State of Mo. v. US

Decision Date05 February 1996
Docket NumberNo. 4:94CV01288.,4:94CV01288.
Citation918 F. Supp. 1320
PartiesSTATE OF MISSOURI and Mel Carnahan, Governor of the State of Missouri, Plaintiffs, v. UNITED STATES of America, United States Environmental Protection Agency, United States Department of Transportation, and Carol M. Browner, Administrator of the United States Environmental Protection Agency, in her official capacity, Defendants.
CourtU.S. District Court — Eastern District of Missouri

COPYRIGHT MATERIAL OMITTED

Joseph P. Bindbeutel, John R. Munich, Attorney General of Missouri, Assistant Attorney General, Jefferson City, MO, Don M. Downing, Stinson and Mag, St. Louis, MO, for plaintiffs.

Eric T. Tolen, Asst. U.S. Attorney, Office of U.S. Attorney, St. Louis, MO, Ronald M. Spritzer, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for U.S.

Ronald M. Spritzer, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Environmental Protection Agency, Department of Transportation, Carol M. Browner.

MEMORANDUM AND ORDER

FILIPPINE, District Judge.

This matter is before the Court for a decision on the merits following trial to the Court. After consideration of the pleadings, the testimony and exhibits introduced at trial, the parties' briefs, and the applicable law, the Court enters the following memorandum which it adopts as its findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

Plaintiffs filed suit challenging the constitutionality of two sanctions provisions of the 1990 Amendments to the Clean Air Act, 42 U.S.C. § 7401, et seq., under the Tenth Amendment and the Spending Clause of Article I, Section 8, clause 1 of the United States Constitution.

The Clean Air Act ("CAA") requires the United States Environmental Protection Agency ("EPA") to establish National Ambient Air Quality Standards ("NAAQS") which must define the level of air quality necessary to protect the public health and welfare, 42 U.S.C. § 7409. Under the CAA, once EPA promulgates a NAAQS, each state must draft a State Implementation Plan ("SIP") which provides for the implementation, maintenance, and enforcement of the NAAQS in each air quality control region within the state. 42 U.S.C. § 7410(a).

All SIPs must be drafted to meet numerous specific substantive requirements of the CAA. 42 U.S.C. § 7410(a)(2). Each SIP must be adopted by a state after reasonable notice and a public hearing and must be submitted to EPA for approval. 42 U.S.C. § 7410(a)(1), (2). EPA first reviews the submission for completeness. If the plan is complete, the CAA requires EPA to approve or disapprove the plan within twelve months of the time the submittal is determined complete. 42 U.S.C. § 7410(k).

EPA has established NAAQS for a number of pollutants, such as carbon monoxide, nitrogen dioxide, and ozone. 40 C.F.R. Part 50 (1993). The CAA requires each State and EPA to designate as "nonattainment" those areas that have not achieved the NAAQS. 42 U.S.C § 7501-7515. With the CAA Amendments of 1990, which marked a comprehensive revision of the CAA, Congress established classifications for ozone nonattainment areas (marginal, moderate, serious, severe, and extreme), based on the amount by which the area exceeded the ozone NAAQS. In March of 1991, the Governor of Missouri designated the St. Louis area1 as an ozone nonattainment area. For nonattainment areas, the CAA specifies the required elements of an SIP; for ozone nonattainment areas, these elements are based on the nonattainment area's classification. 42 U.S.C. §§ 7511-7511f.

States having nonattainment areas must submit to EPA the permit program for the construction of new and modified major stationary sources required by § 173. 42 U.S.C. § 7502(c)(5). The term "major stationary source" means, generally, any stationary facility or source of air pollutants which directly emits, or has the potential to emit, at least one hundred tons per year of any air pollutant. 42 U.S.C. § 7602(j). "Stationary source" means generally any source of an air pollutant except emissions resulting directly from an internal combustion engine for transportation purposes or from a nonroad engine or nonroad vehicle as defined in 42 U.S.C. § 7550. 42 U.S.C. § 7602(z). Under § 173(a)(1)(A), new or modified major stationary source can obtain a permit only if it demonstrates sufficient emissions reductions from other sources (offsets) by the time the new source commences operation to constitute "reasonable further progress" toward attainment of the relevant NAAQS. 42 U.S.C. 7503(a)(1)(A). Moderate ozone nonattainment areas, such as St. Louis, have a required offset of 1.15:1. In other words, a new or modified major stationary source must demonstrate that for each unit of emissions of pollutants it will add to the nonattainment area, there will be offsetting reductions of 1.15 units in the nonattainment area. 42 U.S.C. § 7511a(b)(5). States with moderate ozone nonattainment areas were required to submit a plan providing for such offset requirements by November 15, 1992. 42 U.S.C. § 7511a(a)(2)(C) & (b). The program contained in such a plan is part of a state's new source review (NSR) program.

The CAA provides for sanctions against a state when: (1) EPA finds that the state failed to make a required submission of an implementation plan or plan revision; (2) EPA finds that the state's submission fails to meet EPA's criteria for completeness; (3) EPA disapproves a state's submission; or (4) EPA finds that a state is not implementing a requirement of an approved plan. 42 U.S.C. § 7509(a)(1)-(4) ("CAA § 179"). EPA commonly refers to these four actions as "findings."

When EPA makes such a finding, and a state fails within eighteen months of the finding to correct the deficiency on which the finding was based, the mandatory sanctions provision of the CAA requires that one sanction apply until EPA determines that the state has corrected the deficiency. 42 U.S.C. § 7509(a). If the state fails to correct the deficiency for an additional six months after application of the first sanction, the CAA requires that a second sanction apply until EPA determines that the state has corrected the deficiency. Id.

EPA has promulgated a rule, which became effective in September 6, 1994, providing that mandatory sanctions under CAA § 179 apply only to the "affected area." 59 Fed.Reg. 39832, to be codified at 40 C.F.R. § 52.31(b)(3). EPA also promulgated another rule, which took effect September 6, 1994, that provides that when mandatory sanctions are imposed under CAA § 179, the offset sanction will be applied first, and the highway sanction second, unless EPA determines through a separate rulemaking to apply the sanctions in a different order. 59 Fed.Reg. 39832, et seq. (August 4, 1994).

The CAA Amendments strengthened the sanctions provisions by adding a 2:1 offset sanction and a highway funds sanction, both of which may be applied on a mandatory or a discretionary basis.2 42 U.S.C. § 7410(m). The offset sanction requires states to incorporate, as part of their permitting programs for new sources in the nonattainment area, an offset ratio of 2:1, instead of its normal offset ratio (such as 1.15:1). The highway funds sanction allows EPA to prohibit the Secretary of Transportation, with his approval, from approving highway funds for the nonattainment area. It gives the Secretary discretion, however, to fund certain projects designed, among other things, to promote safety and those that would improve air quality and not encourage single occupancy vehicle usage. 42 U.S.C. § 7509(b)(1)(A), (B).

The CAA requires the Administrator to promulgate a Federal Implementation Plan ("FIP") at any time within two years of finding that a state has failed to make a required submission, that the plan or plan revision submitted by the State does not satisfy the minimum criteria required, or of disapproving a submission in whole or in part unless the State corrects the deficiency and the Administrator approves the plan or plan revision prior to promulgating the FIP. 42 U.S.C. 7410(c)(1). EPA has authority to promulgate an FIP for Missouri and, at the same time, to impose mandatory or discretionary sanctions upon the State.

Under section 179, sanctions are automatically imposed eighteen months after a finding of deficiency is made, unless EPA has determined that the state has corrected the deficiency on which the finding was based. EPA does not have discretion to otherwise waive or delay the imposition of mandatory sanctions. If, within eighteen months of a finding of a violation, Missouri does not correct the deficiency, EPA will have authority to impose mandatory and discretionary sanctions; and the St. Louis ozone nonattainment area will be subject to an additional sanction within six months of the first sanction.

Missouri must submit SIP revisions addressing four main areas. These areas are: a plan for motor vehicle inspection and maintenance ("I/M program"); a plan regarding the emissions of nitrogen oxides ("NOx") and volatile organic compounds ("VOC") from major stationary sources; a plan for the attainment of the ozone NAAQS; and a fifteen percent Rate of Progress Plan, which is to include the measures necessary to achieve a fifteen percent reduction of VOC from the 1990 base-year emissions inventory in the St. Louis ozone nonattainment area. 42 U.S.C. § 7511a(b)(1).3

EPA has notified Missouri that the State failed to submit certain plan elements as required by the CAA. EPA's January 15, 1993, letter to Missouri indicated that the State failed to submit the required revised SIP for its existing I/M program submission; however, a subsequent rule declared that the resultant sanction would not be effective until September 6, 1994. Missouri submitted an enhanced I/M program SIP on September 1, 1994, which was found to be complete by EPA, and...

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