final consent decree terminating both the DVCCCA and the United States actions. The defendants agreed to implement an I/M program for ten counties in the Philadelphia and Pittsburgh areas by August 1, 1980. The consent decree provided that Penn DOT would first seek legislation instituting a franchise I/M system under which the Commonwealth would enter into contracts with garage owners for establishment of inspection stations. The decree provided that should the legislature fail to effect such a system, Penn DOT would promulgate regulations providing for a private garage I/M system under which the Commonwealth would certify a number of privately owned facilities to perform the inspections. When the legislature did not enact a franchise system, Penn DOT issued final regulations authorizing the alternative system. 9 Pa.Bull. 4193 (Dec. 22, 1979). As part of the consent decree, the Commonwealth paid DVCCCA $30,000.00 for attorneys' fees and costs and EPA paid DVCCCA $8,700.00 for attorneys' fees and costs.
In late 1979 the Commonwealth requested and obtained agreement from DVCCCA and the EPA to modify the original consent decree so as to delay implementation of the I/M program until May 1, 1981. The modification was approved by this court on March 7, 1980. On February 1, 1981, just three months before the I/M program was scheduled to be implemented under the then-existing consent decree, the Commonwealth had still not published final regulations covering the vehicle emissions analyzing equipment which private garages would have to procure in order to become certified inspection stations. On February 6, 1981 the Commonwealth requested DVCCCA and the EPA to consent to another modification of the consent decree so as to delay the start of the I/M program until January 1, 1983. The need for the 20-month delay was to permit the Commonwealth to require the use of computerized analyzer testing equipment. This type of equipment had been recommended by the EPA for decentralized inspection programs such as the Commonwealth's, since it offered greater accuracy and would therefore enhance public confidence in I/M programs. However, this computerized equipment had not yet been produced by any manufacturer, not even in prototype.
This request for modification was the subject of negotiations among the parties but the parties failed to reach agreement and negotiations came to an impasse. On April 29, 1981 the Commonwealth filed a motion with this court for a modification of the existing consent decree which would delay the start-up of the I/M program from May 1, 1981 to January 1, 1983. On May 1, 1981, DVCCCA filed a motion to have the court hold the Commonwealth in violation of the consent decree's requirement that the Commonwealth implement the I/M program by May 1, 1981.
Following a court conference on May 6, 1981, the EPA, at this court's request, submitted a brief report on the current air quality in the Philadelphia and Pittsburgh areas. After receiving the information which indicated an unsatisfactory state of air quality in the Philadelphia and Pittsburgh areas, this court on May 20, 1981, denied the Commonwealth's request for a modification of the decree, found the Commonwealth in violation of the requirements of the consent decree, and ordered submission of a plan for immediate implementation of the I/M program. The Commonwealth submitted such a plan, and this court approved it with certain amendments suggested by DVCCCA. On June 16, 1981, the decree was modified in several respects including another extension of the deadline for implementation of the I/M program until May 1, 1982. On July 24, 1981, this court denied a Commonwealth motion for reconsideration of the June 16, 1981 Order. The Commonwealth then filed with this court a motion requesting a stay pending the outcome of its appeal of this court's Orders of May 20, 1981 and June 16, 1981. Both this court and the court of appeals denied the motion to stay and on March 1, 1982, the court of appeals affirmed the Orders of May 20, 1981 and June 16, 1981. Delaware Valley Citizens' Council for Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 976 (3d Cir. 1982). On October 12, 1982, the United States Supreme Court denied the Commonwealth's petition for certiorari. 459 U.S. 905, 103 S. Ct. 206, 74 L. Ed. 2d 165 (1982).
In the meantime, following this court's decision in June of 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. Although the Governor vetoed the bill, the legislature overrode the veto and enacted H.B. 456 into law. Act of October 5, 1981, No. 99, § 2, 1981 Pa.Legis. Serv. 312. Penn DOT and the executive branch immediately ceased all efforts toward implementing the I/M program, except for publication of final regulations pertaining to the standards for emission analyzers to be purchased by the private garage owners choosing to participate in the program. 11 Pa.Bull. 3519 (Oct. 10, 1981).
On October 12, 1981, the Commonwealth moved for a stay of the consent decree and for modification thereof on the basis of H.B. 456. DVCCCA moved to declare defendants in civil contempt and to establish sanctions. On January 22, 1982, this court denied the Commonwealth's motion for a stay and declared the Commonwealth and the Secretaries of Penn DOT and Penn DER to be in civil contempt and as a sanction ordered the Secretary of the United States Department of Transportation to refrain from approving any projects or awarding any grants under Title 23 of the United States Code for highways in areas in the Commonwealth covered by the consent decree, other than for purposes of safety, mass transit or transportation projects related to air quality improvement or maintenance. 533 F. Supp. 869 (E.D. Pa. 1982). Defendants appealed and moved for a stay of this court's civil contempt Order pending appeal. A stay was granted by the court of appeals on March 19, 1982. A petition by DVCCCA for a rehearing en banc of the stay was denied on April 6, 1982. On May 21, 1982, the court of appeals affirmed this court's Order of January 22, 1982, declaring the Commonwealth defendants to be in contempt of the consent decree and enjoining the Secretary of Transportation from approving the aforementioned projects or grants. 678 F.2d 470 (3d Cir. 1982). The Supreme Court denied both the Commonwealth's application for a stay of the court of appeals' decision and the Commonwealth's petition for certiorari. 458 U.S. 1125, 103 S. Ct. 14, 73 L. Ed. 2d 1400 (1982).
On May 3, 1983, the Pennsylvania General Assembly approved Act 1983-3, 1983 Pa.Legis.Serv. Act No. 1983-3 (Purdon), which authorized the defendant Pennsylvania Secretary of Transportation to proceed with the implementation of the I/M program. On May 4, 1983, the Governor of Pennsylvania signed the Act into law. Subsequent negotiations among the parties led to a new compliance schedule establishing June 1, 1984 as the date for commencement of the I/M program. On May 16, 1983, this court ordered that the civil contempt sanction be vacated.
II. LEGAL FRAMEWORK
The Clean Air Act of 1955, Pub.L. No. 91-604, § 12(a), 84 Stat. 1706 (amended 1977), 42 U.S.C. § 7604(d), provides, in pertinent part:
The court, in issuing any final order in any action brought pursuant to subsection (a) of this section,
may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.