Oregon Env. Council v. Dept. of Env. Quality, Civ. No. 91-13-FR.

• Decision Date: 27 September 1991
• Docket Number: Civ. No. 91-13-FR.
• Parties: OREGON ENVIRONMENTAL COUNCIL and the Sierra Club, Plaintiffs, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and Fred Hanson, Director, Defendants.
• Court: U.S. District Court — District of Oregon

775 F. Supp. 353

OREGON ENVIRONMENTAL COUNCIL and the Sierra Club, Plaintiffs, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and Fred Hanson, Director, Defendants.

Civ. No. 91-13-FR.

United States District Court, D. Oregon.

September 27, 1991.

COPYRIGHT MATERIAL OMITTED

David Paul, Portland, Or., Victor M. Sher, Todd D. True, Sierra Club Legal Defense Fund, John B. Arum, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Wash., for plaintiffs.

Dave Frohnmayer, Atty. Gen., Denise G. Fjordbeck, Asst. Atty. Gen., Salem, Or., Shelley K. McIntyre, Asst. Atty. Gen., Portland, Or., for defendants.

OPINION

FRYE, District Judge:

The matters before the court are:

1) the motion of defendants, the Oregon Department of Environmental Quality and Fred Hanson, Director (collectively, the DEQ), to dismiss the complaint of plaintiffs, the Oregon Environmental Council and the Sierra Club (# 13);

2) the motion of the DEQ for partial summary judgment (# 37);

3) the motions of Freightliner Corporation, Precision Castparts Corporation and Tektronix, Inc. (# 15); Simpson Timber Co. (# 20); and Gunderson, Inc. (# 28-1) (collectively, the applicants for intervention) to intervene; and

4) the motions of Freightliner Corporation, Precision Castparts Corporation and Tektronix, Inc. (# 18); Simpson Timber Co. (# 23); and Gunderson, Inc. (# 28-2) to dismiss the complaint of plaintiffs.

BACKGROUND

Pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Environmental Protection Agency (EPA) is charged with setting primary air quality standards for certain pollutants in order to protect the public health. 42 U.S.C. § 7409(b)(1). The EPA is also charged with setting secondary air quality standards for certain pollutants in order to protect the public welfare. 42 U.S.C. § 7409(b)(2).

Ozone is one of the pollutants for which the EPA has established primary and secondary standards pursuant to the Clean Air Act. Ozone is a pollutant which is the chemical combination of two other pollutants, oxides of nitrogen and hydrocarbons, which are sometimes referred to as volatile organic compounds. The EPA has set the national ambient air quality primary and secondary standards for ozone at 0.12 parts per million. This standard is attained when the expected number of days per calendar year that the maximum hourly concentrations of ozone exceeds 0.12 parts per million is equal to or less than one. 40 C.F.R. § 50.9 (1988).

Ozone concentrations in the atmosphere can only be reduced by reducing the emission of volatile organic compounds. Emission of volatile organic compounds by various industries is a major source of ozone. Volatile organic compounds are emitted as by-products of processes, such as paper and can coating, metal painting, and the degreasing and cleaning that occurs in the manufacture of computer chips.

The Clean Air Act provides that states are responsible for preparing their own implementation plans for achieving and maintaining the air quality standards set by the EPA. 42 U.S.C. § 7410(a)(1). The states are required to submit their implementation plans to the EPA for approval. Id. The EPA may approve an implementation plan submitted by a state only if the plan meets all of the requirements of the Clean Air Act. 42 U.S.C. §§ 7410(a)(3)(A), 7502(b). Following the approval of the EPA of a state implementation plan, the requirements and commitments contained therein are binding as a matter of federal law upon the state unless and until the state submits a formal revision of its implementation plan that is approved by the EPA. 42 U.S.C. § 7413(a)(2); American Lung Ass'n of New Jersey v. Kean, 871 F.2d 319, 322 (3d Cir.1989).

In 1977, Congress amended the Clean Air Act to include more stringent requirements for those geographical areas that had failed to meet federal standards (nonattainment areas) for pollution control. Pub.L. 95-95; 42 U.S.C. §§ 7501-08. The amendment to the Clean Air Act required states that had not yet attained the limits set by the EPA to submit revised implementation plans to the EPA. 42 U.S.C. § 7502. The revised implementation plans were to include all reasonably available control measures and meet all requirements set out in 42 U.S.C. § 7410(a)(2)(I). The states were instructed by the EPA to provide in their implementation plans for reductions in emissions sufficient to demonstrate that the primary standard for ozone would be achieved as expeditiously as practicable, but not later than December 31, 1987. 42 U.S.C. §§ 7502(a)(2) and (c).

Section 7502(c)(1) provides, in part, that implementation plans provide for reductions in emissions from existing sources through the adoption of "reasonably available control technology." 42 U.S.C. § 7502(c)(1), formerly codified at 42 U.S.C. § 7502(b)(2). The EPA publishes control technology guidelines that set technology-based numerical limits on emissions of volatile organic compounds from various manufacturing processes and define reasonably available control technology in terms of emission rates for each process. 45 Fed. Reg. at 42,269.

Section 7502(c)(1) also requires an implementation plan to establish a permit program to regulate the construction and operation of major, new or modified sources of emissions. 42 U.S.C. § 7502(c)(4), formerly codified at 42 U.S.C. § 7502(b)(5). Under this system of "new source review," states may issue a permit for the construction of a proposed, major, new or modified source of pollutant emissions only if the state requires the source of the emission to comply with the lowest achievable emission rate. 42 U.S.C. § 7503(a)(2). Prior to issuing a permit to a new source, the state must require an analysis of alternative sites, sizes, production processes, and environmental control techniques for the proposed source that demonstrates that the benefits of the proposed source significantly outweigh its environmental and social costs. 42 U.S.C. § 7502(b)(11)(A), now codified at 42 U.S.C. § 7503(a)(5). If the Administrator of the EPA determines that the provisions of an approved implementation plan are not being properly implemented in issuing a permit to a new source, the state cannot issue the permit. 42 U.S.C. § 7503(a)(4).

The DEQ is the agency responsible for meeting the obligations imposed upon the State of Oregon by the Clean Air Act. In 1973, the DEQ submitted an implementation plan for the State of Oregon, and the EPA approved the implementation plan. On March 3, 1978, the EPA designated the Portland-Vancouver metropolitan area a "nonattainment area" with respect to concentrations of ozone pursuant to 42 U.S.C. § 7407(d). This designation remains in effect.

On June 29, 1979, the State of Oregon submitted a revised implementation plan for the area of the state in and around the City of Portland in order to address the problem of nonattainment. In the revised implementation plan, the DEQ argued that despite the implementation of reasonably available control measures, it did not believe that the State of Oregon could meet the standards set by the EPA by December 31, 1982. On July 20, 1982, the DEQ submitted a revised implementation plan to the EPA as required by the 1977 amendments to the Clean Air Act. This revised implementation plan was approved by the EPA and is in effect today.

The implementation plan in effect for the State of Oregon contains a general emissions standard that provides as follows:

Notwithstanding the general and specific emission standards and regulations contained in this Division, the highest and best practicable treatment and control of air contaminant emissions shall in every case be provided so as to maintain overall air quality at the highest possible levels, and to maintain contaminant concentrations ... and other deleterious factors at the lowest possible levels. In the case of new sources of air contamination ... the degree of treatment and control provided shall be such that degradation of existing air quality is minimized to the greatest extent possible.

O.A.R. XXX-XX-XXX.

The implementation plan also contains specific measures to control emissions of volatile organic compounds in the ozone nonattainment area in and around the City of Portland. Pursuant to section 7502, the implementation plan requires that reasonably available control technology be applied to all sources of volatile organic compounds for which the EPA has published a control technology guideline. Specifically, the implementation plan states: "The Department of Environmental Quality has adopted emission standards that require reasonably available control technology to be applied to all sources of volatile organic compounds for which EPA has published control technology guidelines." State Implementation Plan for the State of Oregon, p. 45.

The implementation plan provides that compliance with the standards for emissions of volatile organic compounds is required by the end of the year 1982.

The implementation plan also provides that to qualify for a new source permit, a source must comply with the lowest achievable emission rate, obtain offsets or a growth increment, and prepare an alternatives analysis. The implementation plan establishes a permit program for all existing stationary sources of air contaminants. All persons constructing or operating a stationary source must obtain a permit from the DEQ. The permit must include overall numerical emission limits based on a baseline emission rate that is the average emission rate for the years 1977 or 1978. Plant site emission limits must be established on a short-term period emission basis that is compatible with source operation and air quality standards.

The Portland metropolitan area failed to attain the national standards for ozone concentrations by the end of 1987 as required by the Clean Air Act. The Portland metropolitan area has failed to attain the national standards for ozone concentrations at this time.

This is an action under the Clean Air Act, 42 U.S.C. §§...