Sierra Club v. Johnson

• Citation: 444 F.Supp.2d 46
• Decision Date: 02 August 2006
• Docket Number: Civil Action No. 01-1537(PLF).,Civil Action No. 01-1578.,Civil Action No. 01-1582.,Civil Action No. 01-1548.,Civil Action No. 01-1597.,Civil Action No. 01-1558.,Civil Action No. 01-1569.
• Court: U.S. District Court — District of Columbia
• Parties: SIERRA CLUB, Plaintiff, v. Stephen L. JOHNSON, Administrator, United States Environmental Protection Agency,<SMALL><SUP>1</SUP></SMALL> Defendant.

444 F.Supp.2d 46

SIERRA CLUB, Plaintiff, v. Stephen L. JOHNSON, Administrator, United States Environmental Protection Agency,¹ Defendant.

Civil Action No. 01-1537(PLF).

Civil Action No. 01-1548.

Civil Action No. 01-1558.

Civil Action No. 01-1569.

Civil Action No. 01-1578.

Civil Action No. 01-1582.

Civil Action No. 01-1597.

United States District Court, District of Columbia.

August 2, 2006.

James S. Pew, Earth Justice, Harold Patrick Quinn, Jr., National Mining Association, Washington, DC, for Plaintiff.

Eileen T. McDonough, U.S.DOJ-Environmental Defense Section, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This case concerns defendant EPA's failure to discharge fully its duty under the 1990 Clean Air Act amendments to promulgate regulations governing the discharge of certain hazardous air pollutants. EPA does not deny that it has failed in its duty to promulgate these regulations by the deadlines set in the statute; the only dispute concerns the schedule under which the Court should order EPA to discharge its statutory duty. On March 31, 2006, the court issued an Order denying defendant's motion for summary judgment; granting plaintiffs motion for summary judgment; declaring that defendant Steven L. Johnson's failure to take certain regulatory actions constituted "a failure of the Administrator to perform any act or duty under this chapter that is not discretionary with the Administrator" within the meaning of Section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2); and ordering the EPA to fulfill its statutory duties under Sections 112(c)(3), 112(k)(3)(B), 112(c)(6), and 183(e) on a prescribed schedule. The Court also denied plaintiffs motion to strike the declaration of Steve Page filed by defendant in support of its motion for summary judgment. This Opinion explains the reasoning underlying that Order.

I. BACKGROUND

A. 1990 Clean Air Act Amendments

On November 15, 1990, Congress enacted sweeping revisions to the Clean Air Act. See Pub.L. No. 101-549, 104 Stat. 2399 ("the Act"). Title III of the revised statute created a complex scheme for the regulation of 189 specified hazardous air pollutants ("HAPs"), and directed EPA to identify the sources of those pollutants and to promulgate regulations governing the emission of HAPs from those sources. Congress by statute added to the Clean Air Act the list of pollutants to be regulated, minimum stringency requirements, and (most important for this case) regulation deadlines. It did so because it believed that EPA had failed to regulate enough HAPs under previous air toxics provisions. See Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 634 (D.C.Cir.2000). The Senate Committee Report states: "The [air toxics] law has worked poorly. In 18 years, EPA has regulated only some sources of only seven chemicals .... The legislation reported by the Committee would entirely restructure the existing law, so that toxics might be adequately regulated by the Federal Government." S. REP. NO. 101-228, at 128 (1989); see also H.R. REP. NO. 101-490, pt. 1, at 322 (1990) ("Since 1970, EPA has listed only eight substances as hazardous air pollutants ... and has promulgated emissions standards for seven of them.").

Title III of the Clean Air Act recognizes two basic kinds of air pollution "sources." A "major source" is "any stationary source or group of stationary sources located within a contiguous area and under common control that emits ... 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants." 42 U.S.C. § 7412(a)(1). Major sources are subject to regulation under Section 112(d) of the Act, 42 U.S.C. § 7412(d). An "area source" is "any stationary source of hazardous air pollutants that is not a major source." 42 U.S.C. § 7412(a)(2).² The Act calls upon EPA to list the "source categories" most responsible for emissions of each HAP listed in the statute. Source categories include, for example, steel foundries, industrial boilers, clay ceramics manufacturing, and asphalt processing and asphalt roofing manufacturing.³ After listing these source categories, EPA is required to promulgate regulations governing their emission of HAPs.

The Act also enacted new provisions regarding the emission of Volatile Organic Compounds ("VOCs" or "ozone precursors"), a major contributor to ground-level ozone pollution (smog). VOCs are a component of automobile exhaust, and also are emitted in the fumes from products like oil-based paints and solvents. Among other things, the Act calls upon EPA to promulgate regulations or "control techniques guidelines" for VOC-emitting consumer and commercial products that determined to contribute to ozone pollution in areas where ground-level ozone exceeds regulatory limits.

At issue in this case are three mandatory duties imposed on EPA by the 1990 Clean Air Act amendments, which the agency admits it has failed to discharge fully. These duties are to:

1. Regulate area sources of 30 most dangerous HAPs: Sections 112(c)(3) and (k)(3)(B) of the Clean Air Act, 42 U.S.C. § 7412(c)(3) & (k)(3)(B), require the EPA to: (1) "identify not less than 30 hazardous air pollutants which, as the result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas"; (2) identify the categories or subcategories of sources "accounting for 90 per centum or more of the aggregate emissions of each of the 30 identified hazardous air pollutants" within 5 years from the date of the statute's enactment (i.e. by November 15, 1995); and (3) issue emissions standards for those source categories within 10 years from the date of the enactment of the amendment (by November 15, 2000).

EPA has fulfilled the first two of these duties. It issued the list of area source categories in 1999. See 64 Fed.Reg. 38,706 (July 9, 1999); Defendant's Statement of Facts 112. The list has since been revised several times, but currently contains 70 area source categories. EPA has promulgated emission standards for only 15 of these 70 categories. See Declaration of Steve Page ("Page Decl.") ¶ 15; Defendant's Statement of Facts ¶ 2.

After lodging a draft consent decree with the Court for solicitation of public comment, the parties executed and filed a Revised Partial Consent Decree May 22, 2003. See Revised Partial Consent Decree (May 22, 2003) ("Consent Decree"). The Consent Decree requires EPA to promulgate standards for six further categories under Section 112(c)(3) and (k)(3)(B). See Page Decl. ¶ 19.⁴ EPA has taken final action on one of these categories (mercury cell chlor-alkali plants); the deadlines under the Consent Decree for the remaining five sources range from November 30, 2005 to December 20, 2007. See id.

Accordingly, EPA must issue regulations for 55 remaining source categories under Section 112(c)(3) and (k)(3)(B), five of which are accounted for in the Consent Decree. See Page Decl. ¶ 24; Statement of Sierra Club of Material Facts as to Which There is no Genuine Dispute ¶ 1.

2. Regulate areas sources of statutorily-specified HAPs: Section 112(c)(6) of the Act also calls for the regulation of area sources of seven specific HAPs, without regard to their inclusion on EPA's list of the 30 most dangerous HAPs.⁵ EPA's duties with respect to HAPs listed under this provision are identical to its duties with respect to the 30 most dangerous HAPs under Sections 112(c)(3) and 112(k)(3)(B): to (1) identify the categories or subcategories of sources "accounting for 90 per centum or more of the aggregate emissions of each such [listed] pollutant" by November 15, 1995; and (2) issue emissions standards for those source categories by November 15, 2000. 42 U.S.C. § 7412(c)(6).

EPA issued the list of source categories under Section 112(c)(6) in 1998, see 63 Fed.Reg. 17,838 (April 10, 1998), but later modified the list to remove five source categories. See 67 Fed.Reg. 68,124 (Nov. 8, 2002); Page Decl. ¶ 16-17. The current list contains 50 source categories. Between 1990 and 2003, EPA promulgated emissions standards for about 30 of these source categories, because those source categories were "major sources" of HAPs also subject to regulation under Section 112(d). See id. ¶ 18.

Under the Consent Decree, EPA agreed to promulgate standards for two further source categories under Section 112(c)(6). EPA has taken final action on emissions standards for mercury cell chlor-alkali plants (also a source category regulated under Section 112(c)(3) and (k)(3)(B)); it must promulgate a final rule with regard to the last category, gasoline distribution facilities, by December 20, 2007. See Consent Decree at 5-6.

EPA therefore must regulate four Section 112(c)(6) source categories beyond the one it already is bound by the Consent Decree to regulate before a date certain. See Page Decl. 1125. These five source categories, however, are also among the 50 source categories that must be regulated under Section 112(c)(3) and (k)(3)(B). See Page Decl. ¶ 28.

3. Regulate products that emit VOCs: Section 183(e) of the Act, 42 U.S.C. § 7511b(e), calls on EPA to "conduct a study of the emissions of volatile organic compounds into the ambient air from consumer and commercial products" in order to "determine their potential to contribute to ozone levels" that violate EPA limits on ambient ozone levels, and to "establish criteria for regulating consumer and commercial products . . . which shall be subject to control under this subsection." 42 U.S.C. § 7511b(e)(2)(A). After completing the study, EPA is to: (1) list the categories of products that account for 80 percent or more of VOC emissions in areas that violate EPA ambient standards for ozone; (2) divide the list into four priority categories, based on specified criteria; and (3) every two years after the list is promulgated, regulate one group of categories, until all four categories are regulated. 42 U.S.C. § 7511b(e)(...