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Reichold Chems., Inc. v. Administrator

ELR Citation: 6 ELR 20053
Nos. No. 75-1206, 8 ERC 1207/(7th Cir., 06/02/1975)

The Court of Appeals dismisses, for lack of jurisdiction, a petition for review of a portion of the Illinois implementation plan under §307 of the Clean Air Act, 42 U.S.C. §1857h-5, ELR 41226. Reichold Chemical filed this petition after an EPA notice of violation, contending that Rule 206 of the Illinois plan, 37 Fed. Reg. 10862 (May 31, 1972), is inapplicable to its partial oxidation process. Since the filing occurred almost three years after the applicable portion of the implementation plan was approved, respondent argues that it is barred by the 30-day filing limit in §307(b)(1), 42 U.S.C. §§1857h-5(b)(1). Petitioner counters that its petition was timely since it was filed within 30 days of a new and unreasonable EPA interpretation of the challenged portion of the implementation plan. Nevertheless, the court agrees that the federal district court would be the proper forum for the petitioner to raise the issue of applicability, by way of defense to an EPA enforcement proceeding. The case is dismissed, but without prejudice, so that petitioner may raise the issue below.

The full text of this opinion is available from ELR (2 pp. $0.25, ELR Order No. C-1002).

Counsel for Petitioner
Perry Fuller
69 West Washington St.
Chicago, IL 60602
(312) 630-4408

Counsel for Respondent
Edmund B. Clark
Michael P. Carlton
Department of Justice
Washington, DC 20530
(202) 739-2748

Per curiam.