ELR Citation: ELR 20577
No(s). 91-13-FR (D. Or. Sep 27, 1991)

The court holds that environmental groups' Clean Air Act citizen suit, which alleges that the Oregon Department of Environmental Quality (DEQ) has failed to enforce emissions standards or limitations set out in its state implementation plan (SIP) for the control of volatile organic compounds (VOCs) in the Portland nonattainment area, sufficiently states a claim for which relief can be granted. In 1973, the Environmental Protection Agency (EPA) approved the implementation plan submitted by DEQ for Oregon. In 1977, Congress amended the Clean Air Act to increase pollution controls for nonattainment areas and required states containing nonattainment areas to submit revised implementation plans to EPA for approval. In 1982, DEQ submitted a revised implementation plan containing a general emissions standard and specific measures to control emissions of VOCs in the ozone nonattainment area of Portland, including permit requirements for new and existing sources. After Portland failed to attain the national standards for ozone by 1987 as required by the Clean Air Act, plaintiff environmental groups brought suit against DEQ.

The court first holds that the applicants for intervention are not entitled to intervene as a matter of right or by permissive intervention. Although the court finds that the applicants timely filed their motions to intervene, they have failed to establish a legally protectable interest in this litigation. The applicants' interest in their existing permits is purly economic and is not protectable under the Clean Air Act, while the focus of this litigation is whether DEQ, which is charged with administering Oregon's SIP, has followed the procedures and met the SIP requirements for issuing permits and exemptions. Moreover, plaintiffs' citizen suit does not attack the validity of individual permits under which the applicants for intervention operate, but seeks an order requiring DEQ to comply with the Clean Air Act by enforcing the permit issuance terms of the implementation plan. In addition, the applicants for intervention have not demonstrated that DEQ is incapable or unwilling to make all available arguments in support of their common objectives, or that the applicants will contribute some element necessary to the adjudication of this case that makes intervention based on inadequate representation proper. Finally, the court finds no new grounds, independent of the grounds asserted by DEQ, on which the applicants for intervention should be permitted to intervene. Conferring amicus status is generally preferred over a grant of permissive intervention where proposed intervenors would present no new questions to the court.

The court next holds that the plaintiffs have stated claims on which relief can be granted, sufficient to overcome DEQ's motion to dismiss. First, plaintiffs have established jurisdiction by alleging violations under Clean Air Act §304(f) relating to the air quality maintenance plan for the area in and around Portland. Second, plaintiffs have alleged that DEQ has failed to enforce reasonably available control technology rules set forth in the SIP to control emissions of VOCs at all industrial sources covered by a control technology guideline published by EPA. Third, plaintiffs have established jurisdiction in this court by alleging that DEQ failed to enforce requirements of the SIP and the Clean Air Act that relate to the control of VOCs from industrial sources through vapor recovery.

Finally, the court denies DEQ's motion for summary judgment because plaintiffs provided adequate notice to DEQ of their intent to sue, exhaustion of administrative remedies is not generally required when the question of the adequacy of the administrative remedy is essentially identical with the merits, and no support exists for DEQ's assertion that plaintiffs' federal claim may only be brought after exhausting state judicial remedies. Plaintiffs notified DEQ of their intent to sue nearly 200 days before filing suit, well past the required 60-day notice requirement in §304(b). Further, the adequacy of the administrative remedy is practically identical to the plaintiffs' assertions that the administrative remedies provided by DEQ for new source review violate the SIP and the Clean Air Act. Additionally, it would defeat the intent of Congress for a court to hold that assertion of a federal claim in federal court must await an attempt to vindicate the same claim in a state court.

Counsel for Plaintiffs
Victor M. Sher, Todd D. True
Sierra Club Legal Defense Fund
216 1st Ave. S., Ste. 330, Seattle WA 98104
(206 343-7340

Counsel for Defendants
Dave Frohnmayer, Attorney General; Denise G. Fjordbeck, Ass't Attorney General
100 State Office Bldg., Salem OR 97310
(503) 378-6368