Dow Chemical Co. v. Costle, Civ. A. No. 78-10019.
| Citation | 480 F. Supp. 315 |
| Decision Date | 21 August 1979 |
| Docket Number | Civ. A. No. 78-10019. |
| Parties | DOW CHEMICAL COMPANY, Plaintiff, v. Douglas M. COSTLE, Administrator of the United States Environmental Protection Agency, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
William C. Potter, Jr., Fischer, Franklin, Ford, Simon & Hogg, Detroit, Mich., for plaintiff.
R. L. Davis, Staff Counsel, The Dow Chemical Company, Midland, Mich., Thomas M. Woods, Asst. U. S. Atty., Chief, Civ. Div., Detroit, Mich., Charlotte Uram, Pollution Control Section, U. S. Dept. of Justice, Washington, D. C., Lydia Wegman, U. S. Environmental Protection Agency, Washington, D. C., Dorothy M. Attermeyer, U. S. Environmental Protection Agency, Chicago, Ill., for defendant.
This is an action commenced by plaintiff Dow Chemical Company (hereinafter, Dow) seeking declaratory and injunctive relief to compel defendant Douglas M. Costle, Administrator of the United States Environmental Protection Agency, (hereinafter, EPA) to accept and to approve certain variances granted to Dow by the Michigan Air Pollution Control Commission (hereinafter, MAPCC) as revisions to the Michigan State Implementation Plan consistent with the provisions of the Clean Air Act of 1970 as amended by the Clean Air Act Amendments of 1977. 42 U.S.C. § 7401 et seq. The action is before the Court on plaintiff's motion for preliminary or permanent injunction or, in the alternative, for a writ of mandamus. Defendant has responded to plaintiff's motion with a motion to dismiss for lack of subject matter jurisdiction in the district court and for failure to state a claim on which relief can be granted.
The parties having agreed that the operative facts are not in dispute and the Court having had an opportunity to review the extensive briefs submitted by the parties and having heard oral argument on the legal issues before it on June 14, 1978, is now prepared to rule.
In 1970, Congress enacted the Clean Air Act which required the EPA to adopt national air quality standards for the "ambient air" or the outdoor air used by the general public. The federal ambient air quality standards were published in the Federal Register and the fifty states were required to enact "state implementation plans" to ensure that the federal standards were met. State implementation plans had to contain specific emission limitations designed to limit the volume of air contaminants emanating from individual sources within a state and to assure compliance with the federal ambient air quality standards. State implementation plans were submitted to EPA for approval and EPA was required to review such plans within four months after receipt of the same.
After approval of a state implementation plan by the EPA, a state could revise the plan, grant a variance to a particular source or agree on a compliance schedule with a particular source to relieve that particular party of strict compliance with the state's implementation plan. Such a revision, variance or compliance schedule would be subject to approval by the Administrator if he determined that such a revision met the general requirements applicable to the original state implementation plan. 42 U.S.C. § 7410(a)(2), (a)(3)(A). See Train v. NRDC, 421 U.S. 60, 80, 95 S.Ct. 1470, 43 L.Ed.2d 731, 746 (1975).
On February 3, 1972, MAPCC submitted to EPA for review and approval the Michigan State Implementation Plan (hereinafter, SIP) as required under the Clean Air Act and, with certain exceptions, EPA approved the Michigan SIP in May, 1972. The Michigan SIP set forth emission limitations for sulfur dioxide which had to be met by July 1, 1975 by each source in the State or be subject to an enforcement action by either the State or by EPA.
Dow operates power plants in Midland, Michigan which burn fossil fuel (coal) and which emit sulfur dioxide into the ambient air. Aware that it would be unable to attain the emission limitations for sulfur dioxide as set forth in the Michigan SIP by July 1, 1975, Dow sought a variance from MAPCC. On May 7, 1974 after public notice and public hearing, MAPCC and Dow entered into a Consent Order (# 12-73-05) which permitted Dow to utilize a Supplementary Control System (SCS) to limit sulfur dioxide emissions during periods when the ground level concentration of pollutants exceeded the federal ambient air quality standards. The Order also permitted Dow to exceed Michigan SIP emission limitations until July 1, 1980 at which time Dow would totally convert to nuclear power generated from a proposed nuclear plant to be constructed in Midland, Michigan by Consumers Power Company.
On June 13, 1974, MAPCC sent the Consent Order to EPA along with several others of similar nature and sought the "approval of the EPA of these compliance schedules." On July 16, 1974, the EPA acknowledged receipt of the Order and informed MAPCC that the schedules were being reviewed. No other action by MAPCC or by the EPA has occurred on this Consent Order.
In 1977, when it became evident that Midland's proposed nuclear power plant would not be completed by July 1, 1980, Dow and MAPCC entered into a new Consent Order (# 10-1977). The Consent Order permitted Dow to continue to utilize Supplemental Control Systems (SCS) to limit sulfur dioxide emissions and required Dow to convert from fossil fuel to oil fuel by July 1, 1980. On July 21, 1977, MAPCC approved the Order and transmitted the same to EPA as a "compliance schedule" seeking EPA's approval and making itself available to EPA if any problems developed. Upon approval of the 1977 Consent Order by MAPCC, the 1974 Consent Order was rescinded.
On August 10, 1977, EPA informed MAPCC that since the 1977 Consent Order extended compliance of the emission limitations for sulfur dioxide beyond the Michigan final attainment date of July 1, 1975, additional information (, a control strategy demonstration) was required before the EPA could consider the Consent Order and approve the same as a revision of the Michigan SIP. EPA also informed MAPCC that the use of Supplementary Control Systems (SCS) could only be approved, if the Consent Order complied with certain EPA regulations and the Sixth Circuit decision of Big Rivers v. EPA, 523 F.2d 16 (CA 6, 1975).
On August 22, 1977, MAPCC informed the EPA that MAPCC had transmitted all the data necessary for consideration of the compliance schedule and that if specific information was needed, EPA was to contact MAPCC. EPA did not formally respond to the August 22 correspondence from MAPCC.
On October 25, 1977, a meeting between Dow, MAPCC and EPA officials was held to discuss the problems with the 1977 Consent Order. EPA, informally, reiterated that the Agency had no flexibility to approve Supplementary Control Systems (SCS) nor to permit noncompliance after July 1, 1979.
On January 25, 1978, in response to a request from Dow for another meeting to discuss the official EPA position on Supplementary Control Systems (SCS), the Administrator declined the request and concluded that the determinations rendered by EPA officials in Region V to Dow were mandated by the Clean Air Act and EPA regulations.
Dow commenced this action on February 3, 1978 and moved for preliminary injunction and writ of mandamus on March 2, 1978. EPA moved to dismiss on April 6, 1978.
Dow contends that EPA is under a mandatory duty to approve revisions of a state implementation plan when the revision assures compliance with the federal ambient air quality standards and that the EPA position to disapprove proposed revisions to state implementation plans which authorize the use of Supplementary Control Systems (SCS) is arbitrary, capricious and contrary to law. Accordingly, Dow seeks a declaratory judgment from the Court that the 1977 Consent Order granted to Dow by MAPCC can be approved by EPA as a revision to the Michigan SIP. Additionally, Dow seeks a writ of mandamus to compel the Administrator of EPA to so accept the 1977 Consent Order as a revision to the Michigan SIP. Alternatively, Dow seeks a declaratory judgment that the 1974 Consent Order granted to Dow by MAPCC and previously submitted to EPA on June 13, 1974 be approved as a revision to the Michigan SIP.
In response, EPA contends that the district court is without subject matter jurisdiction to review the Administrator's actions as the proposed revision has not been submitted to the Administrator for approval as a revision to the Michigan SIP. Further, EPA contends that the Administrator does not have a mandatory duty to approve the proposed revision without an independent determination of its compliance with the general requirements applicable to the original state implementation plan and that the Administrator cannot be compelled to perform a discretionary act under the Mandamus Act, 28 U.S.C. § 1361. EPA also asserts that if the proposed revision had been submitted to the Administrator and had been disapproved as Dow contends, then proper judicial review of such action is exclusively in the Sixth Circuit Court of Appeals under § 307 of the Clean Air Act. 42 U.S.C. § 7607. For these reasons, EPA seeks dismissal of the action for want of jurisdiction in the district court.
Alternatively, EPA asserts that Dow has failed to establish the prerequisites necessary to secure a preliminary or a permanent injunction.
Jurisdiction is the pivotal issue in this action. Dow asserts that the Court has jurisdiction over this action under § 304 of the Clean Air Amendments of 1977 (42 U.S.C. § 7604(a)(2)), under federal question jurisdiction (28 U.S.C. § 1331(a)), and under the Mandamus Act (28 U.S.C. § 1361).
Section 304(a)(2) of the Act provides that:
". . . any person may commence a civil action on his own behalf . . . (2) against the Administrator where there is alleged a failure of the...
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...(10th Cir.1978); Jeno's, Inc. v. Commissioner of Patents and Trademarks, 498 F.Supp. 472 (D.C.Minn.1980). But cf. Dow Chemical v. Costle, 480 F.Supp. 315 (E.D.Mich.1978), aff'd, 659 F.2d 724 (6th Cir.1981) (dictum inferring section 1361 may independently grant subject matter jurisdiction). ......
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