United States v. Continental Group, USA, Civ. A. No. 84-C-886.

• Citation: 595 F. Supp. 1021
• Decision Date: 17 October 1984
• Docket Number: Civ. A. No. 84-C-886.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: UNITED STATES of America, Plaintiff, v. The CONTINENTAL GROUP, U.S.A., d/b/a Continental Can Company, U.S.A., Defendant.

595 F. Supp. 1021

UNITED STATES of America, Plaintiff, v. The CONTINENTAL GROUP, U.S.A., d/b/a Continental Can Company, U.S.A., Defendant.

Civ. A. No. 84-C-886.

United States District Court, E.D. Wisconsin.

October 17, 1984.

Allen W. Williams, Jr., Mark A. Thimke, Attys. at Law, Milwaukee, Wis., for defendant.

F. Henry Habicht, II, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., Mary Ellen Leahy, Environmental Enforcement Section, Land & Natural Resources Div., Dept. of Justice, Washington, D.C., Anne Swofford, U.S. Environmental Protection Agency, Chicago, Ill., for plaintiff.

DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a civil action under § 113(b) of the Clean Air Act ("the Act"), 42 U.S.C. § 7413(b). Federal jurisdiction derives from 28 U.S.C. § 1345 and 42 U.S.C. § 7413. Presently before the Court is the defendant Continental Can Company's ("Continental's") motion for a stay of proceedings. The motion will be denied.

Continental operates a food and beverage can manufacturing plant in Glendale, Wisconsin. In the process, coatings, varnishes and end seam compounds are applied to the metal used in the manufacture of the cans, to ensure that the cans are properly sealed and that the contents of the finished can do not come in contact with the metal. For ease of application, these coatings, varnishes and end seam compounds are dissolved in a blend of liquids that later evaporates into the atmosphere and generates emissions of volatile organic hydrocarbons ("VOCs"). The interaction of VOCs and oxides of nitrogen following exposure to strong sunlight creates ozone.

Congress passed the Clean Air Act Amendments to enhance local efforts to abate air pollution. The legislation creates a strong federal enforcement presence, reflecting federal concern that progress towards meeting abatement goals not be delayed. See H.R.Rep. No. 294, 95th Cong., 1st Sess. 2, 53-57, reprinted in 1977 U.S. Code Cong. & Ad.News 1077, 1079-80, 1131-36. Under the Act, as amended, state agencies are to develop State Implementation Plans ("SIPs"), which include emission limits, schedules and timetables for these limits, and other provisions calculated to ensure the timely attainment and maintenance of the national ambiant air quality standards set by the Environmental Protection Agency ("the EPA"). The SIPs are submitted for EPA approval. 42 U.S.C. § 7410(a). The EPA retains power independently to promulgate a SIP if a state fails to do so or does not submit one that is adequate. 42 U.S.C. § 7410(c). States may revise their SIPs, but only after EPA approval is sought and obtained. 42 U.S.C. § 7410(a)(3). Once a SIP is in effect, its terms can be enforced by the federal government or the states. 42 U.S.C. §§ 7413(b), 7416.

Administration of Wisconsin's approved SIP was undertaken by the Wisconsin Department of Natural Resources ("the DNR"). In 1979, the DNR adopted rules regulating the emission of VOCs from the can manufacturing process. Wis.Admin. Code § 154.13(4)(c)1.-2. NR 633 (1983). The DNR also has adopted a regulation whereby a manufacturer may submit an alternate compliance plan in the event that federal regulatory approval procedure delays compliance with the SIP's emission limits. Wis.Admin.Code § 154.13(12)(e)2. NR 646-10 (1984).

Continental responded to the DNR's regulatory efforts by submitting on August 27, 1979, an alternate compliance plan request. Continental therein stated its intention to develop new coatings and end seam compounds with a low VOC content. Because these compounds come in contact with the contents of the cans, they require the Food and Drug Administration's ("the FDA's") approval. Continental stated its intention to achieve final compliance with the DNR regulations by December 31, 1985. The DNR has not made a formal decision on Continental's request.

From the time it made its request for an alternative compliance plan, Continental has devoted approximately 50,000 man-hours to development of new low-VOC coatings and end seam compounds. However, Continental asserts that it will not be able to comply with the DNR's final emission limits before the end of 1985, due in part to testing by the FDA and by Continental's customers.

On October 28, 1983, the EPA issued a Notice of Violation to Continental pursuant to 42 U.S.C. § 7413(a), for generating VOC emissions in excess of the limits permitted under DNR regulations governing can coatings and end seam compounds. The present action was filed on June 29, 1984.

In support of its motion for a stay, Continental seeks...