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American Lung Ass'n of N.J. v. Kean

ELR Citation: 18 ELR 20317
Nos. No. 87-288, 26 ERC 1865/(D.N.J., 11/19/1987) Compliance schedule determined

The court establishes a timetable to bring New Jersey into compliance with the ozone control portion of its state implementation plan (SIP). In a previous decision, the court had held that New Jersey was liable for failing to abide by its SIP's timetable for implementation of seven specific ozone control strategies. Plaintiffs and defendants New Jersey and the Environmental Protection Agency then agreed on a proposed compliance schedule, to which industry intervenors raised several objections. The court first holds that the language of CAA §172 indicates that the only proper consideration in setting a timetable for New Jersey's compliance after the deadline is whether it provides for SIP implementation as expeditiously as practicable. Addressing the intervenors' objections, the court holds that it need not consider all aspects of the proposed schedule, including its technical feasibility. An exhaustive factual inquiry into the effects of the proposed timetable is not required, since the only issue before the court is whether New Jersey can meet the dates proposed. The court holds that it cannot delay the implementation of Stage II vapor controls at commercial gasoline stations until after New Jersey has promulgated regulations for underground gasoline storage tanks because the court has no jurisdiction under CAA §§110 or 307 to review the New Jersey SIP's complex balancing of costs and benefits. The court next holds that there is a sufficient number of available contractors to make the schedule for installation of the Stage II vapor controls practicable. Although close, the schedule actually furthers the purpose of the CAA, which is to bring about expeditious compliance. Moreover, any shortage of contractors could be alleviated if the gasoline stations offered more for the contractors' services. The court also rejects intervenor's arguments that the tight schedule will create unacceptable risks of accident and explosion, because existing statutory and common law promotes safety, and the evidence suggests that Stage II installation is relatively simple. The court holds that market conditions that increase the cost of installing the vapor controls at gasoline stations do not render the schedule impracticable. Finally, the court holds that it cannot delay the implementation of vapor controls on the barge loading of gasoline. To the extent that such a delay would be for the purpose of minimizing compliance costs, the court has no jurisdiction to review the state's decision to require such controls. Although the Coast Guard plans to promulgate regulations requiring the use of similar controls, to delay implementation of such controls under the New Jersey SIP in expectation of the Coast Guard's action would violate the CAA's mandate to move as expeditiously as practicable. There is no reason that New Jersey cannot implement regulations for barges on its own. Should New Jersey's scheme violate the Commerce Clause, an appropriate challenge could be brought. The court enters an order requiring New Jersey to comply with the proposed compliance schedule.

[A previous decision in this case is published at 18 ELR 20036. Decisions from related New York litigation are published at 18 ELR 20106 and 20148.]

Counsel for Plaintiffs
Eric A. Goldstein, William W. Buzbee
Natural Resources Defense Council, Inc.
122 E. 42nd St., New York NY 10168
(212) 949-0049

Counsel for Defendants
Paul H. Schneider, Deputy Attorney General
Dep't of Law & Public Safety
8th Floor, Justice Complex, CN080, Trenton NJ 08625
(609) 292-8740

Counsel for Defendant-Intervenors
Dennis M. Toft, David Samson
Kimmelman, Wolff & Samson
280 Corporate Ctr., 5 Becker Farm Rd., Roseland NJ 07068
(201) 740-0500