NRDC v. NY STATE DEPT. OF ENVIRONMENTAL CONS., 87 Civ. 0505 (MEL).

Citation668 F. Supp. 848
Decision Date09 September 1987
Docket NumberNo. 87 Civ. 0505 (MEL).,87 Civ. 0505 (MEL).
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC.; American Lung Association; American Lung Association of New York State, Inc.; Brooklyn Lung Association, Inc.; Queensboro Lung Association; and American Lung Association, Hudson Valley, Inc., Plaintiffs, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; Henry G. Williams, as Commissioner, New York State Department of Environmental Conservation; United States Environmental Protection Agency; and Lee M. Thomas, as Administrator, United States Environmental Protection Agency, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

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Donald S. Strait, Eric A. Goldstein, Natural Resources Defense Council, Inc., New York City, for plaintiffs; David Schoenbrod, assisting in preparation of brief, of counsel.

Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for State defendants; James A. Sevinsky, David R. Wooley, Helene G. Goldberger, of counsel.

Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City, for Federal defendants; Richard W. Mark, Asst. U.S. Atty., Michael M. Wenig, Land and Natural Resources Div., U.S. Dept. of Justice, Peter H. Wyckoff, Asst. Gen. Counsel, Richard Roos-Collins, U.S. Environmental Protection Agency, Washington, D.C., Joseph Siegel, Lisa Burianek, Asst. Regional Counsels, U.S. Environmental Protection Agency, Region II, New York City, of counsel.

LASKER, District Judge.

This citizens' suit, brought under § 304 of the Clean Air Act, 42 U.S.C. § 7604 (1982), by the Natural Resources Defense Council, Inc. and several New York area lung associations (collectively "NRDC"), concerns New York State's responsibility to reduce the level of the pollutant ozone in the air we breathe. Ozone is one of the primary ingredients of the smog which often envelopes the New York metropolitan area.1 Exposure to ozone can impair lung functions, reduce resistance to respiratory infections, and aggravate asthma, bronchitis, and emphysema.2 NRDC charges that the New York State Department of Environmental Conservation ("DEC") and its commissioner (collectively "the State") have failed to implement four major ozone-reduction strategies included in New York's state air quality implementation plan ("SIP"), in violation of their nondiscretionary duties under the Clean Air Act. NRDC moves for summary judgment on the State's liability and for relief in the form of a scheduling order.

This motion raises the following issues: (1) whether a finding of liability should be made against the state defendants because they have not implemented the four strategies according to the description and timetables set forth in the SIP; (2) whether dates should be set for implementing and completing these four strategies, and, if so, what these dates should be; and (3) what other provisions, if any, should be included in the scheduling order.

I. State Defendants' Liability
a) Overview of the Clean Air Act

A central purpose of the Clean Air Act ("the Act"), 42 U.S.C. §§ 7401-7642 (1982), enacted by Congress in 1970 and amended in 1977, is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population," 42 U.S.C. § 7401(b)(1). Under the framework of the Act, the Administrator of the U.S. Environmental Protection Agency ("EPA") must promulgate an air quality standard for any air pollutant that may reasonably be anticipated to endanger public health. See 42 U.S.C. §§ 7408(a)(1)(A), 7409(b)(1). Each state must then adopt and submit to EPA a plan for implementation, maintenance and enforcement of the air quality standard for each pollutant. See 42 U.S.C. § 7410(a). A state plan, once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state, with modifications permitted "only cautiously and grudgingly." Friends of the Earth v. Carey, 535 F.2d 165, 169 (2d Cir.1976).

The original goal of the Act was to achieve substantial attainment of the air quality standards by 1977. However, when it became clear in 1977 that many states had failed to meet the appropriate standards, Congress extended the deadline for nonattaining states to December 31, 1982. See Connecticut Fund for Environment v. E.P.A., 672 F.2d 998, 1001 (2d Cir.), cert. denied sub nom. Manchester Environmental Coalition v. E.P.A., 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982); 42 U.S.C. § 7502(a)(1). An additional extension until December 31, 1987 was provided under certain circumstances for states which had not attained the standards set for carbon monoxide or ozone. 42 U.S.C. § 7502(a)(2). However, these extensions were not granted automatically: "cognizant of the already lengthy history of delays and disappointments that had characterized previous efforts to combat pollution, Congress sought to build in some insurance that the air quality standards would be met by the new deadlines" by requiring each state which received an extension to submit a revised SIP that would meet stringent requirements set forth in 42 U.S.C. §§ 7501-7508. Connecticut Fund for Environment, 672 F.2d at 1001.

b) New York's Ozone State Implementation Plan

By the procedure described above, the State of New York sought and received an extension of time until December 31, 1987 to achieve the air quality standard set by the EPA for the pollutant ozone. As a prerequisite for obtaining the 1987 extension, New York submitted a revised ozone state implementation plan, which was approved by the EPA on June 17, 1985. 40 C.F.R. §§ 52.1672-73 (1986). Because man-made volatile organic compounds ("VOCs") are one of the primary ingredients of atmospheric ozone, the revised New York SIP included, among other things, commitments to study and implement strategies for reducing VOC emissions from four major sources: 1) gasoline service stations; 2) paint spraying operations at automotive body shops; 3) paints and other architectural coatings which are applied to both the exterior and interior surfaces of buildings; and 4) consumer and commercial solvent-based products such as aerosol sprays, rubbing compounds and polishes.3 It is New York's failure to implement these four strategies according to the timetables set forth in the revised SIP which is the subject of this action and this summary judgment motion.

c) Liability of the State Defendants

It is undisputed that New York is far behind the schedules set in the revised New York SIP for implementation of the four strategies described above.4 The parties, however, draw different conclusions from this fact. NRDC argues that because it is undisputed that New York has not complied with the revised SIP, summary judgment on the issue of the state defendants' liability can not be avoided. The State, however, argues that while it is willing to negotiate schedules for the four strategies, to grant summary judgment on the issue of liability would be inappropriate. The State claims that while it acknowledges its current obligation to carry out the strategies, it has been making reasonable efforts to implement the SIP, but has been delayed because of unavoidable technical difficulties and because other state and federal environmental authorities which share responsibility for implementation of certain strategies have failed to take timely action. Furthermore, at oral argument the State expressed concern that a finding of liability could trigger EPA-imposed sanctions in the form of funding cut-offs and withholding of federal grants, as provided for by the Clean Air Act.

NRDC is entitled to summary judgment on the issue of the State's liability. In Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d Cir.1976), the Court of Appeals for this circuit emphasized the mandatory nature of the district court's responsibility to enforce implementation of the strategies set forth in a state implementation plan: "Once a citizen suit to enforce an EPA-approved state implementation plan has been properly commenced, the district court is obligated, upon a showing that the state has violated the plan, to issue appropriate orders for its enforcement." The very fact that the New York SIP has been violated mandates a finding of liability, regardless of the reasons for the violation. See Friends of the Earth, 535 F.2d at 178 ("The Act authorizes only two procedural routes for modifying the Plan.... In all other instances, the State is relegated to a lone option: compliance"); cf. United States v. Ford Motor Co., 814 F.2d 1099, 1103-04 (6th Cir.1987) (infeasibility of strategy not grounds for invalidation of SIP), appeal pending.

The finding that the State is liable does not indicate that it has acted in a morally culpable manner or exhibited a lack of good faith. The finding of liability in this case is an objective determination, a "malum prohibitum," based solely upon the fact that the State is in violation of the implementation dates in its SIP. Finally, although the State's concern about sanctions is understandable, EPA's counsel has not indicated that EPA has any present intention of imposing sanctions on the State. At any rate, EPA retains the discretion to impose sanctions on the State for noncompliance with its SIP regardless of the outcome of this motion.

II. Enforcement Dates

At the direction of the court, the parties submitted proposed schedules for implementation of each of the four strategies. A table summarizing the proposals which resulted, together with the original dates found in New York's SIP, is attached to this opinion as Appendix B. Before discussing the proposed schedules for each strategy separately, several general comments are in order. The parties' proposed schedules diverge most with regard to the Gasoline Vapor Recovery Strategy, where the two proposed dates for final compliance are nine months apart. This strategy, as discussed below, poses unique problems. The...

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