Clean Air Council v. Mallory

• Citation: 226 F.Supp.2d 705
• Decision Date: 18 October 2002
• Docket Number: Civil Action No. 01-179.
• Parties: CLEAN AIR COUNCIL, Plaintiffs, v. Bradley L. MALLORY, Secretary, Pennsylvania Department of Transportation, and James M. Seif, Secretary, Pennsylvania Department of Environmental Protection, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

226 F.Supp.2d 705

CLEAN AIR COUNCIL, Plaintiffs, v. Bradley L. MALLORY, Secretary, Pennsylvania Department of Transportation, and James M. Seif, Secretary, Pennsylvania Department of Environmental Protection, Defendants.

Civil Action No. 01-179.

United States District Court, E.D. Pennsylvania.

October 18, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph Otis Minott, Philadelphia, PA, David S. Baron, Earthjustice Legal Defense Fund, Washington, DC, for Plaintiffs.

Audrey F. Miner, Harrisburg, PA, Robert J. Shea, Harrisburg, PA, for Defendants.

MEMORANDUM

DuBOIS, District Judge.

On January 12, 2001, plaintiff, Clean Air Council, filed a Complaint against defendant Bradley L. Mallory, in his capacity as the Secretary of the Pennsylvania Department of Transportation ("PennDOT"), and defendant, James M. Seif, in his capacity as the Secretary of the Pennsylvania Department of Environmental Protection ("DEP") (together, "defendants"). In the Complaint, plaintiff seeks to enforce the requirements of the Clean Air Act (the "CAA"), 42 U.S.C. §§ 7401-7627, under its citizen suit provision¹ and asks for declaratory and injunctive relief.

Presently before the Court are Plaintiff's Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment. The Court heard oral argument on the motions. Upon consideration of the evidence in the record and the arguments of counsel, the Court denies defendants' Motion and grants plaintiff's Motion in part. Specifically, the Court declares that defendants Bradley L. Mallory, Secretary of PennDOT, and James M. Seif, Secretary of DEP, are in violation of "emission standards or limitations" within the meaning of the CAA, 42 U.S.C. § 7604(a)(1), (f), because the defendants failed to fully implement the motor vehicle inspection and maintenance program that is required by Pennsylvania's State Implementation Plan ("SIP"). The Court concludes that injunctive relief is appropriate and will conduct an evidentiary hearing to determine the schedule on which defendants will be required to fully implement the final motor vehicle inspection and maintenance program in the five-county Philadelphia area, as mandated by the United States Environmental Protection Agency ("EPA")-approved Pennsylvania SIP. Plaintiff will be granted leave to file a motion seeking attorney's fees and costs after the evidentiary hearing.

I. BACKGROUND

The purpose of the CAA is "(1) to protect and enhance the Nation's air resources . . . (2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution; (3) to provide technical and financial assistance to State . . . governments [in the] execution of their air prevention and pollution control programs; and (4) to encourage and assist the development and operation of regional air pollution prevention and control programs." Id. § 7401(b). Under the Act, the EPA must establish National Ambient Air Quality Standards ("NAAQS") for certain air pollutants. Id. § 7409(a). Primary NAAQS must be set at a level that will "protect the public health" with "an adequate margin of safety," id. § 7409(b)(1), and the EPA must establish secondary NAAQS at a level that will "protect the public welfare from any known or anticipated adverse effects associated with the presence of such air [pollution] in the ambient air." Id. § 7409(b)(2).

At issue in this action are alleged violations that relate to the requirements for attainment of the 1-hour NAAQS adopted by the EPA for ozone. 40 C.F.R. §§ 50.9. The CAA classifies an area as "nonattainment" for a particular air pollutant if the area does not satisfy the primary or secondary NAAQS for that particular air pollutant. 42 U.S.C. § 7407(d)(1)(A)(i). It further subdivides ozone nonattainment areas into "marginal," "moderate," "serious," "severe," or "extreme" based upon the severity and persistence of nonattainment. Id. §§ 7407(d), 7511(a). Effective November 15, 1990, the Administrator of the EPA designated and classified the Metropolitan Philadelphia Interstate Air Quality Control Region (Pennsylvania New Jersey Delaware) (the "Philadelphia ozone nonattainment area")² as a severe ozone nonattainment area. Complaint ¶ 16; Answer ¶ 16. The Philadelphia ozone nonattainment area continues under such designation and classification to the present. Id.

The CAA mandates that states with ozone nonattainment areas submit to the EPA a state SIP setting forth the air pollution control measures by which the state will attain the ozone NAAQS by specified deadlines. 42 U.S.C. §§ 7502(c), 7511a(b)(1), (c), (d). Under the 1990 Amendments to the CAA, those states with "serious" and "severe" ozone nonattainment must provide for "enhanced" inspection and maintenance ("I/M") programs. The EPA is required to review each proposed SIP and approve or disapprove it. Id. § 7410(k). If the EPA approves the SIP in whole or in part, the approved portion(s) is then deemed to be incorporated into the state's "applicable implementation plan." Id. §§ 7413, 7602(q), 7604. A state may choose not to submit a SIP. In such a circumstance the EPA must devise a Federal Implementation Plan ("FIP"). Id. § 7410(c)(1).

The Commonwealth submitted proposed SIP revisions to the EPA for the attainment and maintenance of the ozone NAAQS in the Philadelphia ozone nonattainment area (the "Philadelphia SIP"). Complaint ¶ 17, Answer ¶ 17. In the Philadelphia SIP, the Commonwealth proposed implementing an enhanced motor vehicle inspection and maintenance program ("enhanced I/M") in the five Philadelphia counties located in the Philadelphia ozone nonattainment area under which automobiles that fail an emission test must be repaired to reduce their emission of ozone-forming pollutants unless exempted by waiver. Complaint ¶ 17, Answer ¶ 17. The EPA approved the Philadelphia SIP containing the enhanced I/M program and incorporated it into the Commonwealth's SIP (the "approved SIP") by Federal Register notices dated December 28, 1997; September 2, 1998; June 8, 1999; and June 17, 1999. Complaint ¶ 17; Answer ¶ 17.

The approved SIP mandates that the Commonwealth use an acceleration simulation mode ("ASM") test for emission testing of all 1981 and newer model year vehicles and all 1984 and newer model year light-duty trucks registered in the five-county Philadelphia area. Complaint ¶ 18; Answer ¶ 18; 67 Pa.Code § 177.51(f)(1). The approved SIP further requires that the Commonwealth employ specific pass/fail emission standards, or "cutpoints," for the ASM emissions tests. Id. § 177.204(2)(ii); 67 Pa.Code Ch. 177 App. A § 1. Two sets of cutpoints with corresponding compliance deadlines are required under the approved SIP: (1) compliance with start-up or initial cutpoints for the first phase of the program commencing October 1, 1997, 67 Pa.Code Ch. 177 App. A §§ 1(a)(1),(3); and (2) compliance with final cutpoints for the second phase of the program commencing December 1, 1998 and continuing thereafter. Id. §§ 1(a)(2),(3); Complaint ¶ 19; Answer ¶ 19.

DEP and PennDOT have a duty to implement the enhanced I/M program. See 35 PA. CONS.STAT. ANN. § 4004 ("[DEP] shall have power and its duty shall be to — (1) Implement the provisions of the Clean Air Act in the Commonwealth . . ."); 75 Pa. Cons.Stat. Ann. § 4706(b)(1) (". . . if the secretary shall certify that a system is required to comply with the Clean Air Act . . . the department [of Transportation] shall establish and administer an enhanced emission inspection program . . ."); Id. § 4706(e) (". . . [PennDOT] shall promulgate such regulations as may be necessary to implement the emission inspection program . . ."). Defendants, as heads of their state departments, are responsible for implementation of the enhanced I/M program. 71 Pa. Cons.Stat. Ann. § 66. To do so, defendants must fully implement the final cutpoints in Pennsylvania's approved SIP. 67 Pa.Code Ch. 177 Appendix A.

Defendants complied with the first phase of the program and fully implemented the initial start-up cutpoints. Defendants admit that they have failed to fully implement the final cutpoints for the second phase of the enhanced I/M program with which the approved SIP required compliance by December 1, 1998. See Complaint ¶ 22; Answer ¶ 22. By letter dated May 25, 2000, Secretary Seif's designee informed the EPA that the Secretary would not fully implement the final cutpoints because the Commonwealth has "committed to a schedule whereby all model years vehicles subject to the Philadelphia-area inspection and maintenance program will be required to meet final cutpoints by the start of the 2005 ozone season" and "the Philadelphia area will . . . meet its 2002 emission reduction milestone." Answer ¶ 20. It is this noncompliance which is the gravamen of plaintiff's Complaint.

Section 7604(b)(1)(A) of the CAA states that "[n]o action may be commenced . . . under subsection (a)(1) of this section . . . prior to 60 days after the plaintiff has given notice of the violation (i) to the Administrator, (ii) to the State in which the violation occurs, and (iii) to any alleged violator of the standard, limitation, or order. . . ." 42 U.S.C. § 7604(b)(1)(A). On January 13, 2000, plaintiff sent a Notice of Intent to Sue, pursuant to 42 U.S.C. § 7604(b), by certified letter to defendants and the Administrator of the EPA. Complaint ¶ 5; Answer ¶ 5. Over 60 days have elapsed since Clean Air Council served notice as required by 42 U.S.C. § 7604(b)(1)(A) and the violations of which plaintiff complains in the notice are continuing. See Complaint ¶ 22; Answer ¶ 22. Thus, plaintiff has satisfied the required 60-day notice under 42 U.S.C. § 7604(b)(1)(A).

In the Complaint plaintiff alleges that, "by failing to fully implement the state's enhanced vehicle inspection and maintenance ("I/M") program as required by Pennsylvania's state implementation plan," Secretary Mallory and Secretary Seif violated and continue to violate the CAA....