ELR Citation: ELR 21490
No(s). 87-2000-D (D.N.H. Jun 10, 1988)

The court rules that the Environmental Protection Agency's (EPA's) failure to act on a proposed revision to a state implementation plan (SIP) within four months does not bar enforcement of the existing SIP, and EPA may collect civil penalties for the period between the expiration of the four-month SIP review deadline and the date EPA formally rejects the proposed revision. The court first holds that it has personal jurisdiction over a parent corporation, which EPA sued along with its wholly owned subsidiary for violations of the Rhode Island SIP at the subsidiary's plastic film surface coating plant. Although the parent corporation does not appear to have the necessary minimum contacts with Rhode Island, the United States has made a prima facie case for piercing the corporate veil. The court holds that EPA must approve a SIP revision before it becomes law, even though the state has approved the revision. The court holds that defendant must comply with the existing SIP until EPA formally approves a revision. The court holds that the Clean Air Act requires EPA to act on proposed SIP revisions within four months, since the four-month deadline in §110(a)(2) applicable to EPA's initial review of SIPs also applies to SIP revisions. The court holds, however, that EPA's failure to act on a proposed SIP revision within four months does not bar it from commencing enforcement proceedings for violations of the existing SIP. The court holds that EPA is not estopped from imposing civil penalties against defendant. EPA's failure to act on the proposed SIP revision within four months and an EPA consultant's conclusion that defendant could not afford to comply with the existing SIP do not constitute the requisite affirmative government misconduct. Further, defendant's reliance on the consultant's report was unreasonable, since defendant should have known that any proposed SIP revision required final EPA approval. The court holds that EPA may collect civil penalties for the period between the expiration of the four-month SIP review deadline and the date EPA formally rejected the proposed SIP revision. Defendant's noncompliance should not be rewarded by waiving civil penalties during EPA's review period. The court notes that EPA should consider defendant's efforts to comply with the consent agreement with the state in determining the proper penalty.

Counsel for Plaintiff
Cynthia G. Irmer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4112

Counsel for Defendants
Gregory L. Benik
Hinckley, Allen, Snyder & Comen
1500 Fleet Center, Providence RI 02903
(401) 274-2000