ELR Citation: ELR 20345
No(s). 72-1728 (2d Cir. Mar 13, 1974)

On a petition to review the EPA Administrator's approval of seven provisions of the New York state air pollution implementation plan, the U.S. Court of Appeals for the Second Circuit affirms the grant of a two-year extension for the achievement of the national primary standard for particulate matter in the New York metropolitan region, but remands five of the other provisionsto the agency for further consideration and revision. The extension grant is ruled valid because petitioners failed to make a reasonable showing that the state has overlooked reasonably available alternative means of attaining the primary standard within the statutory period. The plan's provision for public access to emission data is found inadequate in light of an apparent conflict between this section and an unnecessarily broad confidentiality provision. The court directs EPA to amend the portion of the plan dealing with confidentiality by making an explicit exception for emission data. EPA is also ordered to modify a provision which permits the state to grant variances. Although this constitutes a proper procedure for the period during which primary standards must be attained, the exclusive method for seeking postponement of a state's emission limitations after the attainment deadline is the more restricted process of §1857c-5(f) of the Clean Air Act. The court finds unrealistic certain assumptions regarding oil conversion of commercial sources in New Jersey which underlie the plan's provision governing sulfur oxides. The Agency is directed to disapprove this aspect of the plan if valid supporting data cannot be gathered to demonstrate that it will succeed. The plan's provision for the exchange of information with other states adequately fulfills the statute's requirement for intergovernmental cooperation, but the court finds and EPA agrees, that the portion of the plan which allows construction without prior review of a project's potential interference with attainment or maintenance of primary standards must be revised to require such review. Finally, the Administrator is ordered to submit to the court a detailed rationale for his conclusion that the plan provides the necessary assurances that New York will have adequate personnel and funding to carry it out, in view of the plan's assertion that state budgetary restrictions make increased federal support essential. For earlier decisions of the First and Eighth Circuits that are in accord with the court's ruling, see 3 ELR 20375 and 3 ELR 20821. For a more recent decision by the Fifth Circuit that is partially contrary to this ruling, see 4 ELR 20204.

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

Counsel for Defendants
Wallace H. Johnson Asst. Attorney General
Henry J. Bourguignon
Edmund B. Clark
Martin Green
Department of Justice
Washington, DC 20530

Counsel for Amicus Curiae State of New York
Louis J. Lefkowitz Attorney General
Samuel A. Hirshowitz
Judith A. Gordon Asst. Attorneys General
State Capitol
Albany, NY 12224