PEOPLE OF STATE OF CAL., ETC. v. Dept. of Navy

• Decision Date: 12 April 1977
• Docket Number: No. C-76-0045 WHO.,C-76-0045 WHO.
• Citation: 431 F. Supp. 1271
• Court: U.S. District Court — Northern District of California
• Parties: PEOPLE OF the STATE OF CALIFORNIA ex rel. STATE AIR RESOURCES BOARD and ex rel. Bay Area Air Pollution Control District, Plaintiffs, v. The DEPARTMENT OF the NAVY et al., Defendants.

431 F. Supp. 1271

PEOPLE OF the STATE OF CALIFORNIA ex rel. STATE AIR RESOURCES BOARD and ex rel. Bay Area Air Pollution Control District, Plaintiffs, v. The DEPARTMENT OF the NAVY et al., Defendants.

No. C-76-0045 WHO.

United States District Court, N. D. California.

April 12, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Roderick Walston, Daniel J. Taaffe, Deputy Attys. Gen., San Francisco, Cal., for Air Resources Board.

John F. Powell, Richard W. Grieves, San Francisco, Cal., Bay Area Air Pollution Control Dist., for Bay Area Pollution Control District.

James L. Browning, U. S. Atty., Francis B. Boone, Asst. U. S. Atty., San Francisco, Cal., for defendant.

OPINION AND ORDER

ORRICK, District Judge.

The State of California brings this action at the instance of the State Air Resources Board and the Bay Area Air Pollution Control District against the United States Department of the Navy (the Navy) and individual naval officers claiming that the level of air pollution from certain of defendant Navy's jet engine test cells violates air quality standards promulgated pursuant to the federal Clean Air Act (the Act), 42 U.S.C. § 1857 et seq., thereby entitling plaintiffs to civil penalties and equitable relief.

Defendants now move to dismiss on the grounds that this suit is barred by sovereign immunity, by plaintiffs' alleged failure to comply with the notice requirements of Section 304(b) of the Act, by plaintiffs' alleged failure to hold hearings and make determinations in accordance with Section 39002 of the California Health and Safety Code, by plaintiffs' alleged failure to join necessary parties, by federal preemption under Section 233 of the Act, by Section 111 of the Act, by plaintiffs' alleged utilization of invalid and/or inappropriate emission standards, and by the insignificancy of defendants' alleged violations. Defendants also move to dismiss plaintiffs' claim for civil penalties on the ground that such penalties are not assessable against the United States. For the reasons hereinafter stated, the Court denies each of these motions to dismiss, except the motion to dismiss plaintiffs' claim for civil penalties, which the Court grants.

I.

Before dealing with each of defendants' grounds for dismissal, we examine the statutory scheme as well as the bases for plaintiffs' claim. The Act imposes upon the Administrator of the Environmental Protection Agency (EPA) the responsibility for promulgating primary and secondary standards for ambient air quality. § 109, 42 U.S.C. § 1857c-4. However, the Act gives the states primary responsibility for implementing these standards—the states are obliged to develop and adopt "implementation plans" which, after EPA approval, are published as regulations in the Federal Register. § 110, 42 U.S.C. § 1857c-5. These "implementation plans" may contain pollution requirements which are more but not less strict than EPA standards promulgated under Section 109. Indiana & Michigan Electric Co. v. EPA, 509 F.2d 839 (7th Cir. 1975); St. Joe Minerals Corp. v. EPA, 508 F.2d 743 (3d Cir. 1975), vacated on other grounds, 425 U.S. 987, 96 S.Ct. 2196, 48 L.Ed.2d 812 (1976).¹

Despite the states' broad power to implement standards under Section 110, however, the Act preempts certain state regulation of moving sources of pollution. The EPA is given general and exclusive authority to set emission limitations for new motor vehicles, 42 U.S.C. § 1857f-6a, to set emission limitations for aircraft, 42 U.S.C. § 1857f-11, and to regulate the sale of motor vehicle fuels and fuel additives, 42 U.S.C. § 1857f-6c(c)(4).

Thus, the general scheme of the Act might be said to encompass state regulation of "stationary sources" under Subchapter I (Section 110 in particular)² and federal (EPA) regulation of "moving sources" under Subchapter II. However, this dichotomy is only general. First, Section 110 does not specifically limit state regulation to "stationary sources".³ Second, federal preemption under Subchapter II only extends to certain regulation of moving sources. Third, aside from these specific federal preemptions, the states retain residual authority to regulate pollution. 42 U.S.C. § 1857d-1; see also Washington v. General Motors Corp., 406 U.S. 109, 115 n. 4, 92 S.Ct. 1396, 31 L.Ed.2d 727 (1972). Thus, although the Subchapter II preemptions provide for federal regulation of much "moving source" pollution, regulation of the remainder of such pollution, as well as general regulation of "stationary source" pollution, resides with the states under Subchapter I.

Plaintiffs claim that emissions from defendant Navy's jet engine test cells in Orange, Alameda, and San Diego Counties exceed state and local air pollution standards approved by the EPA in the California Implementation Plan. 37 Fed.Reg. § 19812; 40 C.F.R. § 52.220. These test cells are large, concrete structures which house aircraft engines for testing, repair, and maintenance prior to their installation in the aircraft itself. With the exception of water used to cool the engine exhaust gases and to protect the test cell and its noise abatement material, all emissions during test cell operations originate in the engine. However, all emissions enter the ambient or outside air from test cell smoke stacks, and it is at this point of entry that emissions allegedly violate federally approved state and local regulations.

The Court now considers seriatim the various grounds on which defendants move to dismiss.

II.

At the outset, defendant claims that this lawsuit must be dismissed for lack of subject matter jurisdiction and that it is barred by sovereign immunity. These claims fail, however, under the recent Supreme Court case of Hancock v. Train, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976). Hancock explicitly indicates that Section 118 of the Act, 42 U.S.C. § 1857f, establishes the duty of federal installations to comply with state implementation standards, and that, sovereign immunity notwithstanding, Section 304, 42 U.S.C. § 1857h-2, provides the means of enforcing that duty in federal court:

"There is agreement that § 118 obligates existing federal installations to join nonfederal sources in abating air pollution, that comparable federal and nonfederal sources are expected to achieve the same levels of performance in abating air pollution, and that those levels of performance are set by the States." Hancock v. Train, supra, 426 U.S. at 182, 96 S.Ct. at 2014.

Therefore, the Court has jurisdiction of this case under Section 304 of the Act.

III.

Next, defendants contend that because plaintiffs have failed to comply with the notice requirements of Section 304(b) and because the conditions upon which sovereign immunity is waived must be strictly adhered to, this suit is barred.

While the Court agrees, in general, that the limitations and conditions upon which the government consents to be sued must be strictly observed (Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Smoke Rise, Inc. v. Washington Suburban Sanitary Commission, 4 CCH Employment L. Rep. § 20427 (D.Md.1974)), the Court finds that the notice requirements of Section 304(b) have been sufficiently complied with in this case.

Section 304(b) of the Act, 42 U.S.C. § 1857h-2(b), provides:

"No action may be commenced—

(1) under subsection (a)(1)—

(A) 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 * * *."

The service and contents of Section 304(b) notice are further specified in 40 C.F.R. § 54:

"§ 54.2 Service of notice.

(a) Notice to Administrator: Service of notice given to the Administrator under this part shall be accomplished by certified mail addressed to the Administrator, Environmental Protection Agency, Washington, D.C. 20460. Where notice relates to violation of an emission standard or limitation or to violation of an order issued with respect to an emission standard or limitation, a copy of such notice shall be mailed to the Regional Administrator of the Environmental Protection Agency for the Region in which such violation is alleged to have occurred.

* * * * * *

(c) Notice to alleged violator: Service of notice given to an alleged violator under this part shall be accomplished by certified mail addressed to, or by personal service upon, the owner or managing agent of the building, plant, installation, or facility alleged to be in violation of an emission standard or limitation, or an order issued with respect to an emission standard or limitation. Where the alleged violator is a corporation, a copy of such notice shall be sent by certified mail to the registered agent, if any, of such corporation in the State in which such violation is alleged to have occurred.

§ 54.3 Contents of notice.

* * * * * *

(b) Violation of standard, limitation or order. Notices to the Administrator, States, and alleged violators regarding violation of an emission standard or limitation or an order issued with respect to an emission standard or limitation, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order which has allegedly been violated, the activity alleged to be in violation, the person or persons responsible for the alleged violation, the date or dates of such violation, and the full name and address of the person giving the notice."

The instant lawsuit was filed on January 9, 1976. Five months prior, on August 8, 1975, William Simons, Executive Officer of plaintiff Air Resources Board, sent letters to Commander Philip J. Parisius of the Naval Facilities Engineering Command in San Bruno, California, and to Region IX of the EPA. Those letters listed jet engine test cells, owned and operated by defendant Navy in California, which were in violation of state pollution opacity standards. The letters...