The opinion of the court was delivered by: BECHTLE
Presently before the court is defendant Congoleum Corporation's motion to stay the above-captioned case. For the reasons stated herein, defendant's motion will be denied.
THE STATUTORY AND REGULATORY FRAMEWORK
In order to set forth comprehensively the facts in this case, the court finds it necessary to review first the statutory and regulatory framework giving rise to plaintiff's complaint.
Congress has perceived rising levels of air pollution as a danger to the public health and, as a result, has enacted the Clean Air Act (the "Act"), 42 U.S.C. §§ 7401-7642 (1985). Under the Act, the Administrator of the Environmental Protection Agency (the "EPA") must promulgate air quality standards for various types of pollutants. 42 U.S.C. § 7409. The EPA's broad national standards are guidelines and goals to be adhered to by those who are covered by the Act.
Under the Act the states are required to draft a plan implementing the national standards, and must submit the plan to the EPA for approval. 42 U.S.C. §§ 7407, 7410. Although the states have the primary right to allocate in a plan the allocation of emissions limitations, the EPA has the ultimate power to disapprove the plan if the national standards are not met or if its scope is incomplete. 42 U.S.C. § 7410.
After the plan is approved by the EPA, it may be enforced by the EPA or the state air pollution control agency, or both. In the case of a violation by a "person which is the owner or operator of a major stationary source," the EPA is the party that initiates a civil action for an injunction and civil penalties. 42 U.S.C. § 7413. In case of violations by other persons, the EPA or the state may enforce the state plan. 42 U.S.C. §§ 7413(b), 7416.
Pennsylvania, in compliance with the Act, has promulgated a state implementation plan ("SIP"). 25 Pa.Admin.Code § 121, et seq. Two sections in SIP are relevant in this case.
First, plaintiff asserts in its complaint that defendant violated 25 Pa.Admin.Code § 129.67 ("§ 129.67"). Section 129.67(a) states:
This section applies to facilities whose retrogravure and flexographic printing presses by themselves or in combination with any surface coating operation emit volatile organic compounds into the outdoor atmosphere in quantities greater than 1000 pounds (460 kilograms) per day or 100 tons (90,900 kilograms) per year.
Section 129.67(a). Section 129.67 goes on to set the limitation on "facilities whose retrogravure and flexographic printing presses by themselves or in combination with any surface coating operation." Section 129.67(a).
Section 129.53 is the other relevant section. Defendant argues that, even if it is in violation of § 129.67, it is entitled to the more generous alternative standard of § 129.53, which is often referred to as a bubble. Section 129.53 provides that the Pennsylvania Department of Environmental Resources ("DER") may, at its discretion, "in an applicable operating permit, approve alternative standards to apply to a surface coating or graphic arts facility upon a showing by the owner" that a series of requirements are met. Section 129.53 goes on to list the requirements and state the emissions limitation.
Sections 129.67 and 129.53 were both approved by the EPA on ...