In moving this court to stay this proceeding, defendant asserts two doctrines. One of the doctrines was enunciated in Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941) (the "Pullman doctrine"). See Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir.), cert. denied, 456 U.S. 990, 73 L. Ed. 2d 1285, 102 S. Ct. 2270 (1982). Under the Pullman doctrine the federal district court may stay proceedings before it to avoid deciding sensitive Constitutional questions if the proceedings require that the court consider unsettled issues of state law and a state tribunal will resolve those issues of state law in the near future. The rationale behind the Pullman doctrine is that it is inappropriate for a federal district court to forecast state law where a state tribunal may shortly thereafter displace the federal court's rule. 312 U.S. at 500.
The other doctrine upon which defendant relies is set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976) (the "Colorado River doctrine"). The Colorado River doctrine, which is not an abstention doctrine, permits a federal district court to stay or dismiss an action pending before it in order to avoid duplicative, concurrent state litigation. In applying the doctrine the court must consider the conservation of judicial resources, the comprehensive disposition of the litigation, the inconvenience of the federal forum, the desirability of avoiding piecemeal litigation, the order in which jurisdiction was obtained, and whether state or federal law will provide the basis for the decision. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).
With this background in mind, the court turns to the present case. In the course of its analysis the court considers both doctrines together, noting where necessary the distinctions between the doctrines.
At the outset, defendant must show that there is an unsettled issue of state law. Defendant asserts that the law in question here is the SIP and that the SIP is state law. Defendant argues that SIP is state law because the state promulgated SIP and a state agency administers it. The court disagrees.
Before the EPA adopts the state's plan, the state is free, subject only to the provisions of the Act, to determine a mix of emission limitations. When the EPA approves the state plan, however, the plan is absorbed into federal law. The state may reconsider parts of the plan and prepare modifications and alterations, but those modifications and alterations are not part of the plan until they are approved by the EPA. Additionally, if a provision of the plan were subject to two possible interpretations, the interpretation given to the provision by the EPA is the proper interpretation. This is because the other interpretation was not approved by the EPA and did not properly become a provision of SIP. Consequently, SIP, after it is adopted by the EPA, is federal law.
Further support for the holding that SIP, once approved by EPA, is federal law is found in the fact that the Act gives the federal district court subject matter jurisdiction over this case to enforce SIP. As jurisdiction of the federal court is not based on diversity of citizenship, it must be grounded on federal question jurisdiction. SIP, the regulations which EPA seeks to enforce, must be federal law.
Even if SIP were state law, the court does not believe that any unsettled legal issues exist. Defendant argues that "the question is unsettled because neither the PEHB nor the state judiciary has interpreted section 129.53 with reference to the internal policies upon which DER relied denying [defendant's] bubble application." Defendant's brief at 9. Regardless of the existence of DER's internal policies, however, as a matter of law, the only fair reading of SIP, applying the most rudimentary principles of statutory construction, is that § 129.53 does not provide a standard which is alternate to the § 129.67 standard.
It is a fundamental rule of construction that regulations will not be construed in such a way as to make some regulatory language unnecessary. Here, if the regulations were read as defendant contends, the court believes that the provision which applies generally to the emissions rate of surface coating and graphic arts facility, § 129.53, would swallow up the provision which applies specifically to emissions of volatile organic compounds into the outdoor atmosphere in quantities greater than 1,000 pounds (460 kilograms) per day or 100 tons (90,900 kilograms) per year by facilities with rotogravure and flexographic printing presses emitting VOCs by themselves or in combination with any surface coating operation. § 129.67. Thus, if defendant were correct, § 129.67 would be nugatory. Consequently, defendant cannot be correct. Section 129.53 cannot be an alternative to § 129.67. Whether or not DER has an internal policy, the interrelationship of § 129.53 and § 129.67 is clear and not unsettled.
Finally, even if defendant were correct that unsettled issues of state law were before the court, a stay would still be inappropriate here under either the Colorado River doctrine or the Pullman doctrine. The appeals before the PEHB do not appear to be an item of high priority to the PEHB. They have been pending since November 15, 1984, and no decision is expected before the end of this year. After that decision is rendered, both parties have a right of appeal to the Commonwealth Court of Pennsylvania. Therefore, no authoritative decision by a state tribunal appears imminent.
Accordingly, defendant's motion for a stay will be denied. An appropriate Order will be entered.
AND NOW, TO WIT, this 30th day of April, 1986, for the reasons stated in the accompanying Memorandum, IT IS ORDERED that defendant's motion to stay is denied.