ELR Citation: ELR 20589
No(s). s. 93-3284, -3330 (8th Cir. Oct 14, 1994)

The court affirms a district court decision that the operator of a mixed municipal solid waste composting facility did not violate the odor limits of the Minnesota state implementation plan (SIP). The court first holds that it has jurisdiction over the citizen suit under §304 of the Clean Air Act (CAA) because plaintiffs allege that the landfill operator repeatedly violated the Minnesota SIP's odor emission standards. The plaintiffs submitted test results in their notice of intent to sue that reveal that the smells the facility emitted were above one odor unit, however, the test results do not show that the facility at any time exceeded the two or four odor-unit level. The court notes that the district court held that the areas in which the plaintiffs tested were zoned "light industrial" and "highway commercial." Because the regulations allow light industrial areas to suffer smells that do not exceed two odor units, the court holds that the plaintiffs' test result of 1.45 in the light industrial area does not show the facility violating its operating permit or the SIP. Regarding the test results of 1.16 and 1.32 from the highway commercial area, the court affirmed, as a matter of law, the district court decision that "highway commercial" is most comparable to "light industrial," to which the two odor-unit limit applies. Therefore, any observations of odors in excess of one odor unit, but less than two odor units, do not prove a violation.

The court next holds that plaintiffs' failure to include in its notice of intent to sue as CAA §304(b) requires the results of three other tests allegedly showing greater levels of odor concentration precludes the court from entertaining allegations based on these test results, even though the landfill operator allegedly knew about them. If plaintiffs had included these results in their notice of intent to sue, the government and the landfill operator would have been provided with more information that might have led to a quicker resolution of plaintiffs' claims. The court notes, however, that plaintiffs may bring a new action based on these three test results. Finally, the court dismisses without prejudice plaintiffs' claims that the landfill operator's odor emissions are a private and public nuisance in violation of state law.

[The district court opinion is published at 24 ELR 20157.]

Counsel for Appellants
Lawrence A. Moloney
Doherty, Rumble & Butler
150 S. 5th St., Ste. 3500, Minneapolis MN 55402
(612) 340-5555

Counsel for Appellees
Robert E. Cattanach Jr.
Dorsey & Whitney
220 S. 6th St., Minneapolis MN 55402
(612) 340-2600

Before RICHARD S. ARNOLD, Chief Judge, ROSS, Senior Circuit Judge, and McMILLIAN, Circuit Judge.