Nuooer 10 November 12.1985

EPA Authority to Enforce the SIP

Attached is a copy of a recent U.S. District Court decisioJ) (U.S.A.VS SCM Corporation) which upholds the right of the federal EnvironmentalProtection Agency to take enforcement action against a source for violatingState Implementation Plan requirements even when a state has alreaqy enteredinto an administrative consent order with the company which provides forcorrective action and penalty assessment.

The company (SCM) had argued that the consent order 'precludedprosecution to enforce the same SIP violations addressed by thAt order. Inrejecting SCM's motion to dismiss EPAls suit against the company, the U.S.District Court of Maryland found that exceptional circumstances are.requiredto support a stay or dismissal of federal action. In rendering its decision,the court opined that Congress, in enacting stiff penalties for air pollution,did not mean to have those penalties subject to nullification by the state.

For answers to your questions, calDivision at (800) 952-5588.

the Air Resource Board Compliance

u.s. II. SCM- Corp. 23 £iC 1(»1

~rore Nonnan P. lla.mKy, DistriCtJudie.

FtJl T ex' 01 0";,,I0Il

u.s. v. SCM CORP.

u.s. Diatnc1 Co.II1District or Maryland

UNITED STATES OF AMERICA,Plaintiff, Y. SCM CORPORATION,Defendant, No. R.85.09. August 12,1985

AIR

Frderal, Mate, and local ~ulation -AdD\iai.trativ~ alencin - Judi-cial r~view - In I~n~ral(§48.6811)

Court jurisdiction aad procedure -ConaeDt decrees (1.sI.65)

(I) Consent agreement betweenMaryland Department of Hcalth andMcntal HYliene and SCM Corp. in-volving rompany's alleged violations orClean Air Act emission standards docsnot prC'clude Environmental ProtC'ctionAgcncy from suing company in federalcourt to SC'ek pcnaltiC'S for violations, be.causc: (J) EPA has right undcr Act toscek penalties in court for violations; (2)

court was DOC involved in agrC'emcnt,which prcvcntcd EPA from having illclaims rcsolwd; and (3) Congress didnot intcnd to allow !talc administrativeactions to prccludc rederaJ enrorttmcntof emission standards.

MEMORANDUM

Thil ca~ prescnll the iuue of wheth-er an enforcement action brought on be-half of the EnvironnWontal ProtectionAgrncy punuant to the Clean Air Anshould be dismiascd or Itayed under the"COIOTGtiJ Riwr doctriM" whrre the dr.fendant has entered into an administra-tive consent order with the state agencycharged with enforcing the same stan-dards sought to be mC~ ill the feder-al action.

The United StaIn ~t this actiollagainst the SCM Corpor.aon (hereinaf-ter "defendant" or "SCM") at the re-quest of the Administrator of th~ Envi-ronmental Protection Agency(hereinaft~r "EPA "). The action.brought pursuant to 42 U.S.C.1741 J(b), secks injunctive mid and dieimposition of civil penalties as a result 01defendants allegcd viola t tons of theCI~an Air Act, 42 U.S.C. §7401 ~Il~q,and t~ Sute Implementation Plan ap-proved by EPA pursuant to the Act.

(1) Currenlly before the Coun iISCM's motion 10 dismiss the complaintor to slay the proceedings. Dcr~ndantsmotion is opposcd by the ~ntiff, andthe issues have *n thoroughly bri~redby th~ panies. ~ d~fendants re.quest for a hearing, t~ Coun finds r:vi-dence and argument unnecessary andnow d~nies defendant's nlOtion for thereasons stated belo~'. Se, Local Rule 6(D. Md. 1985).

I. INTRODUCTION

STA~

Federal - C1~.n Air Act - Stat~ im-pl~lDC...tion plana (195.0313)

FedcnJ - DeaD Air Act - Judicial'revicw (195.0317)

ConslnKd.A. Statutory Fra~work

Thc Clun Ajr Act (hcrcinaftcr "thcAct"), 42 V.S.C. 17401 el l'q., cstab-lished program5 for pollution control in-vol,'ing 5tatC' and local govcrnmenls aswcll as thc EPA. The Act provides, inl~alia, that the EPA e5tabli5h primary and5eCOnUry "national ambiC'nt air qualitystandards" ("NAAQS") for air pollu-tants having an .dYCr5e impact on publichealth or wcJrarr..1 42 V.S.C. §7409.

On SCM Corp.'s motion to dismissEnvironmcnw Pro'cCtion Agcncy's suitagainst it for allcgcd violations of CleanAir ACt; motion dcnicd.

GI~nda G. Gordon, Ass't U.S. Atty.Baltimore, Maryland; Jarnrs M. Baker,Philadclphia, Pcnnsylvania; Judith Katzand Elf~n M. M~han, Washington,D.C., for plaintiff Unitcd Stat~s ofAmerica.

Charles Lettow, Washinlt°n, D.C.;JOltph S. Kaurman, Bahimorc, Mary-rand; and Samucl Fricdman, Ncw York,Ncw York, for dcfcndant SCM Corp.

I Primary NAAQS an I~ "~ui~ toprolrct Ihr public hrallh"; s~cond.r,.NA...QS arc lhov "requisjl~ to protect thepublic "'rlr~rr." 42 U.S.C. §7409(b)

--

n ERC 1082 U.s. u. SCM Corp.

Thc ACt also ~uircs that Qch stateadopt and submit to thr EPA a "StateImplrmrntation Plan" ("SIP") to attain~nd maint~in the frderally promulgatrdNAAQS. 42 V.S.C. §7407 and 7410. Ifa state fails to submit a plan which sat-isfies the ACt's ~uirements, EPA is au-thorized to adopt ~ substitute SIP for thcarea involved. 42 V.S.C. §7410(c). If thestate-adoptrd SIP satisfies the require-mentS of thr ACt, it is approvrd by theEPA and may, thereafter, be enforttd byboth thr statr and the EP A.

If the EPA finds that a penon is inviolation of a federaJly approved SIP,the EPA must give notitt to both theallegrd violator and to the state. If theviolation extrnds beyond thr thiniethday following the ~uired notification,the EP A may order oompliance or bringa civil enforttmrnt aCtion. 42 V.S.C.§7413(a)(J). Such a civil aroon may bebrought in the distriCt coun of thr Vnit-ed States for the distriCt in which theviolation occurred, and the coun shallhave jurisdiCtion to restrajn the viola-tion, to ~ujre complj~, and to assesscivil penalties of up to 125,000 per dayof violation. 42 V.S.C. §7413(b). If theCoun finds that thr civil rnforcementaCtion was unreasonably brought, it mayaward defending panies thr oosts of liti-gation, including attorney and expenwitness fees.[d.

~

In 1972, the EP A promulgated pri-mary and secondary NAAQS for panic-ulate matter and other air pollutants. See40 C.F .R. l1SO.6, and SO. 7. Followingthe promulgation of those standards,Maryland adopted and the EP A ap-proved a Maryland SIP which is pub-lished in the Code of Maryland Regula-tions (COMAR) and in the Code ofFederal Regulations. See COMAR10.18.06; 40 C.F .R. Subpart V1152.1070-52.1117. The Maryland SIP,in peninent pan and with exceptionsnot he~ ~Ievant, prohibits the dischargeof paniculate matter in amounts greaterthan 0.03 grains per dry standard cubicfoot of exhaust gas, COMAR10.18.06.038(2)(a) (hercinafter the"paniculate-mattcr standard"), and fur-ther prohibitS the aDission of suJfuricacid milt in a conttntration greater than70 micrograms per cubic meter of ex-haust 18s. COMAR JO.18.06.05c(2)(th~ "sulfuric-acid standard"). The vio-

lation of thew provisions of the Mary-land SIP is allqed in the case at bar.The Maryland "SIP also prohibits thedischarge of emissions, other than waterin an uncombined form, that are visibleto human obscrverl. COMAR.10.18.06.02B (the "vilible-emissionstandard").

The Slate of Maryland has also en-acted air pollution control laws whimarc codified in Tille 2 of Md. HcaJth-Environmental Code Ann. (1982). Un-der Maryland law, the state's Dcpan-mentor Health and Mental Hygiene(hereinafter "the Department" or "thestate agency") is required to establishstate ambient air quality standards iden-tical to the federal standards unlcss apolitical subdivision requests a more re-strictiv~ standard. §2-302(c). Th~ Dc-panment must also adopt emission stan-dards to attain and maintain the ambientair quality standards. f2.302(d). TheDepanment may adopt other rules andregulations for the control of air pollu-tion. §2-301 (a).

Under the enforcement provisions ofthe Maryland law, the Departm~nt mayissue show cause and co~v~ orders,§§2-602 to 608, or bring enfon:cmcntactions to enjoin alleged violations andimpose civil penalties. f2-609(a). TheDepartment may recover in an enfo~-ment action brought in the circuit «»urtfor any county up to 110,000 per viola-tion per day.1 f2-610(a). AJI proceed-ings under the Maryland air qualitycontrol law arc to be brought by theDepartment, and "(nJo person otherthan [the) State acquires actionablerights by virtue of (that law)." §2-106.

B. F«tV4l Boci.l7VImd

Dcfen~t SCM operates the AdrianJoyce Works in Baltimore, Maryland, atwhich plant defendant manufactures ti-tanium dioxide, a white pigment used inpaint, plastics, paper and othermaterials.

In May of 1982, the state agency con-ducted emission tests at defendant'splant. On january 5, 1983, a Notice ofViolation and Show Cause Order was

. Compare the provisions of the federalACt whidl provides for civil penalties 01 up toS2S.(xx) per day of violation. 42 V.S.C.t74'3(b).

Thr Act allO rrquires that rach stateadopt and submit to the EP A a "StateImplementation Plan" ("SIP") to attainand maintain the federally promulgatedNAAQS. 42 U.S.C. §7407 and 7410. Ifa state fails to submit a plan which sat-isfin the Act's requiremmu, EPA is au-thorized to adopt a substitute SIP for thearea involved. 42 U.S.C. f7410(c). If thestate-adopted SIP satisfies the require-mentS of the Act, it is approved by theEP A and may, thereafter, be enforced byboth the state and the EP A.

If the EPA finds that a penon is inviolation of a federaJly approved SIP,the EPA must give notice to both thealleged violator and to the state. If theviolation rxtends beyond the thirtiethday following the rrquired notification,the EPA ~y order oompliance or bringa civil enforcement action. 42 U.S.C.§7413(a)(1). Such a civil action may bebrought in the district court of thr Unit-ed States for the district in which theviolation occurred, and the court shallhave jurisdiCtion to restrain the viola-tion, to require compliance, and to assesscivil penalties of up to $25,000 peT dayof violation. 42 U.S.C. §7413(b). If theCourt finds that thr civil mforcementaction was unreasonably brought, it mayaward defending panies the COltS of liti-gation, including attorney and expertwitness fees.Jd.

(

lation of these provisions of the Mary-land SIP is alleged in the case al bar.The Maryland SIP also prohibits thedilCha~ of emissions, other than waterin an uncombi~ fom\, that are visibleto hum all observers. COMAR.10.18.06.0:!B (the "visible-emissionstandard").

The State of Maryland has also m-acted air pollution control laws whidlarc codified in Title 2 of Md. Health-Environmental Code Ann. (1982). Un-der Mary~ law, the State's Depart-ment of Health and Mental Hygiene(hereinafter "the Depanment" or "thestate agency") is rcquired to establishstate ambient air quality Standards iden-tical to the federaJ standards unless apolitical subdivision requests a more rc-strictive standard. §2-302(c). The De-paMment must aJso adopt emission stan-dards to attain and maintain the ambientair quality Standards. f2-302(d). TheDepartment may adopt other rules andregulations for the control of air pollu-tion. §2-301 (a).

Under ~ enforcement provisions ofthe Maryland law, the Depanment mayissue show Quae and corrective orders,§§2-602 to 608, or bring enforcementactions to enjoin aJleged violations andimpose civil penalties. §2-609(a). TheDepartment may recover in an cnforu-ment action brought in the circuit muMfor any muntf up to 110,000 per viola-tion per day. 12-610(a). AJI proceed-ings under the Maryland air quaJitycontrol law are to bc brought by theDepanment, and "(nJo penon otherthan (the] State acquires actionablerights by viMue of (that law]." §2-106.

In 1972, the EPA promulgated pri-mary and secondary NAAQS for panic-ulale matter and other air pollutants. Se~40 C.F.R. 1150.6, and SO.7. Followingthe promulgation of those standards,Maryland adopted and the EP A ap-proved a Maryland SIP whim is pub-lished in the Code of Maryland Regula-tions (COMAR) and in the Code ofFederal Regulations. S~e COMAR10.18.06; .0 C.F.R. Subpart V1152.1070-52.1117. The MaryJand SIP,in peninent pan and with exceptionsnot here relevant, prohibits the dischargeof paniculate matter in amounts greaterthan 0.03 grains per dry standard cubicfoot of exhaust gas, COMAR1 0.18.06.038(2)(a) (hereinafter Ihe"paniculate-matter standArd"). and fur-ther prohibitS the emission of sulfuricacid miSt in a concentration greater than70 mi~ams per cubic meter of ex-haust p. COMAR 10. 18.06.0Sc(2)(thr. "sulfuric-acid slandard'J. Thr. vio-

B. FoctUGi ~u"d

Defendant SCM operates the AdrianJoyce Works in Baltimore, Maryland, atwhich plant defendant manufactures ti-tanium dioxide, a white pigmcnt uscd inpaint, plastics, paper and othermaterials.

In May of 1982, the state agency con-ducted emission tests at defendant'splant. On January 5, 1983, a Notice ofViolation and Show Cause Order was

I Compan 1M provisions of 1M federalAct wNdl p _ides for civil penaJU8 ol up to125,000 pel' day of violation. 42 U.S.C.§7413(b).

within th~ months submit. MW planprovidjng for fuJl compliance by July I.1986, subjeCt, however, to cznain ripurarrved to tht amtpanyj. (4) for Stipu-lated pcnaJry paymenu if the oompanyfails to inltaJl the D~W equipment by thedata specified; and (5) for 1M paymentby SCM of a "mmpromix civil ptna1-ty" in the amount of 15,000 and a dona-rion to the Johns Hopkins 1Jnivenity inthe amount of 110,000 to be used formnsulting IerYica to the lUte agency.

As noted above, th~ United Statcbrought this action, at the ~uct of thtEPA, on January 2, 1985. Plaintiffseeks injunctive relief and tht impositionor civil penalties under the Clean AirACt. Th~ complaint, predicated upon thtfederaJ NOticz of Violation issued inApnl of 1984, alleges that the axnpanyhas continued to violate the sulfuric-acidand parUcuJate*matter standardl in thtoperation of Kilns No.2 and 3 for monthan thirty days after the issuance of thrNotia. of Violation.

II. DISCUSSION

As discussed in Section I-A above, thrClean Air ACt requires a lUte to adopt aStatt Implemcntation Plan (SIP) whidlwiJJ satisfy thc NationaJ Ambient AirQuaJjty Standards (NAAQS) promul-gated by the EPA pursuant to the ACt.Oncr an SIP has been apflroved by thtEPA, as Maryland's has, It may be en-forttd by the EP A as well as the state.Maryland law similarly provides for en-forttment of the lUte s SIP and otherpollution contrOl regulations in statr ad-

issued to defendant by the state 18rfK"Y.The notitt alleged, baled on the May1982 testS and obsrrvations, that defen-dant was in violation of the statr's par-ticulate-matter, sulfuric-acid, and visi-ble-emission standards. Defendant wasinformed by that notice of sanctionsavailable under the HeaJth-Environmm-tal Anicle of the Maryland Codr, andwas orde~ to show cause why a oorrec-tive order should not issue. Discussionsensued between the company and thestate qrncy regarding the reliability ofthe testing procedures and whcther de-frndant's facilities were in fact in com-pliantt with the state standards.

MeanwhiJe, on April 20, 1984, theEPA issued a Notice of Violation to thedefendant company baird on tests con-ducted in December of 1983. The feder-al notitt alleged that defendant was inviolation of the sulfuric-acid and panic-ulate-matter standards in the MarylandSIP which had been federally approvedpursuant to the Clean Air Act. The al-leged violations concerned the operationof ca;icinin. Kilns No.2 and 3 at defen-dant s Adrian Joytt Works. The nOtittalso informed defendant of enforcementactions which could be taken pursuant tothe federal Act if the violations oontin-ued more than thiny days following theEP A notification.

In December of 1984, the state agency~nd the oompany reached an agreementto enter a consent order with regard tothe st~te's notice of violation. The EPA,aware of the agreement, brought this ac-tion on January 2, 1985. The ConsentOrder between the State agency and thecompany was executed and effC(:tjve onJanuary 7, 1985.

The Consent Order entered by the de-fendant and the State agency, while pre-serving the parties' respective positiorlson the issues of compliance and test va-lidity, provides in pan: (1) for the instal-lation of cenain equipment by SCM onCalcining Kilns No. I, 2, and 3 by De-cember 15, 1985; (2) for the perform-ance of stack tests J for Kiln No.1 byApril 30, 1985, and for Kilns No.2 and3 by December 15, 1985; (3) that in theevent that the stack tests fail to demon-strate compliance, the oompany shaJl

. If the suck lestS rail to demonstr2te

~pAiance,UK Company raerva Ihe "ChIS (a) todIal\enge the Dcpanmeat's position re-carding mnditions Cor the tat, (b) 10 peti-liOD Cor a nile atablishins differenl lestaJOditions, (c) to IXtiUon Cor a regulationamendment that would relax Ihe applica-ble emission standanis, or (d) a combina-~ of the forqoins. If Ihe s1ack test forCaJincer No. I demonstrates a si~fiantimprovcmenl resulting in substanual com-pliance with Ihe Dcpanment's standards,then Ihe Depanlrlent may require IheCX)Inpletion of Ihe improvemmls Cor lhestaB on C&Jciner Nos. 2 and 3 P"Jvidedthat the nepanmml will initiate a regula-tion ~t that would rdax UK ap-plicable emissial standard.

ConSCDt Order at p. 8.

'A stack test is a physical samplins andanalyzing of the gas stream in an emissionstack. It is used to detennine Q)mplia~with the sulfum-8ad mill and paniallate-matter standards at illue in this caK.

23 EI. C t C»4 u.s. II. SCM Corp.- - -

« minisuativc proc:eedinp and lute-counactjoos.

This aCtion il brousht by the EPAunder the federaJ Act to enfon:e theEPA-approved SIP. Defendant nowmova this Coun to diamjss or luy theaction be:cauR of the adminisuauve con-lent order agreed to by defendant andthe state asency. The COntent order wasmade sublequent to the isa~u orEPA'I Notitt of Violauon aud Dearlylimul~ to the bringing or the in-l\ant federal action. The adminisU'ativeconsent order, and the underlying luteviolation notitt, concern, Inter aJi4, theaJleged violauon of Maryland's SIPwhidl arc the subjeCt of the present fed-eral enforccment action. Defendant ar-gues ~t the state administrative consentorder precludes, at least for the present,the pro.ecution or this action to enforcethe same SIP violations addressed bythat order.

At the outset, it may be well to notethe grounds upon which the defendantdocs not ~Iy. Defendant docs not aslenthat this Coun Jacks jurisdiction oyer theinstant case, or that plainuff has failedlO meet any or the statutory conditionsprettdent for the bringing of the action.Defendanl docs not suggest that thisCoun should refrain from exercising itsjurisdiction under one or the traditionalabstention. dOctrines.' Nor docs the de-fendant contend that plaintiff's action isbarred by issue or claim preclusion, thetwo brandies of the dOctrine of resJudicQJD..

Instead, defendant SCM urges thatthe Coun should diamju or stay this ac-tion under lhe doctrine or Colorado Rive-rWQlc CorasmJ4Jaon District u. United SI4t~s,424 U.S. 800 (9 ERC ]076) (1976). Dc-fendant maintains that this Coun shouJdfollow the District or Delawan whichrelied upon the CoIorGdo River doctrine toStay an EP A action under the CleanWater Act, 33 U.S.C. 1125] ,., s~q.. inUnited SlGles u. c."gill, Inc., 508 F.Supp.734 (]5 ERC ]76]) (D. Del. 198])(Latmum C.].).

ID CoIorodo River, the United Statesbrought an action in fedcraJ coun, on its

own bd\aJr and on br:haJf of acveral In-dian tribe:s, ~ins adjudication of wa-teT riShu ba.ed on federal and Itatc law.One oC the ddcndanu in that suit there-after M>ught in state oourt to make theUnited Stain a party to water-right pro-ceedings in stAte oourt, which proceed-inp aft held on a oontinuous basis. Theltatc-a»urt application by the fedcraJ-suit defendant M>ught to make the Unit-ed States a S\ate-coun party for the pur-~ of theft adjudicatins all the claimsof the United S~tcI, both sute and fed-eral, pun~t to the McCalTan Amend-ment' which provides the consent ofthe United S~tcs to suitS againSt it ins~te courts oonceming water righu.

After the United States was servedwith process in the statc-cnurt actionpun~t to the McCalTan Amendment,defendants in the federal action broughtby the United States moved to dismissthat aCtion on the ground that the redcr-al court was without jurisdiction in lightof the McCanan Amendment. Withoutreamms the jurisdictional questjon. theDistrict Court granted defendants' mo-tion to dismiss on the basjs of the ab-Stention doctrine. The Tenth Circuit re-versed, holdins that jurisdjroon wasproper and abstention inappropriate..The suprcmc Court rnerscd the Courtof Appeals and held that the DjstrictCourt's dismissal was justified, albeit fordifferent reasons than those relied u~nby the District Court.

Justice Brennan, writing for six mem-bers of the Court, held first that theMcCaJTaD Amendment in no way di-mjnished federal jurisdiction under 28U.S. 11345 or 11331.' Colorado River,424 U.S. at 809. That Amendment, heldthe Court. did allow concurrent jurisdic-tion OYer the water righu jn questjon inthe state court. Id. at 809-81 3. TheCoW1 next held that although dismissalcould not be supported on the baus ofany traditional form of the abstentiondoctrines, id. at 813- 1 7. dismissal wasjustified nonetheJess on the basis of"principla governing the contem~ranc-OUt exercise of oonalrrcnt jurisdiction."Id. at 817-21.

The principles governing contempora-neous exercise of concurrent jurisdiction

. Th~ traditional ablt~ntion doctrin~1w~ discussed in C«orado Ri,.,. WOlIF ~-I8lJIIII Din &/. lIIIilldSI4Us. 424 U.S. BOO. 813-16 (1976). .w el.JO H. Han Ir. H. WedtsJer.~ F~ Courts ~ IJ., F~ Sysur.. at9Is.IOSO (2d ed. 1973).

. 43 V.S.C. 1666.'28 U.5.C. 1134~ ~ta federal juris-

dicti~ Oller actions bnlulht by the federalIO¥ernnaeDt. 28 U.S.C. It331 ~.. for* acneral federal-q.-tion jurisdiCtion oJthe redcral _ns.

23 EI.C 1085u.s. v. SCM Co?

a ~te court;' 2) the inconveniencr. or

the federal forum; 3) the desirability or

avoiding piecemeal litigation; and 4) theorder in whidt jurisdiction was obtainedby the conCUrTenl rorums. Id. al 8J9.

In holding that dismissal was appro-friate, the Court relied primarily on'the clear federal JX»licy" mnC2d by theMcCarTan Amendmenl 10 "piecemealadjudication or water rights." Id. al 8J9.The Court found this statutory JX»licy"akin to thai underlying the rule requir-ing that jurisdiction be yielded to thecourt fint acquiring mntrol or proper-Iy.- The Coun also relied uJX»n the ex-tensive involvement in the case or statewater rights, the inmnvenience of Ihefederal forum, and the fact that the fed-eral government was already partjcipat-ing in other stale water-rights procced-ings. Id. at 820. The Court expresslydeclined to decide whether even the ap-plicability of the McCarran Amendmentwould be sufficient to warrant dismissalin the involvement of state water rightswere less extensive or if the state pro-ceedings were in some respect inad-equate to resolve the federal claims. Id.at 820.

The "Colorado RaW'" doctrine" govem-ing situations involving the mntempora-neous exercise or conCUrTent jurisdictionby state and federal muru was clarifiedin Moses H. Cone Memori4J Hospil4l u.Mercury Gonstnachon Corp., 460 U.S. J(J983). In ConI the Court held that theDistrict Coun abused iu discretion instaying a diversity action 10 compel arbi-trauon pending a previously filed state-court aCtion wNdt ~t, ml#r a/iG, adeclaratory judgment that there was noright to arbitration."

The Coun in Cone reiterated that"only the clearest of jusrifications" will

. This "faaor" milht be yjewed as arestatement of the nile requirina a CX)Urt to~(rain from asseninl jurisdiroon over a ,..,over which another cuun bas previouslyas-sumed jurisdiroon. S« Pr1raau udo (I. 7MfIIp-10ft, 305 U.S. 456 (1939).

. For a critique of the Coun's in~tionof this nile in the cimlmstan~ of the ColON-.., Riwr caK. - Justice Stewart's dissent at424 U.s. 821, an-25.

II Juitice BraIDan ~ fm- a six.--her mapity. J~ RchDquist, writinc indissent and pDed by ~ ocha- justices, h8dDO occasion to discua the propriety of theDiStrict Coun's stay onIer inumum as heconclud~ that the stay ord~r was notappeaJablc

art unrelattd to conlidtrations of pro~rconstitutional adjudication or regard forftdtral-itatt relatjons.' Id. at 817. In-sttad, thcy "rat on considtratjons of'{WJiR judicial administration, giving re-gard to conRrvation of judicial resoun:aand comprthenlivt dis~ition of litiga-tion.' ., Id. (quoti~erottSt Mfg. Co. y.Co-O- Two Fire uipment Co., 342U.S. 180, 183 (195 ) (affirming ThirdCircuit decision providing for stay offtderal action in one district in favor of aftdtral action in a seoond district whereall panies' claims could be adjudicattd)].

The principles governing contempora-ntOus exerciR of concurrent jurisdictionart more deferential when both courtsinvolved are ftderal than thty are whena ftderal mun is asktd to stay its handin favor of a state-mun proceeding. Id.at 817. As betwtcn federal muns, thegeneral principle is to avoid duplicativelitigation. Id. A federal coun has broaddiscrction in such. case to stay its hand~nding the outcome of another federalproceeding. See Landis v. Nonh Ameri-can Co., 299 U.S. 248 (1936); Kerotest.supra, 342 U.S. 180.

As between state and federal courts,however, "the ruJt is that 'the pendencyof an action in me statt coun is no barto proceedings concerning the same mat-ter in lht Federal Coun having jurisdic-tion . . .' (citations omitted]. This differ-ence in general approach between state-federal concurrent jurisdiction andwholly federal concurrent jurisdictionstems from the vinually unAaging obli-gation of the federal couns lO cxcrcixthe jurisdiction given them." ColoradoRiver, 800 U.S. at 817. Circumstancespermitting dismissal of a federal suit inthe face of a concurrenl state proceedingfor reasons of wiR judicial adrninistra-lion arc more limited than the circum-stanca appropriate for abstention. Id. at818. The former circumstances must beexceptional and only the clearest of justi-fications can warrant dismissal. Id. at818-9.

In Colorado River, the Coun citedseveral factors which might in somecombination outweigh the obligation ofthe federal courts to exerciR jurisdiction.Thcsc f.cton includt 1) the earlier as-sumption of jurisdiction OYer propeny by

. Compan w abstention dOCtrines di..cusKd in ~ Riwr, 800 U.S. at 813-16,which are based on luch considerations.

a state mun;' 2) the inconvenience ofthe federal forum; 3) the desirability ofavoiding piecemeal litigation; and 4) theorder in which jurisdiction was obtainedby the CODcurTent forums. Id. at 819.

In holding that dismissal was appro-p;riate, the Coun relied primarily on'the clear federal policy" evinced by theMcCarran Amendment to "piecemealadjudication of water rights." Id. at 819.The Coun found this statutory policy"akin to that underlying the rule requir-ing that jurisdjction be yielded to theroun first acquiring mntrol of proper-ty." The Court also relied upon the ex.tensive involvement in the case of statewater rights, the inmnvenience of thefederal forum, and the fact that the fed.eral government was already panicipat-ing in other state water-rights proceed-ings. Id. at 820. The Coun expresslydeclined to decide whether even the ap-plicability of the McC.arran Amendmentwould be sufficient to warrant dismissalin the involvement of State water rightswere less extensive or if the state pro-ceedings were in some respect inad-equate to resolve the federal claims. Id.at 820.

The "Colorado RiveT doctrine" govern-ing situations involving the mntempora-neous exercise of roncurrcnt jurisdictionby state and federal muMS was clarifiedin Moses H. Cone M~oTi4J Hospil4l v.Mercury Constn#tkm Corp., 460 U.S. 1(1983). In Cone the Coun held that theDistrict Coun abused its diSa'etion instaying a diversity action to compel arbi-tration pending a previously filed state-mun action whidl M)Ught, inter alia, adeclaratory judgment that there was noright to arbitration. I I

The Coun in Cone reiterated that"only the clearest of justifications" will

are unrelated to considerations of properconstitutional adjudication or regard forfederal-state relations.' Id. at 817. In-stead, they "rest on considerations of'{ w Jise judicial administration, giving re-gard to conservation of judicial resourcesand comprehensive disposition of litiga-tion.' " Id. [quotiD$.. Kerotcst Mfg. Co. v.Co-O- Two Fire J::.quipment Co., 342U.S. 180, 183 (1952) (affirming ThirdCircuit decision providing for stay offederal action in one district in favor of afederal action in a second district whereall partics' claims could be adjudicated)].

The principles governing contempora-neous exercise of concurrent jurisdictionare more deferential when both courtsinvolved are federal than they are whena federal coul1 is asked to stay its handin favor of a State-a>un proceeding. Id.at 817. As between federal courts, thegeneral principle is to avoid duplicativelitigation. Id. A federal coun has broaddiscretion in such a case to stay its handpending the outcome of another federalproceeding. See Landis v. North Ameri-can Co., 299 U.S. 248 (1936); Kerotcst.supra, 342 U.S. 180.

As between state and federal courts,however, "the rule is that 'the pendencyof an action in the state coun is no barto proceedings concerning the same mat-ter In the Federal Coun having jurisdic-tion . . .' (citations omitted]. This differ-ence in general approach between state-federal concurrent jurisdiction andwholly federal concurrent jurisdictionstems from the vinually unflagging obli-gation of the f~eral courts to exercisethe jurisdiction given them." ColoradoRiver, 800 U.S. at 817. Circumstancespermitting dismissal of a federal suit inthe face of a concurrent state proceedingfor reasons of wise judicial administra-tion arc more limited than the circum-stances appropriate for abstention. Id. at818. The former circumstances must beexceptional and only the clearest of justi-fications can warrant dismissal. Id. at818-9.

In Colorado River. the Court citedseveral factors which might in somecombination outweigh the obligation ofthe federal courts to exercise jurisdiction.These factors include I) the earlier as-sumption of jurisdiction over property by

. This «factor" might be viewed as arestatement of the rule nquiring a oourt to~frain from asserting jurisdiction over a rrsOYer which another CI)Urt has ~ously as-sumed jurisdiction. Se~ Pr1JIass LidD v. Thomp-SOft. 3OS U.S. 4S6 (19~9).. For a a;uque of the Coun's invocationor this rule in the circumstances of the CDImo8-~ Riwr case, ~ JuStice Stewan'. dissent at424 U.S. 821,822-25.

.. J usti«. B~ wrote ror a Iix-a.a1-her majority. Justice R.ehnquist, writins indilKftt aDd .PlDed by tWo ocher justices, hadno ocxasion to discuss the ~ety of theDiStrict Court's Stay order Inasmuch as heooncluded thai th~ Stay order was not

appealable.

. Compare thc abstcntion doctrincs dis-cussed in CoIoro.io RiWT. 800 U.S. at 813-16.which arc based on such considcrations.

warrant dismissal undrr thr CoIorDik1R,veT doctrinr. Id. at 16. That doctrinrdors not rrst on considrrations of ltatr-frdrral comity, but on a balancing of thrfactors discussed in Colorado RIveT, "withthr balancr hravily wrightrd in favor orthr rxrrcisr or jurisdictIon." rd. at 14,16. Thr most imponant factor in thrdrcision to affinn dismissal in ColoradoRIveT was thr drar McCarran Amrnd-mrnt policy to avoid piccemeal adjudica-tion of watrr rights in a rivrr systrm. rd.at 16. In addition to thr four factorsdiscussed in Colorado R,veT. a coun ap-plying thr Colorado RiveT "excrptionalcircumstancrs" trst should considrr thrfact that frdrral law provides thr rulr ofdecision on thr mrrits as a major factormilitating against a stay or dismissal ofthr rrderal action. Id. at 23-26.

In reiterating that rrderal courts havea "vinually unflagging obligation. . . toexercisr thr jurisdiction given them,"'2the Coun made clear that excrptionaJcircumstances are required to suppon ei-ther a stay or a dismissal of thr frdrralaction:

would undercut ltate enfolUment of airpollution control laws; and 3) the bril18-ing of this action in federal coun oontra-venes a congressional intent that statesbe the primary enforcen of federalstandards.

As should be clear from the extendeddiscussion above of the Colorado R,wrand Moses Gone cases, the Colorado RiverdOCtrine docs not give federal couns CQTleblanch,. to decline to hur cases withinth~ir jurisdiction merely because issuesor factual disputes in those cases may beaddressed in past or pending proceedil18sbefore state tribunals. At the outlet, apany invoking the Colorado River doc-trine must demonstrate, beyond "anysubstantial doubt," the existence of par-allel state-coun litigation that will be anadequate vehicle for the complete andprompt resolution of the issues betweenthe (ederal-court parties. Moses Cone,460 U.S. at 28. The facts of the case atbar fall woefully short of meeting thislhreshold requirement.

EPA brings this action seeKing lo im-pose ~bstantial civil penalties under thefederal Act for defendant's alleged viola-tions of the SIP. Plaintiff also sccks in-junctive relief to compel defendant'scompliance. Defendant does nOt, andcannOt, identify what "parallel state-coun litigation will be an adequate vehi-cle" for the resotution of these claimsbrought by EPA. Indeed, there is nopending liligation whatsoever in statecoun to which this Court could defer.')Nor has it been suggested that EPAcould bring an action in state coun toobtain the relief it now seeks under lhefederal Act.

Morcover, the ColorGtkJ Riwr doctrineis only implicated in "situations involv-ing the contemporaneous exercise of con-current jurisdiction" by state and federalcourtS. Goloyado River, 424 U.S. at 817.Defendant concedes that what it deemsthe "parallel state proceedings" have al-ready been concluded." Indeed, defen-dant argues that the present action in-volves a wasteful "relitigating (of) issuesthat have already been resolved in the

. .. a stay is as much a refusal toexercise federal jurisdiction as a dis-missal. When a district coun decidesto dismiss or stay under Colorado Riv-er, it presumably concludes that theparallel state-coun litigation will bean adequate vehicle for the completeand prompt resolution of the issuesbetween the panies. If there is anysubstantial doubt as to this, it wouldbe a serious abuse of discretion togrant the Stay or dismissal at all. (cita-lions omitted]. Thus, the decision lOinvoke Colorado River necessarily con-templates that the federal mun wilJhaving nothing further to do in resolv-ing any substantive pan of the case,whether it stays or dismisses. (cita-tions omitted).

Id. at 28.In this case, defendant argues that the

Colorado River doctrine warranu dismiss-al or, in the alternative, a Stay of thisaction. Defendant maintains that Colora-do River is applicatole because 1) the in-stant action is duplicative and redundantin light of the state agency's consent or-der; 2) allowing this SUil to proceed

I) As discussed above, the state agencyissued a notice of violation to defendant pur-suant to state law. Thereafter, the state anddefendant entered the conKnt acrecmcnt. Noenfon:cment action was ever commenced instale muTt.

.. SCM Memo in Suppon oJ MOtion at27.

., Mos~s Con~, 460 U.s. at 15, quotinaCoJOrDdD Rivef', 424 U.S. at 817, wNch inturn quoted K~st Mft. Co., 342 U.S. at183.

U.S. II. SCM CDrp 23 ERC t~7

I ~te administrativc J Con.rnt Order .'sThus. it is apparent from defenunt'sown contentions that the present case isnot a situation involving the "contempo-raneous exercise of concurrent jurisdic-tion" 10 which the Colorado RIW" analy-sis can be applied.'o

Even if lhe instant case did oonccmthe contemporaneous acmse of ooncur-rent jurisdiction, defendant's reliance onColorado RaW" would be misplaced. It isdear that EP A has a right to ~ inthis Coun at some point its claim thatsubstantial civil penaltin should be im-posed upon defendant for past violationsof the federally adopted SIP." Indeed,defendant argues. in suppon of its re-quest for a stay during perfonnance un-der the administrativc conRnt ordCT.that its "adherence to the tcnns and re-quirements of the {sute] Consent Orderwould surely weigh heavily in thisCoun's assessment of whether an addi-tional penalty should be imposed." Theneed for this COYn to ultimatdy reachthe issue of defendant's liability underthe federal ACt prttludcs any stay or dis-missal under the Colorado RiW" doctrine.As the Supreme Court made dear inMoses Cone, application of the doctrine"ncccssarily oontemplatn that the feder-al coun will bavc nothing furthCT to doin resolving any substantive pan of thecase." Moses Cone. 460 U.S. at 28.

Ignoring the absence from the case atbar of the th~hold ~uircments forinvocation of the Color4do Rlwr dOCtrine,defendant urges the application of thatdOCtrine in order to avoid federal-statefriction and the undennining of thestate's enforcement authority. To the ex-tent that defendant's argument is basedon general nOtions of federalism, it isenough to note that such oonsiderationsarc not pan of the Color4do Riwr analy-sis." It was not a aencralized conczrnfor oomity, but rather the specific lan-guage of the McCarran Amendmentwhich was the basis for decision in C0lo-rado Rlver.I' This Coun finds no similarexpression in the Clean Air Act of aoongressionaJ intent to allow state ad-ministrative actions to preclude federalenforcement of federal standards.

In suppon of its contention that thelanguage of the Clean Air Act prcdudcsthe bringing of the instant action, defen-dant leaps from the premise that the Actoontemplates state enfo~t to theconclusion that state enforcement banany action by the EPA to enforcr feder-ally adopted standards. That conclusionfinds no suppon in logic or the statute.

Congress provided that the EPA maybring actions in the federal muns to en-force federally approved SIP's. Congressfurther provided for federal civil penal-ties of up to 125,000 per day of viola-tion. 42 U.S.C. §7413. This enforcementscheme, and the significant penaltiesCongress intended to impose upon airpolluters, would be nullified under de-fendant's view of the law.

According to defendant's analysis, anyenforcement action brought by a Stateagency would preclude federal action toenjoin or punish the same violations.Th1JI, if a state adoPled an SIP whichwas later federally approved, the staleoould nullify federal enforcement simplyby adopting and using a state enforce-ment scheme whidt provided for mini-mal penalties. This Coun docs not ~-licve lhat Congress, in enacting stiff

.1 The Co/qrodo Riwr principles whi~lovem in situations involving the contempo-raneous exercise of ooncu~t jurisdictionsan "unnlatrd to considerations ol pr1)~rconstitutional adjudication and reaard f«rrderal-Stale nlations." ColM8do RUIn', .2.U.S. al 817. See aI~ "'OKS Cone, IVpr-, ~U.S. .1 14-15 (unlike &t.tcntion, the ~Riwr ~nc does -- rat on ~Iidaoau-of Stau-rcderal comity).

"Moln C-, ~ U.S. at 16.

IJ SCM Memo in Suppon of Motion at

33..6 Thr rffra of a I1naJ drcisioa by onr

tribunaJ upon issues or claims subsrqucntlyraiscd in anothcr tribunal is govcmcd by Wtraditional doctrina of i.ur and claim prc-clusion. Thc p~usivr rffrct of statc-<oundccisions in subscqucnt fcdcral actions is Sta-tutorily dcfincd in 28 lJ.S.C. 111738-1739.

Dcfcndant does not urJe that CDIlatcral cs-to~ is a bar to thc insunt suit but instcadrclin IaIcly upon thc CoIoroIa. Raw.. doc:trinc.SCM Rcpiy M~ at S-6 D. S.

"' Drfcndant apparrntly contrst, this

Statcmcnl whcn it asscns in onc of iu bricf,Wt EPA', seckjnl in this action pcnajtics0YCr and a~ thosc prOYidcd for in thc Statcconsenl onIer is "not a pcmti.ibl~ ob~ve."This contcntion cannot tx supponcd by IOIicor thr law.

Thc fcd~ral Act providcs for civil pcnalticsof up to 12S.000 pcr violation pcr day. EPAis giv~n authority to seck imposition of suchpcnaJtia in fcdcral diStrict courts. Whil~ th~Act clearly oontcmpi&tcs cnf~t r» someof itS provisions by staIr authoritia. th~n isno sugcstion in th~ Statutc that rnactmcntby ItatCS r» their OWD pcnajty IWOVisiOftI UD-dcr ltatc law acts to dispa~ th~ pcnaJtiaprovidcd for by Congrea.

u.s. 11. SCM Corp. 23 £I.C 1~7

(state administrati~1 ConKnl Order."Thus, it is appa~nt from drie~nt'sown contentions that the prescnt caK isnot a situation involving the "contempo-raneous exercise of concurrent jurisdic-lion " to which the C{1/orado RIWT analy-

sis can be applied."Even if the instant case did concern

the oontemporaneous exerciK of concur-~nt jurisdiction, defendant's reliance onColorado Riwr would be mispla~. It isdear that EP A has a right to press inthis Coun at some point its claim thatsubstantial civil penalties should be im-posed upon defendant for past violationsof the federally adopted SIP." Indeed,defendant argues, in suppon of its re-quest for a stay during performance un-der the administrative oonsent order,that its "adherence to the terms and re-quirements of the (state] Consent Orderwould surely weigh heavily in thisCoun's usessment of whether an addi-lion.aJ pe~lty should be imposed." Theneed for this Coun to ultimatcly reamLhe issue of defendant's liability underlhe federal Act precludes any stay or dis-missal under the Colorado Riwr doctrine.As the Suprcmc Coun made clear inMosn CoM, application of the dOctrine"necessaril): contemplates that the feder-al court will have nothing funher to doin resolving any substanti~ part of thecase." Mos"s Con", 460 U.S. at 28.

Ignoring the abIcn« from the ale atbar of the th~hold ~qui~ments forinvocation of the ColorGdo Rlwr dOCtrine.defendant urges \he application of thatdoctrine in order to avoid federal-statefriction and the undermining of theltatc's enforcement authority. To the ex-tent that defendant'l argument is bascdon general notions of federalism, it isenough to note that such considerationsarc not pan of the ColorGdo Riwr ~ly-sis.'" It was not a generalized concernfor comity, but rather the specific lan-guage of the McCarTan Amendmentwhich was the basis for decision in C0lo-rado Rlwr." This Coun finds no similarexpression in the Clean Air Act of acongressional intent to allow state ad-ministrative actions to preclude federalenforcement of federal Itandards.

In suppon of its contention that \helanguage of the Clean Air Act precludesthe bringing of \he instant aCtion, defen-dant leaps from the premise that the Actcontemplates state enforcement to theconclusion that state enforcement banany action by the EP A to enforce feder-ally adopted standards. That conclusionfinds no sup~ in logic or the statute.

Congress provided that tht EPA maybring actions in tht federal couns to en-force federally approved SIP's. Congressfurther provided for federal civil penal-ties of up to 125,000 per day of viola-tion. 42 V.S.C. §7413. This tnforcementschtmt, and tht significant penaltiesCongress intended to impose upon airJJOllutcn, would bt nullified under de-fendant's view of the law.

According to defendant's analysis, anyenforcement action brought by a stateagency would preclude federal action toenjoin or punish the same violations.Thus, if a statt adopted a."\ SIP whichwas later federally approved, the statecould nullify federal enforttment simplyby adopting and using a state tnforcc-mcnt scheme which provided for mini-ma! penalties. This Coun does not bt-lieve that Congress, in enacting stiff

II SCM Memo in SupPJ" of Motion at

33..0 The effeCt of a fi~ decisioa by one

tribunal upon mues or claims sut.equentlyraised in another tribuna] is governed by thrtraditionaJ doctrines of i.ue and claim pre-clusion. The preclusive effeCt of _te-mundecisions in subsequent rederaJ actj~s is Sta-tutorily defined in 28 U.S.C. 111738-1739.

Defendant does DOt urae that mllateraJ es.-toppel il a bar to the instant suit but insteadrelies solely upon the ~ Rawr doctriIw..SCM Reply M~ at 5-6 n. 5.

I' Defendant apparently contests thisItatement when it alIeni in one of iu briefsthat EPA'I seeking in this action penalties~ and above those pnwided ror in the StatemnKnt order is "- a permissible ~ft."This ~tention an- be su~ed by logicor the law.

The federal ACt provides ror civil penaltiesof up to $25,000 per violation per day. EPAis liven authority to seek imposition of suchpenalties in federal distriCt muns. While theACt clearly mfttempata enfOrttmrnt ~ --of iu pnwilioftl by State authorities. there isno su3le5tion in the statute that enactmentby Stata of their own pe~ty provisions un-der state law acts to dispia« the penaltiesprovided for by COiICraI.

'" ~ CDlDrodo RilJn principia whidtSOVeTn in .ituation. involvins th~ mnt~mpo-rancous cx~rciK of mncurrent jurisdictionsare "unrdatcd to mnsiderauons of properaInSlituuonaJ adjudication and reprd fwofcd~ral-_te r~lations." CoLorado Rlwr. 424U.S. at 817. See allO Mosrs Co..r. supra. 460U.S. at 14-15 (unlike abstention. the ~Riwr- docu'ine does not rest on considerationsof ltat~-fcderal aMnity).

It MON$ C-, 460 U.S. at 16.

U.S. fl. SCM ~23 ERC I~

~nalties for air ~lIution. meant to hav~thosc ~nalties subject to nullification byth~ states.-

While th~ actions of the State ofMaryland to mforcc dun air standardspursuant to ltat~-law enfon:ement pro-crdurcs may properly be taken into ac-a>unt by this Court in detennining theappropriateness of the relicf prayed bythe paintiff. u..~ SlGlIS v. HGTjordSGnds. Inc., 575 F .Supp. 733, 735 (20ERC 2264) (D. Md. 1983) (Young. j.),such stat~ action does not affect defen-~nt's liability under redcraJ law or pre-dude this Coun from hearing the caseon th~ meriu.21 The Court cannot agreewith th~ defendant that allowing theplaintiff to seck the vcry penalties im-posed by Congress somehow constitutesa "thwarting of fed~ral legislative~licy.~

Nor is th~re any unfaimcss to the de-ftndant in th~ Court's decision that thiscase may procccd despite defendant's en-tering into a a>nscnt order with the stateag~ncy. In a federal system, each perwnand tntity is subject to simultaneous reg-ulation by state and national authority.

ORDER. Defendant relies, in a supplementalmemorandum, upon the decision of the ChiefJudicial Officer of the EPA in In tit, Mallef' of)KK Cor,Por'GIIDn, Dcx:ket No. lX-84-OO12(May 10, 1985), in support of defendant'soontention that state enforcement ~udasubsequent EPA enforament. The Counnotes, without need for diKUllin- the ~-dential valu~ of that administrative decision,that BKK did not involve application oJ theColorado RiWF doctrine. The federal ~tUUinvolved in BKK, moreover, was the R~Conservation and ReU)Yery Act, 42 V.S.C.16928, which expreaJy provides ~t statepnJIramI which 8ft substantially equivalentto federal pnJIrams shall be authorized to beoondlKted "in lieu oJ the Federal prOJrAm"on an interim basis. Such authonzation towndlKt the state pnJCraIn in lieu of the fed-eraJ pnJIraIn had been sr&nted by the EPAin 1M BKK case.

'f In 1M briefiDs on the inStant moti~.J)O(h sides have ~nted extensive argu-ments oonceming the sufficiency of the stat~consent order to remedy the violations al-leged. In lipt oJ the a)ncju$ions reachedhemn rqarding the inapplicability oJ theColor.. RIWF doCtrine, the Coun believesthat th~ nature and extent of state adminis-trative action are issues going to the meriu ofthis .actiw. which need not be addres8ed atthis juncture.

u Sft Defendant's M~um in Sup-pon oJ SCM's Motion to Diami.. « Sr.yProceedings at 31.

For the reasons assigned in theMemorandum filed this day, it is this12th day of August, 1985, by the UnitedStates District Coun for the District ofMaryland,

ORDERED:1. That defendant's motion to dismiss

or to stay pro<%edings is DENIED;2. That defendant file an answer to

the complaint within twenty days of thedate of this Order; and,

3. That the Clerk of the Coun shallmail copies of the Memorandum andthis Order to all counsel of record.

II See d~(~ndant'l rncmorandum in sup-~~ III ita motion to dismiss or 10 ltay at p.. To th~ atcnt that th~ rational~ III Unit-".. SIeIn II. c.rr'll. Inc.. SOl F .Su~. 734 (D.Del. J98J). w~1d ~ a dlff~1 ~sull. Ulat caR will .- ~ followed.

The unglc aCt of an individual f~uent-Iy subjr.t:u that penon to scparate anddiffering legal consequences at the handsof statc and national IOvcreignl. Thatthc same aCts by thc defendant subject itto state aCtions under Title 2 of theMaryland Health and Environmental~c as weJl as EP A actions under thcClean Air ACt il no more anomalousthan the situation of the bank robberwho finds himself simultaneously pros-ecuted for violations of both federal andstatc laws arising from a single crimina!aCt. l1te defendant in this case, more-over, was fuJly aware of the federal vio-lation notices at the time it decided toenter a conscnt agreement with the Stateagency. Defendant and the state agencywere also aware, prior to the executionof the consent order, that the EP A didnot consider the proposed order a satis-factory remedy for the violationsalleged.»

For all of their. reasons, the Courtconcludes that neither a stay nor a dis-missal of this aCtion is warranted underthe Colorado R,Wf dOCtrine.>-

Acoordingly, defendant's motion willbe denied.