Opinion No. (1980) ( 1980 )

Dear Representative Joiner,

The Attorney General has considered your request for an opinion wherein you ask, in effect, the following questions:

1. Must a state file a state implementation plan for ambient airquality standards with the Environmental Protection Agency (EPA)pursuant to the Clean Air Act Amendments of 1977? 2. Must a state adhere to the state implementation plan as filed?

Title 42 U.S.C.A. 7407(a), contained within the Clean Air Act as amended states:

"(a) Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State."

42 U.S.C.A. 7410(a) (1) states in part:

"(a)(1) Each State shall . . . adopt and submit . . . after the promulgation of a national primary ambient air quality standard (or and revision thereof) . . . a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region (or portion thereof) within such State."

This also applies to the national secondary ambient air quality standard.

It is clear from the plain language of these statutes that each state is required to submit a plan which provides for implementation, maintenance, and enforcement of the ambient air quality standards in each air quality control region within that state. A state may not only have to bring noncomplying regions into compliance, but may also have to insure that complying regions remain in compliance since the EPA may promulgate regulations to prevent significant deterioration of air quality in those regions which already meet the ambient air quality standards. See Sierra Club v. Environmental Protection Agency, 540 F.2d 1114 (D.C. Cir. 1976), vacated decision to accept certiorari and remanded by the Supreme Court of the United States, 434 U.S. 809, 98 S.Ct. 40,54 L.Ed. 2h 66, to the lower court for consideration of statutory amendments to the Clean Air Act. 42 U.S.C.A. 7410(c)(1) provides that the EPA is to prepare and publish the regulations for a state if that state fails to submit a plan, the plan submitted does not meet the necessary requirements, or the state fails to revise its plan after being notified of the necessity to do so.

The standards which a state must meet are those promulgated pursuant to42 U.S.C.A. 7409. A state may impose standards which are more but not less strict than those promulgated. 42 U.S.C.A. 7410(d) provides that the "applicable implementation plan is the implementation plan, or most recent revision thereof, which has been approved." Once a state implementation plan is approved, the standards contained in that plan are federally enforceable until a revision is submitted to and approved by the EPA. See Friends of the Earth v. Potomac Elec. Power Co.,419 F. Supp. 528 (D.C. 1976). If a state fails to enforce its implementation plan, the EPA may enforce the requirements of that plan by a compliance order or civil action, pursuant to U.S.C.A. 7413, until the state satisfies the EPA that it will enforce its implementation plan.

It is, therefore, the official opinion of the Attorney Generalthat: 1. The Clean Air Act as amended requires that each state file a stateimplementation plan specifying how ambient air quality standards will beachieved and maintained, and 2. Once a state implementation plan is approved, a state must adhere tothat plan.

JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA

RICHARD F. BERGER, ASSISTANT ATTORNEY GENERAL