U.S. v. General Motors Corp., 88-1799
| Decision Date | 11 January 1989 |
| Docket Number | No. 88-1799,88-1799 |
| Citation | 876 F.2d 1060 |
| Parties | , 57 USLW 2739, 19 Envtl. L. Rep. 21,285 UNITED STATES of America, Plaintiff, Appellant, v. GENERAL MOTORS CORPORATION, Defendant, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
David C. Shilton, Land and Natural Resources Div., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., Richard J. Leon, Deputy Asst. Atty. Gen., Jacques B. Gelin and William D. Brighton, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., were on brief, for U.S.
Theodore L. Garrett with whom Sonya D. Winner, Covington & Burling, Washington, D.C., Kenneth A. Reich, Grand Rapids, Mich., Widett, Slater & Goldman, Boston, Mass., and Patrick J. McCarroll, Detroit, Mich., were on brief, for appellee.
Janet G. McCabe, Environmental Protection Div., Dept. of the Atty. Gen., and Lee P. Breckenridge, Chief, Environmental Protection Div., Boston, Mass., on brief for the Com. of Massachusetts, amicus curiae.
Before CAMPBELL, Chief Judge, COFFIN and TORRUELLA, Circuit Judges.
This is an appeal by the Environmental Protection Agency (EPA) from the district court's dismissal of its enforcement action under the Clean Air Act, 42 U.S.C. Sec. 7401 et seq., against appellee General Motors. The case requires us to answer two statutory questions. First, does the four-month time limit for EPA action on original state implementation plans (SIPs) also apply to the Agency's review of proposed revisions to existing state plans. Second, assuming the EPA must complete its review of SIP revisions within four months, does its failure to do so prevent it from enforcing an existing state implementation plan during the interval between the end of the four-month period and the time the agency finally rules on the revision.
During the 1950s and 1960s, the responsibility for improving the nation's air quality fell to the states, with the federal government playing only a minor role. Over the years, however, there was growing dissatisfaction with the states' effort to combat air pollution. Congress responded with the 1970 Amendments to the Clean Air Act (the Act). Although the Amendments greatly increased the federal government's role, they by no means eliminated the states' responsibility for improving air quality. To the contrary, the Act expressly preserved the principle "that the prevention and control of air pollution at its source is the primary responsibility of States and local governments...." Sec. 101(a)(3), 42 U.S.C. Sec. 7401(a)(3). See Train v. Natural Resources Defense Council, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975). Thus, the states and the federal government were now to be partners in the continuing fight against air pollution.
The division of responsibility is straightforward and logical. The EPA, the federal agency charged with administering the Act, has the task of establishing National Ambient Air Quality Standards (NAAQS). The states then have the responsibility of submitting for EPA approval state implementation plans (SIPs) designed to achieve and maintain these uniform standards. Sec. 110(a)(1). By giving the EPA authority to set threshold standards and to reject implementation plans that are ill-designed to achieve and maintain such standards, Congress ensured that states could not compete unfairly for industry by offering lenient air requirements. See Duquesne Light v. EPA, 698 F.2d 456, 471 (D.C.Cir.1983); United States v. Ford Motor Co., 814 F.2d 1099, 1102 (6th Cir.1987). At the same time, however, Congress believed it important that the states retain wide latitude in choosing how best to achieve national standards, given local needs and conditions. The EPA, therefore, may not reject a SIP unless it finds that the plan fails to satisfy the substantive requirements set out in the Act, the principal one of which is that the plan be designed to attain national standards as quickly as practicable. Sec. 110(a)(2)(A)-(K). "[S]o long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation." Train, 421 U.S. at 79, 95 S.Ct. at 1481.
Congress also recognized that, because of advances in technology and changing local conditions, states would occasionally wish to revise their original implementation plans. The EPA may reject these SIP revisions, but its authority to do so is no greater than its authority to reject an original SIP. A state's proposed revision must be approved, therefore, unless it fails to satisfy one of the requirements set out in Sec. 110(a)(2) governing the evaluation of original SIPs. Sec. 110(a)(3)(A).
Once an original or revised SIP is approved by the EPA, it becomes federal law and is enforceable in one of two ways. Under either method, the first step is for the EPA to issue a Notice of Noncompliance. If the violation continues and the EPA cannot through negotiations reach some agreement with the polluting source, the Agency may enforce the SIP either by issuing an administrative order under Sec. 120 or by instituting an enforcement action under Sec. 113, which provides for injunctive relief as well as for civil penalties of up to $25,000 per day. Criminal penalties for knowing violations are also authorized. Sec. 113(c).
Under Sec. 120, the administrative mechanism, fines begin to accrue upon the issuance of a Notice of Noncompliance and are intended to offset the economic benefit to the company of delaying compliance. See Duquesne Light, 698 F.2d at 464. Under Sec. 113, the mechanism employed in this case, the EPA must bring an enforcement action in the district court to collect penalties. The court is given the responsibility of determining the amount of penalties to assess, taking into consideration such factors as the seriousness of the violation and the economic impact of the penalty on the business. Sec. 113(b).
Given the sense of urgency with which the 1970 Amendments were passed, it is not surprising that Congress did not leave the states and EPA free to work at their own pace in accomplishing these tasks. The Act is laced with deadlines applicable to both the states and the Agency. Of concern to us here are the deadlines for EPA review of state implementation plans. It is undisputed that the EPA must complete its review of original SIPs within four months. Sec. 110(a)(2) (). Unlike Sec. 110(a)(2), however, Sec. 110(a)(3)(A), which governs EPA review of SIP revisions, does not contain language explicitly imposing a four-month deadline on the Agency. Whether Congress nevertheless intended for the Agency to complete its review of SIP revisions within four months is the question giving rise to the instant dispute.
General Motors owns and operates an automobile assembly plant in Framingham, Massachusetts. The plant's painting operation is the source of volatile organic compounds (VOCs), which contribute to ozone. In 1980, the EPA approved a Massachusetts SIP governing VOC emissions from automobile painting operations. The plan permitted GM, which operates the only automobile assembly plant in the state, to meet emission limits in stages, but required full compliance by December 31, 1985.
In 1981, the EPA published a policy statement in which it noted that advancing technology now made it practicable for automobile painting operations to switch from lacquer paints to lower-emitting basecoat/clearcoat enamel systems (BC/CC). In light of these developments, the Agency stated that it would be willing to approve SIP revisions deferring compliance with emissions limits until 1986 or 1987 for companies wishing to switch to the BC/CC system. Although GM's Framingham plant used lacquer paints, the company took no immediate action in response to the EPA's offer. GM did request revisions, however, for three of its assembly plants in other states within ten days of the EPA's statement.
Three years later, in November of 1984, GM decided that it now wished to defer the December 31, 1985 compliance date imposed by the existing Massachusetts SIP. The proposed revision it submitted to the Commonwealth did not call, however, for a conversion to BC/CC technology, but rather requested a deferral to give the company additional time to install emission controls on its existing lacquer coating lines. In June of 1985, GM changed course and finally proposed converting the Framingham plant to BC/CC by the summer of 1987, which would give it an additional 20 months to meet the final emission limits. The Commonwealth approved the revision and submitted the proposal to the EPA on December 30, 1985--one day before the existing SIP's final compliance deadline.
Rather than wait for EPA approval of its proposed revision, GM began construction on a new BC/CC painting facility while at the same time continuing to operate its lacquer plant. EPA Region I, the branch of the Agency responsible for evaluating SIP revisions from New England states, began reviewing the proposal while also entering into negotiations with the Commonwealth and GM in the hope of resolving GM's noncompliance with the existing SIP's deadline by means of a delayed compliance schedule. 1
On July 2, 1986, with negotiations apparently having failed, Region I sent to EPA headquarters a proposal to disapprove the revision. On August 14, 1986, EPA issued a Notice of Violation to GM concerning violations of the existing SIP by the company's lacquer plant--a prerequisite to the bringing of an enforcement action. Later that year, on December 2, EPA published a proposed disapproval of the Commonwealth's SIP revision based on Region I's July 2 evaluation. The...
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