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American Cyanamid Co. v. EPA

Citation: 17 ELR 20642
No. No. 85-4899, 810 F.2d 493/25 ERC 1585/(5th Cir., 02/20/1987)

The court rules that the Environmental Protection Agency (EPA) cannot collect a noncompliance penalty from a manufacturer for the period between the date the state submitted a proposed revision to its state implementation plan (SIP), which would have put a manufacturer whose emissions violate the SIP for ozone into compliance with the Clean Air Act, and the date EPA rejects the revision. The court also rules that EPA cannot bring an action against the manufacturer to collect the penalty before rejecting the revision. The court first holds that EPA must approve or disapprove proposed SIP revisions within four months, the same time period provided for rulings on original proposals under Clean Air Act §110(a)(2), even though the Act is silent as to the time period applicable to revisions. The court expressly agrees with and joins the D.C. and Second Circuits on this point and disagrees with the Sixth Circuit. The court holds that EPA has missed the four-month deadline with respect to Louisiana's SIP revision utilizing the bubble concept for ozone at the manufacturer's plant, and that the manufacturer is in noncompliance for the purpose of noncompliance penalties only after EPA rejects the proposed revision. The court notes that EPA's decision to reject application of the bubble in this case will be binding on the court as long as the decision is not clearly wrong or unreasonable. The court holds that EPA may collect noncompliance penalties under §120 of the Act only after it has issued a notice of noncompliance. The court further holds that §120 penalties be held in abeyance from the date the revision was proposed to when it was rejected, and since EPA has not yet acted on the SIP revision proposal, it may not bring a noncompliance action against the manufacturer. The court holds that while EPA could commence §120 noncompliance proceedings during the pendency of a SIP revision proposal if the agency had issued a notice of noncompliance before the revision was proposed, it may not commence a §120 proceeding when it issues a notice of noncompliance more than four months after the state proposed the SIP revision. The court declines to decide whether EPA should accept the bubble proposal, since the plaintiff can initiate a citizen suit under §304 to force EPA to act on the SIP revision.

Counsel for Petitioner
Theodore L. Garrett
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20006
(202) 662-6000

Counsel for Respondent
Michael D. Rowe
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before THORNBERRY, JOHNSON and WILLIAMS, Circuit Judges.