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18 ELR 21006 | Environmental Law Reporter | copyright © 1988 | All rights reserved United States v. Alcan Foil Products No. 87-0434-L (CS) (W.D. Ky. March 15, 1988)The court holds that the Environmental Protection Agency (EPA) is barred from bringing an enforcement action against an alleged violator of a state implementation plan (SIP) under the Clean Air Act until EPA acts on a proposed revision of the SIP, where EPA has delayed acting on the revision more than four months. The issue is not whether defendant is in compliance with the proposed SIP revision, but rather whether EPA has acted responsibly in acting on the revision. The court also notes that since the local enforcement agency and EPA disagree as to whether defendant's facility complies with the proposed revision, an enforcement action is inappropriate. Counsel for Plaintiff Robert Foster Counsel for Defendant Simpson, J.: Memorandum Opinion This is an enforcement action brought by the United States on behalf of the Administrator of the United States Environmental Protection Agency ("EPA") pursuant to 42 U.S.C. §§ 7413(b) and 7420 of the Clean Air Act ("Act"), 42 U.S.C. §§ 7401 et seq. In its complaint, the EPA alleges that the defendant, Alcan Foil Products Division ("Alcan"), is producing excessive emissions of volatile organic compounds ("VOCs")[1] in violation of emission standards contained in Regulation 6.29 of the Jefferson County Air Pollution Control District ("JCAPCD").[2] This matter is presently before the Court on motion by Alcan for summary judgment in its favor pursuant toRule 56, Fed. R. Civ. P. Interpreting the evidence in a light most favorable to the EPA, the facts may be stated as follows. See Anderson v. Liberty Lobby, Inc., U.S. , 106 S. Ct. 2505, 2513 (1986) (citation omitted). Alcan operates a laminating facility in Louisville, Kentucky, that manufactures products which include cigarette package foil liners, electric cable wrap, air conditioner fin stock, label stock, composite can stock and hood stock for frozen food trays. In connection with production at the facility, Alcan operates ten (10) rotogravure printing presses. Each of these printing presses either emits or has the potential to emit VOCs. On March 3, 1986, a revision to the existing KSIP was submitted by the Kentucky Natural Resources and Environmental Protection Cabinet to the EPA on behalf of the JCAPCD pursuant to 42 U.S.C. § 7410. This proposed KSIP revision included an amended version of JCAPCD Regulation 6.29. Under the existing KSIP, VOC emission compliance at the Alcan facility was determined at each particular emission source. That is, if one emission source exceeded the standards established by JCAPCD Regulation 6.29, then Alcan would be in non-compliance. Under the proposed KSIP revision, Alcan's VOC emissions would be regulated by consideration of all point sources of [18 ELR 21007] the facility together under a "bubble concept" rather than on an individual basis. Under the "bubble concept," the entire facility could meet compliance requirements by offsetting emissions at one source within the plant by over-compliance at another source. The EPA has approved application of this bubble concept in certain instances.[3] On July 14, 1986, the EPA served notice on Alcan and the JCAPCD that seven (7) rotogravure printing presses were in noncompliance with Regulation 6.29. An inspection of the Louisville plant by the EPA on October 15, 1986, confirmed that VOC emissions from the presses remained excessive and that the emissions violated both Regulation 6.29 and daily emission standards under the proposed KSIP revision.[4] Following the issuance of the notice of noncompliance, Alcan and the EPA met to discuss the alleged violation as well as the proposed KSIP revision. On December 4, 1986, the EPA issued its revised Emission Trading Policy which established uniform procedures and criteria upon which any approval of bubble plans by the EPA would be predicated.[5] On February 18, 1987, the EPA informed Alcan of deficiencies in the JCAPCD's proposed bubble plan and recommended certain revisions that were necessary prior to any approval by the EPA. On July 15, 1987, this action was filed at the request of the EPA. On August 26, 1987, EPA's Regional Administrator signed a proposed rule disproving the JCAPCD's proposed KSIP revision. To date, the EPA has not formally approved or disapproved of the Regional Administrator's action. In support of its motion, Alcan relies upon the affidavit of the Director of the JCAPCD to establish that it is in compliance with the proposed KSIP revision and has been since November of 1986. See fn. 4, supra. This opinion is based upon monthly operating emission reports provided since March of 1986 by Alcan to the EPA and the JCAPCD. In addition, Alcan has also provided to both the EPA and JCAPCD a comprehensive engineering report containing emission data for a two-year baseline period from July of 1985 through June, 1987.[6] On the basis of this information, Alcan relies upon the decision rendered by the Court of Appeals for the Fifth Circuit in American Cyanamid v. U.S. EPA, 810 F.2d 493 [17 ELR 20642] (5th Cir. 1987), in its assertion that summary judgment in its favor is proper. In American Cyanamid, the Court held that, when the EPA issues a notice of noncompliance more than four (4) months after a state has submitted a proposed SIP revision under which the alleged violator is in compliance, then the EPA may not commence a civil action under 42 U.S.C. § 7420 until it rejects the proposed revision. Id. at 501. Despite this Court's order granting the EPA an extension of time to file a response to Alcan's motion for summary judgment, the EPA has chosen not to respond. Rather, the EPA has requested that this Court deny Alcan's motion without prejudice in lieu of further discovery by the EPA pursuant to Rule 56(f), Fed. R. Civ. P.[7] EPA contends that a genuine issue of material fact exists as to whether Alcan's facility is operating in compliance with the proposed KSIP revision. Because no less than eight (8) months have passed since it filed its complaint, the EPA requests that this Court deny Alcan's motion without prejudice to its refiling after the EPA has had an ample opportunity to obtain meaningful discovery on this issue. In an effort to show that its request is made in good faith, the EPA has submitted the affidavit of its Regional Expert for the Air Compliance Branch wherein he states that, in his opinion, Alcan's facility is in noncompliance with the present JCAPCD Regulation 6.29 as well as with the proposed KSIP revision. Other than this conclusory assertion, the EPA has failed to inform this Court of any specific information that would tend to support this opinion. Moreover, the EPA has also failed to state any reason why the emission data already supplied by Alcan is insufficient. It is the opinion of this Court that whether Alcan's facility is in present compliance with the proposed KSIP revision is a nonissue in this action. EPA's complaint wholly fails to allege that this enforcement action is premised upon any violation of the proposed KSIP revision. This is understandable since the existing KSIP remains the standard against which compliance is measured until the EPA acts upon the revision submitted by the JCAPCD. American Cyanamid, 810 F.2d at 495 (citations omitted). It is equally apparent that, since the EPA's notice of noncompliance was served more than four (4) months after the JCAPCD submitted its proposed KSIP revision, it may not commence enforcement proceedings until it acts upon the proposed revision. Id. at 501. The EPA seeks to distinguish American Cyanamid from the instant action on the basis that the alleged violator in that case would have complied with Louisiana's SIP on schedule had the EPA approved the revision in four (4) months. The EPA contends that the holding in American Cyanamid stands for the proposition that the EPA is not estopped from initiating enforcement proceedings unless the alleged violator proves it is in compliance with the proposed SIP revision. This narrow view of the Court's holding in American Cyanamid distorts the whole of the opinion. In American Cyanamid, Circuit Judge Jerre S. Williams aptly stated as follows: Where, as here, the state has proposed a revision to its SIP which clearly authorizes local businesses to act in accordance with it without running afoul of the Clean Air Act, the interest of the state itself is deeply involved in the required four month approval or disapproval of the proposed revision. It distorts the statutory scheme to place virtually full emphasis upon the business entity involved as a charged "polluter." The emphasis of the statute, rather, is upon the important role which the state plays in defining authorized emissions. . . . The issue then is not so much pollution by American Cyanamid but the default of the EPA in carrying out the congressional intent to work in close cooperation with the state in implementing standards and enforcing the Clean Air Act. We emphasize the importance of the EPA acting, not for the benefit of American Cyanamid, but for the benefit of the State of Louisiana which is by statute designated to play a significant cooperating role with the EPA. Id. at 500. The emphasis, then, is not upon whether Alcan is in compliance with the proposed KSIP revision. Rather, the primary issue is whether the EPA has acted responsibly to avoid a state of regulatory limbo such as exists in this instance. Due to its inaction on the proposed KSIP revision, the EPA may not bring an enforcement action against Alcan under the existing KSIP since Alcan has been operating in reliance upon assurances by the JCAPCD that its emissions are acceptable and in compliance with the proposed KSIP revision. The EPA may not seek to enforce the standards of the proposed KSIP revision since it has failed to take any final action on the proposal. This regulatory quandary is of EPA's own making. Moreover, the dispute over whether Alcan is in compliance with the proposed KSIP revision is apparently between the EPA and JCAPCD. Alcan has been informed by the JCAPCD that its operation is in compliance. Whether the JCAPCD's assessment of compliance is inaccurate for any reason is an issue that must be resolved between the two regulatory agencies before any enforcement action may be brought against Alcan. Had the EPA definitively ruled on the proposed KSIP revision within the four (4) month period as required, then, at least, the standards for determining noncompliance would be clear and this action could proceed. However, until this is done, no enforcement action is appropriate. Accordingly, Alcan is entitled to summary judgment as a matter of law. Therefore, because the further discovery sought by the EPA is essentially unnecessary to this action, EPA's motion under Rule 56(f), Fed. R. Civ. P., is denied. See 6-Pt. 2 Moore's Federal Practice P56.24, 56-1425, 1426 (2d Ed. 1987). Furthermore, after consideration of the pleadings filed herein and all admissible evidence of record, summary judgment in favor of Alcan is granted as a matter of law. In ruling on Alcan's motion, this Court expresses no opinion regarding the merits of any claims by the EPA that Alcan is operating in violation of the Clean Air Act. Separate orders shall accompany this Memorandum Opinion. Order For the reasons stated in the Memorandum Opinion entered this date, IT IS HEREBY ORDERED that EPA's motion to hold Alcan's motion for summary judgment in abeyance pending further discovery pursuant to Rule 56(f), Fed. R. Civ. P., is DENIED. Order Inasmuch as plaintiff's complaint has been dismissed as against defendant and third-party plaintiff, Alcan Foil Products ("Alcan"), and Alcan's third-party complaint against third-party defendant, Atlantic Richfield Company, is for indemnification of Alcan as against the claims by plaintiff, IT IS HEREBY ORDERED that Alcan shall show cause within fifteen (15) days why its third-party complaint should not be dismissed as against Atlantic Richfield Company, and, if no showing is made, the third-party complaint shall be dismissed sua sponte without prejudice and this action shall be removed from this Court's docket without further order. Order For the reasons stated in the Memorandum Opinion entered this date, IT IS HEREBY ORDERED that Alcan's motion for summary judgment in its favor pursuant to Rule 56, Fed. R. Civ. P., is GRANTED, and this action shall be remanded from this Court's docket by the Clerk of the Court. There being no just reason for delay in its entry, this is a final order. 1. VOCs are "air pollutants" as defined by the Act, 42 U.S.C. § 7602(g). JCAPCD Regulation 6.29 requires that VOC emissions by rotogravure presses be kept within certain levels. 2. JCAPCD Regulation 6.29 is a part of the Kentucky State Implementation Plan ("KSIP") originally approved by the EPA in August of 1981 and subsequently revised and reapproved in January of 1984. A State Implementation Plan or SIP is the means whereby a state may implement and maintain "National Ambient Air Quality Standards ("NAAQSs") promulgated by the EPA within its borders. See 42 U.S.C. §§ 7609 (NAAQS); 7410 (SIPs). 3. Rice, EPA Issues Final Emissions Trading Policy Under the Clean Air Act, EPA Environmental News (1986). 4. By affidavit, Robert T. Offut, Director of the JCAPCD, states that Alcan has been in compliance with the proposed KSIP revision since November of 1986. 5. See 51 Fed. Reg. 43814-43860 (1986) (effective date December 4, 1986). 6. Affidavit of Lawrence Cooke, Manager of environment, Health, Safety and Security at the Alcan facility since October of 1986. The report prepared by the engineering firm for Alcan entitled "State Implementation Plan Revision" was completed in August of 1987. This report indicates that there is some disagreement between the JCAPCD and the EPA concerning the emission value against which actual emissions at the Alcan facility are compared to determine compliance. The emission value recommended by the EPA is 122.5 tons/year. The JCAPCD has recommended an emission value of 133.9 tons/year and Alcan asserts that 185.0 tons/year is the proper value. This report concludes after conducting a compliance comparison between actual emissions and the 133.9 ton/year value that on an annual basis Alcan complies with the proposed SIP emission allowance. On a daily basis, wherein the allowable KSIP value is 1046 lbs./day, the Alcan facility meets the criteria on all but six (6) days during the two (2) year baseline period. 7. Rule 56(f), Fed. R. Civ. P., states as follows: Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. 18 ELR 21006 | Environmental Law Reporter | copyright © 1988 | All rights reserved |