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Seabrook, City of v. EPA

Citation: 11 ELR 21058
No. Nos. 80-1138, -1520, 659 F.2d 1349/16 ERC 1657/(5th Cir., 10/30/1981)

The Fifth Circuit Court of Appeals rules that the Environmental Protection Agency (EPA) lawfully and reasonably granted conditional approval of Texas' revised state implementation plan (SIP) for several non-attainment areas under the Clean Air Act. Texas, pursuant to the 1977 amendments to the Act, submitted a revised SIP for its non-attainment areas to EPA and, in addition, requested an extension for attainment of the ozone standard in Harris County. EPA approved portions of the revised SIP, approved other portions of the plan on the condition that the state make the minor changes needed to bring the plan into compliance with the Act, and granted the state's request for an extension. The court rules that EPA's policy of granting conditional approvals of SIPs is based on a reasonable interpretation of the Clean Air Act since § 110 (1) does not expressly require the Administrator to disapprove a plan if a requirement of the section is not met, (2) impliedly grants the Administrator authority to require revisions in SIPs while not expressly prohibiting the use of that revision authority in the approval-disapproval process, and (3) gives the Administrator the discretion, once he has invoked the revision authority, to give a state additional time to make needed revisions to the plan. In addition, EPA's interpretation is consistent with the Clean Air Act's policy of giving the states primary responsibility for assuring air quality and gives the Agency needed flexibility in enforcing the statutory deadlines. Specifically, the court finds that Texas adopted and submitted a SIP revision which the Administrator determined, within a reasonable time, to be in accordance with the statutory requirements, that the deficiencies in the plan were minor and were required to be corrected within a short period of time, and therefore upholds the EPA's conditional approval of Texas' revised SIP for certain non-attainment areas. Turning to petitioners' challenges to the substance of the revised SIP, the court rules that the standard of review is the arbitrary and capricious standard and that petitioners are not estopped from raising any objection not raised during the notice and comment perod. The court concludes that the petitioners failed to demonstrate that EPA acted arbitrarily and capriciously in (1) approving the state's program for alternative site analysis required by § 172(b)(11)(A) of the Act, (2) approving the revised SIP's provisions for an automobile inspection and maintenance program in Harris County, (3) determining that the revised SIP need not include a specific demonstration of reasonable further progress and attainment of the ozone standard in rural areas, (4) approving and conditionally approving the provisions of the revised plan dealing with total suspended particulates, and (5) conditionally approving the new source review provisions. In addition, the court lacks jurisdiction over petitioners' claim that the Texas SIP revisions violate § 110(a)(2)(J) and (K) and finds that petitioners' request for direct review of EPA's designation of non-attainment areas is untimely.

Counsel for Petitioners
James M. Scott Jr.
13935 Ivymount, Sugarland TX 77478
(713) 491-4887

Counsel for Respondent
Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Counsel for Intervenor State of Texas
Jim Mathews, Ass't Attorney General
P.O. Box 12548, Austin TX 78711
(512) 475-2501

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.