US v. Ford Motor Co., 88-0987-CV-W-5.

• Decision Date: 23 April 1990
• Docket Number: No. 88-0987-CV-W-5.,88-0987-CV-W-5.
• Citation: 736 F. Supp. 1539
• Parties: UNITED STATES of America, Plaintiff, v. FORD MOTOR COMPANY, Defendant.
• Court: U.S. District Court — Western District of Missouri

736 F. Supp. 1539

UNITED STATES of America, Plaintiff, v. FORD MOTOR COMPANY, Defendant.

No. 88-0987-CV-W-5.

United States District Court, W.D. Missouri, W.D.

April 23, 1990.

Alleen S. Castellani and Vernon A. Poschel, U.S. Attorney's Office, Kansas City, Mo., and Roger J. Marzulla and Elizabeth A. Edmonds, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for plaintiff.

Robert L. Driscoll, Stephen J. Owens and Lindsay L. Wood, Stinson, Mag & Fizzell, Kansas City, Mo., for defendant.

ORDER

SCOTT O. WRIGHT, Chief Judge.

This is an action by the United States at the behest of the Environmental Protection Agency against Ford Motor Company for penalties in excess of 50 million dollars and injunctive relief. Plaintiff alleges Ford has emitted volatile organic compounds ("VOCs") in excess of allowable from its Claycomo plant coating operation in violation of the Clean Air Act of 1970, 42 U.S.C. § 7401 et seq.

Before the Court is plaintiff's motion for summary judgment on its complaint, defendant's cross-motion for summary judgment on plaintiff's complaint, and plaintiff's motion to dismiss defendant's counterclaim. For the reasons to follow, plaintiff's motion for summary judgment on its complaint is denied, defendant's motion for summary judgment on plaintiff's complaint is granted, and plaintiff's motion to dismiss defendant's counterclaim is granted.

Because this action is brought on behalf of the EPA and because the EPA is intimately involved in the factual background of this case, the Court, for the sake of clarity, will often refer to the EPA as if it were the actual plaintiff in this case.

I. MOTIONS FOR SUMMARY JUDGMENT

A. Background

In an automobile or light-duty truck assembly plant, vehicles are coated (i.e. painted) in what is commonly referred to as "the paint shop." The coating process generally proceeds in three phases. First, the vehicles are given a prime coat. The purpose of the prime coat is to help prevent corrosion and to create a receptive surface for the topcoat. There are several methods of applying the prime coat. Some prime coats are applied by spraying them on the surface of the vehicle. These are called spray-primes. Ford uses the spray-prime method of application at its Claycomo plant. Second, a "topcoat" is applied. The topcoat is the coating which gives the vehicle its distinctive color. Finally, after the vehicle is assembled, further applications of topcoat are made as necessary to repair defects which occur in the painting or assembly process. This touching-up process is known as "final repair."

As a general rule, all coatings used in the automobile manufacturing process contain VOCs. Inevitably, volatile organic compound emissions occur during the vehicle coating process. Coatings are generally applied to vehicles through spray guns which can either be operated manually or by automatic controls. When a coating is sprayed, a portion of the resultant fog makes contact with and adheres to the vehicle surface. As this portion of the sprayed coating dries, the solvent evaporates and the VOCs are released into the air. Absent the use of hardware-type emissions controls such as incinerators or carbon absorbers, the VOC's in the solvent are exhausted from the paint shop and into the air outside the assembly plant where they contribute to the formation of ozone.

There are two principal factors that control the amount of VOC's emitted during the coating process: (1) the VOC content of the paint being applied, and; (2) the amount of coating that is sprayed from the spray guns in order to produce a properly coated vehicle.

Although the impact the VOC content of paint has on emissions is relatively straightforward, one principle should be noted. When a solvent-borne coating with a greater VOC content is substituted for a solvent-borne coating with a lesser VOC content, the relative amount of VOC's emitted using the higher VOC coating will not be in direct proportion to the relative difference in VOC content of the two coatings. It will be greater. There are two reasons for this. First, a given volume of the higher VOC coating will release more VOC's than the same volume of the first coating. Second, because increasing the VOC content of the substitute coating causes a corresponding decrease in its solids content, a greater volume of the substitute coating will have to be used to apply the same amount of solids as applied using the original lower VOC coating.¹

An additional factor relevant to the amount of coating that needs to be sprayed to properly coat a vehicle is "transfer efficiency." Transfer efficiency is the ratio of the portion of solids in sprayed coatings which adhere to a vehicle to the total solids sprayed. Transfer efficiency is important because it determines how much of a coating with a given solid and VOC content will have to be sprayed in order to achieve the requisite amount of solids on a vehicle. Thus, for any coating, the lower the transfer efficiency the greater the amount (in gallons) of coating that will have to be sprayed in order to properly paint the vehicle. The inverse also holds true.

B. The Clean Air Act and The Missouri Implementation Plan

In the 1950s and 1960s, the responsibility for improving the nation's air quality fell primarily to the states, with the federal government playing only a minor role. However, over the years there was increasing criticism of the states' efforts to attain clean air. To help insure the goal of a cleaner environment would eventually come to pass, Congress enacted the 1970 amendments to the Clean Air Act ("the Act"). While the amendments greatly increased the federal government's role, they by no means eliminated the states' responsibility for improving air quality. Indeed, 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...." § 101(a)(3), 42 U.S.C. § 7401(a)(3). See also Train v. Natural Resources Defense Council, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975). Thus, the most significant change brought about by the Act was that the states and the federal government were now to be partners in the fight against air pollution.

The division of labor within this partnership was straightforward and logical. Section 109 of the Act required the agency charged with administering the Act, the Environmental Protection Agency, to establish air quality standards ("National Ambient Air Quality Standards or NAAQS"). As the first step in the process, EPA published lists identifying emissions that were reasonably believed to endanger public health and welfare. EPA then issued air quality criteria for each listed pollutant. § 108(a), 42 U.S.C. § 7408(a). Finally, EPA, following statutory procedures and timetables, promulgated 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. § 109(a), 42 U.S.C. § 7409(a). Ozone is one such pollutant.² After it established the NAAQS for each pollutant, the role of the EPA was secondary and that of the states became primary. Train, 421 U.S. at 79, 95 S.Ct. at 1481.

Section 110 of the Act required the states to adopt implementation plans ("State Implementation Plans or SIP's") for attaining the standards set by EPA. 42 U.S.C. §§ 7409, 7410; Train, 421 U.S. 60, 64-67, 95 S.Ct. 1470, 1474-1476 (1975). 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. United States v. Ford Motor Co., 814 F.2d 1099, 1102 (6th Cir.), cert. denied, 484 U.S. 822, 108 S.Ct. 83, 98 L.Ed.2d 45 (1987); Dequesne Light v. EPA, 698 F.2d 456, 471 (D.C.Cir.1983).

At the same time, however, Congress recognized that the state was in the best position to determine how best to achieve the national goals in light of local needs and conditions. Therefore, the EPA may not reject a SIP unless it finds it fails to satisfy the substantive provisions of the Act, the principle provision being that the plan be designed to attain national standards as quickly as possible. § 110(a)(2)(A)-(K), 42 U.S.C. § 7410(a)(2)(A)-(K). "So long as the ultimate effect of a State's choice of emission limitations is in 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 1482.³

To speed process towards attainment, Congress in the Clean Air Act Amendments of 1977 added section 107(d), 42 U.S.C. § 7407(d). Paragraph 1 of that section required each state, within 120 days, to submit to the EPA a list of attainment areas (areas in which the air quality standards had been attained), nonattainment areas, and areas that could not be classified either way on the basis of available information. Another new section, section 172, 42 U.S.C. § 7502, prescribed new, more stringent requirements for state implementation plans in nonattainment areas. The states were given until January 1, 1979, to submit their section 172 plans for such areas.

Attainment and unclassifiable areas were made subject to section 163 of the 1977 amendments, 42 U.S.C. § 7473, which was designed to prevent any significant deterioration in air quality. Attainment and unclassified areas also remained subject to the pertinent requirements of the 1970 amendments. Complying with section 163 by preventing significant deterioration in the existing quality of the air was easier than complying with section 172, whose purpose was to raise air quality standards above existing levels. However, as the amendments clearly explain, the states still have the primary...