United States v. Congoleum Corp.

No. 86-0028 (646 F. Supp. 1142) (E.D. Pa. November 5, 1986)

On a motion for reconsideration, the court revises its previous decision in which it held that Pennsylvania's "bubble" air emissions standard is not an alternative standard to the standard for volatile organic compounds. The court holds that the bubble standard may provide such an alternative standard in some circumstances, but it does not in this case because Pennsylvania has not approved it for this defendant. The court incorporates this amendment into its earlier decision in the case.

[The court's earlier opinion appears at 16 ELR 20905.]

Counsel for Plaintiff
Edward S. G. Dennis Jr., U.S. Attorney; Margaret L. Hutchinson, Ass't U.S. Attorney
3310 U.S. Cthse., 601 Market St., Independence Mall West, Philadelphia PA 19106
(215) 597-2556

Douglas A. Johns
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendant
J. Freedley Hunsicker Jr.
Drinker, Biddle & Reath
1100 Philadelphia Nat'l Bk. Bldg., Philadelphia PA 19107
(215) 988-2700

[17 ELR 20406]

BECHTLE, District Judge.

Presently before the court is defendant Congoleum Corporation's motion to reconsider the court's Memorandum and Order dated April 30, 1986, denying defendant's motion to stay the above-captioned action. The motion to reconsider is granted in part and denied in part.

In a Memorandum and Order dated April 30, 1986, 635 F. Supp. 174, this court ruled that § 129.53 ("bubble" provision) of Title 25 of the Pennsylvania Code is not a standard which is "alternative" to Title 25 § 129.67. Upon reconsideration, the court believes, contrary to that holding, that under some circumstances the § 129.53 standard may be an alternative to the § 129.67 standard. However, in the absence of Pennsylvania's approval of the § 129.53 ("bubble") standard for this defendant, § 129.53 is not an alternative to the § 129.67 standard for this defendant. The court does not believe that this change to its earlier opinion makes a difference in the ultimate outcome of defendant's motion to stay.

An appropriate Order will be entered.

ORDER

AND NOW, TO WIT, this 5th day of November, 1986, for the reasons stated in the accompanying Memorandum, following a thorough consideration of defendant's motion for reconsideration and plaintiff's response thereto, and upon full review of the memoranda in support and in opposition thereto, as well as defendant's supplemental memorandum, IT IS ORDERED as follows:

1. Defendant Congoleum Corporation's motion to reconsider is granted in part and denied in part; and

2. Page nine (9) of the court's Memorandum dated April 30, 1986, is vacated. The remaining portion of that Memorandum and Order remains unchanged; and

3. The reference in two places in the second paragraph on page five (5) of the Memorandum dated April 30, 1986, to § 129.63 was an error; the correct citation in both of those places is § 129.67; and

4. The accompanying Memorandum shall be incorporated by reference into the court's Memorandum dated April 30, 1986.