ELR Citation: ELR 20651
No(s). 1424-73 (D.D.C. Feb 20, 1974)

The court grants summary judgment to defendants after finding that regulations enacted by the D.C. City Council which amend the city's Clean Air Act implementation plan constitute a revision of the plan rather than a postponement within the meaning of 42 U.S.C. §1857(c)-5 (f). The regulations, which permit operation of Incinerator 5 for an additional year, are therefore not subject to the strict procedural requirements and review mechanism which the statute applies to postponements. In the period preceding the date set for attainment of statutory air quality standards, the EPA Administrator may approve a variance in the plan without complying with the postponement procedures if the variance will cease before the attainment date and will not prevent attainment of clean air standards. Although plaintiffs failed to comply with the 60-day notice requirement in §304 of the Act before filing their initial suit, that earlier action served as adequate notice for a second suit with which it is now consolidated. The court notes that the statutory intent behind the notice requirement was not to bar suits which are improperly brought, but at most to delay them for 60 days.

Counsel for Plaintiffs
Gilbert Hahn, Jr.
Amran, Hahn, & Sandground
Colorado Building
1341 G Street, NW
Washington, DC 20005

Counsel for Defendants
David Eisenberg
John C. Salyer, III Asst. Corporation Counsel
District Building
14th and Pennsylvania, NW
Washington, DC 20005