Delaware Valley Citizens' Council for Clean Air v. Commonwealth

Nos. 76-2068; 77-619 (E.D. Pa. June 16, 1981)

The district court approves, subject to several modifications, defendants' proposed auto emission inspection and maintenance plan. The court rules that operation of the inspection and maintenance program will begin on May 1, 1982 and that defendants must certify 3,000 inspection stations by that date. Finding defendants' quarterly visitation proposal inadequate, the court orders defendants to implement a system of monthly visits and audits of inspection facilities. In addition, the court rejects defendants' proposed consumer protection mechanism and orders defendants to submit bimonthly progress reports to the court.

Counsel are listed at 11 ELR 20953.

[11 ELR 20955]

Bechtle, J.:

Memorandum and Order

Presently before the Court is the Commonwealth's proposed Emission Inspection and Maintenance Plan, together with objections of the plaintiffs Delaware Valley Citizens' Council for Clean Air ("DVCCA"), the United States of America and the Environmental Protection Agency ("EPA"), filed in response to the Court's Order of May 20, 1981. On May 20, the Court declared that defendants Commonwealth of Pennsylvania and the Secretaries of the Pennsylvania Department of Transportation ("PennDOT") and the Pennsylvania Department of Environmental Resources ("PennDER") were in violation of the Consent Decree in which defendants had agreed to establish an automobile emissions inspection and maintenance program ("I/M program") for the five-county Philadelphia and Pittsburgh areas to have commenced on May 1, 1981. Delaware Valley Citizens' Council for Clean Air v. Commonwealth of Pennsylvania, Nos. 76-2068, 77-619 (E.D. Pa., May 20, 1981). On June 10, 1981, the Court held a hearing regarding the proposed plan. The Commonwealth's proposed emissions I/M program will be approved subject to the following modifications:

I. Implementation of the Emissions I/M Program

First, the Court approves the Commonwealth's proposal to use the BAR-80 emissions analyzer with an automatic data collection system. The BAR-80-ADC equipment is preferable to the BAR-74 equipment because of its superior increased cost efficiency and reporting accuracy, as well as its more certain adaptability to the testing of auto emissions for compliance with the new car warranty required by § 207(b) of the Clean Air Act, 42 U.S.C. § 7541(b).

Second, the Court believes that the I/M program can be fully implemented by May 1, 1982, through a sincere effort on the part of the Commonwealth and the cooperation of all parties involved.

The defendants have asserted in open court their sincere desire and interest in going forward with this program. Although certain of the plaintiffs challenge the sincerity of these declarations, the Court believes that they have been made by the defendants responsibly and in good faith. If the Court is correct, the manner in which the defendants enter upon their obligations under this Order will soon be apparent and it is from there that it will be easily determined whether or not the Court's confidence and expectations have been well placed. The defendants surely have the resources, skill and the personnel to carry out what they say is their earnest goal. Time is the real test and, for purposes of this phase of this litigation, it commences at this time.

Third, defendants have informed the Court that 2,274 inspection facilities have already been certified under Phase I of the I/M program to date. Phase II of the certification process, which requires that each station purchase the approved emissions analyzer and hire a certified emissions mechanic, has yet to be completed. Since the Commonwealth has for some months been prepared for the training of certified emissions mechanics and the certification of new inspection stations, the Court finds that it is reasonable to require that the Commonwealth certify at least 3,000 inspection stations by the date of the implementation of this program — May 1, 1982.

II. Program Quality Assurance

Schedule B, § 1(D) of the Consent Decree of August 30, 1978, requires that the Commonwealth and PennDOT commence the development and implementation of standards, procedures and regulations with respect to the "periodic on-site visits by the Commonwealth to inspection facilities, instrument calibration checks, and inspection of records." This provision was later modified to read that "periodic visits shall be unannounced and occur at least once every three (3) months for each inspection facility, unless the quality control procedures are modified pursuant to paragraphs 4, 6 and 8 of this schedule." Modification of Consent Decree, March 7, 1980, sch. 3, § 1(D). Accordingly, PP4, 6 and 8 require that the Commonwealth prepare a study for review by plaintiffs on the cost-effectiveness and quality of monthly on-site inspections, as opposed to the Commonwealth's proposed quarterly visitations. The aforementioned modifications to the Conent Decree specifically provide that "[p]laintiffs reserve the right to challenge any such procedures which are not as effective as the results of monthly on-site visits by the Commonwealth." Modification of Consent Decree, March 7, 1980, sch. B, P8 (emphasis added). On July 31, 1980, PennDOT submitted the required study of quality control procedures to the EPA. PennDOT proposed a system of quarterly visitations and audits of the inspection facilities. However, the EPA report on the Pennsylvania Proposed I/M Surveillance System, issued on September 23, 1980, outlined numerous deficiencies and inadequacies of the proposed surveillance system. EPA strongly recommended that the Commonwealth adopt a system of monthly audits, which in the opinion of the EPA would still remain cost-effective. In light of this report and the inadequacy of the quarterly visitations proposal demonstrated therein, this Court finds at this time that the proposed quarterly visitation program would not be "as effective as the results of monthly visits." Therefore, the Court will require defendants to implement a quality assurance program consisting of monthly audits and visitations of the certified emissions I/M stations. Should it be demonstrated from the results of experience following full implementation of this program that actual events warrant a change in the program, alternative programs will be considered by the Court.

III. Consumer Protection Mechanism

The Consent Decree, as modified, states that defendants will "[s]ubmit to Plaintiffs adopted policies for providing, as a consumer protection mechanism, facilities where official confirming inspections may be conducted independent of certified private garages (i.e., at least one facility in the Philadelphia area and one facility in the Pittsburgh area as the base system, with operation of other facilities at the sole discretion of PennDOT), or an equally effective alternative, such as timely consumer complaint investigations by Commonwealth employees." Modification of Consent Decree, March 7, 1980, sch. B, P9 (emphasis added). The Commonwealth proposes to implement a consumer protection mechanism which involves a Central Complaint Office from which field investigators would investigate submitted complaints and possibly arrange vehicle emissions retesting or analyzer checks if deemed necessary. This Court believes, however, that it is extremely important that the I/M program be effective, which will include acquiring the confidence of citizens in the affected areas. Therefore, the Court finds that common sense dictates that the Commonwealth's proposed Central Complaint Office procedure would not rise to the level of "an equally effective alternative" as that of at least one official confirming inspection station in both the Philadelphia and Pittsburgh areas, as described in sch. B, P9 of the modified Consent Decree. The Court is simply convinced that, in the absence of demonstrable evidence to the contrary, a change in the originally envisioned mode is not warranted now. Therefore, the Court will require that the Commonwealth maintain at least one independent inspection facility in each of the Philadelphia and Pittsburgh areas as a base system for handling consumer complaints in those two widely separated areas. Should it be demonstrated at a later time that an alternative system would be just as effective in light of experience under the program, the Court will reconsider this matter.

IV. Reporting Requirements

Section 11 of the original Consent Decree requires that PennDOT submit specified quarterly reports to the plaintiffs "for the purpose of insuring compliance with this Consent Decree." Consent Decree, August 29, 1980, P11. PennDOT will still be required to rovide these reports to plaintiffs. Such reports shall specifically outline the progress of defendants in implementing the I/M program.

Second, this Court will require that PennDOT submit progress reports to this Court on the first and fifteenth of every month hearafter or the first business day following such date if such date is a Saturday, Sunday or holiday, in order that the [11 ELR 20956] Court can effectively monitor the implementation of the approved I/M program. These reports will be required, effective immediately, and shall continue through December, 1981.

V. Conclusion

It has been almost three years from the date of the entry of the Consent Decree in which defendants agreed to implement an I/M program; yet we find that the Commonwealth has still failed to implement the agreed-to program. This program is vital to achieving federally established standards of air quality in the Philadelphia and Pittsburgh regions. The parties, by their consent in the current Decree, as well as their unanimous declaration in court that the program is to go forward, have acknowledged that the observance of these air quality standards are necessary to maintain the health and well-being of the residents in the Philadelphia and Pittsburgh areas. Since the Court anticipates the cooperation and best efforts of the Commonwealth and PennDOT in implementing this program, the Court will withhold a ruling at this time on plaintiffs' request for the imposition of sanctions for failure to comply with the approved program. An appropriate Order will be entered.

Order

AND NOW, TO WIT, this 16th day of June, 1981, for the reasons stated in the foregoing Memorandum, IT IS ORDERED as follows:

1.Defendants' motion for reconsideration of the Court's Order of May 20, 1981, is denied for the reasons stated by the Court at the June 10, 1981, hearing.

2. The Commonwealth's Proposed Emission Inspection and Maintenance Program I is approved, except as modified hereinafter by this Order.

3. Pursuant to sch. B §§ 1(D), 4, 6 and 8 of the Modified Consent Decree of March 7, 1980, defendants shall promulgate and implement standards, procedures and regulations pertaining to monthly audits and monthly on-site visitations of the certified emissions inspection and maintenance stations. Monthly audits will be required until such time, following the full implementation of the I/M program, as the Court finds that experience under the program warrants a change.

4. Pursuant to sch. B, § 9 of the Modified Consent Decree of March 7, 1980, defendants shall promulgate and implement standards, procedures and regulations pertaining to the establishment of official confirming inspection stations for consumer protection, at least one of which shall be in the Philadelphia area and one of which shall be in the Pittsburgh area, with establishment of additional facilities at the sole discretion of defendants. Such a consumer protection program will be required until such time, following the full implementation of the I/M program, as the Court finds that experience under the program warrants a change.

5. Pursuant to § 11 of the Consent Decree of August 29, 1978, defendants shall submit specified quarterly reports to plaintiffs which set forth the state of progress in the Commonwealth's implementation of the I/M program.

6. Effective immediately and through December, 1981, defendants shall file progress reports with the Clerk of Court on the first and fifteenth of each and every month (or the first business day following such dates if such date is a Saturday, Sunday or holiday). Such reports shall detail the progress of each of the items shown on defendants' submitted Emission Inspection Program I (Recommended Plan).

7. Subject to the Decree, previousOrder of this Court and the within Order, the proposed schedule of defendants for the implementation of the I/M program is hereby approved and its operation shall commence on May 1, 1982, subject to such further Order of this Court as may from time to time be made.

8. Defendants shall certify a minimum of 3,000 inspection stations in order to effectively implement this program.

9. Subject to the expectations of the Court that its Orders to date, including the within Order, will be complied with by the defendants, the Court will withhold a final ruling on plaintiffs' request for impositions of sanctions at this time.