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.
42 U.S.C. § 7604(a)(2).
B. PROCEDURAL HISTORY
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.
On January 8, 1980, CBE filed this action in federal
district court. At that time, no notice of proposed agency
action had been published by the Administrator with respect to
the draft SIP. In its original complaint, CBE brought three
specific claims directly challenging EPA's handling of the
Illinois Part D SIP and indirectly disputing the adequacy of
the revised SIP itself. In
Count I, CBE sought to compel, pursuant to § 110(c) of the Act,
42 U.S.C. § 7410(c), federal rulemaking aimed at preparing and
publishing control strategies for TSP emissions for
non-attainment areas with iron and steel sources of pollutants.
These control strategies had been the subject of Illinois'
November 14 submission to EPA.
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
disapproval was not accompanied by the traditional notice of
proposed federal rulemaking to promulgate the substitute
regulations sought by CBE here.
1. Motion to Dismiss for Lack of Jurisdiction.
Perhaps the most striking feature of this litigation is the
extent to which EPA's administrative processing of Illinois'
and Indiana's Part D SIP's has diverged from the procedure
contemplated by the Clean Air Act. And it is because of this
divergence that this Court has jurisdiction over the claims
raised here. All of the parties have focused on EPA's
responsibility to promulgate federal regulations as the
non-discretionary function upon which the Court's jurisdiction
may be premised as if that were the only possible
non-discretionary duty created by the Act. But there are
others. In demanding the relief sought by the complaint
plaintiffs have, in metaphorical terms, sought to run rather
than walk. The terrain created by the detailed provisions of
the Clean Air Act may demand a slower pace. Alternatively, the
defendants and intervenors contend that CBE is seeking to
proceed too rapidly, but their position is that everyone
should stand still until EPA decides to act. Stated
succinctly, this court concludes that it is at least arguable
that EPA has a current non-discretionary duty to promulgate
federal regulations in some
of the settings raised by the complaint, and jurisdiction
attaches to determine those claims. In addition, it is beyond
dispute that EPA has a mandatory duty to determine in the
first instance whether the states' plans comply with the Act.
Since EPA has failed to perform this duty, jurisdiction exists
in this court to compel its performance.
As noted previously, § 129(c) anticipated that the states
would submit their Part D SIP's by January 1, 1979. Congress
expected these submissions to be in effect by July 1, 1979. The
congressional plan, however, was frustrated from the outset;
neither Illinois nor Indiana submitted their plans on time. The
states' tardiness was followed by, in substantial respects,
continuing inaction by EPA. The Clean Air Act provides, in §
(c)(1) The Administrator shall, after
consideration of any State hearing record,
promptly prepare and publish proposed regulations
setting forth an implementation plan, or portion
thereof, for a State if —
(A) the State fails to submit an implementation
plan which meets the requirements of this
section, (B) the plan, or any portion thereof,
submitted for such State is determined by the
Administrator not to be in accordance with the
requirements of this section
If such State held no public hearing associated
with respect to such plan (or revision thereof),
the Administrator shall provide opportunity for
such hearing within such State on any proposed
regulation. The Administrator shall, within six
months after the date required for submission of
such plan (or revision thereof), promulgate any
such regulations unless, prior to such
promulgation, such State has adopted and
submitted a plan (or revision) which the
Administrator determines to be in accordance with
the requirements of this section. . . .
Instead of approving or disapproving the various portions of
the Indiana and Illinois plans as prescribed by § 110(c), EPA
has proceeded as if it were reviewing the patentability of
patent claims. With respect to both the Indiana and Illinois
Part D SIP's EPA has approved, conditionally approved,
disapproved, conditionally disapproved and even deferred action
on various portions of submissions. The result has been
approval of certain portions and disapproval of others, with
rulemaking following, as provided by the statute. The result
has been agency inaction with respect to other portions, and it
is this inaction of which CBE complains.