The opinion of the court was delivered by: BECHTLE
These two consolidated cases arose under the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq. On August 29, 1978, the Commonwealth of Pennsylvania ("Commonwealth") and two of its administrative agencies voluntarily entered into a consent decree with the United States of America ("United States") and the Delaware Valley Citizens' Council for Clean Air ("DVCCCA"). In that consent decree, the Commonwealth defendants agreed to establish an automobile emissions inspection and maintenance program ("I/M program") for the Philadelphia and Pittsburgh areas. On October 5, 1981, the Pennsylvania General Assembly enacted a statute prohibiting the expenditure of public funds for the establishment of the I/M program. Presently before the Court are the motion of the Commonwealth defendants for a stay and a modification of the consent decree and the motion of the DVCCCA to declare defendants in civil contempt and to establish sanctions, both filed as a result of the General Assembly's action.
Section 110 of the Clean Air Act requires each state to submit a state implementation plan ("SIP") for the attainment and maintenance of national ambient air quality standards for each air quality control region in that state. 42 U.S.C. § 7410. Originally, § 110(a)(2)(G) of the Act provided that a state could include an I/M program in its SIP "to the extent necessary and practicable, for periodic inspection and testing of motor vehicles to enforce compliance with applicable emission standards" if so desired. 42 U.S.C. § 7410(a)(2)(G). On January 27, 1972, the Pennsylvania SIP was submitted to the United States Environmental Protection Agency ("EPA") for formal approval. 40 C.F.R. § 52.2020(b). On April 13, 1973, Pennsylvania submitted for EPA approval a Transportation Control Plan for the Metropolitan Philadelphia and Southwest Pennsylvania Air Quality Control Regions as a revision to the Pennsylvania SIP.
38 Fed.Reg. 10120 (1973). The Pennsylvania Transportation Control Plan included provisions for an I/M program in order to meet federal air quality control standards in the Philadelphia and Pittsburgh areas. On November 28, 1973, the EPA promulgated a revised Transportation Control Plan for the Metropolitan Philadelphia and Southwest Pennsylvania Air Quality Control Regions to correct certain deficiencies contained in the Pennsylvania plan pursuant to its rulemaking authority under the Clean Air Act. 38 Fed.Reg. 32884 (1973). Pursuant to this revision, the Pennsylvania SIP required the Commonwealth to implement an I/M program for the Philadelphia and Pittsburgh areas by May 1, 1975. 40 C.F.R. § 52.2038.
The Commonwealth filed a petition to review the actions of the Administrator of the EPA in the promulgation of the revised Transportation Control Plan with the Third Circuit Court of Appeals pursuant to § 307(b) of the Clean Air Act, 42 U.S.C. § 7607(b). Commonwealth of Pennsylvania v. EPA, 500 F.2d 246, 249 (3d Cir. 1974). Interestingly enough, the Commonwealth did not challenge the I/M program provisions in its petition for review. Rather, the Commonwealth challenged the validity of the EPA requirement mandating that air bleed retrofit devices be installed on all pre-1968 light-duty motor vehicles in the Metropolitan Philadelphia Air Quality Control Region and the Allegheny County portion of the Southwest Pennsylvania Air Quality Control Region. See 40 C.F.R. § 52.2039. The Third Circuit, in reviewing the Administrator's actions, set aside the air bleed retrofit requirement for the Allegheny County portion of the Southwest Pennsylvania Air Quality Control Region and affirmed the validity of the remainder of the Pennsylvania Transportation Control Plan. 500 F.2d at 263.
The I/M program was never implemented by the Commonwealth. On June 29, 1976, DVCCCA instituted a citizen's action, pursuant to 42 U.S.C. § 7604, against the Commonwealth of Pennsylvania, the Secretary of the Pennsylvania Department of Transportation ("PennDOT"), the Secretary of the Pennsylvania Department of Environmental Resources ("PennDER"), and the Administrator and Regional Administrator of the EPA to enforce the Pennsylvania SIP requirement for the implementation of an I/M program in the Philadelphia and Pittsburgh areas. On September 23, 1976, the EPA issued notices of violation to the Governor of Pennsylvania and the Secretary of PennDOT, pursuant to § 113(a)(1) of the Clean Air Act, as amended, 42 U.S.C. § 7413(a)(1), because of Pennsylvania's failure to implement the I/M program by May 1, 1975. On February 18, 1977, the United States instituted its own suit against the Commonwealth of Pennsylvania and certain of its departments and officers, pursuant to § 113(b) of the Clean Air Act, as amended, 42 U.S.C. § 7413(b), to enforce the Pennsylvania SIP requiring the implementation of an I/M program.
Meanwhile, on August 7, 1977, Congress passed the Clean Air Act Amendment of 1977, Pub.L.95-95, tit. I-IV, 91 Stat. 685. This amendment added a new Part D to the Clean Air Act requiring states to submit revised SIPs for areas which had not yet attained the national ambient air quality standards. 42 U.S.C. § 7501 et seq. These revised SIPs must meet specific requirements outlined in Part D of the Act and must provide for attainment of national ambient air quality standards by December 31, 1982. If a state cannot attain certain air quality standards in certain areas by December 31, 1982, § 172(a)(2) of the Act allows the EPA to grant an extension of the attainment deadline to December 31, 1987. 42 U.S.C. § 7502(a)(2). In the event that such an extension is granted, a state is required by § 172(b)(11) to submit "a specific schedule for implementation of a vehicle emission control inspection and maintenance program" in any area with an extended attainment deadline. 42 U.S.C. § 7502(b)(11).
On August 29, 1978, after extensive negotiations, the Commonwealth of Pennsylvania, and two of its departments, PennDOT and PennDER, voluntarily entered into a consent decree with both the DVCCCA and the United States by agreeing to implement an I/M program for ten counties in the Philadelphia and Pittsburgh areas by August 1, 1980.
Under the consent decree, the "Philadelphia Area" has been defined as Philadelphia, Bucks, Montgomery, Chester and Delaware Counties, paragraph 3(F) of the Consent Decree; while the "Pittsburgh Area" has been defined as Allegheny, Beaver, Butler, Westmoreland and Washington Counties, paragraph 3(G) of the Consent Decree. On March 7, 1980, the Court approved a modification of the August 29, 1978 consent decree which postponed the date of implementation to May 1, 1981. On May 20, 1980, the EPA granted Pennsylvania's extension requests for the Philadelphia, Pittsburgh, Allentown-Bethlehem-Easton, and Scranton-Wilkes-Barre areas pursuant to § 172(a)(2) and approved the submitted revised SIP which established an I/M program for these areas. 42 Fed.Reg. 33607 (1980).
On May 20, 1981, the Court denied the Commonwealth's motion for a further modification and postponement of the implementation deadline and ordered that the I/M program commence operations "without further delay." Memorandum and Order (May 20, 1981). In its order, the Court declared the Commonwealth to be in violation of the consent decree and directed the Commonwealth to file, by June 1, 1981, a proposed plan for the immediate implementation of the I/M program in the Philadelphia and Pittsburgh areas. On June 16, 1981, the Court denied the Commonwealth's motion for reconsideration and approved a Court modified version of the Commonwealth's Proposed Emission Inspection and Maintenance Program I to commence operations on May 1, 1982. Memorandum and Order (June 16, 1981).
Following the Court's decision in June, 1981, the Pennsylvania General Assembly passed House Bill No. 456, § 2 ("H.B. 456"), which prohibited the expenditure of state funds by the executive branch for the implementation of the I/M program. On July 10, 1981, the Governor of Pennsylvania vetoed H.B. 456 and returned it to the General Assembly. Nevertheless, on October 5, 1981, the General Assembly overrode the Governor's veto and enacted H.B. 456 into law as an amendment to the Administrative Code of 1929. Section 2 of H.B. 456 provides:
Section 2013. Prohibition on Expenditures for Emission Inspection Program
Neither the department nor any other department or agency of the Executive Branch of State Government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission system of motor vehicles.
Act of October 5, 1981, No. 99, § 2, 1981 Pa.Legis.Serv. 312 (to be codified at Pa.Stat.Ann. tit. 71, § 523). PennDOT and the executive branch immediately ceased operations in the implementation of the I/M program following the passage of this law. Nevertheless, on October 10, 1981, final regulations pertaining to the standards for the emission analyzers to be purchased by the private garage owners wishing to participate in the I/M program were published in the Pennsylvania Bulletin. 11 Pa.Bull. 3519 (Oct. 10, 1981). Moreover, $ 36,118,000.00 had previously been appropriated without restriction by the General Assembly to PennDOT "for the salaries, wages and all necessary expenses for the administration of the traffic safety program and the administration and operation of the operator and vehicle registration programs." The current law prohibits the expenditure of these appropriated funds for the implementation of the I/M program agreed to by the Commonwealth when it entered into the consent decree. On December 2, 1981, a notice of deficiency was issued to the Commonwealth by the EPA because of the lack of funding assurances required by sections 172(b)(7) and 110(a)(2)(F) under the Clean Air Act due to the passage of H.B. 456. 46 Fed.Reg. 58593 (1981).
Presently before the Court are two motions: (1) the motion of state defendants, Commonwealth of Pennsylvania and PennDOT, for a stay and a modification of the consent decree, and (2) the motion of DVCCCA to declare the defendants in civil contempt and to establish sanctions. In addition, in response to the Court's Order of October 20, 1981, the United States has filed a brief taking the position that defendants' motion for a stay and a modification should be denied and that the Court should postpone a ruling on the motion for civil contempt and defer to the EPA for the initiation of administrative procedures and remedies available under the Clean Air Act, 42 U.S.C. § 7401, et seq. We will now address each parties' contentions.
Paragraph 13 of the August 29, 1978 consent decree specifically provides:
Jurisdiction is retained by this Court for the purpose of enabling any party to apply to the Court at any time for such further orders and directions as may be necessary or appropriate for carrying out of this Consent Decree, for the modification or termination of any of the provisions herein upon a showing of changed circumstances and good cause, or for the enforcement of compliance therewith and the punishment of violations thereof.
(Emphasis added). Indeed, even in the absence of such a clause, a federal district court may, in its discretion, modify a consent decree in the interests of justice as reflected by changed circumstances. Mayberry v. Maroney, 529 F.2d 332, 335 (3d Cir. 1976). Nevertheless, in United States v. Swift & Co., 286 U.S. 106, 52 S. Ct. 460, 76 L. Ed. 999 (1932), the Supreme Court stated that a modification of a consent decree would only be appropriate where the decree "has been turned through changing circumstances into an instrument of wrong," id. at 115, 52 S. Ct. at 462; and that "(n)othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed by years of litigation with the consent of all concerned." Id. at 119, 52 S. Ct. at 464.
A party should not be permitted, however, to obtain a modification of a consent decree because of changed circumstances of its own creation. See Mayberry v. Maroney, 558 F.2d 1159, 1164 (3d Cir. 1977). This is especially true where the change in circumstances does not render continued compliance with the consent decree oppressive, but merely a party's act disabling itself from carrying out its part of its own judicially sanctioned agreement. Such "changed circumstances" simply do not fall within the realm of those recognized by courts in the past. See e.g. System Federation v. Wright, 364 U.S. 642, 647, 648, 81 S. Ct. 368, 371, 5 L. Ed. 2d 349 (1961) (change in Railway Labor Act to permit union shops justified modification of a consent decree which enjoined discrimination against non-union employees); Jordan v. School District, 548 F.2d 117, 122 (3d Cir. 1977) (modification of consent decree justified where subsequent Supreme Court decision gave students greater rights than provided for in decree); Theriault v. Smith, 523 F.2d 601 (1st Cir. 1975) (vacation of consent decree based on interpretation of law that is rendered incorrect by later Supreme Court decision). As the Third Circuit has stated, "(t)here must be an end to litigation someday, and such free, calculated, deliberate choices are not to be relieved from." Mayberry v. Maroney, supra, at 1164. In this case, since there has been no change in the Clean Air Act or the caselaw upon which the present consent decree rests, the motion of the Commonwealth will be denied.
Next, the United States contends that the Court should defer to the EPA to allow for the initiation of administrative procedures and remedies available to the EPA under the Clean Air Act where, as here, a SIP is deficient, before deciding the questions of constitutionality and contempt raised by the Pennsylvania General Assembly's passage of H.B. 456 prohibiting the expenditure of public funds for the implementation of the I/M program. Pursuant to the Act, the EPA can impose a moratorium on all future construction or modification of major stationary sources of pollution, see 42 U.S.C. §§ 7410(a)(2)(I) and 7503(4), and withhold future Clean Air Act planning and pollution control funds. See 42 U.S.C. § 7506(b). See generally United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1202 (6th Cir. 1980), cert. denied, 451 U.S. 949, 101 S. Ct. 2031, 68 L. Ed. 2d 334 (1981). Nevertheless, the United States concedes that "[in] the event the Commonwealth does not recommence implementation of the I/M program as a result of the administrative action taken by EPA, this Court retains jurisdiction under the Consent Decree and Orders to consider appropriate remedies for noncompliance." Memorandum of the United States in Response to Court's Order of October 20, 1981, at 10. Thus, the United States argues that the Court should defer to the EPA because of the traditional deference accorded to an agency in its interpretation of the statute which it administers, see Chrysler Corp. v. Environmental Protection Agency, 195 U.S. App. D.C. 90, 600 F.2d 904, 913 (D.C.Cir.1979) and because the EPA has primary jurisdiction to take action which may obviate the necessity for judicial action. See Far East Coast Conference v. United States, 342 U.S. 570, 574-575, 72 S. Ct. 492, 494, 96 L. Ed. 576 (1952); United States v. Western Pacific Railroad Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 164-165, 1 L. Ed. 2d 126 (1956). Thus, the United States essentially contests the Court's present jurisdiction over this dispute.
After considering these views, the Court holds that it is not required to defer to the EPA before taking action on the motions presently pending and that it has jurisdiction over the present dispute. First, the issues raised concern a consent decree which was voluntarily entered by the Commonwealth and two of its agencies after a citizens' action was filed in the district court by the DVCCCA pursuant to § 304(a) of the Clean Air Act, 42 U.S.C. § 7604(a), and an enforcement action was filed by the United States pursuant to § 113(b), 42 U.S.C. § 7413(b). The notion of primary jurisdiction does not apply where the parties have already properly resorted to the remedies available in the federal district court and have entered a consent decree in settlement of their dispute. Of course, judicial action to enforce the consent decree does not prevent the EPA from taking contemporaneous administrative action, where authorized, to enforce compliance. Nevertheless, where, as here, the ...