The opinion of the court was delivered by: ROBINSON
AUBREY E. ROBINSON, Jr., District Judge.
This is an action brought under the Clean Air Act of 1970
to enforce an air pollution emission standard. The matter is now before the Court on Defendants' Amended Motion to Dismiss and on Plaintiffs' Motion for Preliminary Injunction. At oral argument the Court directed, sua sponte, that final hearing on the merits be consolidated with the hearing on the Preliminary Injunction, pursuant to Rule 65(a) (2), Federal Rules of Civil Procedure. The Court has determined that the case turns only on questions of law, that there are no disputed issues of material fact and that final judgment is therefore appropriate.
This case centers on the continued operation of Incinerator No. 5, a municipal incinerator operated by the District of Columbia as part of the municipal solid waste management program. Under the Clean Air Act
the District of Columbia was required to, and did, prepare an Air Quality Implementation Plan for Controlling Sulfur Oxide and Particulate Pollutants in the District of Columbia. That plan consisted in part of the Air Quality Control Regulations enacted by Regulation 72-12 of the District of Columbia.
As required by the Clean Air Act, the Implementation Plan was submitted to and approved by the Administrator of the Environmental Protection Agency as the official Implementation Plan for the District of Columbia. The Plan as adopted and approved specifically contemplated that Incinerator No. 5 would cease operation on July 4, 1973.
On May 31, 1973, the Mayor-Commissioner of the District of Columbia formally requested action by the City Council to amend the Health Regulations and the Implementation Plan to eliminate the requirement that Incinerator No. 5 be closed on July 4, 1973. Failure to do so, the Mayor indicated, would precipitate an "immediate crisis" in the city's waste management program. On July 2, 1973, the Mayor-Commissioner again wrote to the City Council, requesting emergency action to adopt the requested amendments permitting the continued operation of Incinerator No. 5 in order to avoid "severe adverse effects on the health and welfare of the citizens of the District of Columbia." On July 3, 1973, after testimony by a representative of the Mayor, the Council enacted emergency Regulation 73-16, permitting continued operation of Incinerator No. 5 through September 4, 1973. Meanwhile, following the Mayor's initial request for action, but before the July 3 Emergency Regulation, the City Council had initiated more regular procedures for notice and public hearing on a proposed Regulation extending the life of Incinerator No. 5 through June 30, 1974. That Regulation, No. 73-18, obtained final passage by the Council and approval by the Mayor on September 4, 1973. Plaintiffs challenge these regulations authorizing continued operation of Incinerator No. 5 as impermissible revisions of an approved Implementation Plan under the Clean Air Act.
Section 304 of the Clean Air Act
allows "any person" to commence a civil action to enforce "an emission standard or limitation under this chapter." "Emission standard or limitation" is defined to include "a schedule or timetable of compliance . . . which is in effect . . . under an applicable implementation plan."
Thus absent a valid revision of the plan or authorized postponement of the timetable, the Court is required to enforce the original timetable for Incinerator No. 5's compliance with the District of Columbia Air Quality Implementation Plan.
Defendants dispute Plaintiffs' compliance with the statutory requirement that notice of the alleged violation be provided to the Environmental Protection Agency, the State, and the alleged violator (here the State) sixty (60) days prior to commencement of suit.
It is undisputed here that Plaintiffs failed to give the required notice prior to filing Civil Action 1424-73. That failure is the reason for the filing of the second suit herein, Civil Action 1844-73, raising identical issues. Plaintiffs did give the required notice of the alleged violations prior to commencement of the second action. That written notice took the form of providing copies of the original complaint in Civil Action 1424-73, to those parties required by statute and regulation
to receive such notice.
It should be noted that the statutory requirement of notice was not intended to bar lawsuits such as the present one, but at most to delay such suits for sixty (60) days in order to allow appropriate officials time to act.
Thus the purpose and effect of this notice requirement is unlike some other notice requirements where non-compliance bars suit forever.
This latter type of notice requirement was designed primarily to assure prompt claims and allow prompt investigation. Such concerns are not involved in the present situation, where by the very creation of private remedies Congress evidenced its primary concern with enforcement of Clean Air standards. If official enforcement activities are not initiated within sixty (60) days after notice of violation then citizens suits for enforcement are proper means of enforcement.
Thus, had Civil Action 1424-73 been dismissed for failure to comply with the statutory notice requirement, such dismissal would not be a bar to initiation of a new lawsuit on the same issues after compliance with the statute. Defendants' argument that a prior dismissal on such grounds would be res judicata is incorrect. In the present context, a second lawsuit with proper notice was in fact filed before the Court could rule on the Motion to Dismiss the first complaint. In light of this fact, rather than dismiss the first action and require identical new motions in the second action the Court has simply granted Plaintiffs' Motion that the cases be consolidated. The Court finds that Plaintiffs have complied with the statutory requirements for notice.
Defendants have stressed at length herein the broad powers of the local government with regard to health regulations, citing legislative discretion and presumptions of regularity. Yet it is necessary to stress that we are not dealing here with a simple municipal regulation. As the City Council recognized, "the Mayor's request to amend Regulation No. 72-12 constituted a request to amend the Implementation Plan."
The Implementation Plan is not merely a municipal regulation but the creature of a Federal statute with strict provisions limiting changes in approved Implementation Plans.
The Clean Air Act specifies that prior to the date on which a stationary pollution source is required to comply with an applicable implementation plan the executive of the State may apply to the Administrator of the Environmental Protection Agency to postpone the applicability of the requirement for not more than one year.
Upon such a request the Administrator must make specific determinations on the record after hearing that postponement of the requirement comports with the Clean Air Act. That decision of the Administrator is then subject to direct review in a United States Court of Appeals, with priority on the docket of that Court.
Another provision of the Act provides for "revision" in approved Implementation Plans.
Such revision may be made, subject to approval of the Environmental Protection Agency, to take account of any revisions in national air quality standards or the availability of "improved or more expeditious methods" of achieving compliance with such standards.
Plaintiffs' interpretation, however, has been rejected by two Circuit Courts of Appeals, Natural Resources Defense Council v. E.P.A., 478 F.2d 875, 886-88 (1st Cir. 1973), and Natural Resources Defense Council v. E.P.A., 483 F.2d 690, 693-694 (8th Cir. 1973). In both of these cases the Courts of Appeals held that the Administrator of the Environmental Protection Agency has broad discretion and flexibility in allowing adjustments of approved implementation plans to be treated as revisions rather than postponements. In each case the Court found it necessary to distinguish between two time periods, the period before the date set by law for the mandatory attainment of Clean Air standards (the "pre-attainment period") and the period after mandatory attainment of standards (the "post-attainment" period). Both Courts held that the "postponement" provisions of § 1857c-5(f) are the exclusive mechanism to avoid compliance with an Implementation Plan only in the post-attainment period. In the pre-attainment period, which is the current period in the District of Columbia, the Courts held that the Administrator has discretion to allow variances in Implementation Plans, without compliance with the ...