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