The opinion of the court was delivered by: Moran, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs, Citizens for a Better Environment and Martin
Wojcik, a citizen and resident of Illinois (hereinafter
collectively referred to as "CBE"), have filed this action
under § 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2),
against defendants Douglas Costle, the Administrator of the
United States Environmental Protection Agency ("EPA") and John
McGuire, EPA's Regional Administrator for Region V. CBE takes
issue with the method employed by EPA to supervise compliance
with the 1977 Clean Air Act Amendments with respect to the
states of Illinois and Indiana. It seeks an order from this
court directing defendants to promulgate federal regulations in
lieu of certain portions of Illinois' and Indiana's state
implementation plans ("SIP's") which allegedly fail to satisfy
the requirements of the 1977 Act. 42 U.S.C. § 7401 et seq.
When EPA's original answer to CBE's complaint threatened to
affect their interests adversely, certain of the region's
steel companies, led by Inland Steel Company, intervened in
this action both as defendants and cross-claimants.*fn1 In
addition, the State of Illinois and certain other
organizations representing private business interests were
granted leave to intervene.*fn2 EPA and all of the
intervenors except Illinois now have moved to dismiss CBE's
complaint for lack of subject matter jurisdiction. The movants
argue that the complaint does not allege the failure of EPA to
perform any non-discretionary duty sufficient to permit a
district court to entertain the action under § 302(a)(2). EPA
also has moved to dismiss the intervenors' affirmative claims.
Resolving these motions is no easy task. As might be
expected given the complexity of the Clean Air Act, each of
the parties to the lawsuit has presented different theories
regarding the jurisdictional question. And, initially, each of
these theories has certain arguable merit. For the reasons
which are more fully articulated below, however, the court
concludes that it does have jurisdiction to consider CBE's
claims with the exception of Count II. The ultimate relief
sought by CBE may or may not be available to its full extent
at this juncture. But, at the very least, this court has the
power both under the Act and under more general concepts of
jurisdiction, Abbott Laboratories v. Harris, 481 F. Supp. 74
(N.D.Ill. 1979), to compel the Administrator to make certain
preliminary determinations which the legislation itself
instructed EPA to have made some time ago regarding whether
Indiana's and Illinois' SIP's comply with the Act.
The statutory framework of the Clean Air Act envisions a
complex cooperative venture between the federal government and
the individual states to remedy the existing problem of air
pollution and prevent further deterioration of the
environment. Originally enacted in the 1960's, the Act has
undergone extensive revision in the past decade as theories of
how best to effect the goals of the legislation have changed
in response to political pressures and economic realities. It
is the past two revisions of the Act, first in 1970 and again
in 1977, that are of primary concern here.
The 1970 Amendments to the Clean Air Act divided
responsibility for plans to clean the air between the federal
and state governments. The hallmark of the statute was, to its
proponents, its undiluted dedication to repairing the
environment; to its detractors, its unrealistic intractibility
in pursuit of these goals. The Act initially required the EPA
Administrator to establish national primary ambient air
quality standards ("NAAQS") for a series of pollutants such as
carbon monoxide and suspended particulate. § 109, 42 U.S.C. § 7409.
Once EPA had established these air quality standards, the
individual states were required to design and submit to the
Administrator state implementation plans aimed at accomplishing
these standards by the end of 1977. The states were not left to
guess at what was required of them in their SIP's. Rather,
detailed elements of an acceptable plan were provided in §
110(a)(2) of the Act. 42 U.S.C. § 7410(a)(2).
Within four months of the date each state submitted its SIP,
the EPA Administrator was required to review the plan and
determine whether it complied with the statutory commands.
42 U.S.C. § 7410(a)(1). More specifically, EPA was directed either
to approve the plan if it was satisfactory, or importantly, to
disapprove the SIP or any portion thereof which failed to meet
the legislative mandate and within six months of the date the
plan was submitted promulgate federal regulations in lieu of
the non-conforming SIP. 42 U.S.C. § 7410(c)(1); City of
Highland Park v. Train, 519 F.2d 681, 685 (7th Cir. 1975). See
also, Mountain States Legal Foundation v. Costle, 630 F.2d 754
(10th Cir. 1980); District of Columbia v. Train, 521 F.2d 971
(D.C. Cir. 1975). Thus, the salient feature of the 1970
legislative plan was that, although clean air was a joint
federal-state concern, the federal government would not
countenance delay on the state level in carrying out the Act.
In response to the recognition that many states had failed
or would fail to meet the air quality standards established by
EPA, see Currie, "Relaxation of Implementation Plans Under the
1977 Clean Air Act Amendments", 78 Mich.L.Rev. 155, 184 (1978);
New England Legal Foundation v. Costle, 475 F. Supp. 425, 428
(D.Conn. 1979), Congress undertook to revise the Clean Air Act
in 1977. Of the extensive revisions to the Act at that time,
four are of interest here. First, Congress extended the
deadline for attaining NAAQS from December 31, 1977 to December
31, 1982 (and with respect to certain pollutants, until
December 31, 1987). Second, each state which had failed to meet
the 1977 deadline was required, in § 107 of the Act, to
identify those air quality control regions failing to reach the
deadline as "non-attainment" regions. Areas not meeting the
relevant air quality standard for one or more pollutants were
to be designated as "non-attainment" for each pollutant for
which the NAAQS was violated. 42 U.S.C. § 7501(3). These
designations were to be submitted and approved by EPA after
notice and comment. United States Steel Corp. v. United States
Environmental Protection Agency, 595 F.2d 207 (5th Cir. 1979).
The 1977 revisions further contemplated that each state with
non-attainment area designations approved by the Administrator
would submit revised SIP's (hereinafter sometimes referred to
as "Part D SIP's") either, as is discussed more fully below,
on a voluntary or mandatory basis. A required element of a
Part D SIP is that it must assure attainment with the NAAQS
"as soon as practicable", but in any event not later than
December 31, 1982. Part D revisions were to have been
submitted to EPA by January 1, 1979, and were to have been
effective no later than July 1, 1979. P.L. 95-95, 95th Cong.,
1st Sess., Title I, § 129(c), 91 Stat. 750 (not codified in
Finally, to reinforce the commitment to achieving air
quality standards by the new deadlines, certain provisions
were added to the Act in 1977. For example, section 172, in
conjunction with section 110(a)(2)(I) of the 1977 Act,
featured the imposition, upon certain conditions (which are
the subject of dispute between the parties here) of "new and
modified source" restrictions in air quality regions
designated as non-attainment.
42 U.S.C. § 7502, 7410(a)(2)(I). Further, if a state appeared
to be unable to satisfy the 1982 deadlines it faced the
possible loss of federal highway construction funds, 42 U.S.C. § 7506(a),
and sewage-treatment facility funding.
42 U.S.C. § 7616(b)(2).
The judicial enforcement mechanism of the Clean Air Act is
only slightly less cumbersome than the substantive provisions.
In sections 304 and 307 of the Act, 42 U.S.C. § 7604, 7607,
Congress specified a bifurcated and mutually exclusive system
of judicial supervision. Section 307 of the statute permits
petitions for review of the "Administrator's action in
approving or promulgating any implementation plan under §
110 . . . or under regulations thereunder, or any other final
action of the Administrator," including EPA disapprovals of
state SIP's, only in the appropriate court of appeals.
42 U.S.C. § 7607(b)(2). In contrast, section 304(a)(2), the Act's
"citizen suit" provision which CBE has invoked here, states in
. . [A]ny person may commence a civil action on
his own behalf . . .
(2) against the Administrator where there is
alleged a failure of the Administrator to perform
any act or duty under this Act which is not
discretionary with the Administrator . . .
The district court shall have jurisdiction
without regard to the amount in controversy or
the citizenship of the parties to . . . order the
Administrator to perform such act or duty.
As noted above, the focus of CBE's complaint is on EPA's
administrative actions subsequent to the 1977 Clean Air Act
Amendments. Pursuant to the 1970 Act, both Illinois and
Indiana had submitted SIP's which were duly approved by the
Administrator on the basis of the applicable EPA regulations
defining the terms of a conforming SIP.*fn3 However, both
Illinois and Indiana were among those states which had failed,
or were to fail, to attain NAAQS for several pollutants.
Accordingly, both states designated certain regions as
non-attainment areas, including the Chicago Metropolitan Air
Quality Control Region — the subject of this lawsuit. On March
3, 1978 and October 8, 1978, the Administrator approved these
designations for both states as non-attainment for TSP and
other pollutants pursuant to § 107 of the Act. 42 U.S.C. § 7407.
43 Fed.Reg. 8962 (1978); 43 Fed.Reg. 45993 (1978).
In accordance with EPA's non-attainment designations, on
April 3, 1979, three months after the statutorially mandated
submittal date, the state of Illinois submitted a draft
version of its Part D SIP to the Administrator. On July 2,
1979, EPA published a notice of proposed rulemaking on the
draft SIP, in which it identified those portions of the plan
which did not comply with the requirements of the Clean Air
Act. 44 Fed.Reg. 38587 (1979). On August 29, 1979, Illinois
submitted additional information to EPA for inclusion in the
SIP and to clarify some of the provisions of the April 3, 1979
submission. 44 Fed.Reg. 11472, 11493 (1980). Still another
supplement to the April 3 draft was received by EPA on
November 14, 1979. This submission included, inter alia, final
regulations of the Illinois Pollution Control Board for the
control of TSP emissions from steel industry facilities.
Count II sought federal rulemaking on the basis of Illinois'
alleged failure to submit to EPA rules governing the issuance
of permits to construct new sources of pollution in
non-attainment areas as required by § 172. 42 U.S.C. § 7502.
Count III demanded immediate federal rulemaking in order to
remedy the state's failure to submit an SIP complying with the
monitoring and reporting requirements of § 110(a)(2)(F)(ii),
(iii) and (iv) of the 1977 Act.*fn4 42 U.S.C. § 7410(a)(2)(F).
In its original answer, EPA admitted that Illinois' Part D SIP
contained no provisions corresponding to the requirements of §
Of course, EPA's administrative process has continued
subsequent to the filing of CBE's complaint and EPA's actions
have somewhat affected the status of this lawsuit. On February
21, 1980, EPA took some final action in this matter by
approving in part, and disapproving in part, that portion of
the Part D SIP which had been subject to public notice and
comment. 45 Fed.Reg. 11472, et seq. The Administrator did not,
however, act on those portions of the SIP which had not been
published as subject to proposed agency action. Those portions
of the revision not acted upon included the state's November 14
submission for TSP control strategies which were by then the
subject of Count I of CBE's complaint. On June 20, 1980, CBE
filed an amended complaint to account for these administrative
On July 31, 1980, EPA issued another notice, this one
proposing to approve in part and disapprove in part Illinois'
control strategies for TSP emissions. 45 Fed.Reg. 50825.*fn5
According to plaintiffs, however, this notice was
unaccompanied by the customary notice of proposed federal
rulemaking to promulgate the allegedly necessary substitute
regulations. See, e.g., Utah International, Inc. v. EPA,
478 F.2d 126 (10th Cir. 1973). Administrative developments
subsequent to the amended complaint have not, therefore, mooted
either Count I or Count III.
These developments have, however, affected Count II — CBE's
challenge to Illinois' new construction permit rules. On
February 11, 1980, EPA approved Illinois' rules for new
sources. As such, plaintiffs now concede that the exclusive
jurisdiction to review EPA's determinations rests with the
court of appeals. And while CBE has urged the Court to delay
dismissing Count II, it has furnished no persuasive
for such delay. Accordingly, the motions to dismiss are
granted as to Count II of the complaint.*fn6
The administrative history with respect to Indiana is no
less complicated. On June 26, 1979, the state submitted to EPA
portions of its proposed Part D SIP revisions. These later
were supplemented on February 11, 1980. 45 Fed.Reg. 20122,
20432 (1980). As of January 8, 1980, however, when CBE filed
its complaint, EPA had issued no notices of proposed
rulemaking regarding Indiana's Part D SIP. In Count IV of the
complaint, CBE sought federal rulemaking on the basis of
Indiana's failure to include a proposal providing for the
attainment of NAAQS for TSP in Lake and Porter Counties. Count
V of the complaint mirrored the allegations of Count III, this
time with regard to Indiana's failure to require monitoring
and reporting procedures specified by § 110(a)(2)(F)(ii), (iii)
and (iv) of the Act.
Count IV, like Count II, has been subject to later revision
as EPA's administrative process has limped along.
Specifically, CBE and the steel intervenors stipulated to
summary judgment insofar as plaintiffs' claims concerned
Porter County. In addition, EPA issued two notices of proposed
rulemaking on the June 26, Part D SIP. On March 27, 1980, EPA
proposed action on various Indiana regulations for sources
other than iron and steel. The notice also stated:
No control strategies or demonstrations were
included in the submittal for the primary and
secondary non-attainment areas of Marion, Lake,
Lark, Vigo and LaPorte Counties. Regulations to
implement the strategies have similarly not been
adopted by the State or submitted to U.S. EPA.
45 Fed.Reg. 20435 (1980).
The second notice, on July 3, 1980, addressed those
regulations applicable to iron and steel sources of TSP
emissions. The notice essentially admitted that no
satisfactory Part D SIP has yet been submitted for iron and
steel sources and further stated that the Indiana regulations
were to be disapproved for failing to satisfy the "reasonably
available control technology" ("RACT") requirements of §
172(b)(3). 42 U.S.C. § 7502(b)(3). 45 Fed.Reg. 45314 (1980).
Again, however, as with Illinois, EPA's notice of proposed