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Anderson v. Farmland Indus., Inc.

ELR Citation: 29 ELR 21462
Nos. No. 98-2499-JWL, 45 F. Supp. 2d 863/(D. Kan., 03/19/1999)

The court holds that it has subject matter jurisdiction over an environmental group's Clean Air Act (CAA) citizen suit that alleged emission and reporting violations at a refinery. The court first holds that under CAA §304, the group provided the refinery with adequate notice of the violation before filing suit. The group's notice clearly informed the refinery about the group's claim that the refinery's alleged failure to report emissions during periods of startup, shutdown, or malfunction did not comply with applicable regulations. While the group providing the refinery with more details about the particular pollutants that were under reported may have been helpful, the regulations do not require such detail. The notice provided by the group was sufficient to advise the refinery of the alleged violation and to provide the refinery with an opportunity to correct any problem in the reporting process.

The court next holds that a state environmental agency's administrative actions against the refinery do not bar the court from exercising its jurisdiction. While the refinery has entered into a consent agreement with the state agency and is currently engaged in the state permit application process, there is no evidence that the citizen suit would disrupt these efforts. Moreover, none of the factors necessary to invoke the doctrine of primary jurisdiction are present in this case because a determination of whether the refinery is violating the CAA is not within the general expertise of the state agency. Therefore, abstention is not appropriate here. The court also holds that in light of the refinery's original inadequate answers, the citizen group is entitled to conduct a 60-day discovery. However, if the refinery demonstrates that any of the alleged violations ceased after the citizens filed their complaint and that the violation will not be repeated, those claims will be rendered moot.

Counsel for Plaintiffs
Randall K. Rathbun
Depew & Gillen
151 N. Main St., Ste. 800, Wichita KS 67202
(316) 262-4000

Counsel for Defendant
Terry W. Schackmann
Spencer, Fane, Britt & Browne
1000 Walnut St., Ste. 1400, Kansas City MO 64106
(816) 474-8100