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Citizens for a Better Env't v. Costle

Citation: 11 ELR 20963
No. No. 80-C-0003, 515 F. Supp. 264/16 ERC 1162/(N.D. Ill., 04/15/1981) Motion to dismiss denied

The court rules that it has jurisdiction to compel the Environmental Protection Agency (EPA) to determine finally whether Illinois' and Indiana's revised state implementation plans (SIPs) for non-attainment areas comply with the Clean Air Act or, if the plans are disapproved, to order EPA to promulgate remedial federal regulations. Both states had submitted revised SIPs which EPA failed to finally disapprove. The court first holds that EPA's approval of Illinois' rules for new sources is reviewable only in the court of appeals. It also rejects plaintiffs' challenge to Illinois' new construction permit rules. Noting that under § 304(a)(2) of the Act it has jurisdiction only to order the agency to perform non-discretionary duties, the court rules that although § 110(c)(1)(A), in referring to "plans," does not compel EPA to commence rulemaking after disapproval of part of an SIP, § 110(c)(1)(B), referring to "portions of plans," creates such a non-discretionary duty. EPA may not avoid its duty to promulgate remedial regulations within six months by failing to formally disapprove the SIPs. Indeed, its failure to take final action on the plans may be construed as a disapproval of them. The court rejects intervenors' argument that EPA has no duty to promulgate federal rules in lieu of an inadequate Part D SIP. Turning to the claims of intervenors, the court first rejects Indiana's motion to dismiss for improper venue under § 110(c)(1). It also rejects as unripe a challenge to control techniques guidelines suggested by EPA for incorporation into Part D SIPs. If the suggested standards are incorporated, intervenors will have an opportunity to challenge them in the court of appeals once the SIPs are approved. However, the court does have jurisdiction to hear a challenge to EPA's practice of conditionally approving portions of Part D SIPs, expressing doubt that the conditional approval mechanism is contemplated by the Act. Finally, the court dismisses intervenors' challenge to EPA's issuance of a new source ban as an interpretive rule, holding that this rule, being final agency action, is reviewable only in the court of appeals.

Counsel for Plaintiffs
Robert Goldsmith, Robert E. Yuhnke
Suite 1600, 59 E. Van Buren St., Chicago IL 60605
(312) 939-1530

Counsel for Defendants
Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Gail C. Ginsberg, Ass't U.S. Attorney
219 S. Dearborn St., Chicago IL 60604
(312) 353-5300

James T. Harrington, Clifton A. Lake, Laurence A. McHugh, Dixie L. Laswell
Rooks, Pitts, Fullager & Poust
Suite 1500, Xerox Center, 55 W. Monroe St., Chicago IL 60603
(312) 372-5600