ELR Citation: ELR 20905
No(s). 86-0028 (E.D. Pa. Apr 30, 1986)

The court holds that a state implementation plan (SIP) adopted pursuant to federal Clean Air Act requirements is federal, not state law once it is approved by the Environmental Protection Agency (EPA), and even if a SIP were state law, a stay of the district court action pending a decision by a state administrative agency is not appropriate. The court first holds that defendant is not entitled to a stay of EPA's enforcement action pending a state administrative appeal of a denial of defendant's bubble application and of an abatement order issued pursuant to Pennsylvania's SIP for volatile organic compounds (VOCs), because defendants have failed to show that there is an unsettled issue of state law. The court rules that a SIP is absorbed into federal law once it has been approved by EPA. Although the state is free, within limits, to set various emissions limits of its own prior to EPA's adoption of its SIP, the oversight and enforcement provided by EPA once that agency has approved the plan clearly demonstrate that an approved SIP is federal law. Modifications to the SIP must be approved by EPA, and it is EPA that institutes judicial actions for injunctions and civil penalties when major stationary sources violate SIPs. Moreover, the Clean Air Act gives the federal district court jurisdiction over such enforcement actions. Even if a SIP were state law, the court holds that a stay would not be appropriate in this case because there are no unsettled issues of state law. Defendant's argument that Pennsylvania's bubble policy provides an alternative standard to the VOC limitation is inapposite, since that interpretation would render the VOC provision a nullity. Even if issues of unsettled state law were before the court, however, a stay would be inappropriate, since the pending administrative appeals are not likely to be decided in the near future.

Counsel for Plaintiff
Edward S.G. Dennis Jr., U.S. Attorney
3310 U.S. Cthse, 601 Market St., Independence Mall West, Philadelphia PA 19106
(215) 597-2556
%counsel for Defendant
J. Freedley Hunsicker Jr., Virginia Gibson-Mason
Drinker, Biddle & Reath
1100 Philadelphia Nat'l Bk. Bldg., Broad & Chestnut Streets, Philadelphia PA 19107
(215) 988-2700