18 ELR 21025 -- McCarthy v. Thomas

McCarthy v. Thomas

No. CIV 85-344-TUC-WDB (D. Ariz. April 19, 1988)

The court holds that the Environmental Protection Agency (EPA) has not sufficiently demonstrated that it was impossible for it to meet a court-imposed deadline of March 31, 1988, for promulgating a federal implementation plan (FIP) under the Clean Air Act for Maricopa County, Arizona. The court previously held, 17 ELR 21214, that when EPA rejects a state implementation plan as inadequate, Clean Air Act § 110(c) requires it to prepare a federal plan, even if the state is also working on a plan, and ordered EPA to promulgate FIPs for Pima and Maricopa Counties by March 31, 1988. On March 14, 1988, EPA asked the court for an extension to promulgate the FIP for Maricopa County. The court holds that EPA has not demonstrated that it was impossible to meet the March 31 deadline. The affidavit of an EPA regional Air Management Division director is insufficient to meet EPA's burden, and there is no evidence in the record supporting EPA's position. The court orders the complete FIP to be promulgated by August 10, 1988, and notes that future noncompliance may cause the agency to be held in civil contempt.

Counsel for Plaintiff
David S. Baron
Arizona Center for Law in the Public Interest
Suite 106, 3208 E. Fort Lavell Rd., Tucson AZ 85716
(602) 327-9547

Counsel for Defendants
David W. Zugschwerdt
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2686

[18 ELR 21026]

Browning, J.:

Order

This matter is before the Court on defendant EPA's motion for an order setting an extended schedule for promulgation of federal implementation plans (FIPs).

On August 10, 1987, this Court ordered EPA to promulgate federal implementation plans for Pima and Maricopa counties no later than six months after September 30, 1987. The Clean Air Act requires such implementation plans in order to bring about attainment of the national ambient air quality standard for carbon monoxide. 42 U.S.C. § 7410(c). On March 14, 1988, the EPA moved for an extension until December 31, 1988 to promulgate the FIP for Maricopa County (EPA has allowed Pima County to submit its state implementation plan). Plaintiffs objected to EPA's proposed timetable.

The Court's obligation in this matter is clear. It is bound to enforce Congress' timetable for the promulgation of an FIP unless it is impossible for the Agency to comply. Alabama Power Co. v. Costle, 636 F.2d 323, 359 [10 ELR 20001] (D.C. Cir. 1979), citing NRDC v. Train, 510 F.2d 692, 712 [5 ELR 20046, 20696] (D.C. Cir. 1974). The EPA bears a heavy burden to demonstrate the existence of impossibility. Sierra Club v. Thomas, 658 F. Supp. 165, 171 [17 ELR 20875] (N.D. Cal. 1987). EPA attempted to meet this burden by submitting the affidavit of David P. Howekamp, Director of the Air Management Division of the Region IX Office. Apparently the Administrator seeks the extension because "the Agency was not in a position to propose a single FIP control strategy" for Maricopa County by the end of March. Defendants' motion at 7. The EPA may find themselves in this position but there is no evidence in the record that it was impossible for the Agency to have been in compliance by the March 31, 1988 deadline. Congress did not allow the Agency the luxury of protracted study. The Environmental Protection Agency is obligated to promulgate a statutorily sufficient FIP within the time period mandated by Congress.

After considering the evidence, the Court finds that the EPA has not met its burden of a showing of impossibility. Congress has established an eight month period for FIP promulgation in a case such as this. 42 U.S.C. § 7410(c)(1). See City of Seabrook v. EPA, 659 F.2d 1349, 1353 [11 ELR 21058] (5th Cir. 1981); City of Highland Park v. Train, 519 F.2d 681, 685 [5 ELR 20408] (7th Cir. 1975); Citizens for a Better Environment v. Costle, 515 F. Supp. 264, 267 [11 ELR 20963] (N.D. Ill. 1981). Absent impossibility, the eight month time period shall serve as a guideline when Courts impose new deadlines after an Agency has missed the original deadline. See Sierra Club v. Thomas, 658 F. Supp. 165 171 [17 ELR 20875] (N.D Cal.1987).

Therefore, IT IS ORDERED that defendant EPA comply with the following deadlines for promulgation of an FIP for Maricopa County:

1. publish formal FIP rulemaking proposals no later than May 13, 1988;

2. hold public hearings no later than June 10, 1988;

3. close the public comment period July 11, 1988; and

4. promulgate and publish complete FIPs no later than August 10, 1988.

Should the Agency not accept Pima County's state implementation plan, the same calendar for federal promulgation shall apply to Pima County.

Plaintiffs have also moved this Court to find defendant EPA in contempt. The Court declines to enter such an order. However, defendant is put on notice that any future noncompliance with these deadlines (imposed by the Court as mandated by Congress) will require defendant to answer an order to show cause why the Administrator should not be held in civil contempt.