ELR Citation: ELR 20683
No(s). 72-1419 (3d Cir. Sep 12, 1972)

The failure of an industry affected by a state implementation plan to object within the time limits and according to the procedures established by §307 of the Clean Air Act, 42 U.S.C. §1857h-5, forcloses preenforcement judicial review of a compliance order issued under the plan. The industry's argument that it is not attacking the plan, but merely suggesting that immediate compliance would be arbitrary and capricious (since the national primary standard had already been met in the region) must fail. Such an argument properly belongs in a direct challenge to the plan and therefore must be raised in a §307 proceeding. Likewise, whether or not EPA must issue an environmental impact statement pursuant to NEPA is a question for a §307 proceeding. To require a NEPA statement at the compliance stage would frustrate the congressional intent of expeditions procedures. Moreover, the terms of the Clean Air Act itself contain sufficient provisions for the achievement of goals sought to be attained by NEPA.

Counsel for Plaintiffs
Charles Richards, Jr.
Richards, Layton & Finger
4072 duPont Building
Wilmington, DE 19899

Counsel for Defendant
F.L. Peter Stone United States Attorney
United States Courthouse
Wilmington, DE 19801

Before Hastie, Rosen, and Hunter, C.J.J.