Thompson v. Chicago

No. 74C 2105 (N.D. Ill. February 6, 1975)

The court dismisses, for failure to state a claim upon which relief can be granted, a citizen suit brought under § 304 of the Clean Air Act to enjoin the discharge of silicon tetrachloride from a chemical facility. The primary and secondary national ambient air quality standards do not constitute emissions standards or limitations established in a state implementation plan and thus are not amenable to citizen suit enforcement under § 304 of the statute. The plaintiffs' request for mandamus relief requiring the EPA Administrator to list hydrochloric acid and silicon dioxide, to which silicon tetrachloride breaks down in the atmosphere, as hazardous air pollutants, and to issue air quality criteria and emissions standards regarding them must also be denied, since the statute clearly leaves the decision to take such action to the Administrator's discretion.

Counsel for Plaintiffs
Sheldon O. Zisook
100 North LaSalle Street
Chicago, Ill. 60604

Foss, Schuman & Drake
11 South LaSalle Street
Chicago, Ill. 60604

Counsel for Defendants
James R. Thompson U.S. Attorney
219 South Dearborn Street
Chicago, Ill. 60604

William J. Scott Attorney General
Richard W. Cosby
160 North LaSalle Street
Chicago, Ill. 60604

Richard L. Curry Corporation Counsel
511 City Hall
Chicago, Ill. 60602

Lord, Bissel & Brook
135 South LaSalle Street
Chicago, Ill. 60604

Pretzel, Stouffer, Nolan & Rooney
100 West Monroe Street
Chicago, Ill. 60603

Kirkland & Ellis
200 East Randolph Drive
Chicago, Ill. 60601

[5 ELR 20284]

McGarr, J.

MEMORANDUM OPINION AND ORDER

This action arises out of an alleged discharge of silicon tetrachloride from tanks located on the premises occupied by defendant Bulk Terminals Company in Chicago, Illinois, on April 16, 1974. The plaintiffs are individuals and an association of individuals all of whom are residents of the area of Chicago wherein the alleged disaster took place. All of the defendants have moved to dismiss the complaint.

Count I seeks an injunction requiring defendants Bulk Terminals Company and Twin City Barge and Towing Co. to comply with certain "national ambient air quality standards." The basis of this count is 42 U.S.C. § 1857h-2 which provides:

(a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf —

(1) against any person . . . who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, . . .

Subsection (f) of the same section provides:

(f) For purposes of this section, the term 'emission standard or limitation under this chapter' means —

(1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard, or

(2) a control or prohibition respecting a motor vehicle fuel or fuel additive, which is in effect under this chapter . . . or under an applicable implementation plan.

Plaintiffs allege that the defendants are in violation of "emission standards," to wit, the national primary and secondary ambient air quality standards appearing at 40 C.F.R. §§ 50.6 and 50.7, promulgated pursuant to 42 U.S.C. § 1857c-4. As shall be explained, this allegation fails to state a claim upon which relief can be granted.

Basically the national ambient air quality standards are not "emission standards or limitations," the violation of which results in amenability to suit under § 1857h-2. It is clear from a reading of Chapter 15B, Air Pollution Control Act, 42 U.S.C. § 1857 et seq., that the national ambient air quality standards are standards of air quality which are to be maintained by the enforcement of emission limitations and standards. Once such ambient air quality standards are promulgated pursuant to § 1857c-4, the state governments are required to achieve such standards through "implementation plans." The primary responsibility for the achievement of the standards outlined by the federal government lies with the various states. The states are to achieve these standards by the enforcement of "emission limitations and standards" which are the basic elements of the "implementation plans."

Nowhere in the act is there mention of "enforcement" of "primary or secondary ambient air quality standards." Therefore, such standards are incapable of being "violated" and give rise to no cause of action under § 1857h-2 as alleged by the plaintiff. Therefore, Count I must be dismissed for failure to state a claim upon which relief may be granted.

Count II presents a somewhat different question. In the case of "hazardous air pollutants," authority is vested in the Administrator to promulgate "national emission standards." 42 U.S.C. § 1857c-7. The violation of such standards clearly results in a cause of action under the enforcement statute, § 1857h-2. Pursuant to the above-mentioned statute, the Administrator has promulgated national emission standards for asbestos, which appear at 40 C.F.R. §§ 61.20 et seq. The plaintiff alleges violation of these standards by Twin City and Bulk Terminals in Count II.

40 C.F.R. § 61.20 specifies that the provisions of the national emission standard for asbestos are "applicable to those sources specified in § 61.22." Section 61.22 states:

(c) Manufacturing: There shall be no visible emissions to the outside air, except as provided in paragraph (f) of this section, from any building or structure in which the following operations are conducted or directly from any of the following operations if they are conducted outside of buildings or structures. . . .

(9) The manufacture of chlorine.

Plaintiffs allege that defendants fall within the category of manufacturers of chlorine since one of the elements formed by the chemical reaction which occurred upon the escape of the silicon tetrachloride was hydrochloric acid. According to the plaintiffs, such a transformation constitutes 'the manufacture of chlorine' within the scope of 40 C.F.R. § 61.22.

This argument falls in the face of a reading of the definition section of the regulations, § 61.21. Section 61.21(i) provides:

Manufacturing means the combining of commercial asbestos, or in the case of woven friction products, the combining of textiles containing commercial asbestos, with any other material(s), including commercial asbestos, and the processing of this combination into a product as specified in § 61.22(c).

Plaintiffs have alleged no such combination of asbestos and other material resulting in the production of chlorine. On the contrary, plaintiffs allege an accidental chemical reaction, without the utilization of commercial asbestos, resulting in the formation of hydrochloric acid. Therefore Court II must be dismissed for failure to state a claim upon which relief may be granted.

In Count III, plaintiffs seek relief in the nature of mandamus against Russell E. Train, Administrator of the United States Environmental Protection Agency. The prayer for relief requests that the Court order Train

. . . to immediately begin investigation and research into the [5 ELR 20285] causes, effects, extent, prevention and control of hydrochloric acid vapors and silicon dioxide gases as air pollutants, to specifically include said vapors and gases within one or more of the lists of air pollutants published under the aforesaid statutes, to issue air quality criteria and air pollution control information with regard to said vapors and gases, to formulate, propose and promulgate regulations establishing standards for the control and supervision of said vapors and gases (either as ordinary air pollutants or as hazardous air pollutants and the stationary sources of the same, and to take any other action as may be necessary for the supervision, regulation and control of said vapors and gases as air pollutants under the clean Air Act of 1955, as amended.

Each of these requests will be considered separately below.

Mandamus is an extraordinary remedy and should be utilized only in the clearest of cases. Before a writ of mandamus may properly issue, three elements must coexist: 1) a clear right in the plaintiff to the relief sought; 2) a clear duty on the part of the defendant to do the act in question; and 3) no other adequate remedy available. Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969).

The Administrator of the United States Environmental Protection Agency is charged by 42 U.S.C. § 1857b(a) with the establishment of a national research and development program for the prevention and control of air pollution. As a part of this program he shall

(3) conduct investigations and research and make surveys concerning any specific problem of air pollution in cooperation with any air pollution control agency with a view of recommending a solution of such problems, if he is requested to do so by such agency or if, in his judgment, such problem may affect any community or communities in a State other than that in which the source of the matter causing or contributing to the pollution is located. (emphasis added)

This is the only statutory authorization for investigation and research into specific areas of the air pollution problem and the language of the statute makes it clear that the decision as to the specific areas of inquiry is within the discretion of the Administrator. Therefore the first of plaintiffs' prayers may not be granted.

Section 1857c-3(a)(1) of Title 42 provides for the publication by the Administrator of a list of each air pollutant "(A) which in his judgment has an adverse effect on public health or welfare . . ." Clearly, it is within the discretion of the Administrator to include or not to include particular pollutants. The issuance of "air quality criteria" and "air pollution control information" with regard to these pollutants, authorized by § 1857c-3(a)(2) and § 1857c-3(b)(1) is dependent upon the appearance of such pollutants on the above-mentioned list. Accordingly, plaintiffs' second and third prayers may not be granted. The publication of regulations, which, in effect, is the gist of the plaintiffs' entire prayer for relief, is a matter within the discretion of the Administrator and therefore not susceptible of mandamus relief, cf. Panama Canal Zone v. Grace Line, 356 U.S. 309 (1958).

It should be noted that, viewing the complaint as a whole, the claim advanced by the plaintiffs is basically in the nature of a tort claim.There are other adequate remedies available for the damages suffered by the plaintiffs. Count III fails to state a claim upon which relief may be granted in this Court.

Since none of these counts states a cognizable claim, the issue of notice raised by the defendants need not be discussed. Since the remaining counts of the complaint are pendent, they will be dismissed for lack of Federal jurisdiction.

Accordingly, defendants' motions to dismiss are granted and instant suit is dismissed.