Delaware Valley Citizens' Council for Clean Air v. Commonwealth

Nos. 76-2068; 77-619 (E.D. Pa. May 20, 1981)

The district court denies defendants' motion to postpone until January 1983 implementation of an auto emissions inspection and maintenance program and orders defendants to submit a plan for the immediate implementation of the program by June 1, 1981. The court finds postponement unnecessary because existing emissions analyzers are adequate to fulfill the needs of the program and the air quality in the Philadelphia and Pittsburgh regions of the state fails to meet some of the standards established by the Environmental Protection Agency. In addition, the court grants plaintiffs' motion to declare defendants in violation of the consent decree but refuses to modify the decree to assign supervision, of the program to plaintiffs.

Counsel are listed at 11 ELR 20953.

[11 ELR 20954]

Bechtle, J.:

Memorandum and Order

In 1976 and 1977, the Delaware Valley Citizens' Council for Clean Air ("DVCCCA") and the United States, respectively, each brought a civil action to compel the Commonwealth of Pennsylvania and two of its agencies to establish a program for the inspection and maintenance of automobile emissions systems ("I/M program"), which the plaintiffs contended was required by federat law. See 42 U.S.C. § 7410(c)(1)(B). At length, the parties entered into a consent decree, approved by this Court on August 29, 1978, which provided for the establishment, either by legislation or regulation, of an I/M program in Pennsylvania. As subsequently modified, that decree provided that the Commonwealth would commence inspections on May 1, 1980.

Presently before the Court are two motions filed by the Commonwealth. The first motion seeks a modification of the consent decree to provide for a further postponement of the I/M program's full implementation until January 1, 1983. The Commonwealth's second motion seeks an order staying the imlementation of the I/M program pending the Court's determination of the motion for a modification of the decree. Both motions will be denied.

The Commonwealth's principal ground for seeking the delay is that, by waiting the additional 20 months, a more advanced emissions system analyzer, using a computer, will be available for use in the I/M program. The new computer analyzer, which is more expensive, is not now available and, though presumably more accurate than the less expensive available analyzer, the decree of added accuracy is neither necessary nor required by the United States Environmental Protection Agency ("EPA"). All parties, including the EPA, agree that existing analyzers, which are less expensive for the inspecting gas stations to buy, are adequate to fulfill the needs of the I/M program.

The parties submitted legal memoranda and a hearing was held on May 6, 1981, on the Commonwealth's motions. In addition, the EPA, at the Court's request, submitted a brief report on the current air quality in the Philadelphia and Pittsburgh regions of the state. The report demonstrates that, while air quality in the two regions is improving or presently adequate in respect to some EPA standards, it continues to be wholly inadequate in respect to other EPA standards. For example, the ozone level in the Pittsburgh area not only fails to meet the standard, but has become worse over the past two years. In the Philadelphia area, the ozone level, while decreasing, is still at nearly twice the concentration permitted by the EPA standard. See EPA Report, Charts 1-5.

Therefore, upon consideration of the arguments of the parties and the EPA report, the Court has concluded that, notwithstanding the possible advantages of using the computer analyzer, the Commonwealth must establish the I/M program as set forth in the consent decree — without further delay.

Alto before the Court is a motion filed by plaintiff DVCCCA requesting the Court to declare the defendants in violation of the consent decree, as modified, and to modify the consent decree. The modification sought would largely place supervision of the I/M program in the hands of the DVCCCA. Although the Commonwealth's delay in establishing the I/M program is disappointing and in large measure inexcusable, the Court does not believe that there are sufficient grounds at this time to either consider further or allow in whole or in part the drastic revision of the program proposed by the DVCCCA. Therefore, the motion of the DVCCCA will be denied.

An appropriate Order will be entered.

AND NOW, TO WIT, this 20th day of May, 1981, for the reasons stated in the foregoing Memorandum, IT IS ORDERED as follows:

1. The state defendants' motion for modification of the consent decree is denied.

2. The state defendants' motion to stay implementation of the consent decree is denied.

3. The motion of the Delaware Valley Citizens' Council for Clean Air to declare the defendants in violation of the consent decree, as modified, and to modify the consent decree is granted insofar as it seeks to have the defendants declared in violation of the consent decree, as modified, and the Court so declares; and, (B) the motion is denied insofar as it seeks a modification of the consent decree.

4. The state defendants are hereby directed to file with the Clerk of Court and serve, on or before June 1, 1981, a proposed plan for the Court's consideration, providing for the immediate implementation of the I/M program in accordance with the consent decree. Any objections thereto shall be filed with the Clerk of Court and served on or before June 8, 1981.

5. There will be a hearing on the state defendants' proposed plan, and any objections thereto, to 9:30 a.m., June 10, 1981, in Courtroom 17B, United States Courthouse, Philadelphia, Pa.