Northwestern Ohio Lung Association v. Denton

No. C77-654 (N.D. Ohio November 19, 1980)

Denying defendant's motion for summary judgment, the court rules that the Environmental Protection Agency (EPA) may recover civil penalties from a state government for violations of the Clean Air Act. EPA sued the Ohio Department of Rehabilitation and Correction pursuant to § 113 of the Act, seeking both injunctive relief and civil penalties for violations of the Ohio state implementation plan due to emissions from the Department's boilers. The court finds that there exist numerous disputes of fact on the issues of the soundness of the emissions estimates, accuracy of the physical data, and qualifications of the observers of the data, and refuses to grant summary judgment for EPA. Also refusing to grant partial summary judgment for defendants, the court holds that (1) the State of Ohio and its agent and officers are "persons" for purposes of § 113(b) of the Act, and (2) the federalism and state sovereignty considerations which formed the basis of the Supreme Court's decision in National League of Cities v. Usery do not prohibit the federal government's environmental regulation of state entities under § 113(b). Moreover, the power to regulate air quality necessarily includes the power to impose sanctions for violations.

Counsel for Plaintiffs Northwestern Ohio Lung Association et al.
Rolf Scheidel
Schumaker, Loop & Kendrick
811 Madison Ave., Suite 500, Toledo OH 43624
(419) 241-4201

Counsel for Plaintiff Environmental Protection Agency
George D. Laurence Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5415

Linda Buell
Environmental Protection Agency, Region V, 230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Counsel for Defendants
Michael R. Szolosi, Ass't Attorney General
State Office Tower, 30 E. Broad St., Columbus OH 43215
(614) 466-4320

$=P9991*20035YOUNG, J.:

Memorandum and Order

This cause came to be heard upon the filing by the realigned plaintiff, the United States of America (hereinafter "Government"), of a motion for partial summary judgment, which has been opposed by the defendants. In addition, defendants have filed a motion to dismiss or, in the alternative, to grant partial summary judgment. This latter motion has been opposed by the Government.

This is an action brought by the realigned plaintiff USEPA pursuant to § 113 of the Clean Air Act Amendments of 1977, 42 U.S.C. § 7413(b), seeking both injunctive relief and civil penalties for alleged violations by defendants of the Ohio State Implementation Plan (SIP), promulgated pursuant to 42 U.S.C. § 7410.

The Government moves for partial summary judgment on the issue of whether the state defendants have violated the Ohio SIP and various Delayed Compliance Orders (DCOs). The Government submits numerous affidavits and other statistical information in order to demonstrate that several of the defendants' facilities are currently in violation of the Ohio SIP. The Government contends that USEPA observers have recorded violations of certain aspects of the Ohio SIP, the USEPA's Sulphur Dioxide Plan for the State of Ohio, as well as the terms of the defendants' DCOs. Plaintiff states that these violations were observed and recorded more than thirty days after the date of the administrator's notification of the violations.

Some of the violations found by USEPA observers were based on actual observations, including stack tests and smoke readings. Other violations were based partially or completely upon calculations of estimated emissions and upon calculations of allowable emissions data under the Ohio SIP. The Government concludes that it has proven its prima facie case that the defendants' boiler facilities are in violation of the above-mentioned air quality standards.

Defendants oppose the Government's motion for partial summary judgment on the ground that there exist numerous disputes of fact on the issue of liability of the defendants for violations of the Ohio SIP. For example, defendants note that the EPA's findings of violations are based primarily on affidavits of employees and agents of the USEPA. Defendants submit affidavits and other materials in an effort to demonstrate that the credibility of the observers and their test data must be tested at trial. Second, defendants challenge the emission factor calculations, upon which the Government relied in findings to find certain violations of the Ohio SIP.

At trial, defendants' consulting engineers will testify that it is inappropriate to use emissions estimates as a valid means of determining actual emissions. At best, defendants urge, the Government's calculations provide only crude estimates and can vary as much as 300% from actual emissions. Defendants conclude that actual emissions from a boiler can be determined only by a stack test or other means of physical detection.

Defendants' expert consultant also disagrees with the methodology employed by William Beyer, an EPA engineer, in calculating the allowable emissions under the Ohio SIP. Defendants intend to show the difference in interpretation between the USEPA and the Ohio EPA regarding calculations of particulate emission limitations under the Ohio SIP. (Palombo Affidavit.)

Finally, defendants contend that disputes of fact exist with respect to the accuracy of the numerous stack tests and smoke readings. Defendants also question the qualifications of the persons observing this physical data. Defendants conclude that these and other disputes of fact make summary judgment inappropriate in this case.

This Court agrees with the defendants that the summary judgment procedure under FED. R. CIV. P. 56 has limited value in a complex environmental lawsuit. See S.J. Groves & Sons Co. v. Ohio Turnpike Commission, 315 F.2d 235, 237 (6th Cir. 1963). This Court finds that there exist numerous disputes of fact surrounding the accuracy of the observed physical data, the qualifications of the observers, and the soundness of the various mathematical calculations and estimates. Resolution of these matters in the cases of twenty-three of the defendants' facilities could, according to both counsel, require over a month of trial time. This Court holds that such questions of fact are not properly resolved on summary judgment.

Defendants move to dismiss or, in the alternative, for partial summary judgment. In this motion, the defendants seek an order dismissing the entire second amended complaint or, in the alternative, an order granting partial summary judgment on the issue of whether the Government may recover civil penalties from the defendants under 42 U.S.C. § 7413(b). For the reasons stated below, this Court finds that the defendants' motion is not well taken. Each of the defendant's legal arguments will be considered separately.

[11 ELR 20036]

First, defendants contend that the State of Ohio is not a "person" for purposes of § 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b). Despite the clear language of the statute to the contrary, defendants contend that a review of the legislative history of the Act reveals that Congress intended to impose civil penalties on commercial, not governmental, entities. Thus, defendants urge that Congress did not intend to impose civil penalties upon the states. Defendant further contends that § 113(b) of the Act does not apply to "any officer, agent or employee" of a state.

Section 113(b) of the Clean Air Act authorizes the commencement of a civil action by the USEPA for injunctive relief and civil penalties against "any person which is the owner or operator of a major stationary source." 42 U.S.C. § 7413(b). The Act unequivocally defines "person" to include any "individual, corporation, partnership, association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof." 42 U.S.C. §§ 7602(e), 7413(c)(3). This definition is broad enough to cover all of the defendants in the present case, including the individual officers and agents of the State of Ohio who clearly fall within the definition of the unlimited term "individual." Defendants' arguments with respect to the legislative history of the Act are contrary to the plain language of the statute, which permits civil penalties to be assessed against the State. Thus, this Court holds that the defendants are "persons" within the ambit of § 113(b) of the Clean Air Act.

Next, defendants argue that the Tenth Amendment to the United States Constitution prohibits any regulation of the State facilities in the present case. Defendants rely on the Supreme Court decision in National League of Cities v. Usery, 426 U.S. 833 (1976), which held that the authority of Congress under the Commerce Clause to directly regulate the states is limited in areas of "traditional governmental functions." In that case, the Supreme Court, in a 5-4 decision, struck down a 1974 amendment to the Fair Labor Standards Act which extended the Act's minimum wage and maximum hour provisions to cover employees of the states and political subdivisions thereof. The Court held that the federal government could not impose the minimum wage requirements on the state government, even though such action would be an otherwise valid exercise of Congress' power under the Commerce Clause if imposed upon private entities within the state.

The Court reasoned that regulation of a state differs from regulation of an individual within the state. The state's ability to structure employer-employee relations falls within areas of traditional government functions, the regulation of which would interfere with the States' "separate and independent existence" under the federal system of government embodied in the Constitution. 426 U.S. at 851-52. The Court concluded that direct regulation of the state in that case would encroach upon a protected area of state sovereignty and impair the state's "ability to function effectively in a federal system." 426 U.S. at 852.

Defendants urge that this Court extend the National League of Cities decision to prohibit environmental regulation of state penal institutions and mental hospitals. Defendants contend that the use of boilers to provide heat, hot water, food and laundry services to patients and immates is essential to the operation of each facility. Defendants conclude that the decision of the USEPA through Section 7413(b) regarding the equipment which must be used in the operation of each facility usurps the decision-making power of the state in this critical area.

This Court finds that environmental regulation of the state institutions in the present case is not prohibited by the federalism considerations discussed in National League of Cities. No one disputes that the Clean Air Act is an otherwise valid exercise of Congress' authority under the Commerce Clause. Further, a majority of the Justices who heard National League of Cities expressly state that the decision therein did not prohibit the exercise of federal power in the area of environmental protection. In his concurring opinion, Justice Blackmun states:

I may misinterpret the Court's opinion, but it seems to me that it adopts a balancing approach, and does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential. See ante, at 852-853. With this understanding on my part of the Court's opinion, I join it.

426 U.S. at 856 (Blackmun, J., concurring). The four dissenting Justices would certainly agree with Justice Blackmun's stance on Congress' power in the area of environmental protection. In his dissent, Justice Stevens expressly states:

The Federal Government may, I believe, require the State to act impartially when it hires or fires the janitor, to withhold taxes from his paycheck, to observe safety regulations when he is performing his job, to forbid him from burning too much soft coal in the capitol furnace, from dumping untreated refuse in an adjacent waterway, from overloading a state-owned garbage truck, or from driving either the truck or the Governor's limousine over 55 miles an hour. Even though these and many other activities of the capitol janitor are activities of the State qua State, I have no doubt that they are subject to federal regulation.

426 U.S. at 880-881 (Stevens, J., dissenting).

Thus, this Court holds that the considerations of federalism and state sovereignty which formed the basis of the decision in National League of Cities would not prohibit the federal government's environmental regulation of state entities under § 113(b) of the Clean Air Act Amendments of 1977. See also Friends of the Earth v. Carey, 552 F.2d 25, 37-39 [7 ELR 20177] (2d Cir.), cert. denied, 434 U.S. 902 (1977).

Finally, defendants rely on the same federalism consideration and the decision in National League of Cities to urge that the USEPA may not seek civil penalties against the state defendants under § 113(b). Defendants urge that the Court must weigh the state's right to manage its own affairs and the potential disruption of the state's budgetary process which would result from the imposition of civil penalties. However, defendants cite no case authority which directly addresses the issue of the recovery of civil penalties against a state under the Clean Air Act.

This Court finds no logical distinction between the Government's attempt under § 113(b) to require compliance (i.e. injunctive relief) and their attempt to impose civil penalties for violations of the Act. The power to regulate air quality standards necessarily includes the power to impose sanctions for violations thereof. Since this Court has held that National League of Cities does not outlaw environmental law regulation of the state defendants, it follows that the same considerations would not prevent imposition of civil penalties.

THEREFORE, for the above stated reasons, good cause appearing, it is

ORDERED that the realigned plaintiff's motion for partial summary judgment be, and it hereby is, OVERRULED; and it is

FURTHER ORDERED that defendants' motion to dismiss or, in the alternative, to grant partial summary judgment be, and it hereby is, OVERRULED.

IT IS SO ORDERED.