ELR Citation: ELR 21126
No(s). 88-0987-CV-W-5 (W.D. Mo. Apr 23, 1990)

The court holds that the Environmental Protection Agency (EPA) may not bring a Clean Air Act enforcement action challenging an alternative compliance plan (ACP) in Missouri's state implementation plan (SIP), since EPA authorized the state to approve the ACP. The SIP provision providing for the adoption of ACPs, approved without comment by EPA, clearly vests authority for approval or disapproval of ACPs with the state. Further, Missouri acted in good faith in approving the ACP for painting operations at an automobile assembly plant. If EPA believes that the ACP was defective, it could request the state to revise the plan or EPA could revise the plan if the state refused. The court holds that EPA may commence an enforcement action under Clean Air Act §113 for any violations of the ACP even if the state found that the company was in compliance. A contrary holding would bar EPA from bringing enforcement actions whenever a state concludes that a source is in compliance with the SIP. However, the court holds that EPA's enforcement action must be dismissed because EPA failed to plead a violation of the ACP in its complaint and failed to meet the notice requirements of §113 concerning alleged ACP violations. Section 113(a) authorizes EPA to bring an enforcement action only on the basis of the specific violation alleged in the notice of violation and only when the violation continues for more than 30 days. The court holds that the ACP was approved in mid-1985 even though the state did not send a formal letter of approval to the company until 1987. The court holds that EPA may not proceed against the company for violations of the spray-prime limits for the period between the original compliance date and the approval of the ACP, since EPA cannot meet the §113 notice requirements. The court holds that the ACP includes the final repair phase of the coating operations. The court holds that it lacks jurisdiction over defendant's counterclaim alleging that EPA has violated the Administrative Procedure Act by adopting a national litigation strategy of ignoring valid ACPs when its brings enforcement actions. These allegations challenge final agency action and thus must be brought in the court of appeals.

Counsel for Plaintiff
Alleen S. Castellani, Vernon A. Poschel
U.S. Attorney's Office
549 U.S. Courthouse, 811 Grand Ave., Kansas City MO 64106
(816) 426-3122

Elizabeth A. Edmonds
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 517-2000

Counsel for Defendant
Robert L. Driscoll, Stephen J. Ownes, Lindsay L. Wood
Stinson, Mag & Fizzell
920 Main St., P.O. Box 19251, Kansas City MO 64141
(816) 842-8600