ELR Citation: ELR 20302
No(s). 88-6300 (6th Cir. Nov 21, 1989)

The court rules that the Environmental Protection Agency's (EPA's) failure to act on a proposed Clean Air Act state implementation plan (SIP) revision within four months does not bar it from enforcing the existing SIP during the period between the end of the four-month review and the time EPA acts on the revision. The court first holds that the four-month limit in Clean Air Act §110(a)(2) for EPA review of original SIPs applies to EPA's review of proposed SIP revisions. Following the remedy, less drastic than dismissal, fashioned by the First Circuit, the court held that the district court should use its discretion to determine what penalties should be imposed for noncompliance. In weighing the equities, the court should consider whether the defendant was in compliance with the proposed revision.

A concurring judge notes that the penalty assessment should focus more on the alleged polluter's compliance with the existing SIP than with the proposed SIP revision.

[The district court decision is published at 19 ELR 20592. The Supreme Court has granted certiorari on the First Circuit case.]

Counsel for Plaintiff-Appellant
John T. Stahr
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20004
(202) 633-2956

Counsel for Plaintiff-Appellee
Lawrence Salibra
Alcan Aluminum Corp.
1301 E. Ninth St., Cleveland OH 44114
(216) 523-6800

Before: KRUPANSKY and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.