Natural Resources Defense Council, Inc. v. Ruckelshaus

No. 82-2137 (D.D.C. July 26, 1983)

The court approves a settlement agreement resolving litigation over Clean Air Act implementation plans governing airborne lead pollution. The parties agree that as of July 30, 1982 the Environmental Protection Agency (EPA), by failing to approve, disapprove, or promulgate lead plans for 29 states and portions of two others, missing by more than two years the deadlines for such actions, had failed to carry out its duties under the Act. Plaintiffs agree to drop, without prejudice, their claim concerning promulgation of a list of lead nonattainment areas. The parties agree that, for state plans submitted before March 1, 1983, EPA will publish final approvals or proposed disapprovals by November 1, 1983; that final disapprovals will be published by May 1, 1984; and that, where necessary, EPA will promulgate plans by October 1, 1984. The agreement provides for the court to set a schedule for action on any plans not completed by October 1, 1984. The parties agree that states with potential lead pollution problems that have not submitted lead plans must do so by August 1, 1984 and that EPA will act on such plans and, where necessary, promulgate federal plans by October 1, 1984, with similar provision for the court to schedule action on any such plans not promulgated by that deadline. For states that the agency determines do not have major potential lead pollution problems, the agreement provides a longer period for development of lead implementation plans.

In addition, the parties agree that the court will retain jurisdiction through the date of final action on lead plans for all states without approved plans, and that EPA will submit quarterly progress reports on compliance with the agreement.

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

Ronald J. Wilson
810 18th St. NW, Suite 804, Washington DC 20006
(202) 628-3160

Counsel for Defendants
A. James Barnes, Acting General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

F. Henry Habicht II, Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4195

[13 ELR 20789]

GREEN, J.:

Settlement Agreement

WHEREAS, the Administrator of the Environmental Protection Agency ("the Administrator"), defendant in the above-captioned lawsuit, is directed under the Clean Air Act, as amended, Public Law 95-95, 91 Stat. 685, 42 U.S.C. § 7401 et seq. ("the Act"), to supervise implementation and assure the attainment of national ambient air quality standards for air pollutants which the Administrator has determined may reasonably be anticipated to endanger public health or welfare; and

WHEREAS, pursuant to Section 108(a) of the Act, the Administrator (by a predecessor) found that exposure to the pollutant lead adversely affects public health and welfare, and pursuant to Section 109(a) of the Act, promulgated a national primary ambient air quality standard for lead on October 5, 1978 of 1.5 micrograms per cubic meter of air (averaged over a calendar quarter); and

WHEREAS, pursuant to Section 110(a)(1) of the Act, each state "shall, after reasonable notice and public hearings, adopt and submit to the Administrator within nine months after the promulgation of a national primary ambient air quality standard . . . a plan which provides for implementation, maintenance, and enforcement of such primary standard in each air quality control region;" and

WHEREAS, pursuant to Section 110(a)(2) of the Act, the Administrator "shall, within four months after the date required for submission of a plan under paragraph (1) [or November 5, 1979], approve or disapprove such plan or any portion thereof;" and

WHEREAS, pursuant to Section 110(c)(1) of the Act, the Administrator shall promptly after the date required for submission of state lead plans "prepare and publish proposed regulations" setting forth federal implementation plans, and, within six months after said date [or January 5, 1980] "promulgate" in final form such plans for states which failed to submit plans or whose plans, or portions thereof, the Administrator determined did not meet the statutory requirements, unless prior to any such promulgation, the state has adopted and submitted a plan (or revision) which the Administrator determines to be in accordance with the requirements of the Act; and

WHEREAS, as of July 30, 1982, the date of filing of plaintiffs' complaint in the above-captioned case, the Administrator had approved lead plans for 19 states and portions of 2 others, neither approved nor disapdproved plans for 29 states and portions of 2 others, and prepared and published or finally promulgated federal implementation plans for no states; and

WHEREAS, plaintiffs in their complaint in the above-captioned case sought an order of this Court declaring that the Administrator failed to approve or disapprove all outstanding state lead plans and to prepare, publish and promulgate federal lead implementation plans for states which did not submit plans or whose plans did not meet the statutory requirements as required by law, and directing EPA to establish a prompt timetable for the completion of these duties pursuant to Section 110 of the Act; and

WHEREAS, the Administrator agrees that the duties imposed by Section 110 of the Act with regard to the approval and/or promulgation of lead implementation plans have not been fulfilled as of the date of this Agreement; and

WHEREAS, plaintiffs agree to withdraw Claim VI of their complaint relating to the promulgation of air quality attainment lists under Section 107(d)(2) of the Act, the parties agreeing that such withdrawal shall be without prejudice to renew said claim at any time through the initiation of a new action; and

WHEREAS, the parties to this Agreement believe the Agreement as set forth below constitutes an appropriate resolution of the issues raised by the above-captioned complaint;

NOW THEREFORE, it is hereby stipulated and Agreed as follows:

A. Timetable for Agency Actions re: States whose Lead Implementation Plans have been Submitted and are Awaiting Final Agency Review

1. No later than three months after the August 1, 1983 date specified in paragraph 29 below for the triggering of certain duties under this Agreement, or November 1, 1983, the Administrator shall, pursuant to Section 110(a)(2) of the Act and its implementing regulations, 40 C.F.R. Parts 50, 51, and 58 ("its implementing regulations"), publish final approvals or proposed disapprovals of all state lead implementation plans which were submitted to the Agency before March 1, 1983 but which have not yet been formally acted upon as of the date of this Agreement. The states whose plans fall into this category are listed in Appendix "I," ("Appendix I" states), attached to this Agreement.

2. If the Administrator proposes to disapprove all or part of any lead plan from an Appendix I state, he shall publish a final [13 ELR 20790] disapproval of said plan or portion thereof, after public comment, no later than May 1, 1984, unless before then the Administrator has taken final action approving a lead plan submission from that state which he determines fully satisfies the requirements of Section 110(a)(2) of the Act and its implementing regulations.

3. If the Administrator publishes a final disapproval of all or part of any Appendix I state lead plan, he shall publish a proposed federal implementation plan, pursuant to Section 110(c)(1) of the Act, no later than October 1, 1984, unless before then the Administrator has taken final action approving a revised lead plan submission from that state which he determines fully satisfies the requirements of Section 110(a)(2) of the Act and its implementing regulations.

4. No later than October 15, 1984, the Administrator shall submit to the Court and to plaintiffs an affidavit listing all Appendix I states for which a final state or federal lead implementation plan has not been approved or promulgated, suggesting a proposed schedule for final promulgation of federal plans for all such states, and setting forth the factual basis underlying the proposed schedule. Plaintiffs shall have until October 31, 1984 to file a response to the Administrator's proposal, whereupon the parties contemplate that the Court will enter an order setting an expeditious schedule for final promulgation of federal plans for all Appendix I states for which final state or federal lead implementation plans have not been approved or promulgated, such order to be based on the submissions of the parties, any hearing, before the Court, and any other facts the Court may request.

B. Timetable for Agency Actions re: States Classified by EPA as Having Major Stationary Sources or Recent Violations of the National Ambient Air Quality Standard for Lead, or Both

5. The Administrator shall, promptly after this Agreement takes effect, notify states which have not yet submitted lead implementation plans and which the Administrator has determined either contain major stationary sources of lead emissions (such as primary or secondarylead smelters or primary copper smelters) or have submitted data evidencing violations of the national ambient air quality standard for lead since 1980, or both, that Section 110(a)(1) of the Act requires these states to have submitted lead implementation plans by July 5, 1979, and that pursuant to this Agreement they must submit such plans no later than the trigger date, August 1, 1983. The states which fall into this category are listed in Appendix "II," ("Appendix II" states), attached to this Agreement.

(i) Submitting States

6. The Administrator shall promptly after August 1, 1983 review all lead plans submitted by Appendix II states and shall, pursuant to Section 110(a)(2) and its implementing regulations, propose to approve or disapprove such plans no later than January 3, 1984.

7. The Administrator shall provide for a period immediately following publication of a proposed action in the Federal Register of not less than 30 days nor more than 60 days for the submission and receipt of public comments on the proposed approvals or disapprovals of Appendix II state lead pdlans.

8. The Administrator shall, pursuant to Section 110(a)(2) and its implementing regulations, publish final approvals or disapprovals of submitted Appendix II state plans no later than July 1, 1984 (30-day comment period) or August 1, 1984 (60-day comment period).

9. If the Administrator publishes a final disapproval for all or part of an Appendix II state lead plan, he shall, pursuant to Section 110(c)(1) of the Act, publish a proposed federal implementation plan, or portion thereof, for that state no later than October 1, 1984, unless before then the Administrator has taken final action approving a revised lead plan submission from that state which he determines fully satisfies the requirements of Section 110(a)(2) of the Act and its implementing regulations.

10. No later than October 15, 1984, the Administrator shall submit to the Court and to plaintiffs an affidavit listing all Appendix II states for which a final state or federal lead implementation plan has not been approved or promulgated, suggesting a proposed schedule for final promulgation of federal plans for all such states, and setting forth the factual basis underlying the proposed schedule. Plaintiffs shall have until October 31, 1984 to file a response to the Administrator's proposal, whereupon the parties contemplate that the Court will enter an order setting an expeditious schedule for final promulgation of federal plans for all Appendix II states for which final state or federal lead implementation plans have not been approved or promulgated, such order to be based on the submissions of the parties, any hearing before the Court, and any other facts the Court may request.

(ii) Non-submitting States

11. The Administrator shall promptly upon the failure of an Appendix II state to submit a lead implementation plan by August 1, 1983, publish a notice of intent to promulgate, pursuant to Section 110(c)(1) of the Act, a federal implementation plan for that state.

12. The Administrator shall no later than April 1, 1984, publish, pursuant to Section 110(c)(1) of the Act, a proposed federal implementation plan for all Appendix II states which failed to submit lead plans by August 1, 1983, unless before then the Administrator has taken final action approving a lead plan submission from that state which he determines fully satisfies the requirements of Section 110(a)(2) of the Act and its implementing regulations.Notwithstanding the preceding sentence, the Administrator shall not be required to publish a proposed federal implementation plan on or before April 1, 1984 for an Appendix II state which failed to submit a lead plan by August 1, 1983, provided: (1) the state subsequently submitted a lead implementation plan, and (2) the Administrator proposed to approve or disapprove such plan by January 3, 1984. Such a subsequently submitted Appendix II state plan shall be subject to paragraphs 6-10 and other applicable provisions of this Agreement.

13. The Administrator shall provide for a period immediately following publication of a proposed action in the Federal Register of not less than 30 days nor more than 60 days for the submission and receipt of public comment on any proposed federal implementation plan for an Appendix II state, published pursuant to paragraph 12 above.

14. The Administrator shall, pursuant to Section 110(c)(1) of the Act, publish a final federal implementation plan for any Appendix II state for which a proposed federal plan has been published pursuant to paragraph 12 above, no later than October 1, 1984, unless before then the Administrator has taken final action approving a plan submitted after August 1, 1983 which he determines fully satisfies Section 110(a)(2) of the Act and its implementing regulations.

C. Timetable for Agency Action re: States Classified by EPA as Not Having Certain Major Stationary Sources of Lead

15. The Administrator shall, promptly after this Agreement takes effect, notify states which have not yet submitted lead implementation plans, which the Administrator has determined do not contain certain major stationary sources of lead emissions (such as primary or secondary lead smelters, or primary copper smelters), and for which the Administrator has received no data evidencing violation of the national ambient air quality standard for lead since 1980, that Section 110(a)(1) of the Act requires these states to have submitted lead implementation plans by July 5, 1979, and that pursuant to this Agreement they must submit such plans no later than December 31, 1983. The states which fall into this category are listed in Appendix "III," ("Appendix III" states), attached to this Agreement.

(i) Submitting States

16. The Administrator shall promptly after December 31, 1983 review all lead plans submitted by Appendix III states and shall, pursuant to Section 110(a)(2) and its implementing regulations, propose to approve or disapprove such plans no later than July 1, 1984.

17. The Administrator shall provide for a period immediately following publication of a proposed action in the Federal Register of not less than 30 days nor more than 60 days for the submission and receipt of public comments on the proposed approvals or disapprovals of Appendix III state lead plans.

18. The Administrator shall, pursuant to Section 110(a)(2) [13 ELR 20791] and its implementing regulations, publish final approvals or disapprovals of submitted plans from Appendix III states no later than January 1, 1985 (30-day comment period) or February 1, 1985 (60-day comment period).

19. If the Administrator publishes a final disapproval for all or part of an Appendix III state lead plan, he shall, pursuant to Section 110(c)(1) of the Act, publish a proposed federal implementation plan no later than April 1, 1985, unless before then the Administrator has taken final action approving a revised lead plan submission from that state which he determines fully satisfies the requirements of Section 110(a)(2) of the Act and its implementing regulations.

20. No later than April 15, 1985, the Administrator shall submit to the Court and to plaintiffs an affidavit listing all Appendix III states for which a final state or federal lead implementation plan has not been approved or promulgated, suggesting a proposed schedule for final promulgation of federal plans for all such states, and setting forth the factual basis underlying the proposed schedule. Plaintiffs shall have until April 30, 1985 to file a response to the Administrator's proposal, whereupon the parties contemplate that the Court will enter an order setting an expeditious schedule for final promulgation of federal plans for all Appendix III states for which final state or federal lead implementation plans have not been approved or promulgated, such order to be based on the submissions of the parties, any hearing before the Court, and any other facts that the Court may request.

(ii) Non-submitting States

21. The Administrator shall promptly upon the failure of an Appendix III state to submit a state lead implementation plan by December 31, 1983, publish a notice of intent to promulgate, pursuant to Section 110(c)(1) of the Act, a federal implementation plan for that state.

22. The Administrator shall no later than October 1, 1984, publish, pursuant to Section 110(c)(1) of the Act, a proposed federal implementation plan for all Appendix III states which failed to submit lead implementation plans by December 31, 1983, unless before then the Administrator has taken final action approving a revised lead plan submission from that state which he determines fully satisfied the requirements of Section 110(a)(2) of the Act and its implementing regulations. Notwithstanding the preceding sentence, the Administrator shall not be required to publish a proposed federal implementation plan on or before October 1, 1984 for an Appendix III state which failed to submit a lead plan by December 31, 1983, provided: (1) the state subsequently submitted a lead implementation plan, and (2) the Administrator proposed to approve or disapprove such plan by July 1, 1984. Such a subsequently submitted Appendix III state plan shall be subject to paragraphs 16-20 and other applicable provisions of this Agreement.

23. The Administrator shall provide for a period immediately following publication of a proposed action in the Federal Register of not less than 30 days nor more than 60 days for the submission and receipt of public comment on any proposed federal implementation plan for an Appendix III state, published pursuant to paragraph 22 above.

24. The Administrator shall, pursuant to Section 110(c)(1) of the Act, publish a final federal implementation plan for an Appendix III state for which a proposed federal plan has been published pursuant to paragraph 22 above, no later than April 1, 1985, unless before then the Administrator has taken final action approving a plan from that state submitted after December 31, 1983, which he determines fully satisfies Section 110(a)(2) of the Act and its implementing regulations.

25. Notwithstanding the provisions of paragraphs 21-24 above, the Administrator shall not be required to propose a federal implementation plan for the Commonwealth of Puerto Rico and U.S. territories listed in Appendix III until October 1, 1985, with final promulgation, after public comment, to be published by April 1, 1986.

D. General Provisions

26. Continuing Jurisdiction. This Agreement anticipates that this Court will retain jurisdiction in the above-captioned case for the purpose of insuring compliance with the terms and conditions of its Order and of this Agreement, and that jurisdiction will terminate 30 days after final approval by the Administrator, pursuant to Section 110(a)(2) of the Act, or federal promulgation, pursuant to Section 110(c)(1) of the Act, of lead implementation plans for all states whose plans have not been approved by the Administrator as of the date of this Agreement. The Agreement also provides for the parties to return to this Court should the establishment of timetables for final promulgation of federal implementation plans, as provided for in paragraph[s] 4, 10 and 20 of this Agreement, become necessary. The parties do not intend this Agreement to prohibit plaintiffs from returning to the Court to seek enforcement of the provisions of this Agreement or from moving for attorneys and expert witness fees pursuant to 42 U.S.C. § 7604(d) of the Act. Nor do they intend this Agreement to restrict the right of defendants to request from the Court a modification of the terms of this Agreement in accordance with applicable law, recognizing that plaintiffs may oppose any such request.

27. Progress Reports. The Administrator shall serve upon all parties quarterly progress reports, beginning on September 1, 1983 and continuing every three months thereafter until such time as all state lead plans have been finally approved, or federal lead plans finally promulgated, by the Administrator.The reports shall summarize the Agency's progress in meeting the provisions of this Agreement, identify any milestones of this Agreement that have not been met or appear unlikely to be met within the time schedules of this Agreement, and outline the Agency's plans for bringing itself back into compliance with any of the Agreement's time schedules which have not been, or appear unlikely to be, met.

28. Complete Agreement; Sections and Paragraph Headings. This Agreement, together with the attached Appendices, constitutes the entire agreement between the parties to this Agreement concerning the rights and obligations herein discussed. The headings and titles of the various sections and paragraphs of this Agreement are intended for purposes of identification and convenience only and are not to be construed as imparting or affecting any substantive rights or obligations under this Agreement.

29. Effective Date of Agreement; Trigger Date for Actions. After executing this Agreement, the parties shall forthwith present it to the United States District Court for the District of Columbia, Judge Joyce Hens Green, for its approval. The Agreement shall become effective immediately upon its approval and incorporation into an appropriate order by the Court. The trigger date to be used in computing the start of time periods specified in paragraphs 1 and 5 of this Agreement is August 1, 1983.¹

IN WITNESS WHEREOF, the parties to this Agreement have executed this Settlement Agreement on this 25[th] day of July, 1983.

Appendix I

The following states have submitted lead implementation plans, or portions thereof, to the U.S. Environmental Protection Agency, with the Agency having taken no final action to approve or disapprove of [sic] those submissions as of March 1, 1983:

Alabama;

District of Columbia;

Hawaii;

Louisiana [remaining action on Baton Rouge area];

Oregon;

Nebraska [statewide except Omaha];

New Mexico [remaining action on Anapra area];¹

Pennsylvania [statewide except Philadelphia, Allegheny Co. (Pittsburgh), and areas around three secondary smelters in Berks and Carbon counties]; and

[13 ELR 20792]

Texas [statewide except Dallas and El Paso].

Appendix II

The following states, which as of March 1, 1983 had not submitted lead implementation plans, or portions thereof, to the U.S. Environmental Protection Agency, have been classified by the Agency as having either major stationary sources of lead emissions (such as primary or secondary lead smelters, or primary copper smelters) or violations of the national ambient air quality standard for lead since 1980, or both:

Alaska;

California [Fresno and Los Angeles areas];

Florida;

Idaho;

Illinois [Granite City area];

Indiana;

Minnesota;

Mississippi;

Montana;

Nebraska [Omaha area];

New Jersey;

New York;

Pennsylvania [Laureldale, Lyons, Nesquehoning, Philadelphia];

Tennessee [outside Davidson and Hamilton counties];

Texas [Dallas and El Paso]; and

Washington.

Appendix III

The following states, which as of March 1, 1983 had not submitted lead implementation plans or portions thereof to the U.S. Environmental Protection Agency, have been classified by the Agency as not having certain major stationary sources of lead (such as primary or secondary lead smelters, or primary copper smelters), and have not reported data since 1980 evidencing violation of the national ambient air quality standard for lead:

Arizona [new source review];

California [new source review outside Fresno and Los Angeles areas];

Connecticut;¹

Massachusetts;

Nevada [Washoe County];

Pennsylvania [Allegheny County];

Rhode Island;

South Dakota;

Wisconsin; and

Wyoming.

The Commonwealth of Puerto Rico; and U.S. Territories

American Samoa;

Guam;

Northern Mariana Islands; and

The Virgin Islands

Order and Decree

WHEREAS, the plaintiffs and federal defendants to the above captioned case have agreed to the attached Settlement Agreement which they consider a fair and adequate resolution of the issues involved in the above-captioned case; and

WHEREAS, this Court finds and determines that the attached Settlement Agreement represents a just, fair, and equitable resolution of the issues raised in the above-captioned case; and

WHEREAS, the Court takes cognizance that intervening defendants do not waive any right to challenge in litigation pursuant to applicable statutory provisions, any clean air implementation plans approved, disapproved, or federally promulgated pursuant to this decree;

NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:

(1) This Court has subject matter jurisdiction pursuant to 42 U.S.C. § 7604(a);

(2) The attached Settlement Agreement is approved, made part of this Order and Decree, and incorporated by reference herein;

(3) Compliance with the terms and provisions of the Agreement is directed; and

(4) Jurisdiction is retained to assure compliance with the Agreement, to consider requests for modifications thereto, and to consider applications for an award of fees and costs pursuant to 42 U.S.C. § 7604(d), the Court taking cognizance that defendants have not conceded that plaintiffs are entitled to an award of such fees or costs. Jurisdiction shall terminate 30 days after final approval by the Administrator, pursuant to 42 U.S.C. § 7410(a)(2), or federal promulgation, pursuant to 42 U.S.C. § 7410(c)(1), of lead implementation plans for all states whose plans have not, as of the date of the Agreement, been approved by the Administrator.

(5) Copies of the quarterly progress reports directed in the Settlement Agreement, shall be promptly filed with the Court.

1. Notwithstanding the definitions of Appendix II and Appendix III states, nothing in this Settlement Agreement or its appendices is intended by the parties to modify in any way the requirement that state plans demonstrate, pursuant to 40 C.F.R. § 51.80(a)(1), attainment of the lead standard at areas in the vicinity of primary and secondary lead smelters, primary copper smelters, as well as lead gasoline additive plants, lead-acid storage battery manufacturing plants that produce 2,000 or more batteries per day, and any other stationary source that actually emits 25 or more tons per year of lead or lead compounds.

1. The lead implementation plan for the Anapra, New Mexico area has been submitted to EPA but will be processed by the Agency under the schedule for Appendix II states, in conjunction with the plan for the El Paso, Texas area.

1. Pursuant to agreement between the parties, Connecticut will be subject to the schedule applicable to Appendix II states, paragraphs 5-14 of the Settlement Agreement.