DELAWARE VALLEY CITIZENS'COUNCIL v. Com. of Pa.

• Decision Date: 22 January 1982
• Docket Number: Civ. A. No. 76-2068,77-619.
• Citation: 533 F. Supp. 869
• Parties: DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, et al. v. COMMONWEALTH OF PENNSYLVANIA, et al. UNITED STATES of America v. COMMONWEALTH OF PENNSYLVANIA, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

533 F. Supp. 869

DELAWARE VALLEY CITIZENS' COUNCIL FOR CLEAN AIR, et al. v. COMMONWEALTH OF PENNSYLVANIA, et al.

UNITED STATES of America v. COMMONWEALTH OF PENNSYLVANIA, et al.

Civ. A. Nos. 76-2068, 77-619.

United States District Court, E. D. Pennsylvania.

January 22, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jerome Balter, James S. Lanard, Philadelphia, Pa., for Delaware Valley Citizens' Council for Clean Air et al.

Carol E. Dinkins, Stephen D. Ramsey, Washington, D.C., for United States of America.

Ward T. Williams, John M. Hrubovcak, Harrisburg, Pa., for Commonwealth of Pennsylvania Dept. of Transp.

Kenneth A. Gelburd, Asst. Atty. Gen., Philadelphia, Pa., for Commonwealth of Pennsylvania Dept. of Environmental Resources.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

These two consolidated cases arose under the Clean Air Act, as amended, 42 U.S.C. § 7401, et seq. On August 29, 1978, the Commonwealth of Pennsylvania ("Commonwealth") and two of its administrative agencies voluntarily entered into a consent decree with the United States of America ("United States") and the Delaware Valley Citizens' Council for Clean Air ("DVCCCA"). In that consent decree, the Commonwealth defendants agreed to establish an automobile emissions inspection and maintenance program ("I/M program") for the Philadelphia and Pittsburgh areas. On October 5, 1981, the Pennsylvania General Assembly enacted a statute prohibiting the expenditure of public funds for the establishment of the I/M program. Presently before the Court are the motion of the Commonwealth defendants for a stay and a modification of the consent decree and the motion of the DVCCCA to declare defendants in civil contempt and to establish sanctions, both filed as a result of the General Assembly's action.

I.

Section 110 of the Clean Air Act requires each state to submit a state implementation plan ("SIP") for the attainment and maintenance of national ambient air quality standards for each air quality control region in that state. 42 U.S.C. § 7410. Originally, § 110(a)(2)(G) of the Act provided that a state could include an I/M program in its SIP "to the extent necessary and practicable, for periodic inspection and testing of motor vehicles to enforce compliance with applicable emission standards" if so desired. 42 U.S.C. § 7410(a)(2)(G). On January 27, 1972, the Pennsylvania SIP was submitted to the United States Environmental Protection Agency ("EPA") for formal approval. 40 C.F.R. § 52.2020(b). On April 13, 1973, Pennsylvania submitted for EPA approval a Transportation Control Plan for the Metropolitan Philadelphia and Southwest Pennsylvania Air Quality Control Regions as a revision to the Pennsylvania SIP.¹ 38 Fed. Reg. 10120 (1973). The Pennsylvania Transportation Control Plan included provisions for an I/M program in order to meet federal air quality control standards in the Philadelphia and Pittsburgh areas. On November 28, 1973, the EPA promulgated a revised Transportation Control Plan for the Metropolitan Philadelphia and Southwest Pennsylvania Air Quality Control Regions to correct certain deficiencies contained in the Pennsylvania plan pursuant to its rulemaking authority under the Clean Air Act. 38 Fed.Reg. 32884 (1973). Pursuant to this revision, the Pennsylvania SIP required the Commonwealth to implement an I/M program for the Philadelphia and Pittsburgh areas by May 1, 1975. 40 C.F.R. § 52.2038.²

The Commonwealth filed a petition to review the actions of the Administrator of the EPA in the promulgation of the revised Transportation Control Plan with the Third Circuit Court of Appeals pursuant to § 307(b) of the Clean Air Act, 42 U.S.C. § 7607(b). Commonwealth of Pennsylvania v. EPA, 500 F.2d 246, 249 (3d Cir. 1974). Interestingly enough, the Commonwealth did not challenge the I/M program provisions in its petition for review. Rather, the Commonwealth challenged the validity of the EPA requirement mandating that air bleed retrofit devices be installed on all pre-1968 light-duty motor vehicles in the Metropolitan Philadelphia Air Quality Control Region and the Allegheny County portion of the Southwest Pennsylvania Air Quality Control Region. See 40 C.F.R. § 52.2039. The Third Circuit, in reviewing the Administrator's actions, set aside the air bleed retrofit requirement for the Allegheny County portion of the Southwest Pennsylvania Air Quality Control Region and affirmed the validity of the remainder of the Pennsylvania Transportation Control Plan. 500 F.2d at 263.

The I/M program was never implemented by the Commonwealth. On June 29, 1976, DVCCCA instituted a citizen's action, pursuant to 42 U.S.C. § 7604, against the Commonwealth of Pennsylvania, the Secretary of the Pennsylvania Department of Transportation ("PennDOT"), the Secretary of the Pennsylvania Department of Environmental Resources ("PennDER"), and the Administrator and Regional Administrator of the EPA to enforce the Pennsylvania SIP requirement for the implementation of an I/M program in the Philadelphia and Pittsburgh areas. On September 23, 1976, the EPA issued notices of violation to the Governor of Pennsylvania and the Secretary of PennDOT, pursuant to § 113(a)(1) of the Clean Air Act, as amended, 42 U.S.C. § 7413(a)(1), because of Pennsylvania's failure to implement the I/M program by May 1, 1975. On February 18, 1977, the United States instituted its own suit against the Commonwealth of Pennsylvania and certain of its departments and officers, pursuant to § 113(b) of the Clean Air Act, as amended, 42 U.S.C. § 7413(b), to enforce the Pennsylvania SIP requiring the implementation of an I/M program.³

Meanwhile, on August 7, 1977, Congress passed the Clean Air Act Amendment of 1977, Pub.L.95-95, tit. I-IV, 91 Stat. 685. This amendment added a new Part D to the Clean Air Act requiring states to submit revised SIPs for areas which had not yet attained the national ambient air quality standards. 42 U.S.C. § 7501 et seq. These revised SIPs must meet specific requirements outlined in Part D of the Act and must provide for attainment of national ambient air quality standards by December 31, 1982. If a state cannot attain certain air quality standards in certain areas by December 31, 1982, § 172(a)(2) of the Act allows the EPA to grant an extension of the attainment deadline to December 31, 1987. 42 U.S.C. § 7502(a)(2). In the event that such an extension is granted, a state is required by § 172(b)(11) to submit "a specific schedule for implementation of a vehicle emission control inspection and maintenance program" in any area with an extended attainment deadline. 42 U.S.C. § 7502(b)(11).

On August 29, 1978, after extensive negotiations, the Commonwealth of Pennsylvania, and two of its departments, PennDOT and PennDER, voluntarily entered into a consent decree with both the DVCCCA and the United States by agreeing to implement an I/M program for ten counties in the Philadelphia and Pittsburgh areas by August 1, 1980.⁴ Under the consent decree, the "Philadelphia Area" has been defined as Philadelphia, Bucks, Montgomery, Chester and Delaware Counties, paragraph 3(F) of the Consent Decree; while the "Pittsburgh Area" has been defined as Allegheny, Beaver, Butler, Westmoreland and Washington Counties, paragraph 3(G) of the Consent Decree. On March 7, 1980, the Court approved a modification of the August 29, 1978 consent decree which postponed the date of implementation to May 1, 1981. On May 20, 1980, the EPA granted Pennsylvania's extension requests for the Philadelphia, Pittsburgh, Allentown-Bethlehem-Easton, and Scranton-Wilkes-Barre areas pursuant to § 172(a)(2) and approved the submitted revised SIP which established an I/M program for these areas. 42 Fed.Reg. 33607 (1980).⁵ On May 20, 1981, the Court denied the Commonwealth's motion for a further modification and postponement of the implementation deadline and ordered that the I/M program commence operations "without further delay." Memorandum and Order (May 20, 1981). In its order, the Court declared the Commonwealth to be in violation of the consent decree and directed the Commonwealth to file, by June 1, 1981, a proposed plan for the immediate implementation of the I/M program in the Philadelphia and Pittsburgh areas. On June 16, 1981, the Court denied the Commonwealth's motion for reconsideration and approved a Court modified version of the Commonwealth's Proposed Emission Inspection and Maintenance Program I to commence operations on May 1, 1982. Memorandum and Order (June 16, 1981).

Following the Court's decision in June, 1981, the Pennsylvania General Assembly passed House Bill No. 456, § 2 ("H.B. 456"), which prohibited the expenditure of state funds by the executive branch for the implementation of the I/M program. On July 10, 1981, the Governor of Pennsylvania vetoed H.B. 456 and returned it to the General Assembly. Nevertheless, on October 5, 1981, the General Assembly overrode the Governor's veto and enacted H.B. 456 into law as an amendment to the Administrative Code of 1929. Section 2 of H.B. 456 provides:

Section 2013. Prohibition on Expenditures for Emission Inspection Program Neither the department nor any other department or agency of the Executive Branch of State Government shall expend any public funds for the establishment and administration of any system for the periodic inspection of emissions or emission system of motor vehicles.

Act of October 5, 1981, No. 99, § 2, 1981 Pa.Legis.Serv. 312 (to be codified at Pa. Stat.Ann. tit. 71, § 523). PennDOT and the executive branch immediately ceased operations in the implementation of the I/M program following the passage of this law. Nevertheless, on October 10, 1981, final regulations pertaining to the standards for the emission analyzers to be purchased by the private garage owners wishing to participate in the I/M program were published in the Pennsylvania Bulletin. 11 Pa.Bull. 3519 (Oct. 10, 1981). Moreover, $36,118,000.00 had...