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United States v. West Penn Power Co.

Citation: 8 ELR 20874
No. No. 77-1142, 460 F. Supp. 1305/11 ERC 2203/(W.D. Pa., 08/21/1978)

The court issues a preliminary injunction requiring defendant to install a flue gas desulfurization system to bring Unit 3 of its coal-fired Mitchell Power Station into compliance with sulfur dioxide emission limitations set by the Pennsylvania state implementation plan and warns that a penalty of $2,500 per day will be imposed for failure to take such action. The court rejects defendant's counterclaim for injunctive relief against federal enforcement of the Clean Air Act as to Unit 3, ruling that pursuit of this enforcement action while defendant is seeking a variance from the state Environmental Health Board does not constitute a denial of due process. Noting that defendant, whose Unit No. 3 had been in continuous violation of the Pennsylvania implementation plan for more than four years before its recent shutdown to avoid additional civil penalties, chose to litigate rather than comply, the court concludes that the testimony and evidence presented indicates that installation of a scrubber is both technologically and economically feasible. On the other hand, the court rules, it has not been shown that the alternate approach of burning low sulfur coal in combination with a tall stack would result in compliance with the applicable emissions limitations. The government has shown irreparable harm in the form of a continuing violation of the Clean Air Act's public health-related standards and is thus entitled to injunctive relief.

Counsel for Plaintiff
John E. Varnum
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2735

Craig McKay, Ass't U.S. Attorney
633 U.S. Courthouse, Pittsburgh PA 15219
(412) 644-3500

Counsel for Defendant
Harold Schmidt
Rose, Schmidt & Dixon
9th Floor Oliver Bldg., Pittsburgh PA 15222
(412) 281-3311