483 F.2d 690 (8th Cir. 1973), 72-1380, Natural Resources Defense Council, Inc. v. United States E.P.A.

Docket Nº:72-1380.
Citation:483 F.2d 690
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Iowa Wildlife Federation, Inc., a non-profit Iowa corporation; and Joel D. Benson, Intervenors.
Case Date:July 27, 1973
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 690

483 F.2d 690 (8th Cir. 1973)

NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York corporation, et al., Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Iowa Wildlife Federation, Inc., a non-profit Iowa corporation; and Joel D. Benson, Intervenors.

No. 72-1380.

United States Court of Appeals, Eighth Circuit.

July 27, 1973

Submitted April 9, 1973.

Page 691

[Copyrighted Material Omitted] Page 692

Richard E. Ayres, New York City, for petitioners.

Alfred T. Ghiorzi, Atty., Dept. of Justice, Washington, D. C., for respondent.

Before GIBSON, BRIGHT, and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

Petitioners, under 42 U.S.C. § 1857h- 5(b)(1), 1 seek review of the decision of the Administrator of the Environmental Protection Agency (EPA) approving portions of Iowa's Air Pollution Control Implementation Plan (Iowa Plan) adopted pursuant to § 110 of the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857c-5.

The 1970 Amendments require the Administrator to establish primary and secondary ambient air quality standards which specify maximum amounts of pollutants to be allowed in the ambient air. Primary standards establish allowable maximums consistent with protection of the public health; secondary standards delineate maximums consistent with protection of the public welfare from any known or anticipated adverse effects associated with the presence of pollutants. The 1970 Amendments require each state to submit to the Administrator a plan for implementation, maintenance, and enforcement of the federal standards, § 1857c-5(a)(1). The plan must be designed to achieve primary standards as expeditiously as practicable, but in no case later than three years from the date of approval of such plan, and secondary standards within a reasonable time, § 1857c-5(a)(2)(A). The Administrator is to approve or disapprove each portion of the plan depending on whether it conforms with the prescribed deadlines for attainment of national standards and with other criteria set out in § 1857c-5(a)(2). 2 If any plan or portion thereof fails to conform to statutory requirements, the Administrator ultimately is directed to promulgate such regulations as may be necessary to cure the deficiency, § 1857c-5(c).

Petitioners allege four deficiencies in the Iowa Plan as approved by the Administrator.

I.

Petitioners argue that the Iowa Plan fails to make adequate provision for intergovernmental cooperation to prevent interstate pollution which would interfere with the attainment and maintenance of national standards. The 1970 Amendments require that state plans contain:

[A]dequate provisions for intergovernmental cooperation, including measures necessary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State or in any other air quality control region[.] [42 U.S.C. § 1857c-5(a) (2)(E).]

The Administrator, seeking to clarify the statutory requirement, promulgated a regulation providing that:

Each plan shall provide assurances that the State agency having primary responsibility for implementing national standards in any region, or portion thereof, will promptly transmit to other State agencies having similar or related responsibility in the same or other States, information on factors (e.g., construction of new industrial plants) which may significantly affect air quality in any portion of such region or in any adjoining region. [40 C.F.R. § 51.21(c).]

Petitioners contend that the mere exchange of information endorsed by the regulation will preclude the establishment of "binding enforcement agreements" which the statute allegedly requires. Respondent answers that § 1857c-5(a)(2)(E) does not require state plans to contain interstate compacts regulating interstate pollution.

We agree with respondent. The exchange of information called for in 40 C.F.R. § 51.21(c) 3 constitutes a form of "intergovernmental cooperation" which will provide a basis for evaluating the impact of pollutants in...

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