WISCONSIN'S ENVIR. DECADE, INC. v. WISCONSIN P. & L. CO.

• Decision Date: 06 June 1975
• Docket Number: No. 74-C-18.,74-C-18.
• Citation: 395 F. Supp. 313
• Parties: WISCONSIN'S ENVIRONMENTAL DECADE, INC., Plaintiff, v. WISCONSIN POWER AND LIGHT COMPANY et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

395 F. Supp. 313

WISCONSIN'S ENVIRONMENTAL DECADE, INC., Plaintiff, v. WISCONSIN POWER AND LIGHT COMPANY et al., Defendants.

No. 74-C-18.

United States District Court, W. D. Wisconsin.

June 6, 1975.

Melvin L. Goldberg, Madison, Wis., for plaintiff.

Eugene O. Gehl, Madison, Wis., for power companies.

David C. Mebane, Madison, Wis., for R. Train.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil action for declaratory and injunctive relief brought pursuant to the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857 et seq. Defendant Train has moved to dismiss the complaint insofar as it relates to him for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted. Both parties were provided with an opportunity to present factual matters in the manner permitted under Rule 56 with respect to motions for summary judgment. Since I intend to consider matters outside of the complaint in deciding defendant Train's motion to dismiss for failure to state a claim upon which relief can be granted, I must treat that motion as one for summary judgment.

For the purpose of defendant Train's motion to dismiss for lack of subject matter jurisdiction and for no other purpose I find as fact the matters set forth hereinafter under the heading "Facts." For the purpose of defendant Train's motion to dismiss for failure to state a claim upon which relief can be granted, now considered a motion for summary judgment, and for no other purpose, I find there is no genuine issue of material fact as to those same matters.

Facts

Plaintiff is a Wisconsin corporation concerned with the protection and enhancement of the environment. Defendants Wisconsin Power and Light Company, Madison Gas and Electric Company and Wisconsin Public Service Corporation are Wisconsin corporations engaged in the generation, distribution and sale of electricity. Defendant Russell Train is the Administrator of the United States Environmental Protection Agency.

Defendants Wisconsin Power and Light Company, Madison Gas and Electric Company and Wisconsin Public Service Corporation collectively own a steam electric generating unit now under construction in the Town of Pacific in this district, which unit is commonly known as the Columbia Generating Station, Unit 1 (CGS). The CGS will be coal-fired, and capable of operation at greater than 250 million B.T.U. per hour heat input. Defendant Wisconsin Power and Light received permission from the State of Wisconsin Department of Natural Resources to construct the boiler of the CGS on or about September 10, 1972, and commenced actual construction during February, 1973. The combustion of coal in the boiler of the unit will result in the creation of sulfur dioxide which will be emitted into the air through smokestacks in amounts greater than 1.2 pounds per million B.T.U. input for a substantial portion if not all, of the time the unit is in operation. The Wisconsin Implementation Plan, approved by the defendant Administrator on May 31, 1972, pursuant to § 110 of the Act, 42 U.S.C. § 1857c-5, establishes an emission limitation of 1.2 pounds of sulfur oxides per million B.T.U. input for solid fossil fuel fired steam generators rated at over 250 million B.T.U. per hour which are new sources.¹ On September 20, 1973, plaintiff notified defendant Train that the CGS was in violation of the Wisconsin Implementation Plan, and requested that defendant Train notify defendant Wisconsin Power and Light and the State of Wisconsin of the violation pursuant to 42 U.S.C. § 1857c-8(a)(1). Plaintiff then received a reply from the United States Environmental Protection Agency. In that reply, it was stated that the position of the Agency remained the same as expressed in two earlier letters. In one of the letters referred to, that of August 27, 1973, from James O. MacDonald, Director, Enforcement Division, the following statements appear:

"At this time we do not feel that enforcement action under the Clean Air Act is appropriate. This decision has been reached for the following reasons:

. . . . . .

2. Regarding enforcement of the Wisconsin State Implementation Plan under Section 113 of the Clean Air Act the state has affirmatively determined that Wisconsin Power and Light has fully complied with all applicable State air regulations.

3. The State has determined that Columbia Generating Station is an existing source under Wisconsin's Administrative Code (letter attached). Unless there is judicial opinion to the contrary, EPA, as a Federal agency, must take the position that a decision on this matter can only be made by the appropriate Wisconsin agency pursuant to Wisconsin law."

As relief, plaintiff seeks, inter alia, an order requiring the Administrator to notify defendant Wisconsin Power and Light and the State of Wisconsin of the alleged violation of the Wisconsin Implementation Plan and a declaratory judgment stating that the CGS boiler will not meet the sulfur oxide emission limitations of the Wisconsin Implementation Plan and that the failure of the Administrator to so notify defendant Wisconsin Power and Light and the State of Wisconsin violated 42 U.S.C. § 1857c-8(a)(1).

Opinion

Plaintiff alleges jurisdiction under the citizen enforcement provision of the Act, 42 U.S.C. § 1857h-2(a), which provides in part:

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

. . . . . .

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be."²

Plaintiff contends that the Administrator had a non-discretionary duty under § 113 of the Act, 42 U.S.C. § 1857c-8(a)(1), to notify defendant Wisconsin Power and Light and the State of Wisconsin of the violation of the Wisconsin Implementation Plan. That section provides:

"Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such finding. If such violation extends beyond the 30th day after the date of the Administrator's notification, the Administrator may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this section."

Defendant Train seeks dismissal on two grounds: (1) that the duty of the Administrator to give notice of a violation of a state plan is a discretionary one and therefore may not be enforced by a suit brought pursuant to § 1857h-2 and (2) that even if there does exist a non-discretionary duty on the part of the Administrator to issue a notice of violation once a violation has been found, that duty could not have arisen in the instant case since plaintiff does not allege that a violation had been found.

Defendant Train construes the complaint to allege a violation of the duty to give notice set forth in § 1857c-8 and of no other duty. It is apparent, however, that plaintiff's complaint, when considered with its accompanying exhibits, should be read more broadly to allege also that the Administrator either refused to make a finding when presented with evidence of a violation, or made an incorrect finding that no violation existed. Implicit in plaintiff's argument are the contentions that the Administrator is required to make a finding when presented with evidence that a violation exists, and that the court in an action brought pursuant to § 1857h-2 may order the Administrator to make a finding, review a finding by the Administrator that no violation exists, and in either case order the Administrator to issue the appropriate notice if it is apparent that the only reasonable finding would be that a violation does in fact exist.

In the following portion of this opinion, I will consider (1) whether subject matter jurisdiction exists with respect to plaintiff's claim that the Administrator failed to issue the notice required by § 1857c-8; (2) whether subject matter jurisdiction exists with respect to plaintiff's claim that the Administrator failed to make a finding when presented with evidence of a violation of the Wisconsin Implementation Plan; (3) whether subject matter jurisdiction exists with respect to plaintiff's claim that the Administrator made an incorrect finding that no violation existed; and (4) whether summary judgment should be granted for defendant Train.

I

The Clean Air Act Amendments of 1970, 42 U.S.C. § 1857 et seq., require the Administrator of the United States Environmental Protection Agency to designate air pollutants which in his or her judgment have an adverse effect on public health and welfare. 42 U.S.C. § 1857c-3. He or she then must publish, and later promulgate by regulation, proposed national primary and secondary ambient air quality standards for each such pollutant.³ 42 U.S.C. § 1857c-4. After the Administrator has promulgated a primary or secondary national ambient air quality standard, each state is required to adopt an implementation plan which provides for the implementation, maintenance and enforcement of that standard in each air quality control region in the state.⁴ 42 U.S.C. § 1857c-5. The states are given the primary enforcement responsibility for these plans. However, to prevent a reluctant state agency from undercutting the Act's effectiveness by failing to enforce its plan vigorously, the Act also provides for enforcement by the Administrator. 42 U. S.C. § 1857c-8(a)(1). In addition, the Act permits the...