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FRIENDS OF THE EARTH v. POTOMAC ELEC. POWER CO.

August 16, 1976

FRIENDS OF THE EARTH, et al., Plaintiffs,
v.
POTOMAC ELECTRIC POWER COMPANY, Defendant.



The opinion of the court was delivered by: BRYANT

OPINION AND ORDER

 I. BACKGROUND

 Citizen suits under the Clean Air Act may be initiated only after sixty day notice describing the alleged violations is delivered to the defendant, the Environmental Protection Agency, and in this case the District of Columbia. Such notice has been timely given, and no suit for enforcement has been filed by the District of Columbia or the Environmental Protection Agency.

 Plaintiff Friends of the Earth is a non-profit membership corporation organized pursuant to the laws of the State of New York, with a home office in San Francisco. It has a national membership of 28.000, over 430 of whom reside and work in the District of Columbia, and is devoted to the preservation and enhancement of environmental values in the District of Columbia and throughout the United States, as well as enforcement of laws relating to environmental protection. It asserts in this action its organizational interest and the interest of its members in the preservation and enhancement of environmental values and protection of the public health and welfare in the District of Columbia. Members, contributors and supporters of FOE breathe air in the District of Columbia, and the quality of this air directly affects their health and welfare. Such persons are among the class of persons whom the Act was intended to protect.

 Plaintiffs True and Meader are citizens who are concerned with remedying violations of the Act. Mr. True works in the District of Columbia and Mr. Meader resides and works in the District of Columbia. Both are members of FOE.

 Defendant PEPCO is a corporate utility producing and generating electric power for distribution throughout the District of Columbia metropolitan area, including parts of the states of Virginia and Maryland. PEPCO has offices in the District of Columbia and owns, operates and maintains in said District facilities for the generation of electric power, by and involving the burning of fossil fuels, at 3400 Benning Road, N.E., and at Buzzard Point, S.W. Plaintiffs allege that these facilities continuously emit through various stacks air pollutants into the atmosphere.

 The District of Columbia, originally named as a defendant in this action, has at its request been realigned as a plaintiff and concurs in the arguments advanced by the original plaintiffs.

 As required by the Clean Air Act and regulations promulgated thereunder, the Government of the District of Columbia, a "state" for purposes of the Act, promulgated in January 1972 and revised and updated in April 1973 an Implementation Plan, which was in each case submitted to the Administrator of EPA. On June 22, 1973, the Administrator approved the "Implementation Plan April 1973" for the District of Columbia, with changes not material to this case. Appendix A of the Plan contains Title 8 - Health Regulations of the District of Columbia, sections 8-2:701 through 8-2:731 inclusive. Those regulations are part of the EPA-approved state implementation plan (SIP). The purpose of the regulations is set out in section 8-701(a):

 
(a)Purpose. The purpose of this regulation is to prevent or minimize emissions as defined herein into the atmosphere and thereby protect and enhance the quality of the District's air resources so as to promote the public health and welfare of the people of the District of Columbia, and to enhance and improve the environment.
 
(b)Scope. This regulation shall apply to all operations in the District, including Federal operations, where consistent with the terms of the Clean Air Act (42 U.S.C. § 1857 1), as amended, and regulations promulgated thereunder, the District of Columbia Air Pollution Control Act (D.C. Code, § 6-811 to 6-813), and Executive Order No. 11507, February 4, 1970 (35 F.R. 2573) entitled, 'Prevention, Control, and Abatement of Air and Water Pollution at Federal Facilities.'

 Sections 8-2:708, Fuel-Burning Particulate Emissions, 8-2:713, Visible Emissions and 8-2:717, Records, Reports and Monitoring Devices, were enacted as part of Regulation No. 72-12, July 7, 1972. These regulations require immediate compliance by existing sources unless a written plan for delayed compliance is filed and approved by the District of Columbia. The dead-line for compliance with all regulations is May 31, 1975. Section 8-2:720(b).

 At issue in the current motion are the District's visible emissions regulations, contained in section 8-2:713 of the ...


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