ELR Citation: ELR 20174
No(s). 88-6210 (2d Cir. Sep 18, 1989)

The court holds that the district court lacked subject matter jurisdiction in a citizen suit under §304 of the Clean Air Act challenging the Environmental Protection Agency's (EPA's) failure to list eight substances as hazardous air pollutants under Clean Air Act §112. EPA published a series of Federal Register notices in 1985 concerning these eight substances. The notices stated that EPA believed that seven of the eight substances should be considered probable carcinogens, and that the eighth substance should be considered a known carcinogen. In seven of the eight notices, EPA stated that it intended to add the relevant pollutant to the §112 list of hazardous air pollutants, but would make a final decision after further studies. The court holds that these notices did not trigger a non-discretionary duty for EPA to list the pollutants under §112. The notices are not the functional equivalent of EPA determinations that the substances are hazardous air pollutants. The notices made only preliminary conclusions and indicated that more studies were being conducted.

[The district court's decision is published at 18 ELR 21461.]

Counsel for Plaintiff-Appellant
David Doniger
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Ste. 300, Washington DC 20005
(202) 783-7800

Eric Goldstein
Natural Resources Defense Council, Inc.
122 E. 42nd St., 45th Fl., New York NY 10168
(212) 949-0049

Counsel for Defendant-Appellee
Charles S. Carter
Office of General Counsel
Environmental Protection Agency
401 M St. NW, Washington DC 20460
(202) 475-8040

Robert L. Klarquist
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2731

Before NEWMAN, PIERCE, and MAHONEY, Circuit Judges.