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Public Serv. Co. of Ind. v. EPA

Citation: 12 ELR 20928
No. No. 80-1241, 682 F.2d 626/18 ERC 1457/(7th Cir., 06/25/1982) Aff'd

The Seventh Circuit affirms the district court's ruling, 11 ELR 20534, that a 1974 revision of the Indiana state implementation plan's (SIP's) opacity regulation (1974 APC-3) was partially approved by the Environmental Protection Agency (EPA) and is federally enforceable. Appellant contended that inspection warrants based on possible violations of the 1974 APC-3 at two of its facilities were issued without probable cause because the EPA Administrator had disapproved the regulation. Initially, the court rules that EPA is not collaterally estopped from asserting that it partially aproved the 1974 APC-3 since the issue of the approval of that regulation was not resolved by the court and, in any event, would not have been necessary to that judgment.

Next, the court holds that, under § 110(a)(3) of the Clean Air Act, the EPA Administrator has the power to partially approve a state's revision to its SIP. The Administrator's power to approve revisions to a SIP is equivalent to her power to approve an original SIP and § 110(a)(2) authorizes EPA to partially approve an original SIP. The court affirms the district court's finding that appellee's 1975 action on Indiana's six-part SIP revision and its regulations implementing that order clearly constituted disapproval only of a 15-minute exemption provision in the 1974 APC-3 and final approval of the remainder of the rule. Finally, the court rules that it lacks jurisdiction over appellant's claims on the merits of EPA's 1975 order. EPA's disapproval of the exemption provision was a final agency action, which under the then-operative version of § 307 of the Clean Air Act could only be challenged in court within the following 30 days.

Counsel for Appellant
Gregory A. Troxell, Ass't Counsel
Public Service Co. of Indiana
1000 E. Main St., Plainfield IN 46168
(317) 838-1345

James A. Strain
Barnes, Hickam, Pantzer & Boyd
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Counsel for Appellee
Charles Goodloe, Ass't U.S. Attorney
46 E. Ohio St., Rm. 274, Indianapolis IN 46204
(317) 269-6333

Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Before BAUER and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge.*