3 ELR 20043 | Environmental Law Reporter | copyright © 1973 | All rights reserved
City of Riverside v. RuckelshausCivil No. 72-2122-IH (C.D. Cal. November 16, 1972)
EPA's failure to prepare a state implementation plan under the Clean Air Act within two months following disapproval of the plan submitted by California violates a non-discretionary duty imposed by § 110 (c) of the Act and warrants an injunction requiring EPA to prepare a plan within two months.Although the Act requires sixty days notice prior to suit, failure of plaintiffs to notify EPA does not preclude suit where constructive notice has been given, by service of the complaint on EPA Administrator and the subsequent lapse of sixty days before the court's judgment.
Counsel for Plaintiffs
Mary D. Nichols
Center for Law in the Public Interest
10203 Santa Monica Boulevard
Los Angeles, California 90067
Counsel for Defendant
James R. Dooley Ass't. U.S. Attorney
1100 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
James R. Moore Attorney, Department of Justice
Washington, D.C. 20530
[3 ELR 20043]
FINDINGS OF FACT AND CONCLUSIONS OF LAW; JUDGEMENT
The above cause came on regularly for hearing on October 30, 1972 and November 6, 1972, upon plaintiffs' Motion for Preliminary Injunction and defendant's Motion to Dismiss and Motion to Stay; the Court, with the agreement of counsel for all parties, invoked Rule 65 (a) (2) of the Federal Rules of Civil Procedure; and the Court after hearing the evidence and having considered said motions, affidavits and memoranda with respect thereto, and having heard the arguments of counsel, now makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Plaintiffs filed a Complaint on September 6, 1972, for a preliminary and permanent injunction and a mandamus order pursuant to Title 5, United States Code, Section 702 and Title 28, United States Code, Sections 1331, 1337 and 1361 claiming that defendant, William D. Ruckelshaus, as Administrator of the Environmental Protection Agency, had breached a nondiscretionary duty imposed upon him by Section 110 of the Clean Air Act of 1970, 42 U.S.C. § 1857c-5, and seeking to have this Court order the defendant to prepare and publish an implementation plan for the South Coast Air Basin showing that the national primary ambient air quality standards for nitrogen oxides, particulates and photochemical oxidants will be met in the Basin within the time prescribed by law. The Complaint also sought reasonable attorneys' fees.
2. Plaintiffs filed a Motion for Preliminary Injunction on September 6, 1972, requesting that the defendant, Administrator, be enjoined immediately to prepare and publish such an implementation plan for the South Coast Air Basin.
3. Attached by plaintiffs to the Motion for Preliminary Injunction were the affidavits of eight residents of the South Coast Air Basin, including medical doctors, indicating that air pollution in the Basin is presently a severe problem, that adverse health effects have resulted therefrom, and that plaintiffs had actively sought solutions to the problem and were injured by the Administrator's failure to propose an implementation plan.
4. On October 6, 1972, the United States, on behalf of the Administrator, moved to dismiss the action on the ground that the Court lacks jurisdiction because the plaintiffs did not give notice to the Administrator 60 days prior to initiating the action, as required by Section 304 (b) (2) of the Clean Air Act of 1970, 42 U.S.C. § 1857h-2(b)(2), and regulations pursuant thereto.
5. The United States, on behalf of the Administrator, moved on October 13, 1972, to stay the action on the grounds that the Administrator had already fulfulled many of the responsibilities to which the Complaint was directed and had publicly committed himself to fulfill the balance of those responsibilities by February 15, 1972; attached to the motion of defendant to stay the action was the affidavit of Mr. Irwin Auerback, Director of Program Planning and Review, Office of Air and Water Programs, United States Environmental Protection Agency.
6. At a hearing on the motion of plaintiffs for a preliminary injunction and on the motions of defendant to dismiss, or, alternatively, to stay this action, the Court received the testimony of Mr. David Souten, an employee of Region IX of the United [3 ELR 20044] States Environmental Protection in San Francisco, California, whose work responsibility is to review and propose necessary modifications to the implementation plan submitted by the State of California to the Environmental Protection Agency pursuant to Section 110 of the Clean Air Act of 1970, 42 U.S.C. § 1857c-5; Mr. Souten is an engineer with considerable experience in the field of air pollution control.
7. On or about February 23, 1972, the Administrator received from the State of California an implementation plan to achieve the Federal national ambient air quality standards within the various air quality control regions in California.
8. On May 31, 1972, the Administrator announced his disapproval of large portions of the California plan.
9. Certain regulations proposed by the Administrator on September 22, 1972, to correct deficiencies in the California implementation plan (37 Fed. Reg. 19812-19815, 19829-19835) apparently completed the plan with respect to the South Coast Air Basin (i.e., the Metropolitan Los Angeles Intrastate Air Quality Control Region) for meeting the particulate and nitrogen oxide Federal national ambient primary standards by July of 1975, but did not set forth the necessary transportation controls to meet the photochemical oxidant standard.
10. The Administrator subsequently announced, in the Federal Register of September 22, 1972, that he would propose appropriate transportation controls for the Metropolitan Los Angeles region by February 15, 1973.
THE CLEAN AIR ACT OF 1970
11. The Clean Air Act of 1970 created a new federal program "to protect and enhance the quality of the nation's air resources so as to promote the public health and welfare and the productive capacity of its population . . ." 42 U.S.C. § 1857(b)(1). The Act requires each state to adopt an implementation plan specifying the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such state within three years from the approval of such plan. If a state fails to submit a satisfactory implementation plan, the Act requires the Administrator to develop such a plan, and he has broad authority to enforce an implementation plan with civil and criminal penalties.
12. The Clean Air Act establishes firm deadlines for actions to be taken by a state and by the Administrator in furtherance of the goal of clean air.
(a) Within 30 days after December 31, 1970, the Administrator of EPA was required to publish proposed regulations prescribing national primary and secondary ambient air quality standards for each pollutant for which air quality criteria had been issued. On January 31, 1971 air quality criteria had been issued for carbon monoxide, sulfur dioxide, nitrogen oxides, particulates and photochemical oxidants.
(b) Within 90 days after publication of the proposed regulations, the Administrator of EPA was required to promulgate by regulation the proposed primary and secondary air quality standards, "with such modifications as he deems appropriate." 42 U.S.C. § 1857c-4(a)(1)(B).
(c) Within nine months after promulgation of the standards, each state was required to submit to the Administrator of EPA an implementation plan providing for achieving the national primary air quality standards in each air quality region. 42 U.S.C. § 1857c-5(a)(1).
(d) Within four months after the date of submission of such an implementation plan, the Administrator was required to approve or disapprove it. 42 U.S.C. § 1857c-5(a)(2).
(e) The Administrator was entitled to approve a state implementation plan only if he found that it provided for the achievement of national primary ambient air quality standards "as expeditiously as possible, and in no case later than three years from the date of approval of such plan." In order to meet the statutory target date, the state plans were required to include emissions limitations, schedules and timetables for compliance, and "such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited, land use and transportation controls."
42 U.S.C. § 1857c-5(a)(2)(B)
(f) Section 110 (c) of the Clean Air Act, 42 U.S.C. § 1857c-5(c), provides in pertinent part as follows:
"The Administrator shall, after consideration of any State hearing record, promptly prepare and publish proposed regulations setting forth an implementation plan, or portion thereof, for a State if —
. . .
(2) the plan, or any portion thereof, submitted for such State is determined by the Administrator not to be in accordance with the requirements of this section,
The Administrator shall, within six months after the date required for submission of such plan. . . ., promulgate any such regulations unless, prior to such promulgation such State has adopted a plan . . . which the Administrator determines to be in accordance with the requirements of this section."
Thus, the Act requires that the Administrator promulgate regulations to replace any portion of a state plan he disapproves within two months of the date of disapproval: In this case by July 31, 1972.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and the subject matter.
2. Plaintiffs admittedly failed to give the Administrator 60 days notice before filing this action, as required by subsection 304(a)(2) of the Clean Air Act of 1970, 42 U.S.C. § 1857h-2(a)(2). The Court concludes that the provisions of subsection (e) of that section do not apply in this case, since this is a suit against the Administrator to compel him to perform a non-discretionary duty under the Act and therefore covered by subsection (a) (2). Although this construction would give the Administrator an additional 60 days after each of the firm deadlines set by Congress in which to perform the various non-discretionary duties imposed under the Clean Air Act, the statutory language appears to require this result.
3. There has been substantial compliance and actual constructive compliance by plaintiffs with the sixty-day notice provision, 42 U.S.C. § 1857h-2(b)(2), in that:
1) Filing of the complaint herein on September 6, 1972 and personal service of the complaint on the Administrator constituted actual notice of the plaintiffs' demand for action by the Administrator.
2) This action ended sixty days before the hearing on plaintiffs' request for injunction was complete and this Court rendered its judgment.
3) During that sixty day period the Administrator had all the beneficial effect of the sixty day notice provision, so the purposes of the provision were fulfilled.
4) During the sixty day period in which this action has been pending, the Administrator not only failed to promulgate the plan as requested by plaintiffs, he reiterated in the Federal Register of September 22, 1972 his intention not to do so until February 15, 1973.
4. By not publishing proposed regulations for transportation controls for the Metropolitan Los Angeles Intrastate Air Quality Control Region by July 31, 1972, the Administrator breached a non-discretionary duty under the Clean Air Act of 1970, 42 U.S.C. § 1857c-5(c).
5. None of the justifications or excuses for delay alleged by the Administrator are valid under the statute.
6. Judgment for plaintiffs is granted on the merits, and the defendant is ordered to prepare and publish in the Federal Register by no later than January 15, 1973, regulations setting [3 ELR 20045] forth an implementation plan for attaining the national primary ambient air quality standard for photo-chemical oxidants in California, including all necessary transportation controls and land use controls. Such proposed regulations shall demonstrate that the national primary standard for photochemical oxidants shall be attained within three years of the date of final adoption, or, if a request for a two-year extension is made by the Governor of California and approved by the Administrator pursuant to § 1857c-5 (c) (1) of the Clean Air Act, no later than five years from the date of adoption.
7. The Court declines to award plaintiff's costs or attorneys' fees since the action is one against the U.S. Government.
In accordance with the Findings of Fact and Conclusions of Law filed herein, IT IS ORDERED, ADJUDGED, AND DECREED:
1. That final judgment is entered for plaintiffs and defendant William D. Ruckelshaus, as Administrator of the Environmental Protection Agency, his officers, agents, representatives, employees, attorneys, and all persons in active concert and participation with him be and they hereby are affirmatively enjoined and directed to prepare and publish in the Federal Register by no later than January 15, 1973, regulations setting forth an implementation plan for attaining the national primary ambient air quality standard for photochemical oxidants in the state of California, including all necessary transportation controls and land use controls. Such proposed regulations shall demonstrate that the national primary standard for photochemical oxidants shall be attained within three years of the date of final adoption, or, if a request for a two-year extension is or has been made by the Governor of California and thereafter approved by the Administrator pursuant to § 1857c-5 (c) (1) of the Clean Air Act, no later than five years from the date of adoption.
3 ELR 20043 | Environmental Law Reporter | copyright © 1973 | All rights reserved