ELR Citation: ELR 21119
No(s). 92-16219 (9th Cir. Jun 13, 1994)

The Court holds that state implementation plan (SIP) revisions that the U.S. Environmental Protection Agency (EPA) approved on the condition that the state remedy minor deficiencies in the SIP are binding parts of the state's SIP. Arizona submitted plans to improve mass transit systems in two counties to help the state comply with the requirements of nonattainment designation in those counties. EPA conditionally approved the plans as part of the SIP, but neither the state nor the counties ever implemented them and EPA never referred to them in later notices addressing the SIP. The court first holds that EPA's approval of the plans was proper, because the plans were "substantially complete." As such, they were a binding part of Arizona's SIP, even though EPA called its approval "conditional" rather than "final." Next the court holds that EPA's interpretation of the relevant sections of the Clean Air Act (CAA)—that approved portions of conditionally approved plans are part of the state's SIP—is reasonable and entitled to deference. EPA's incremental approach to bringing nonattainment areas into attainment by approving portions of the SIP over time fostered attainment of the national ambient air quality standards "as expeditiously as practicable," as required by CAA §172(a). Next the court determines that federal appellate case law supports the court's decision. Finally, the court holds that EPA need not include specific reference to the provisions in a later notice that purports to make the SIP complete in order to include these provisions in the federally enforceable plan.

Counsel for Plaintiffs
William W. Pearson
Molloy, Jones & Donahue
33 N. Stone Ave., Ste. 2100, Tucson AZ 85702
(602) 622-3531

Counsel for Defendants
M. James Callahan, Ass't City Attorney
City Attorney's Office
200 W. Washington St., Ste. 1300, Phoenix AZ 85003
(602) 262-6761

Before Wallace and Garth^*, JJ.