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CITIZENS FOR A BETTER ENVIRON. v. COSTLE

April 15, 1981

CITIZENS FOR A BETTER ENVIRONMENT, A NOT-FOR-PROFIT CORPORATION ORGANIZED UNDER LAWS OF ILLINOIS AND MARTIN WOJCIK, PLAINTIFFS,
v.
DOUGLAS M. COSTLE, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; AND JOHN MCGUIRE, REGIONAL ADMINISTRATOR, REGION V, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS. INLAND STEEL COMPANY; INTERLAKE, INC.; JONES & LAUGHLIN STEEL CORPORATION; NATIONAL STEEL CORPORATION; REPUBLIC STEEL CORPORATION; UNITED STATES STEEL CORPORATION; WSC CORP.; AND YOUNGSTOWN SHEET AND TUBE COMPANY; CHICAGO ASSOCIATION OF COMMERCE AND INDUSTRY; ILLINOIS MANUFACTURING ASSOCIATION; MID AMERICA LEGAL FOUNDATION; INDIANA LEGAL FOUNDATION, INTERVENORS, V. DOUGLAS M. COSTLE, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; AND JOHN MCGUIRE, REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION V, DEFENDANTS. PEOPLE OF THE STATE OF ILLINOIS, EX REL. TYRONE FAHNER, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, AND THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, INTERVENORS, V. DOUGLAS M. COSTLE, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND JOHN MCGUIRE, REGIONAL ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION V, DEFENDANTS.



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.

A. STATUTORY BACKGROUND

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 U.S.C.).

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
pertinent part:

   . . [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 § 110(a)(2)(F).

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 developments.

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 justification 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 ...


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