ELR Citation: ELR 20812
No(s). 73-1083 (W.D. Pa. Jun 19, 1974)

The court finds that it is without jurisdiction to consider a claim that EPA acted illegally in rejecting plaintiff's plan for compliance with national sulphur oxides standards by the use of a tall stack instead of sulphur emissions control devices. The challenged action is EPA's approval of a portion of the Pennsylvania implementation plan which prevents plaintiff from using a tall stack, and under §307 of the Clean Air Act review therefore lies exclusively in the circuit court of appeals. Plaintiff's contention that the Administrator has breached a non-discretionary duty under the Act by not allowing the use of tall stack dispersion is mistaken, since under §110 EPA clearly has ample discretion in determining approval of state implementation plans. Nor does the court have jurisdiction to grant relief against state officials by compelling them to promulgate variances from the state plan which will allow plaintiff to use tall stacks. Since review by the circuit court of appeals was notsought within 30 days after approval of the plan as prescribed in the statute, plaintiff's only remedy is to secure a variance and modification of the plan through state proceedings and application by the governor to EPA. The court points out, however, that any state policy relying upon dispersion techniques rather than emissions limitations has been held to violate the congressional policy with respect to clean air.

Counsel for Plaintiff
Thomas K. Henderson
West Penn Power Company
Cabin Hill
Greensburg, PA 15601

Harold Schmidt
Rose, Schmidt & Dixon
Ninth Floor
Oliver Building
Pittsburgh, PA 15222

Counsel for Defendants
Marvin A. Fein, Asst. Attorney General
Environmental Strike Force
12th Floor, Kossman Building
Pittsburgh, PA 15219

Craig McKay, U.S. Attorney
633 U.S. Courthouse
Pittsburgh, PA 15219