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Indiana & Mich. Elec. Co. v. EPA

Citation: 14 ELR 20506
No. Nos. 82-1733, -1738, 733 F.2d 489/21 ERC 1487/(7th Cir., 05/11/1984)

The court rules that the Environmental Protection Agency (EPA) violated the Clean Air Act when it approved a revision to Indiana's state implementation plan (SIP) setting new limitations on emissions of sulfur dioxide (SO2), but deferred action on a 30-day averaging provision designed to ameliorate the impact of the limitations. Initially, the court rules that it has jurisdiction to hear the challenge. Respondent's claim that the action is one to compel performance of a non-discretionary duty, over which the district courts have exclusive jurisdiction under § 304, has some merit, but must be rejected. EPA's refusal to act on the 30-day averaging period is interwoven with the Agency's action on the SIP, which is made reviewable solely in the court of appeals by § 307. Under these circumstances, there are several reasons for jurisdiction in the court of appeals. The fact-finding capabilities of the district courts, generally needed in cases where EPA has not compiled a record, are not needed here since the SIP review process created a record. Exclusive court of appeals jurisdiction also avoids wasteful simultaneous review of one administrative order in two different courts. Finally, the relief sought, invalidation of the partial approval, is § 307 relief.

Turning to the merits, the court rules that the Agency erred by in effect disallowing an integral part of the SIP revision without determining that it violated the Act. Though EPA's need for more time to review the novel averaging provision is understandable, the Agency's action made Indiana's SIP more stringent than the state intended without a decision from EPA on whether the deleted 30-day averaging rule was lawful. The Act allows EPA to modify a SIP only after concluding that the original dis not satisfy the Act. The court notes that had the Agency given reasons why it was necessary and appropriate to approve the SO2 limitations while temporarily withholding decision on the averaging provision, the action might have passed muster. However, absent any showing of necessity, the action must fail.

Counsel for Petitioners
Bryan Tabler, John Rothhaar
Barnes & Thornburg
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Counsel for Respondent
David T. Buente Jr., Nancy S. Bryson, Mark Stanga
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2219

Mary Gade
Office of the Regional Counsel
Environmental Protection Agency, 230 S. Dearborn St., Chicago IL 60604
(312) 886-7457

Before WOOD, ESCHBACH, and POSNER, Circuit Judges.