489 F.2d 390 (5th Cir. 1974), 72-2402, Natural Resources Defense Council, Inc. v. Environmental Protection Agency

Docket Nº:72-2402.
Citation:489 F.2d 390
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., Project on Clean Air, Save America's Vital Environment, Inc., Janey Weber and Susanne Allstrom, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:February 08, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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489 F.2d 390 (5th Cir. 1974)

NATURAL RESOURCES DEFENSE COUNCIL, INC., Project on Clean Air, Save America's Vital Environment, Inc., Janey Weber and Susanne Allstrom, Petitioners,



No. 72-2402.

United States Court of Appeals, Fifth Circuit.

February 8, 1974

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Page 393

Richard E. Ayres, Washington, D. C., Ogden Doremus, Savannah, Ga., for petitioners.

William D. Ruckelshaus, Administrator, Environmental Protection Agency, Kent Frizzell, Asst. Atty. Gen., Edmund E. Clark, John D. Helm, Henry J. Bourguignon, Attys. Appellate Div., Dept. of Justice, Washington, D.C., for respondent.

Joe Resweber, County Atty., Harris County, Charles J. Wilson, Asst. County Atty., Houston, Tex., amicus curiae.

Before WISDOM, DYER and INGRAHAM, Circuit Judges.

WISDOM, Circuit Judge:

The petitioners in this case are two non-profit corporations, Natural Resources Defense Council (NRDC) and Save America's Vital Environment (SAVE), and two individual citizens. They seek review of an other of the Administrator of the Environmental Protection Agency (EPA), approving the State of Georgia's plan for achieving the federal ambient air quality standards under the Clean Air Act Amendments of 1970. 1 Petitioners raise four objections to the Administrator's action on the Georgia Plan. These concern (1) a provision of that plan guaranteeing the confidentiality of secret trade information supplied to Georgia pollution control officials; (2) a provision allowing Georgia officials to grant variances from particular requirements of the plan; (3) Georgia's adoption of a 'control strategy' allowing 'sources' of sulfur dioxide and particulate matter emissions, e.g. manufacturing plants, to avoid the necessity of installing emission reduction equipment by increasing the height of their smokestacks; and (4) provisions of the Plan directing Georgia officials to take into account economic impact and technological feasibility in the discharge of their duties under the state's air pollution control statutes.

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We conclude that in approving each of the challenged provisions of the Georgia Plan, the Administrator exceeded his authority under the Clean Air Act Amendments, and order him to take appropriate corrective action.

We begin with a necessary discussion of the provisions of the Clean Air Act Amendments of 1970 relevant to the issues in this case.


The Clean Air Act Amendments of 1970 establish a program for controlling air pollution that involves two phases of standard-setting. The first phase is the setting of what the Amendments call 'ambient air quality standards'. These are standards designating the maximum tolerable concentrations in the ambient air of substances identifiable as pollutants. The second is the establishment of specific controls enforceable against individual sources of emissions, designed to limit the permissible quantities of matter emitted into the air, or to control the timing, rate, or manner of emissions. 2 The changes in the ambient levels of pollutant concentrations by these various enforceable controls are calculated largely through a technique known as diffusion modelling. 3 In this way, the emission standards and other 'second phase' controls are derived from the ambient standards.

The Amendments divide responsibility for the establishment of these two sets of standards between the states and the federal government. The EPA has exclusive responsibility for establishing national ambient standards, while the states have primary authority, subject to

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EPA review, for establishing their own 'implementation plans' to achieve those standards. The federal authority for promulgating ambient standards is established by 42 U.S.C. § 1857c-4(a). That provision requires the Administrator of the EPA to promulgate ambient air quality standards for all so-called 'criteria pollutants' within 120 days from the enactment of the Amendments. 4 The Administrator is to establish two sets of ambient standards for each pollutant: 'Primary' standards, 'the attainment and maintenance of which . . . are requisite to protect the public health', 42 U.S.C. § 1857c-4(b)(1); and 'secondary' standards 'requisite to protect the public welfare from any known or anticipated adverse effects'. 5 42 U.S.C. § 1857c-4(b)(2).

The provision governing the adoption by the states and approval by the EPA of the state implementation plans is 42 U.S.C. § 1857c-5; and this long and detailed provision is the focus of our concern in this case. Under § 1857c-5, the states must prepare and submit implementation plans within nine months of the promulgation of the national ambient standards. 6 The Administrator then reviews the state plans to assure that they meet requirements established by the statute. The basic requirements are that the plans guarantee (1) the attainment of the national primary standards 'as expeditiously as practicable', but in no case later than three years after the date of the approval of the plan, 7 and (2) and attainment of the secondary standards within a 'reasonable time' to be specified by each plan. 8 Each plan must include 'emission limitations, schedules, timetables for compliance with the limitations, and such other measures as may be necessary to insure attainment and maintenance' of the national standards. 9 Beyond these basic requirements, the provisions of § 1857c-5(a)(2)(C)-(H) set forth a number of other specific conditions a plan must meet before the Administrator may approve it. For instance, the plan must provide for monitoring and analyzing data on ambient air quality; 10 it must assure the funding and staffing of state agencies responsible for carrying out the plan; 11 and it must provide for periodic reports on the nature and quantity of emissions, and for making such reports public. 12 If the Administrator finds that a plan meets all of the statutory conditions, he must approve the plan within four months of the date of its submission. 13 If, on the other hand, he finds a plan or any portion of a plan does not satisfy any of the statutory conditions, he must disapprove that plan or portion. He is then directed to prepare

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and publish 'promptly' his own implementation plan, or portion of a plan, for the state involved. 14 The Administrator must publish his substitute regulations within six months of the date required for submission of the implementation plan in question. 15

Subsections (e) and (f) of section 1857c-5 allow the Administrator to relax, in sharply limited circumstances, the requirements of section 1857c-5 or of any implementation plan promulgated under it. Subsection (e) allows the Administrator to extend the three-year deadline for meeting the national primary standards for up to two years, at the time the plan is submitted for approval. The Governor of the state involved must request the extension, and the Administrator must determine that the techology necessary to attain the standards is not then available, and that the state has taken or is planning to take all reasonably available control measures. 16 Subsection (f) provides a procedure for allowing particular sources to postpone the effective date of any requirement of any state plan after the plan has become effective. It requires that the Governor petition the Administrator for the postponement, and sets forth in detail the standards to be applied and procedures to be followed when petitions for posteponements are brought. 17 Postponements may be granted for up to one year.

The Clean Air Act Amendments were enacted on December 31, 1970. Exactly 120 days later, on April 30, 1971, the EPA promulgated the national ambient standards for the six categories of 'criteria pollutants'. 18 See 40 C.F.R. § 50 (1972). On August 14, 1971, the Administrator adopted regulations to guide the states in the formulation and submission of their implementations plans. Requirements for the Preparation, Adoption and Submittal of Implementation Plans, 40 C.F.R. § 51 (1972). Implementation plans were due nine months from the date of the promulgation of the ambient standards, on January 31, 1972. Forty states met the deadline; the other states all filed their plans within a short time thereafter. The Administrator announced his actions on the various plans May 31, 1972. 37 Fed.Reg. 10842 et seq.

Georgia was one of the forty states to meet the January 31, 1972, deadline. The Administrator announced his action on the Georgia Plan in the regulations published May 31, 1972. The Administrator disapproved the plan in two respects not material here and approved all other portions of the Plan. 37 Fed.Reg. 10859, promulgating 40 C.F.R. § 52.572-4. The petitioners docketed this petition for review, under 42 U.S.C. § 1857h-5(b), within the 30-day period that provision allows. 19


The petitioners' first objection concerns a Georgia statute requiring the agencies responsible for Georgia's air quality program to keep confidential 'any information' they obtain relating to 'secret processed, devices, or methods of manufacture or production'. 20 Ga.Code Ann. § 88-908 (1971). The petitioners contend that the Administrator's

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approval of this provision was prohibited by 42 U.S.C. § 1857c-5(a)(2)(F)(iii), (iv). Those two clauses require that the state implementation plan provide 'for periodic reports on the nature and amounts of (stationary source) emissions' from all sources covered by the plan, and 'that such reports shall be correlated by the State agency with any emission limitations or standards established pursuant to this Act, which reports shall be available . . . for public inspection'. 21 The petitioners contend that Georgia's...

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