U.S. v. Alcan Foil Products Div. of Alcan Aluminum Corp., 88-6300

• Decision Date: 21 November 1989
• Docket Number: No. 88-6300,88-6300
• Parties: , 58 USLW 2319, 20 Envtl. L. Rep. 20,302 UNITED STATES of America, Plaintiff-Appellant, v. ALCAN FOIL PRODUCTS DIVISION OF ALCAN ALUMINUM CORPORATION, Defendant and Third-Party Plaintiff-Appellee, Atlantic Richfield Company, Third-Party Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1513

889 F.2d 1513

30 ERC 1641, 58 USLW 2319, 20 Envtl.

L. Rep. 20,302

UNITED STATES of America, Plaintiff-Appellant, v. ALCAN FOIL PRODUCTS DIVISION OF ALCAN ALUMINUM CORPORATION Defendant and Third-Party Plaintiff-Appellee Atlantic Richfield Company, Third-Party Defendant.

No. 88-6300.

United States Court of Appeals Sixth Circuit.

Argued Aug. 3, 1989.

Decided Nov. 21, 1989.

Joseph M. Whittle, U.S. Atty., Richard A. Dennis, Asst. U.S. Atty., Louisville, Ky., Roger J. Marzulla, U.S. Dept. of Justice, Environmental Enforcement Section, Land & Natural Resources Div., David C. Shilton, John T. Stahr (argued), Robert Foster, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., Alan E. Dion, Asst. Regional Counsel, U.S.E.P.A., Region IV, Atlanta, Ga., for U.S., plaintiff-appellant.

Lawrence A. Salibra, II (argued), Alfred R. Cowger, Jr., Alcan Aluminum Corp. Carolyn M. Brown, Marcus P. McGraw, Greenebaum, Doll & McDonald, Lexington, Ky., for Atlantic Richfield Co., third-party defendant.

Cleveland, Ohio, for Alcan Foil Products Div. of Alcan Aluminum Corp., defendant-appellee.

Gaylord Ballard, Air Pollution Control Dist. of Jefferson County, Louisville, Ky., for Air Pollution Control Dist. of Jefferson County, Jefferson County Kentucky (District).

Roy K. Snell, Stites & Harbison, Louisville, Ky., for Cabinet for Economic Development, Com. of Ky. (The "COMMONWEALTH"), amicus curiae.

Before KRUPANSKY and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge.

This case arose under the Clean Air Act as amended, 42 U.S.C. Sec. 7401 et seq. (the Act). The government brought this enforcement action in the district court pursuant to section 113(a) of the Act, 42 U.S.C. Sec. 7413(a). It alleged that Alcan's Louisville, Kentucky aluminum foil products plant was emitting air pollutants known as volatile organic compounds (VOC), which are precursors in the formation of ozone, in excess of the limits prescribed by Kentucky's state implementation plan (SIP). The complaint prayed for an injunction and damages of $25,000 for each day the defendant is in violation of the Act and the SIP.

In its answer Alcan pled as an affirmative defense that Kentucky had filed with the Environmental Protection Agency (EPA) a proposed revision to its SIP, but that EPA had failed to take action on the proposal, although it was filed more than sixteen months before the government commenced this action. Alcan further alleged that it was in compliance with the standards of the proposed revision. Alcan filed a motion for summary judgment, which the district court granted. The district court held that the Act requires EPA to act on proposed SIP revisions within four months. United States v. Alcan Foil Products Division, 694 F.Supp. 1280 (W.D.Ky.1988). On motion for reconsideration, the district court held that even if the "four-month rule" does not apply, EPA should not be permitted to bring an enforcement action against a polluter who is in compliance with a proposed revised SIP, which might be approved eventually but upon which the EPA has failed to act. The district court dismissed the action. We affirm in part and reverse in part.

I.

Under the Act the Administrator of EPA is required to establish national ambient air quality standards (NAAQS). As the first step in the process EPA publishes lists identifying emissions that are reasonably believed to endanger public health and welfare. EPA then issues air quality criteria for each listed pollutant. 42 U.S.C. Sec. 7408(a). Finally, EPA, following statutory procedures and timetables, promulgates NAAQS for each listed pollutant. These NAAQS limit the emissions of each pollutant to a level consistent with the achievement and maintenance of the desired air quality. 42 U.S.C. Sec. 7409.

After it has established the NAAQS for each pollutant, the role of EPA is secondary and that of the states becomes primary. Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 79, 95 S.Ct. 1470, 1481, 43 L.Ed.2d 731 (1975). This is made clear by section 107(a) of the Act, 42 U.S.C. Sec. 7407(a), which provides:

Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State.

Congress amended the Act in 1970, adding section 110, 42 U.S.C. Sec. 7410. Section 110 provides for the promulgation and revision of SIPs. Section 110(a) requires each state to adopt and submit to EPA an SIP within nine months after EPA has established The Administrator shall approve any revision of an implementation plan applicable to an air quality control region if he determines that it meets the requirements of paragraph (2) and has been adopted by the State after reasonable notice and public hearings.

                primary and secondary NAAQS for any pollutant.  The SIP must "provide[ ] for implementation, maintenance, and enforcement of" each standard in each air quality control region within the state.  42 U.S.C. Sec. 7410(a)(1).  The Act contains many time restrictions.  Section 110(a)(2) applies to original SIPs and provides that EPA "shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or any portion thereof."    EPA must approve a plan if it satisfies the procedural and substantive requisites set forth in subparagraphs (A) through (K).  Section 110(a)(3) deals with SIP revisions.  Subsection (A) provides:
                

II.

Louisville is in the Kentucky air pollution control region that is designated the Air Pollution Control District of Jefferson County (the Region). Region Regulations 6.29, a part of the Kentucky SIP, established the emissions standards for the VOCs emitted by Alcan's rotogravure printing presses. Under the existing SIP, emission compliance at the Alcan plant is determined at each emission source. Thus, if the emissions from one press exceed the standards, the entire plant is out of compliance.

A.

Alcan prepared a proposed revision to Regulation 6.29, and after approval by the Region, Kentucky submitted the proposed revision to EPA on March 3, 1986. The proposed revision would adopt the "bubble concept" for determining compliance rather than the existing method of determining compliance at each individual emissions source. Under the bubble concept the total emissions of a given pollutant from a plant or area, over a prescribed period, are calculated to determine compliance or noncompliance. Thus, a bubble permits a "supercomplying source" to offset an "undercomplying source," thereby enabling the entire plant to meet applicable emissions standards. The proposed revision used a thirty-day averaging period. As proposed, if the average of Alcan's Louisville VOC emissions over a thirty-day period met the standards under the revision, Alcan would be deemed in compliance.

EPA had previously approved the bubble concept generally, but it advised the Region that the proposed plan was deficient. Following a request for reconsideration, EPA advised the Region on July 7, 1986, that it usually recommended only one day or one week averaging periods for emissions, but that Alcan "would be out of compliance, even if the 30-day averaging time was granted."

B.

Several events occurred while the parties were attempting to resolve their disagreements over the proposed revision. First, the Region filed suit in district court to compel EPA to approve the proposed revision. Such an action may be brought pursuant to section 304(a)(2) of the Act, 42 U.S.C. Sec. 7604(a)(2), by any person who claims that EPA has failed to perform a nondiscretionary act or duty imposed upon it by the Act. Soon thereafter, without reference to the proposed revision, EPA notified Alcan that seven of its presses failed to comply with existing Regulation 6.29. This notice of noncompliance led to further discussions between EPA and Alcan. While these discussions were taking place, EPA published uniform criteria and procedures for bubble plan reviews. 51 Fed.Reg. 43814-60 (Dec. 4, 1986). The bubble plan contained in the proposed Kentucky SIP revision did not satisfy these criteria.

On July 15, 1987, the United States, at the request of EPA, filed this enforcement suit. At that time EPA had taken no formal action with respect to the proposed SIP revision. Although the regional administrator of EPA had recommended that the

proposed revision be disapproved, at the time the case was submitted to the district court on Alcan's motion for summary judgment, EPA still had not acted on the proposed revision. We are advised that after the district court entered final judgment dismissing the action, EPA rejected the proposed SIP revision for failure to demonstrate the necessity of employing an averaging period greater than twenty-four hours. 53 Fed.Reg. 40745 (Oct. 18, 1988).

III.

At least five courts of appeals have considered the question of whether EPA is required to act on a proposed SIP revision within four months after its submission. Four courts have applied the four-month rule to proposed revisions. See Duquesne Light Co. v. E.P.A., 698 F.2d 456, 471 (D.C.Cir.1983); United States v. General Motors Corp., 876 F.2d 1060, 1066 (1st Cir.1989); Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 651-52 n. 2 (2d Cir.1982); Council of Commuter Organizations v. Thomas, 799 F.2d 879, 888 (2d Cir.1986); American Cyanamid Co. v. E.P.A., 810 F.2d 493, 495 (5th Cir.1987); General Motors Corp. v. E.P.A., 871 F.2d 495, 498 (5th Cir.1989). This court is the only one to have suggested that the four-month rule does not apply. In United States v. National Steel Corp., 767 F.2d 1176 (6th Cir.1985), we affirmed judgment for the government in an...