United States v. Alcan Foil Products Division of Alcan Aluminum Corporation, and Third-Party Atlantic Richfield Company, Third-Party

RYAN, Circuit Judge,

concurring.

My brother’s excellent opinion resolves, correctly I think, at least two very difficult issues. While I concur in the court’s judgment, I write separately because I am uncomfortable with the court’s description of the criteria to be considered by the district court upon remand, and presumably by other courts in like cases hereafter, in determining the remedy that may be imposed in an enforcement action brought by the government under 42 U.S.C. § 7413 (a) in which the alleged polluter previously filed a proposed revised SIP with the Environmental Protection Agency.

The majority opinion rejects as unwarranted the remedy formula adopted for such cases in the Fifth and District of Columbia Circuits, American Cyanamid Co. v. U.S.E.P.A., 810 F.2d 493 (5th Cir.1987), and Duquesne Light Co. v. E.P.A., 698 F.2d 456 (D.C.Cir.1983). It subscribes instead to the second prong of the remedy adopted by the First Circuit in United States v. General Motors Corp., 876 F.2d 1060 (1st Cir.1989).

While I have considerable reluctance to tell the district court on remand, and implicitly, district courts faced with similar cases in the future, what may and may not be considered in determining appropriate penalties for a proved violation of § 113(a), I must confess that Congress’ failure to address the situation that has arisen in this case leaves us no alternative. I agree with my brothers that we are duty bound to fashion a remedy formula in a case of this kind, particularly given the diametrically opposite enforcement formulae spelled out in the cited cases from the Fifth and District of Columbia Circuits. Moreover, I agree that of the choices suggested to us, the approach devised by the General Motors court makes the most sense and most nearly conforms to the language of the statute and the apparent intent of Congress.

I write separately, however, because the majority opinion’s description of the process and criteria for the assessment of penalties and remedies for a § 113(a) violation where a proposed SIP revision is pending, seems to focus, inappropriately in my judgment, more upon the question of the alleged polluter’s compliance with the proposed SIP revision than with the existing SIP, for violation of which the § 113(a) action was brought in the first place.

According to the majority opinion, when the government files a § 113(a) action against an alleged polluter which defends on the theory that it is in compliance with a proposed revised SIP, the question of penalties, if any, is determined substantially, if not entirely, by litigation about whether the polluter has complied with the proposed revised SIP:

If the source does not establish that it is in compliance with the proposed revision, the court may assess penalties from the date of the notice of noncompliance. If the source demonstrates that it has met the standards of the proposed revision, the government has the burden of justifying EPA’s delay in acting on the proposal. The court must then balance the reasonableness of the delay against whatever prejudice the source is able to establish. This balancing will determine whether a civil penalty fine is proper and, if proper, whether the fine will commence with the date of notice of noncompliance, the date of final action on the proposed SIP revision, or some date in between.

At 1521.

While the foregoing is a quotation from only a portion of the majority opinion, it embodies the essence of the court’s instructions to the lower court on remand, and presumably to all district courts that will address cases of this kind in the future. The difficulty it seems to me is that the court’s opinion describes a procedure for determining appropriate penalties for noncompliance with a proposed revised SIP that has no legal efficacy whatever, and appears to completely lose sight of the fact that the government’s enforcement action *1523 is all about an alleged violation of an existing SIP — not some other, and one can be sure, different and less burdensome, SIP the alleged polluter wished were in place.

Perhaps it is merely a matter of emphasis, but I prefer the description of the remedy determining process as set forth in General Motors, because there it appears to be emphasized that the business at hand is a determination whether the existing SIP has been violated and what penalties should follow therefrom if it has. With that as the primary emphasis, the General Motors’ court observes, almost as an aside, that in determining penalties the district court is warranted in taking into account “other factors” among which is the reasonableness of the government’s delay in acting upon the alleged polluter’s proposed revised SIP.

The General Motors court said:

When the Agency brings an enforcement action under § 113, the district court has the responsibility for determining the amount of penalties to assess. The Act expressly permits the court to “take into consideration (in addition to other factors) the size of the business, the economic impact of the penalty on the business, and the seriousness of the violation.” § 113(b). The EPA agrees that, among these “other factors,” the court may consider the reasonableness of the Agency’s delay and the prejudice, if any, suffered by the company as a result. If, for example, a trial court finds that the review process should have taken ten months rather than two years, it may decline to award penalties for the fourteen months of unwarranted delay. (Emphasis added.)

876 F.2d at 1068 .

I do not suggest for a moment that my brother’s opinion does not faithfully restate the remedy formula announced in General Motors in a way that is relevant to the case at hand. I suggest only that the text of the majority opinion should not be read as adopting a rule for this circuit that the way for a polluter to avoid penalties for an out-and-out violation of an existing SIP is to file a proposed revised SIP “wish list” and then when a § 113(a) enforcement action is brought, file an affirmative defense alleging compliance with a proposed revised SIP and take comfort that the enforcement litigation will have to do with compliance with the proposed SIP and not the existing one.

Why a proven polluter should not be appropriately penalized for a violation of an existing SIP, simply because it has complied with a proposed SIP that it wished had been adopted and the agency has not adopted, is difficult for me to understand. 1 Perhaps the answer is that it will “sufficient unto the day” when we are presented with a district court enforcement decision in which the government attempts to demonstrate that the district court erroneously failed to keep its eye on the ball that was in play instead of the one the “source” wished were.

In all events, I concur in the court’s judgment that the summary judgment was improperly entered in this case and that the matter must be remanded for further proceedings.

. In this case for example, when the EPA got around to acting on the appellant’s proposed revised SIP it was disapproved.