and economic reasonableness of the regulations in question.
In addition to the federal challenge, several industries
attacked the SIP through the Illinois state courts pursuant to
the Illinois Administrative Review Act, Ill. Rev. Stat. ch.
111 1/2, § 1041. Ultimately, the Supreme Court of Illinois
invalidated Regulations 203(g)(1)(B) (regulating particulate
matter) and 204(c)(1)(A) (regulating sulfur dioxide emissions)
because of the failure of the state Pollution Control Board to
follow administrative procedures regarding technological
feasibility and economic reasonableness of the regulations,
Commonwealth Edison Co. v. Pollution Control Board, 62 Ill.2d 494,
343 N.E.2d 459 (1976). Because the Supreme Court ruling
made those regulations unenforceable in the state courts, USEPA
found the Illinois SIP to be deficient and issued a Notice of
Deficiency under 42 U.S.C. § 7410(c)(1)(C), requesting the
State to revise its plan by repromulgating the invalid
regulations in accordance with State law, 41 Fed.Reg. 32302
(August 2, 1976).
Thereafter, the Illinois Pollution Control Board
repromulgated Rules 203(g)(1)(B) and 204(c)(1)(A). Again the
procedure was challenged and again the Illinois courts held
the rules invalid due to the same procedural deficiency as was
found in the prior challenge, Ashland Chemical Corp. v.
Pollution Control Board, 64 Ill. App.3d 169, 21 Ill.Dec. 121,
381 N.E.2d 56 (3d Dist. 1978); Illinois State Chamber of
Commerce v. Pollution Control Board, 67 Ill. App.3d 839, 24
Ill.Dec. 55, 384 N.E.2d 922 (1st Dist. 1978), appeal dismissed,
78 Ill.2d 1, 34 Ill.Dec. 334, 398 N.E.2d 9 (1979). This action
prompted USEPA to issue another Notice of Deficiency, asking
revision of the Illinois SIP to make the rules in question
enforceable in state courts. 44 Fed.Reg. 40723 (July 12, 1979).
To date it appears that the rules in question have never been
adopted so as to satisfy the state courts and the USEPA.
Plaintiffs in this action seek to enforce portions of the
Illinois SIP as part of the federal law, and the State also
includes claims under the Illinois Environmental Protection
Act, Ill. Rev. Stat. ch. 111 1/2, § 1001 et seq. Both
plaintiffs argue that Rules 203(g)(1)(B) and 204(c)(1)(A),
while unenforceable in state courts as state law, are still
enforceable in federal courts as part of the federal Clean Air
Act. Basically, plaintiffs argue that the state court action
was a modification of the SIP that is forbidden by 42 U.S.C. § 7410(i),
thus leaving the prior regulations in place until a
modification is approved by USEPA. Plaintiffs have cited in
support Illinois v. Commonwealth Edison Co., 490 F. Supp. 1145
(N.D.Ill. 1980), wherein the District Court allowed federal
enforcement of the invalid state rules. This court has
carefully considered the Northern District case but finds it
When the Seventh Circuit upheld USEPA's approval of the
Illinois SIP, the court specifically recognized the
petitioner's right to challenge the regulations in the state
courts, based on procedural errors in the state administrative
proceedings. This finding formed part of the basis for the
court's denial of petitioner's due process claim, Indiana &
Michigan, supra at 847. Several industries followed the cue and
pursued judicial review in the state courts, with the result
being that Regulations 203(g)(1)(B) and 204(c)(1)(A) were found
to be invalid for the same reasons the Seventh Circuit had
declined to review, i.e., technological feasibility and
It would be an anomaly, if not a denial of defendant's due
process rights, to allow, at this point, full enforcement of
those invalid regulations, especially by the State of
Illinois, which is totally barred in its own courts.
Plaintiffs have argued that unless the regulations can be
enforced in federal court, polluters are totally free to
continue to pollute, and the enforcers have no protection
until the State of Illinois acts to repromulgate the rules. It
is apparently not true, however, that a suit of this kind is
the only alternative open to plaintiffs. Pursuant to
42 U.S.C. § 7410(c)(1), the Administrator of USEPA is authorized to
prepare and publish regulations if a state plan is
deficient and if the state fails to act to correct the
deficiency. The USEPA has twice issued to Illinois notices of
deficiency because of the state court decisions, 41
Fed.Reg. 32302 (August 2, 1976) and 44 Fed.Reg. 40723 (July 12,
1979), requesting the State to bring the SIP into compliance
with State law. Apparently there has been no official
submission by the State in response to the 1979 notice. If the
USEPA Administrator has not carried out his statutory
obligations, there is a method to compel his action, Citizens
For a Better Environment v. Costle, 515 F. Supp. 264 (N.D.Ill.
1981); 42 U.S.C. § 7604(a)(2).*fn1
Defendants also argue that any attempt to enforce Rule
202(b) (regulating opacity) is likewise barred. It has cited
no case finding Rule 202(b) to be invalid, and the court has
found none. At this stage of the litigation, the court has no
basis to dismiss claims based on an apparently valid
Defendant William D. Herbert, President of Celotex
Corporation, is sued only by plaintiff State of Illinois,
which is suing under the citizen suit provision of the Clean
Air Act, 42 U.S.C. § 7604. Defendant Herbert moves to be
dismissed on the ground that individual corporate officers are
not subject to suit under § 7604. The State has failed to
respond to that point. The plain language of § 7604 leads to
the conclusion that corporate officers are not amenable to a
citizen suit. In pertinent part, 42 U.S.C. § 7604(a)(1)
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. . . ." For
the purposes of the Clean Air Act, 42 U.S.C. § 7602(e) defines
"person" to include "an individual, corporation, partnership,
association, State, municipality, political subdivision of a
State, and any agency, department, or instrumentality of the
United States and any officer, agent, or employee thereof." In
further support, 42 U.S.C. § 7413 expressly authorizes USEPA to
bring actions against responsible corporate officers of
companies found to be in violation of the Act. Specifically, §
7413(c)(3) states that "(f)or the purpose of this subsection,
the term `person' includes, in addition to the entities
referred to in section 7602(e) of this title, any responsible
corporate officer." (Emphasis added.) Reading these sections
together, it is clear that Congress did not intend that
corporate officers be subject to suit under § 7604.
Plaintiff State also names Herbert as a defendant in its
pendent State claims. Plaintiff has cited no authority that
Herbert would be liable under State law, and the court has
found only Ill. Rev. Stat. ch. 111 1/2, § 1003(i), which does
not include corporate officers in its definition of "person"
under the Illinois Environmental Protection Act. Thus, William
D. Herbert must be dismissed as a party-defendant in this suit.
Defendant also asks that all of the State's pendent claims
(Counts VII-X) be dismissed for lack of federal subject matter
jurisdiction. While this order dismisses Counts I-IV of the
State plaintiff's federal claims, Counts V and VI remain at
this time as federal claims under the Clean Air Act. Thus
there still exists federal jurisdiction over the case, and the
pendent claims are proper.
The Federal plaintiff states four causes of action. Cause 1
alleges violation of Rule 202(b) of the SIP, which, as
discussed earlier, will stand. Causes 2 and 3 allege
violations of Rules 203(g)(1)(B) and 204(c)(1)(A), which must
be dismissed. Cause 4 alleges violation of 42 U.S.C. § 7414(a),
in that defendant failed to provide reports of emissions
regulated by Rules 203(g)(1)(B) and 204(c)(1)(A). Even though
the underlying regulations are unenforceable at this time,
there is no reason to suspend reporting required under the Act.
Neither plaintiffs nor defendants have briefed this point, and
the court finds the allegations sufficient at this time.
Accordingly, IT IS ORDERED that in Case No. 80-1225, counts
I-IV are DISMISSED.
IT IS FURTHER ORDERED that William D. Herbert is DISMISSED
as a party-defendant.
IT IS FURTHER ORDERED that in Case No. 81-1021, counts II
and III are DISMISSED.
IT IS FURTHER ORDERED that defendant answer or otherwise
plead within twenty (20) days.