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United States v. Alcan Foil Prods.

Citation: 19 ELR 20592
No. No. 87-0434-L (CS), 694 F. Supp. 1280 at 1284/28 ERC 1326/(W.D. Ky., 09/15/1988) Motion for reconsideration denied

The court, on a motion for reconsideration, holds that the environmental Protection Agency (EPA) may not bring a Clean Air Act enforcement action for violation of an existing state implementation plan (SIP) when a proposed SIP revision is pending against a source that has complied with the proposed revision. The Sixth Circuit's decision in United States v. National Steel Corp., 15 ELR 20678, does not require reversal of the court's original decision holding that EPA may not bring an enforcement action against an alleged SIP violator until EPA acts on a proposed SIP revision, where EPA has delayed acting on the revision for more than four months and the source is in compliance with the revised SIP. A footnote in National Steel stating that the Clean Air Act's requirement that EPA approve general state plans within four months does not apply to SIP revisions is dictum. Even if the four-month rule does not apply to SIP revisions, EPA should not be allowed to bring an enforcement action against a polluter that has complied with a SIP revision pending before EPA. The states have the primary rulemaking responsibility under the Clean Air Act, while EPA's role is to determine whether the states' regulatory schemes further the overall purpose of the Act. EPA's delay in making this determination should not hamper the states' regulatory authority. If EPA ultimately rejects a SIP revision, the question of whether penalties should be imposed for the period that the revision was pending should depend on the equities of each individual case.

[The court's original decision appears at 18 ELR 21006. Briefs in the United States' appeal to the Sixth Circuit are digested at ELR PEND. LIT. 66034.]

Counsel for Plaintiff
Richard Dennis
U.S. Attorney's Office
510 West Broadway, Louisville KY 40202
(502) 582-5911

Robert Foster
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-1448

Counsel for Defendant
Lawrence A. Salibra II
Alcan Aluminum Inc.
29th Fl., 100 Erieview Plaza, Cleveland OH 44114
(216) 523-6865