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Missouri Limestone Producers Ass'n v. Browner

ELR Citation: 29 ELR 20455
Nos. 98-1795, 165 F.3d 619/(8th Cir., 01/13/1999)

The court denied a petition to review the U.S. Environmental Protection Agency's (EPA's) approval of a revision to Missouri's state implementation plan (SIP) that replaced four area-specific fugitive dust regulations with one, consistent statewide rule. The court first holds that the state environmental agency's decision to submit the revised SIP to EPA is final and enforceable, unless and until it is invalidated by the state agency's air division or a Missouri state court. Once the state agency's air division adopted the new statewide fugitive-dust rule, it was squarely within the state agency's discretion to submit the revision to EPA. Furthermore, to hold that an otherwise valid regulation become non-final once a private party challenges its validity would essentially allow a party to enjoin the enforcement of a state regulation by filing an appeal rather than obtaining an injunction. Thus, EPA complied with the Clean Air Act (CAA) regulations that govern approval of SIP revisions. The court then holds that the state environmental agency was not required to hold an additional hearing before submitting the SIP revision to EPA. Adequate hearings were held prior to the air division's adoption of the new statewide fugitivedust rule. In addition, nothing in the text of the CAA or the regulations requires states to hold a hearing on the submission of a properly adopted SIP revision. And EPA, which is entrusted with interpretation and enforcement of the CAA, has never required hearings on whether properly adopted SIP revisions should be submitted.

Counsel for Petitioners
Michael G. Berry
Hendren & Andrae
221 Bolivar St., Jefferson City MO 65102
(573) 636-8135

Counsel for Respondents
Lisa L. Russell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before McMillian and Hansen, JJ.