State Environmental Regulation Lacking In Objectively Measureable Metrics Is Not Subject To Citizen Suit Enforcement
MCEVOY v. IEI BARGE SERVICES (September 7, 2010)
IEI Barge Services (Services) is a bulk material handler with a facility on the banks of the Mississippi River in East Dubuque, Illinois. Among other materials, Services handles coal, receiving it from train cars and loading it onto river barges. Several of Services' neighbors, including Charles McEvoy, complained that the coal-handling activity releases coal dust which, in turn, is blown onto their properties. McEvoy filed suit in early 2006 under the citizen-suit provisions of the Clean Air Act. Other neighbors filed similar suits in early 2007. The theory of recovery in both suits is that Services' violation of two Illinois environmental regulations provided plaintiffs with a remedy under the Act. Judge Kapala (N.D. Ill.) granted summary judgment to Services in both cases. The plaintiffs appealed -- the appeals were consolidated.
In their opinion, Chief Judge Easterbrook and Judges Bauer and Wood affirmed. The Court turned its attention to the Act. The citizen-suit provision of the Act permits a private action against a person who is alleged to have violated "an emission standard or limitation under this chapter." Under the definition of that phrase, the enforceable standards and limitations are (as is relevant to the appeal): a) an "emission limitation, standard of performance or emission standard," and b) "any other standard, limitation, or schedule established under any permit issued pursuant to [another section of the Act] or under any applicable State implementation plan." In order to be enforceable under the Act, therefore, the Illinois regulations at issue must qualify under one of those two definitions. Before proceeding to an application of the Act to the regulations, the Court expressed its disagreement with the district court's interpretation of the second prong. The district court found that the phrase was ambiguous and concluded that the better reading was that it allowed enforcement only of a standard contained in a permit -- as opposed to a standard contained in a permit or a State implementation plan. The Court found that the statute was not ambiguous and that the natural reading allowed for enforcement of a standard contained in a permit or a State implementation plan. The first regulation the plaintiffs seek to enforce is entitled "Prohibition of Air Pollution" and, in the Court's words, says little more than "thou shall not pollute." The Court concluded that this "broad, hortatory statement" does not qualify as a standard or limitation enforceable under the Act. The second regulation, the "Fugitive Particulate Matter" regulation, presented a closer question. The regulation contained more specifics than the general prohibition, but fell far short of other highly specific standards contained in Illinois' regulations. The Court referred to some of the undefined words in the regulation: "visible," "an observer," "looking generally," "at a point beyond," etc. The Court noted that other Illinois regulations contain more specific metrics subject to objective measurement. The Fugitive Particulate Matter regulation does not. Finding no additional guidance or definitions to guide its interpretation, he Court concluded that the regulation could not be enforced through the Act.