Sierra Club v. Indiana-Kentucky Electric Corp.

No. NA 81-7-C (S.D. Ind. April 20, 1981)

A federal district court refuses to enforce air quality standards for Indiana that were declared invalid under state law by the Indiana Court of Appeals.

[The complaints in this and two companion proceedings are summarized at 11 ELR 65681 — Ed.]

Counsel for Plaintiff
Frederick S. Middleton III, Howard I. Fox
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Suite 600, Washington DC 20005
(202) 347-1770

William C. Moyer
420 E. Main St., New Albany IN 47150
(812) 948-1195

Counsel for Defendant
Bryan G. Tabler
Barnes, Hickam, Pantzer & Boyd
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Richard G. Bolin
Orbison, O'Connor, MacGregor & Mattox
100 E. Spring St., New Albany IN 47150
(812) 945-3561

[11 ELR 21100]

Holder, J.:

Order and Entry

This matter comes before the Court on the defendant's March 16, 1981 motion to dismiss the plaintiff's complaint pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The plaintiff, Sierra Club, filed its brief in opposition to the defendant's motion on April 15, 1981. The Court being duly advised in the premises will now submit its ruling.

Plaintiff brought this action pursuant to 42 U.S.C. § 7604, [11 ELR 21101] § 304 of the Clean Air Act of 1970 to enforce certain air quality standards. Specifically, the plaintiff seeks to enforce the 'Indiana plan' which was incorporated by reference into 40 C.F.R. § 52.02, and is known as APC-13.

However, the Indiana Court of Appeals has held that the failure of the hearing officer to meet the statutory requirements of I.C. § 13-7-7-1(c) regarding 'New' APC-13 and 'Old' APC-13 and APC-19 has rendered those regulations invalid. Indiana Environmental Management Board, et al. v. Indiana-Kentucky Electric Corporation, et al., 393 N.E.2d 213, 222 (Ct. App. 1979).

Accordingly, the plaintiff's complaint fails to state a cause of action to the extent that it seeks to enforce these invalid regulations.

Accordingly, the defendant's motion to dismiss the complaint is hereby GRANTED. However, the plaintiff is hereby given leave to file an amended complaint which would set forth a proper cause of action.

It is hereby ORDERED that the plaintiff file its amended complaint on or before May 6, 1981. If the plaintiff has not filed its amended complaint by that time, the action will be dismissed.

This cause came before the Court upon the Motion of the Defendant to Stay Discovery Pending Resolution of Defendant's Motion to Dismiss and upon the Request of the Plaintiff for Oral Argument, and the Court being duly advised in the premises, now

Rules MOOT Defendant's Motion since the action was dismissed and DENIES Plaintiff's Motion.