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Illinois v. Commonwealth Edison Co.

Citation: 10 ELR 20278
No. Nos. 78 C 2675, 79 C 311, 490 F. Supp. 1145/14 ERC 1266/(N.D. Ill., 02/19/1980)

The court dismisses two counts in a citizen suit alleging violations of applicable air pollution control requirements after ruling that it lacks jurisdiction under § 304 of the Clean Air Act to consider claims against individual corporate officers or for civil penalties. Because § 113 of the Act explicitly authorizes the Environmental Protection Agency (EPA) to bring suit against corporate officers, the court concludes that the absence of comparable language in § 304 reflects a congressional intent to exempt corporate officials from liability in citizen suits of this type. Similarly, nothing in either § 304 or its legislative history indicates that civil penalties may be assessed in a citizen suit that seeks to remedy a violation of an emission limitation. The court denies motions to dismiss claims based on defendant's failure to obtain operating permits required by state regulations and to comply with federally approved provisions in the state implementation plan that have been invalidated or modified at the state level. The operating permit requirement constitutes an "emission standard or limitation" within the meaning of § 304(f) and is thus enforceable under § 304(a)(1). In addition, unilateral state action vacating an emission limitation in an implementation plan that has been approved by EPA and sustained by the federal courts does not affect its enforceability. The provision remains enforceable in a citizen suit in federal court until an implementation plan revision has been formally submitted to EPA under § 110(a)(3) of the Act or a variance has been approved by the Agency under § 110(f).

Counsel for Plaintiff
Patrick J. Chesley, Ass't Attorney General
500 S. 2d St., Springfield IL 62703
(217) 782-1090

Counsel for Defendants
Eugene H. Bernstein
Isham, Lincoln & Beale
One First National Plaza, Suite 4200, Chicago IL 60603
(312) 786-7456