American Lung Ass'n of NJ v. Kean, Civ. A. No. 87-288.

• Decision Date: 24 September 1987
• Docket Number: Civ. A. No. 87-288.
• Citation: 670 F. Supp. 1285
• Parties: AMERICAN LUNG ASSOCIATION OF N.J., et al., Plaintiffs, v. Thomas H. KEAN, Governor of N.J., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

670 F. Supp. 1285

AMERICAN LUNG ASSOCIATION OF N.J., et al., Plaintiffs, v. Thomas H. KEAN, Governor of N.J., et al., Defendants.

Civ. A. No. 87-288.

United States District Court, D. New Jersey.

September 24, 1987.

Edward Lloyd, Rutgers Environmental Law Clinic, Newark, N.J., Eric A. Goldstein, Donald S. Strait, Natural Resources Defense Council, New York City, for plaintiffs.

Paul H. Schneider, for W. Cary Edwards, Atty. Gen., of N.J., Richard J. Hughes Justice Complex, Trenton, N.J., for State defendants.

Ralph J. Marra, Jr., Asst. U.S. Atty., Michael M. Wenig, U.S. Dept. of Justice, Newark, N.J., for defendant E.P.A.U.S.

Dennis M. Toft, Kimmelman, Wolff & Samson, P.A., Roseland, N.J., for amicus curiae American Petroleum Institute.

OPINION

HAROLD A. ACKERMAN, District Judge.

This is a citizen's suit brought under § 304 of the federal Clean Air Act, 42 U.S.C. § 7604 (1982), by the American Lung Association of N.J. and other New Jersey non-profit associations, against officials of the State of New Jersey (hereinafter referred to collectively as "New Jersey") and the Federal Environmental Protection Agency (EPA). In their complaint, plaintiffs claim that New Jersey has violated the Act by failing to implement nine regulatory strategies intended for the control of ozone levels in New Jersey's air, as prescribed by the State Implementation Plan (SIP) for ozone-pollution control filed by New Jersey with the EPA in accordance with the Act. Plaintiffs further claim that the EPA has failed to enforce the Act in the face of New Jersey's noncompliance.

Before me now is plaintiffs' motion for partial summary judgment. Plaintiffs seek a finding of liability on New Jersey's part in regard to seven of the nine regulatory strategies on which the state has allegedly taken insufficient action. Plaintiffs also seek an order compelling the state to submit a proposed timetable for implementing the seven strategies at issue. At this time, plaintiffs seek no further ruling on relief from the state, and no ruling on any aspect of the claims against the EPA.

Both plaintiffs and New Jersey have filed voluminous papers on this motion, addressing at length, among other issues, the proper measurement and treatment of New Jersey's ozone-pollution problem. In addition, the EPA has filed a brief in response to certain claims made by New Jersey regarding the binding effect of portions of the New Jersey SIP. Finally, the American Petroleum Institute (API) has filed, as amicus curiae, papers in defense of New Jersey on this motion. Earlier in the case I denied motions by API and other trade associations to intervene as defendants, without prejudice to any reapplication for intervention should the case reach the remedy stage. Despite my ruling on intervention, I granted leave to API to participate as amicus curiae on this motion in order to consider its alleged insights into the problems presented. See Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir.1987); Yip v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J. 1985). API's participation has been limited to the submission of written arguments.

Plaintiffs' motion is posed under Fed.R. Civ.P. 56(a). According to Rule 56, summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Celotex, 106 S.Ct. at 2553. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial", or the factual record will be taken as settled and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). Given this test, I must first decide whether at this point there remain genuine issues of material fact regarding New Jersey's liability for the seven allegedly stalled strategies. If no facts remain in issue, I may then consider whether plaintiffs merit judgment as a matter of law. Before discussing the factual and legal issues in dispute, however, I shall lay the background to this motion by discussing the issues on which the parties voice no disagreement.

Ozone is a chemical compound whose presence in the upper layers of the atmosphere serves as a beneficient screen against harmful ultraviolet radiation, but whose presence near ground level presents a health hazard. This case, and those portions of the Clean Air Act relevant to it, deal with the problem of ozone near ground level. This ozone is a prime ingredient of the smog which at times afflicts New Jersey. Exposure to ozone can impair lung functions, reduce resistance to respiratory infection, and exacerbate asthma, bronchitis, and emphysema. Primarily, this ozone is produced when certain chemical substances known as "volatile organic compounds" or "volatile organic substances" (VOSs) are emitted into the air. VOSs are emitted when, inter alia, gasoline is pumped or certain solvents, paints, or coatings are used.

Ozone pollution is one of the targets against which Congress took aim in the Clean Air Act of 1970, as amended in 1977, 42 U.S.C. §§ 7401 et seq. The Act provides a comprehensive framework for controlling airborne pollutants generally. Under the Act, the EPA compiles a list of harmful air pollutants, 42 U.S.C. § 7408(a)(1), and then promulgates ambient air quality standards. The air quality standards set limits on the atmospheric concentrations which will be tolerated for each pollutant the EPA has identified. 42 U.S.C. § 7409(b)(1). The design and implementation of concrete plans to achieve these pollutant limits is left, in the first instance, to the several states. Each state must file with the EPA a State Implementation Plan (SIP) which specifies strategies for bringing that state into compliance with EPA standards, within deadlines set by the Act. 42 U.S.C. § 7410. Once a SIP is approved by the EPA, the state is bound as a matter of federal law to follow its provisions. See Friends of the Earth v. Carey, 535 F.2d 165, 169 (2d Cir. 1976), cert. denied 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977); see also Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 216 n. 1 (3d Cir.1979). Ozone has been the subject of EPA standards since 1971. Therefore, ozone control strategies have long been required in the SIPs of ozone-afflicted states.

Congress originally contemplated that the state air-quality SIPs would be filed with the EPA in 1971 and become effective in 1972, and that EPA air quality standards would be attained by 1975, with some extensions to 1977. By 1976, however, it had become apparent that some areas of the country were making progress at a much slower rate, if at all. See 44 Fed.Reg. 20,372 (April 4, 1979). Thus, in 1977 Congress amended the Act to provide in certain instances for both longer compliance deadlines and more stringent compliance requirements. States which had not yet attained EPA standards were to do so "as expeditiously as practicable" but not later than December 31, 1982. 42 U.S.C. § 7502(a)(1). States with especially severe ozone problems could receive an additional extension to December 31, 1987 for meeting EPA ozone standards, but only by complying with certain additional cleanup provisions. These included the filing of new, revised SIPs that contained "enforceable measures to assure attainment" of the EPA ozone standards by December 31, 1987. 42 U.S.C. § 7502(c). See Connecticut Fund for the Environment, Inc. v. EPA, 672 F.2d 998, 1001 (2d Cir.1982).

New Jersey has had an ozone SIP since 1973, when in the face of missed deadlines by the state the EPA itself promulgated ozone control strategies for New Jersey. See 38 Fed.Reg. 31,388 (Nov. 13, 1973). In 1983, the state secured an extension of its ozone compliance deadline to December 31, 1987, the latest possible deadline under the Act, in part by submitting a revised ozone SIP which EPA found acceptable. See 48 Fed.Reg. 51,472 and 51,479 (Nov. 9, 1983). That SIP addressed, inter alia, strategies for controlling ozone levels through the reduction of VOS emissions into the air. It is that SIP which plaintiffs claim has been unlawfully neglected by New Jersey and the EPA. The seven strategies in the 1983 SIP which are at issue on this motion are: the use of devices known as "Stage II vapor controls" to trap gasoline fumes which escape from gasoline service-station nozzles when gas is pumped, the regulation of gasoline loading onto marine barges, the regulation of small industrial surface coating operations, the regulation of small manufacturing operations including chemical manufacturing and distillation operations, the regulation of architectural coatings, the regulation of solvent-based consumer and commercial products, and the regulation of automobile refinishing operations.

Plaintiffs claim on this motion that New Jersey has failed to take all the steps required by its 1983 ozone SIP to bring the seven strategies named above into effective operation. Thus, plaintiffs claim, New Jersey has violated its own SIP and should be found liable under the Clean Air Act. Specifically, plaintiffs claim that, in regard to each of the seven strategies, the SIP compels New Jersey to ultimately do three things: propose regulations, promulgate final regulations, and implement those final regulations through proper...