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PEOPLE OF STATE OF ILL. v. COMMONWEALTH EDISON CO.

April 4, 1980

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF,
v.
COMMONWEALTH EDISON COMPANY, DEFENDANT. PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF, V. COMMONWEALTH EDISON COMPANY, AN ILLINOIS CORPORATION, JAMES J. O'CONNER, HUBERT H. NEXON, CORDELL REED AND THOMAS AYERS, DEFENDANTS.



The opinion of the court was delivered by: Leighton, District Judge.

MEMORANDUM

These are two consolidated suits brought on behalf of the people of Illinois by their Attorney General to halt and redress alleged violations of certain Rules and Regulations of the Illinois Pollution Control Board.*fn1 In 78 C 2675, plaintiff seeks relief from defendant Commonwealth Edison Company for air pollution created by operation of its Waukegan, Illinois station units 5, 6, 7, and 8; in 79 C 311, a case transferred to this court from the United States District Court for the Southern District of Illinois, plaintiff seeks relief from defendant Edison and defendants O'Conner, Ayers, Nexon, and Reed, Edison's president, chairman of the board, senior vice-president, and assistant vice-president in charge of environmental affairs, respectively, for air pollution created by operation of Edison's Kincaid, Illinois plant. Jurisdiction of the court is invoked pursuant to the "citizens suit" section of the Clean Air Act, 42 U.S.C. § 7604, and 28 U.S.C. § 1331.

In 79 C 311, plaintiff alleges that Edison and certain of its officers failed to obtain an operating permit for its Kincaid, Illinois plant in violation of Rule 103(b); that the Kincaid plant operated by defendants emits smoke or other particulate matter in violation of Rule 202(b); that the Kincaid plant emits particulate matter in violation of Rule 203(g); that the Kincaid plant emits sulfur dioxide into the atmosphere in excess of 6.0 pounds per million B.T.U.'s of actual heat input in violation of Rule 204(c)(1)(b); and that the Kincaid plant violates Rule 204(e) by emitting sulfur dioxide in excess of a limit established by a formula contained in that Rule. In both 78 C 2675 and 79 C 311, plaintiff seeks civil penalties and an order to cease and desist the alleged violations of the Rules.

The cause is presently before the court on defendants' motion to dismiss all claims against the individual corporate officers of Commonwealth Edison Company; to dismiss the claims based on defendants' failure to obtain operating permits required by Rule 103(b); to strike the request for civil penalties, and to dismiss the claims based upon defendants' alleged violations of Rules 203(g) and 202(b).

I.

In ruling on defendants' motion in 79 C 311 to dismiss all claims against the individual corporate officers of Commonwealth Edison Company on the ground that they are not subject to citizen's suits under Section 304 of the Clean Air Act, 42 U.S.C. § 7604, it is necessary to examine the language and intent of Congress in enacting that legislation. In pertinent part, Section 304 authorizes private parties to bring suit "against any person . . . who is alleged to be in violation of (A) an emission standard or limitation under this chapter . . ." 42 U.S.C. § 7604(a)(1). Section 302(e) of the Act defines the term "person" to include "an individual, corporation, partnership, . . . political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof." 42 U.S.C. § 7602(e).

Defendants contend that unlike Section 113 of the Act, which expressly authorizes the Administrator of the United States Environmental Protection Agency [hereinafter "E.P.A."] to bring actions against responsible corporate officers of companies that have violated the Act, the deliberate omission of responsible corporate officers from the definition of "person" contained in Section 302(e) evinces Congress' intent not to allow corporate officers to be named defendants in suits of this type. Specifically, Section 113(c)(3) states that "[f]or purpose of this subsection, the term `person' includes, in addition to the entities referred to in section 302(e), any responsible corporate officer." [Emphasis added].

In opposition to defendants' motion to dismiss, plaintiff argues that the individual corporate officers of Commonwealth Edison are proper parties to a citizen's suit brought under Section 304, since an "individual" is included within the definition of "person" contained in Section 302(e). Plaintiff further argues that the regulations which were allegedly violated contemplate suits against corporate officers, in that each regulation expressly provides that "no person shall cause or allow" a violation of an emission standard or limitation*fn2 and it is the individual corporate officers who direct the actions of the corporation, thereby causing and allowing the alleged violations of emission standards or limitations. Finally, plaintiff argues that under Illinois law, a responsible corporate officer can be sued for pollution caused by his company;*fn3 and since the Illinois Pollution Control Board's Rules and Regulations constitute its federally approved implementation plan, the liability allowable under state law is incorporated in a citizen's suit under Section 304 of the Clean Air Act. Thus, plaintiff asserts that the corporate officers are amenable to suit, irrespective of the language of Section 113(c)(3).

In the absence of any case authority to the contrary, the court is unwilling to disregard what it considers to be the clear intent of Congress to exempt individual corporate officers from liability under citizen's suits of this type. The express application to corporate officers of Section 113 of the Clean Air Act militates against bringing such individuals within the ambit of Section 304 of the Act in which such express inclusion is lacking. For this reason, the individual corporate officers are dismissed as defendants in case No. 79 C 311.

II.

Defendant Commonwealth Edison has moved to dismiss the claims in both actions based on its failure to obtain operating permits required by Rule 103(b), on the ground that the permit requirement is not "an emission standard or limitation" with which compliance can be compelled through a citizen's suit authorized by Section 304 of the Clean Air Act. It therefore contends that the court lacks authority to enforce Rule 103(b).

The terms "emission limitation" and "emission standard" are defined in Section 302(k) of the Act.

  (k) The terms "emission limitation" and "emission standard"
  mean a requirement established by the State or the
  Administrator which limits the quantity, rate, or concentration
  of emissions of air pollutants on a continuous basis, including
  any requirement relating to the ...

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