ELR Citation: ELR 20034
No(s). 2:08-cv-865 (S.D. Ohio Feb 2, 2010)

A district court granted an environmental group’s motion to reconsider its ruling that CAA §304(a)(1) does not permit the group to bring a citizen suit against the state of Ohio for failing to enforce and implement the Ohio SIP. The Ohio EPA adopted revised Ohio Administrative Code §3745-31-05(A)(3), which exempted new and modified sources that have the potential to emit less than 10 tons per year of NAAQS pollution or precursors to NAAQS pollution from the Ohio SIP requirement to use best available technology (BAT). Ohio EPA ceased enforcing and implementing the BAT requirement against such sources before it submitted a proposed SIP revision to EPA. When it finally submitted a revision, the EPA concluded that it was incomplete and could not be processed. The environmental group filed suit against the state and then sought partial summary judgment on its count that the Ohio EPA’s adoption and enforcement of the revisions violated CAA §§110 and 116. Relying on a Sixth Circuit opinion decided under an analogous statute, the court held that, because a state violates an emission standard or limitation each time it fails to enforce it, citizens may bring suit against a state under CAA §304(a)(1)(A) when the state fails to enforce a SIP emission standard or limitation. The court went on to hold that Ohio EPA’s failure to enforce and implement the Ohio SIP violated CAA §§110 and 116, and granted the environmental group partial summary judgment.