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Union Elec. Co. v. EPA

Citation: 8 ELR 20625
No. No. 78-164C(A), 450 F. Supp. 805/(E.D. Mo., 03/16/1978)

The court enjoins the Environmental Protection Agency (EPA) from instituting enforcement proceedings against a utility for violating sulfur oxide emissions limitations in the Missouri state implementation plan pending resolution of the utility's application to the state for a variance from the sulfur oxide standard. Plaintiff concedes that it is in violation of the standard and does not challenge its validity either here or in the state variance proceeding. Enforcement of this legal requirement, however, would cause plaintiff irreparable injury in that, aside from the $25,000 per day penalty to which it would be subject, the utility would for other reasons be threatened with recall of its publicly held bonds and consequent bankruptcy. The court finds that this harm would outweigh the injury to EPA from delaying its enforcement proceeding and that delaying enforcement is thus in the public interest. The usual prerequisite to injunctive relief of a showing that plaintiff will likely prevail on the merits is not aposite here. Rather, the court finds that considerations of procedural due process militate in favor of staying the federal agency's hand until the state proceedings in which plaintiff's application for a variance is pending have been allowed to run their course. The court grants a preliminary injunction conditioned on the plaintiff's posting of bond in the amount of $500,000 for payment of damages incurred by EPA if the delay in enforcement is ultimately found to have been wrongful.

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

Counsel for Defendant
Joseph B. Moore, Ass't U.S. Attorney
Room 414, U.S. Court and Custom House
114 Market St., St. Louis MO 63101
(314) 425-5885