In other words, as long as long-term goals remain the same, internal revisions in the plan relating to stationary pollution sources are permitted even if they represent a temporary weakening of the plan. Under the regulation such a "deferral" is treated as a revision in the Implementation Plan rather than a "postponement" under Section 1857c-5(f) of the statute. Plaintiffs argue that such treatment evades and renders meaningless the strict standards and review mechanism of the "postponement" provision. Implicit in Plaintiffs' position is an argument that revisions are permissible under the statute only to improve an implementation plan, not to allow a retrenchment, and that postponement is the only proper means of delaying a specified closing date for stationary pollution source. Plaintiffs' position is not totally without support, for it is supported by the statutory language and the argument that to allow "temporary" relaxation of an approved plan is not the best approach to insure that meaningful plans are adopted and goals ultimately achieved.
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 procedures for formal "postponement" of compliance, as long as the Administrator has properly found that the variance will cease before the mandatory attainment date and will not defeat ultimate attainment of the applicable clean air standard.
The legislative history of the Act appears to be silent on the point here in issue. In light of this, and in light of the decisions cited and the context of this case, this Court is constrained to agree that the Administrator of E.P.A. has the authority to treat certain variances in Implementation Plans as "revisions" rather than "postponements" under the Clean Air Act.
The effect of 40 C.F.R. § 51.-32(f)
in the present case is to allow treatment of the delayed closing of Incinerator No. 5 as a revision rather than a postponement in the District of Columbia Implementation Plan. As a revision the proposed delay has properly been submitted to the Regional Office of E.P.A. for review and approval.
Plaintiffs have not pointed to any impropriety in the administrative handling of the proposed revision under applicable regulations. Accordingly, the Court concludes that Plaintiffs' challenge to this revision must fail.
Summary judgment will be granted to Defendants.
This matter is now before the Court on Plaintiffs' Motion to alter or amend the Order of Judgment entered herein February 20, 1974, dismissing these actions. Plaintiffs contend that the United States Court of Appeals for the District of Columbia has entered a controlling decision, Natural Resources Defense Council v. E.P.A., 154 U.S. App. D.C. 384, 475 F.2d 968 (1973), contrary to the decisions of the First and Eighth Circuits relied upon by this Court, Natural Resources Defense Council v. E.P.A., 478 F.2d 875, 886-887 (1st Cir. 1973), and Natural Resources Defense Council v. E.P.A., 483 F.2d 690, 693-694 (8th Cir. 1973). This Court was quite aware of the cited D.C. Circuit case, but agrees with Defendants that it is not in point. Our Circuit did not have before it, and has not yet decided to this date, the issues raised herein which were expressly determined by the First and Eighth Circuits, i.e. does the Administrator of E.P.A. have discretion to treat certain adjustments in approved implementation plans as "revisions" rather than "postponements" under the Clean Air Act. The D.C. Circuit dealt primarily with Section 110(e) of the Act, 42 U.S.C. § 1857c-5(e), which deals with time limits for submission of implementation plans. The Court was not presented with, and did not resolve, any question on the availability of the "revision" mechanism for adjusting an implementation plan, or the validity of 40 C.F.R. § 51.32(f).
Plaintiffs further argue that the result herein is contrary to the "non-degradation" air quality standard of Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), affirmed 412 U.S. 541, 93 S. Ct. 2770, 37 L. Ed. 2d 140 (1973). There is simply no indication in the present record that continued operation of Incinerator No. 5 will cause deterioration of existing air-quality in the District of Columbia. Plaintiffs' position on each of the two points raised in the present motion is not well taken.
The Court has discovered, however, another significant decision in point. On February 8, 1974, the Fifth Circuit Court of Appeals decided Natural Resources Defense Council, Inc. v. E.P.A., 489 F.2d 390. This case was not brought to the Court's attention prior to entry of the February 20 Memorandum and Order herein. In the Fifth Circuit case, 489 F.2d at 402-403, the Court focused on the issue raised herein and earlier decided by the First and Eighth Circuits. The Court held, directly contrary to the First and Eighth Circuits, that "revisions" are not permitted to supplant "postponements" in enforcement of the Clean Air Act. The Fifth Circuit held "that the plan of the statute was to secure ambitious commitments at the planning stage, and then, by making it difficult to depart from those commitments, to assure that departures would be made only in cases of real need." (489 F.2d at 403).
Thus the issue herein has been squarely drawn by express disagreement among the Circuit Courts which have spoken to date. In light of the fact that the District of Columbia Circuit has not yet spoken on the controlling question of law which is open to substantial dispute, and in light of the severe consequences of an injunction herein, this Court is not disposed to alter its previous Order herein.
Upon the above considerations, it is this 12th day of March, 1974;
Ordered that Plaintiffs' Motion to Alter or Amend the Order of Judgment entered herein February 20, 1974, be and hereby is denied.