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Connecticut Fund for the Env't v. EPA

Citation: 12 ELR 20306
No. No. 81-4025, 672 F.2d 998/16 ERC 2185/(2d Cir., 02/01/1982)

The court upholds the Environmental Protection Agency's (EPA's) conditional approval of Connecticut's Part D state implementation plan (SIP) revision and its final approval of the state's partial withdrawal of its indirect source review (ISR) program, but requires EPA to reinstate a moratorium on construction of major new or modified sources. The court first rules that the power to approve SIPs conditionally is inherent in EPA's power to approve or disapprove SIPs under §110(a)(2) of the Clean Air Act. However, conditional approval may not be used to circumvent the substantive requirements of the Act. By lifting the construction moratorium for sources governed by the conditional portions of the SIP following its conditional approval, EPA contravened the clear intent of Congress, expressed in §110(a)(2)(I), that the moratorium remain in effect until EPA fully approves a state's Part D SIP revision. The court next holds that EPA's action did not violate the Act's compliance timetable. The court notes that its jurisdiction under §307(b) is limited to the question of whether conditional approval after the statutory deadline for approval of SIP revision is consistent with the substantive requirements of the Act. It rejects the argument that the delays that have already occurred in the development and conditional approval of the SIP revision require EPA to disapprove the revision and promulgate a federal Part D SIP. Nor do the brief intervals accorded the state to make final adjustments to the SIP conflict with the Act's deadline for unconditional SIP approval. Finally, the court holds that EPA correctly approved Connecticut's partial withdrawal of its ISR program because the revised SIP does not depend on it for attainment of air quality standards and concludes that Congress did not intend to limit its §110(a)(5)(A)(iii) authorization for ISR program revocation to attainment areas.

Counsel for Petitioners
Daniel Millstone, Litigation Director
Connecticut Fund for the Environment, Inc.
152 Temple St., New Haven CT 06510
(203) 787-0646

Anthony F. Pagano
447 Center St., Manchester CT 06050
(203) 646-5606

Counsel for Respondents
Diane L. Donley, Jose R. Allen, Barbara Brandon; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5386

Lydia Wegman, Christina Kaneen; Michele B. Corash, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors Nat'l Retail Merchants Ass'n et al.
Nancy L. Buc, Bruce H. Turnbull
Weil, Gotshal & Manges
1100 Connecticut Ave. NW, Washington DC 20036
(202) 857-0141

Counsel for Intervenor State of Connecticut
Kenneth N. Tedford, Robert A. Whitehead Jr.; Carl R. Ajello, Attorney General
Capitol Annex, 30 Trinity St., Hartford CT 06115
(203) 566-2026

Newman, J. joined by Kearse and Daly,* JJ.