ELR Citation: ELR 20204
No(s). 72-2402 (5th Cir. Feb 8, 1974)

The Administrator of EPA exceeded his authority under the Clean Air Act Amendments in approving four portions of the Georgia Implementation Plan, and is ordered by the Fifth Circuit Court of Appeals to publish forthwith his disapproval of these provisions. The portions of the Plan in question require the state air pollution control agencies to keep confidential any information they obtain relating to secret processes, devices, or methods of manufacture and production; authorize state officials to grant variances from requirements of the Plan; allow the use of tall stack dispersion enhancement in lieu of emission limitations; and direct state officials to take economic impact and technological feasibility into account whe making decisions relating to air quality. The court rules that the Plan's overinclusive confidentiality provisions violate the public disclosure requirements of the Act, which were intended to play a crucial role in assuring effective implementation of the statute's basic policy of citizen enforcement. The authorization for state-granted variances is held to illegally circumvent the more stringent federal variance procedures. The provision allowing tall stack dispersion enhancement as an alternative to emission limitation programs must be disapproved since the Act requires that emission limitations be the primary mode of compliance, and permits dispersion enhancement in addition to but not in lieu of such action. Finally, the provision that economic and technological factors be considered in air quality code decisions is held to undermine the intent of Congress that under the Act considerations of public health should always take precedence over considerations of economic impact and technical feasibility.

Counsel for Petitioners
Richard E. Ayres
Natural Resources Defense Council, Inc.
1710 N Street, NW
Washington, DC 20036

Ogden Doremus
111 West Congress Street
Savannah, GA 31402

Counsel for Respondent
Kent Frizzell Asst. Attorney General
Edmund B. Clark
John D. Helm
Henry J. Bourguignon
Department of Justice
Washington, DC 20530