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Volume 3, Issue 3 — March 1973


Litigation Under the Clean Air Act

The Clean Air Act Amendments of 19701 give wide powers to the Administrator of the Environmental Protection Agency to establish standards for air quality, to approve or modify state-proposed plans for achieving and maintaining that quality, and to regulate new or modified emission sources (including automobiles, stationary sources and sources of hazardous pollutants). As might be expected, the Administrator's exercise of his powers in these areas—which affect virtually all phases of the American economy—has been the subject of extensive litigation brought both by environmentalists and industry representatives. By mid-February, 1973, ELR knows of more than 100 lawsuits that raise Clean Air Act issues. This Comment will bring ELR readers up to date on the current litigation under the Act as well as suggesting how some of the pending litigation ought to be decided.

Although the Act is lengthy and complex, and its provisions highly interdependent, the basic scheme proposed by it is not. Some understanding of the pattern of the Act may provide a basic order to the litigation. Five sections of the Act have provoked the bulk of the litigation: the national ambient air quality standards (Section 109), the state implementation plans §110), the standards for new stationary sources (§111), the hazardous air pollution controls (§112), and the controls on motor vehicle emissions (Title II, §§201 et seq.). This Comment will not deal with the auto emission litigation, since those suits raise special problems best dealt with separately. As to the other controls mentioned, the Administrator sets two uniform national standards for each pollutant determining the maximum amount of certain pollutants that may lawfully be found in the ambient air anywhere in the nation. The states then submit plans to the Administrator for approval that set out how they are going to go about meeting those ambient air standards in their state. In addition to the national ambient standards just referred to, the Administrator sets two other types of standards. These two standards control emissions from or performance of individual sources and are independent of the ambient air standards just mentioned. The first of these emission standards sets nationwide limits that sources of hazardous pollutants must meet in a limited time. The second sets nationwide new stationary source standards that certain industrial categories of sources must meet if they are modified (or newly constructed) after the regulations are in effect. It is important to note that these controls all operate simultaneously; in the case of any given factory, one or all of the sets of standards may apply. It is possible to imagine, for example, that a factory producing mercury and sulphuric acid batteries might be controlled (as to its mercury operations) as a source of hazardous pollutants (as to its sulphuric acid operations), as a new stationary source, and (as to fumes, dust and traffic-related pollutants) as a facility to be controlled under a state implementation plan.

Status of Approvals and Disapprovals of State Implementation Plans Under the Clean Air Act Amendments of 1972

The following table sets out on a state-by-state basis exactly which portions of each state's implementation plan have been approved or disapproved by the Administrator of the Environmental Protection Agency. The citations in entries down the left-hand side of the page are to sections of 40 C.F.R. Pt. 51, setting forth the requirements for a complete implementation plan. The numbers below each state's name are page references to the Federal Register at which the action noted occurred. In all cases, references are to Volume 37 of the Federal Register. This chart represents only materials published in the Federal Register and may not reflect informal agreements or court ordered changes that have not yet been promulgated. It includes all material published in the Federal Register through March 5, 1973. ELR readers should be aware that in the Federal Register of March 8, 1973, the Administrator added a new section of 40 C.F.R. Pt. 52, disapproving all state implementation plans on the grounds that they failed to include provisions to ensure procedures and regulations adequate to ensure that ambient air quality standards are maintained. See 38 Fed. Reg. 6279 and Advance Notice of Proposed Rule Making, 38 Fed. Reg. 6290.

Major Upcoming EPA Standards and Regulations


[See Illustration in Original]