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Northwestern Ohio Lung Ass'n v. Denton

Citation: 11 ELR 20035
No. No. C77-654, 747 F.2d 1240/(N.D. Ohio, 11/19/1980)

Denying defendant's motion for summary judgment, the court rules that the Environmental Protection Agency (EPA) may recover civil penalties from a state government for violations of the Clean Air Act. EPA sued the Ohio Department of Rehabilitation and Correction pursuant to § 113 of the Act, seeking both injunctive relief and civil penalties for violations of the Ohio state implementation plan due to emissions from the Department's boilers. The court finds that there exist numerous disputes of fact on the issues of the soundness of the emissions estimates, accuracy of the physical data, and qualifications of the observers of the data, and refuses to grant summary judgment for EPA. Also refusing to grant partial summary judgment for defendants, the court holds that (1) the State of Ohio and its agent and officers are "persons" for purposes of § 113(b) of the Act, and (2) the federalism and state sovereignty considerations which formed the basis of the Supreme Court's decision in National League of Cities v. Usery do not prohibit the federal government's environmental regulation of state entities under § 113(b). Moreover, the power to regulate air quality necessarily includes the power to impose sanctions for violations.

Counsel for Plaintiffs Northwestern Ohio Lung Association et al.
Rolf Scheidel
Schumaker, Loop & Kendrick
811 Madison Ave., Suite 500, Toledo OH 43624
(419) 241-4201

Counsel for Plaintiff Environmental Protection Agency
George D. Laurence Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5415

Linda Buell
Environmental Protection Agency, Region V, 230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Counsel for Defendants
Michael R. Szolosi, Ass't Attorney General
State Office Tower, 30 E. Broad St., Columbus OH 43215
(614) 466-4320