Where There's a Will: Must EPA Consider the Technologic and Economic Feasibility of State Air Implementation Plans?

April 1975
Citation:
5
ELR 10056
Issue
4

Within a week of each other, two circuit courts of appeals recently handed down contradictory rulings on the question of whether the EPA Administrator must consider the technological feasibility and economic impact of state air quality implementation plans in the process of approving or disapproving them under §110 of the Clean Air Act. The Seventh Circuit, on January 23, 1975, held that the Administrator is not required to consider such factors in making approval decisions under §110, but that technological infeasibility and economic hardship may be taken into account by the Agency and the federal district courts in fashioning compliance schedules in enforcement proceedings under §113 of the Act.1 On January 29, 1975, the Third Circuit, apparently unaware of the Seventh Circuit's ruling, held that the Act implicitly requires the Administrator to determine the technological feasibility and economic impact of a state implementation plan in proceedings under §110, and to disapprove a particular plan if he finds it to be technologically infeasible.2

The focus of this controversy is the exact nature of the Administrator's powers and duties under §1103. The statutory scheme requires each state to submit to EPA a plan providing for the implemention, maintenance, and enforcement of the primary and secondary air quality standards promulgated by the Administrator on April 30, 1971, pursuant to §109. The Administrator, in turn, "shall approve" a state's plan if he determines that it contains certain features specified in §110(a)(2), was adopted after reasonable notice and a hearing, that it provides for the attainment of primary standards "as expeditiously as practicable," but in no case later than three years from the date of approval, and assures the attainment of secondary standards within a "reasonable time." The specific features that the plan must contain, as set forth in §110(a)(2), are: schedules and timetables for compliance; procedures for monitoring and analyzing ambient air quality data; procedures for reviewing the proposed location of new sources; adequate provisions for intergovernmental cooperation; assurances of adequate personnel, funding and authority for enforcement; and provisions for modification of the plan to account for revisions in the national standards or the development of improved, more expeditious methods of achieving compliance.

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