MACC adopted the new statewide fugitive-dust rule, it was squarely within the MDNR’s discretion to submit the revision to the EPA.

Fu rthermore, even assuming that the MDNR’s decision to submit the revisio n was appealable, there is no authority for P etitioners’ assertion that the appeal rendered the MDNR decision “non-final.” The case cited by Petitioners to support thi s argument, State ex rel. Lake Lotawana Development Company v. Missouri DNR , 752 S. W.2d 497, 497-98 (Mo. Ct. App. 1988), simply requires plaintiffs to exhaus t administrat ive remedies before seeking judicial review. It does not hold that a n otherwis e valid regulation becomes non-final once a private party challenges it s validity. See id. To hold as much would essentially allow a party to enjoin th e en forcement

of a state regulation by filing an appeal rather than obtaining a n injunct ion, which would greatly impinge on a state’s ability to enact and enforc e regulations. Accordingly, we hold that the MDNR decision is final and enforceable, unless and until it is invalidated by the MACC or a Missouri state court. See Sierr a Club v. Indiana-Kentucky Elec. Corp. , 716 F.2d 1145, 1151 (7th Cir. 1983 ) (rec ognizing that the EPA may not enforce a regulation that the state has foun d invalid). Thus, the EPA complied with the Clean Air Act regulations.-5-

Next, Petitioners argue that t he MDNR was required to hold public hearings on whether to submit the SIP revision to the EPA. Assuming that this argument wa s sufficiently raised d

uring the public comment period to avoid waiver, it is nonetheless unavail ing. Petitioners acknowledge that adequate hearings were held prior to th e MACC’s adoption of the new statewide fugitive-dust rule. They also admit that they were allowed to raise their objections to submissi on of the revision at a special MACC meetin g on that topic. They contend that another hearing was required, however , before the MDNR could submit the revision to the EPA. To support their argument, Petitioners cite the regulation that requires states to hold “one or more public hearings” before “adoption and submission” of a SIP revision. See 40 C.F.R. § 51.104. Nothing in the text of the Clean Air Act or the reg ulations requires states to hold
a hearing on the submission of a properly adopted SIP revision. In fact, Petitioners ’ in terpretation of the regulations contradicts the language of the Act itself, whic h pro vides that “each revision to an implementation plan submitted by a State . . . shall be adopt ed by such State after reasonable notice and public hearing.” 42 U.S.C. § 7410( l ). T his language indicates that a hearing is required before adoption of a revision, not before the revision is submitted to the EPA.
Petition ers have provided no evidence that additional hearings on whether t o submit a SIP revision have ever been held in Missouri, or in any other state. Since the EPA’s original approval of Missouri’s SIP in 1972, the state has made many SI P revisi ons without holding separate hearings on the decision to submit. The EPA , which is entrusted with interpretation and enforcement of the Clean Air Act, has never required hearings on whether properly adopted SIP revisions should be submitted. In light of our deferential review of an agency’s interpretation of its own regulations, we hold that the MDNR

was not required to hold an additional hearing before submitting the SIP revision to the EPA.-6-

Finally , Petitioners contend that the EPA did not provide sufficient factua l informationabout the proposed SIP revision. The EPA is not required to provid e deta iledfactual data, however, when it acts under the APA. See 5 U.S.C. § 553(b)

. It must provide p ublic notice of “either the terms or substance of the proposed rule or a description of the subjects and is sues involved.” Id. § 553(b)(3). We have held that
an agency’s notice is sufficient if it allows interested parties to offer “‘informe d criticism and comments.’” Northwest Airlines, Inc. v. Goldschmidt , 645 F.2d 1309, 1319-20 (8th Cir. 1981) (quoting Ethyl Corp. v. EPA , 541 F.2d 1, 48 (D.C. Cir

. 1976)). The EPA included a lengthy description of the substance and purpose of the SIP revision in its public notice. This was sufficient to allow for informed publi c comment, as Petitioners demonstrated by their extensive remarks during the publi c comment period.
The petition for review is denied, as is Petitioners’ motion for stay pendin g disposition of the appeal before the Missouri Air Conservation Commission. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.