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Sierra Club v. Drain

Citation: 5 ELR 20435
No. No. CV 74-L-159, 7 ERC 2030/(D. Neb., 05/14/1975)

The court grants in part and denies in part defendants' motions to dismiss for failure to state a claim, a suit seeking to halt construction of a 650 megawatt coal-burning power plant in western Nebraska. Plaintiff Sierra Club, which has standing to maintain this action, contends that a state construction permit for the plant was illegally issued since the power company has failed to show that the plant would operate within new source performance standards for sulphur dioxide and particulates promulgated under the Clean Air Act. The court rules that it has jurisdiction to decide whether the statute requires a preconstruction determination of particulate opacity and a substantial coal field analysis of sulphur content, or whether a contractual promise to perform within the Act's parameters is sufficient. Also framed as an issue for trial is the question of whether the standard of particulate opacity is a preconstruction design standard or merely an enforcement standard after operation commences. The court exercises its discretion and dismisses accompanying claims alleging violations of state administrative procedures though it could hear such claims under the doctrine of pendent jurisdiction.

Counsel for Plaintiff
H. Anthony Ruckel
S. Chandler Visher
Sierra Club Legal Defense Fund
530 Majestic Building
Denver, Colo. 80202

John A. Gale
McGinley, Lane, Mueller, Shanahan, McQuillan & Gale
P.O. Box 1287
North Platte, Neb. 69101

Counsel for Defendants
Paul L. Douglas Attorney General
Harold Mosher Asst. Attorney General
2119 State Capitol
Lincoln, Neb. 68509

Robert Crosby
Crosby, Pansing & Guenzel
Lincoln Building
Lincoln, Neb. 68508

Gene Watson
Barlow, Watson & Johnson
P.O. Box 81686
Lincoln, Neb. 68501