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Union Elec. Co. v. EPA

Citation: 9 ELR 20154
No. No. 78-1357, 593 F.2d 299/13 ERC 1705/(8th Cir., 02/20/1979) Rev'd

The Eighth Circuit Court of Appeals reverses a district court judgment, 8 ELR 20625, which enjoined the Environmental Protection Agency (EPA) from instituting an enforcement action against a utility for violating sulfur oxide emission limitations in the Missouri state implementation plan (SIP) pending resolution of the utility's application to the state for a variance from the SIP limitation. The lower court had concluded that principles of procedural due process and fairness required that the variance proceeding be allowed to proceed to completion prior to the initiation of an enforcement action, and ruled that it had general equitable power to stay the enforcement action until that time. The court of appeals rules that its decision in Lloyd A. Fry Roofing Co. v. EPA, 7 ELR 20415, controls this case and firmly establishes that federal courts should not interfere with the pre-enforcement compliance procedures established by the Act. The court notes that plaintiff is not without a forum in which to raise its contention that compliance with the relevant portions of the state implementation plan is economically and technologically infeasible because such issues can be raised either in state court or as a defense in a federal enforcement proceeding. Moreover, since EPA may sue for injunctive relief instead of civil or criminal penalties, appellee will not necessarily incur severe fines and penalties in testing the validity of the state plan. The decision of the lower court is reversed, and the complaint is dismissed.

Counsel for Plaintiff-Appellant
William H. Ferrell
Schlafly, Griesedieck, Ferrell & Toft
314 N. Broadway, St. Louis MO 63102
(314) 421-0845

Counsel for Defendant-Appellant
Martin Green
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2827

Heany, J. (joined by Lay, J. and Hanson,* D.J.)