J-J BAKD v. Utah Power & Light Co.

No. C-82-0497-J (D. Utah November 22, 1982)

The court holds that its has no jurisdiction pursuant to the citizen suit provision of the Clean Air Act, § 304(a)(2), to compel the Environmental Protection Agency (EPA) to commence a § 113 enforcement action against a source that is allegedly in violation of the state implementation plan (SIP). The finding of a violation followed by a notice of violation are required before EPA must take an enforcement action and in this case EPA had done neither. The court finds that the Clean Air Act does not impose a non-discretionary duty on EPA to bring an enforcement action when merely presented with information suggesting a SIP violation.

Counsel for Plaintiff
George McMillan, James A. Holtkamp
Van Cott, Bagley, Cornwall & McCarthy
P.O. Box 3400, Salt Lake City UT 84110
(801) 532-3333

Counsel for Defendants
Stephen B. Nebeker, A. Robert Thorup
Ray, Quinney & Nebeker
400 Desert Bldg., Salt Lake City UT 84111
(801) 532-1500

Robert Gordon, Samuel F. Chamberlain, Ralph L. Jerman
Utah Power & Light Co., P.O. Box 899, Salt Lake City UT 84110
(801) 350-3535

Fred G. Nelson, Ass't Attorney General
115 State Capitol, Salt Lake City UT 84114
(801) 533-6684

Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4112

Joseph Anderson, Ass't U.S. Attorney
200 P.O. & Cthse., 350 S. Main St., Salt Lake City UT 84101
(801) 524-5682

[13 ELR 20200]

Jenkins, J.:

Order

The federal defendants, Anne M. Gorsuch, in her capacity as Administrator of the United States Environmental Protection Agency ("Administrator"), and the United States Environmental Protection Agency, having moted to dismiss the Complaint against them on the ground that this Court lacks subject matter jurisdiction over the Plaintiff's claim as to them because the federal defendants do not have a non-discretionary duty to commence an enforcement action against the defendant Utah Power and Light, and even if the Administrator were required to commence an enforcement action against a source found to be in violation, jurisdiction is still lacking here because no such finding is alleged and the Administrator was not required to make such a finding; and the motion having duly come to be heard and having been argued by counsel on October 8, 1982, the Court, being fully advised, finds:

(a) Pursuant to Section 304(a)(2) of the Clean Air Act ("Act"), 42 U.S.C. 7604(a)(2) (Supp. 1982), the jurisdiction of this Court may only be invoked if there is an alleged failure by the Administrator to perform an act or duty which is not discretionary under the Act;

(b) Under Section 113(a)(1) of the Act, 42 U.S.C. 7413(a)(1) (Supp. 1982), the finding of a violation by the Administrator, followed by the issuance of a notice of violation, is an indispensable prerequisite to commencement of an enforcement action by the Administrator; and the complaint herein does not allege that the Administrator made such a finding of violation;

(c) The Act does not include a clear statutory mandate imposing a non-discretionary duty on the Administrator to make a finding when presented with information alleging a violation of any requirement of the applicable State implementation plan;

(d) The complaint does not allege that the Administrator has failed to perform a non-discretionary duty, and that this court therefore has no jurisdiction of this action against the federal defendants.

It is therefore ordered, adjudged and decreed that the complaint herein against the federal defendants be dismissed for want of jurisdiction.