Northwestern Ohio Lung Association v. Costle

No. 79-26 (N.D. Ohio December 13, 1979)

ELR Digest

The court holds that the Environmental Protection Agency (EPA) Administrator has a nondiscretionary duty to commence a civil action to stop construction on a new facility until defendant has complied with the Clear Air Act. The court first rules that the citizen suit is not moot. Plaintiff seeks to have EPA commence a § 113 action for injunctive relief against Mid-States Terminals, Inc., which it alleges is violating Ohio's state implementation plan (SIP) at an existing stationary source. Although defendant agrees with plaintiff that there has been a violation, EPA has not yet filed an enforcement action. However, since it does appear that EPA will file an action, the court holds plaintiff's motion for an injunction in abeyance and orders that a progress report be filed within 30 days on the status of the enforcement action.

The court then rules that the EPA Administrator has a non-discretionary duty to commence a civil action under § 113(b)(5) to stop construction of defendant's new facility until defendant complies with EPA's 1976 Interpretative Ruling, adopted by Congress in 1977 at § 129(a)(1), authorizing installation of new major sources of air pollution in nonattainment areas if certain conditions are met. The conditions of the amendment apply to major sources with potential emissions of 100 tons or more per year. Plaintiff argues that the major source requirement applies, either because defendant's new facility would have emissions of more than 100 tons a year without air pollution control equipment, or because, even with controls, it has potential emissions in excess of 100 tons a year. The court accepts plaintiff's second argument, but notes that Congress specifically referred to "potential" emissions in the 1977 Amendments, rather than "allowable" emissions, the term used in EPA's 1976 Ruling. The court then rules that the new source review requirement applies since defendant has admitted that the particulate emissions from the new terminal would exceed the SIP emission limitations in effect at the time the permit was considered. Defendant argues that it is not required to comply because the Ohio Environmental Protection Agency (OEPA) determined that the "allowable" emissions would be less than 100 tons per year. Defendant also argues that EPA had concluded that emission limitations contained in permits issued under a regulation included in an approved SIP were federally enforceable and were to be considered the applicable SIP limitation. The court agrees with the defendant that normally the agency's interpretation is to be given considerable deference, but the problem here is that the interpretation conflicts with the regulation. The regulation states that if a source is not subject to either a New Source Performance Standard (NSPS) or a SIP emission limitation, annual emissions are to be based on maximum annual rated capacity and on the emission rate agreed to by the source as a permit condition. Here, there is an applicable SIP limitation for grain terminals, and the court sees no reason to allow defendant to get around the regulation simply by setting low limitations in the permit so that "allowable" emissions are below 100 tons per year.

The full text of this opinion is available from ELR, 4 pp., $2.00, ELR Order No. C-1341.

Counsel for Plaintiff
A. Mark Segreti Jr.
181 E. Livingston Ave., Columbus OH 43215
(416) 221-8181

Counsel for Defendant
Patrick J. Cafferty Jr., Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

(Young, J.)

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]