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AMERICAN LUNG ASSN. OF N. J. v. KEAN

September 24, 1987

American Lung Association Of N. J., et al., Plaintiffs,
v.
Thomas H. Kean, Governor of N. J., et al., Defendants



The opinion of the court was delivered by: ACKERMAN

 This is a citizen's suit brought under § 304 of the federal Clean Air Act, 42 U.S.C. § 7604 (1982), by the American Lung Association of N.J. and other New Jersey non-profit associations, against officials of the State of New Jersey (hereinafter referred to collectively as "New Jersey") and the Federal Environmental Protection Agency (EPA). In their complaint, plaintiffs claim that New Jersey has violated the Act by failing to implement nine regulatory strategies intended for the control of ozone levels in New Jersey's air, as prescribed by the State Implementation Plan (SIP) for ozone-pollution control filed by New Jersey with the EPA in accordance with the Act. Plaintiffs further claim that the EPA has failed to enforce the Act in the face of New Jersey's noncompliance.

 Before me now is plaintiffs' motion for partial summary judgment. Plaintiffs seek a finding of liability on New Jersey's part in regard to seven of the nine regulatory strategies on which the state has allegedly taken insufficient action. Plaintiffs also seek an order compelling the state to submit a proposed timetable for implementing the seven strategies at issue. At this time, plaintiffs seek no further ruling on relief from the state, and no ruling on any aspect of the claims against the EPA.

 Both plaintiffs and New Jersey have filed voluminous papers on this motion, addressing at length, among other issues, the proper measurement and treatment of New Jersey's ozone-pollution problem. In addition, the EPA has filed a brief in response to certain claims made by New Jersey regarding the binding effect of portions of the New Jersey SIP. Finally, the American Petroleum Institute (API) has filed, as amicus curiae, papers in defense of New Jersey on this motion. Earlier in the case I denied motions by API and other trade associations to intervene as defendants, without prejudice to any reapplication for intervention should the case reach the remedy stage. Despite my ruling on intervention, I granted leave to API to participate as amicus curiae on this motion in order to consider its alleged insights into the problems presented. See Harris v. Pernsley, 820 F.2d 592, 603 (3d Cir. 1987); Yip v. Pagano, 606 F. Supp. 1566, 1568 (D.N.J. 1985). API's participation has been limited to the submission of written arguments.

 Plaintiffs' motion is posed under Fed.R.Civ.P. 56(a). According to Rule 56, summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Celotex, 106 S. Ct. at 2553. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial ", or the factual record will be taken as settled and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita). Given this test, I must first decide whether at this point there remain genuine issues of material fact regarding New Jersey's liability for the seven allegedly stalled strategies. If no facts remain in issue, I may then consider whether plaintiffs merit judgment as a matter of law. Before discussing the factual and legal issues in dispute, however, I shall lay the background to this motion by discussing the issues on which the parties voice no disagreement.

 Ozone is a chemical compound whose presence in the upper layers of the atmosphere serves as a beneficient screen against harmful ultraviolet radiation, but whose presence near ground level presents a health hazard. This case, and those portions of the Clean Air Act relevant to it, deal with the problem of ozone near ground level. This ozone is a prime ingredient of the smog which at times afflicts New Jersey. Exposure to ozone can impair lung functions, reduce resistance to respiratory infection, and exacerbate asthma, bronchitis, and emphysema. Primarily, this ozone is produced when certain chemical substances known as "volatile organic compounds" or "volatile organic substances" (VOSs) are emitted into the air. VOSs are emitted when, inter alia, gasoline is pumped or certain solvents, paints, or coatings are used.

 Ozone pollution is one of the targets against which Congress took aim in the Clean Air Act of 1970, as amended in 1977, 42 U.S.C. §§ 7401 et seq. The Act provides a comprehensive framework for controlling airborne pollutants generally. Under the Act, the EPA compiles a list of harmful air pollutants, 42 U.S.C. § 7408(a)(1), and then promulgates ambient air quality standards. The air quality standards set limits on the atmospheric concentrations which will be tolerated for each pollutant the EPA has identified. 42 U.S.C. § 7409(b)(1). The design and implementation of concrete plans to achieve these pollutant limits is left, in the first instance, to the several states. Each state must file with the EPA a State Implementation Plan (SIP) which specifies strategies for bringing that state into compliance with EPA standards, within deadlines set by the Act. 42 U.S.C. § 7410. Once a SIP is approved by the EPA, the state is bound as a matter of federal law to follow its provisions. See Friends of the Earth v. Carey, 535 F.2d 165, 169 (2d Cir. 1976), cert. denied 434 U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct. 296 (1977); see also Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 216 n.1 (3d Cir. 1979). Ozone has been the subject of EPA standards since 1971. Therefore, ozone control strategies have long been required in the SIPs of ozone-afflicted states.

 Congress originally contemplated that the state air-quality SIPs would be filed with the EPA in 1971 and become effective in 1972, and that EPA air quality standards would be attained by 1975, with some extensions to 1977. By 1976, however, it had become apparent that some areas of the country were making progress at a much slower rate, if at all. See 44 Fed.Reg. 20,372 (April 4, 1979). Thus, in 1977 Congress amended the Act to provide in certain instances for both longer compliance deadlines and more stringent compliance requirements. States which had not yet attained EPA standards were to do so "as expeditiously as practicable" but not later than December 31, 1982. 42 U.S.C. § 7502(a)(1). States with especially severe ozone problems could receive an additional extension to December 31, 1987 for meeting EPA ozone standards, but only by complying with certain additional cleanup provisions. These included the filing of new, revised SIPs that contained "enforceable measures to assure attainment" of the EPA ozone standards by December 31, 1987. 42 U.S.C. § 7502(c). See Connecticut Fund for the Environment, Inc. v. EPA, 672 F.2d 998, 1001 (2d Cir. 1982).

 New Jersey has had an ozone SIP since 1973, when in the face of missed deadlines by the state the EPA itself promulgated ozone control strategies for New Jersey. See 38 Fed. Reg. 31,388 (Nov. 13, 1973). In 1983, the state secured an extension of its ozone compliance deadline to December 31, 1987, the latest possible deadline under the Act, in part by submitting a revised ozone SIP which EPA found acceptable. See 48 Fed. Reg. 51,472 and 51,479 (Nov. 9, 1983). That SIP addressed, inter alia, strategies for controlling ozone levels through the reduction of VOS emissions into the air. It is that SIP which plaintiffs claim has been unlawfully neglected by New Jersey and the EPA. The seven strategies in the 1983 SIP which are at issue on this motion are: the use of devices known as "Stage II vapor controls" to trap gasoline fumes which escape from gasoline service-station nozzles when gas is pumped, the regulation of gasoline loading onto marine barges, the regulation of small industrial surface coating operations, the regulation of small manufacturing operations including chemical manufacturing and distillation operations, the regulation of architectural coatings, the regulation of solvent-based consumer and commercial products, and the regulation of automobile refinishing operations.

 In its answer to plaintiffs' complaint, New Jersey expressly admitted that it has failed to take each of the steps described above. Nevertheless, New Jersey has vigorously opposed plaintiffs' motion. New Jersey argues initially that genuine issues of material fact must still be settled before New Jersey's Clean Air Act liability can be adjudged. New Jersey contends that the following issues require further factual resolution: first, whether the 1983 SIP requires New Jersey to take the steps it admits it has not taken, or whether instead the SIP commits New Jersey only to studying the feasibility of the seven strategies and implementing the ones it finds feasible; second, whether New Jersey has "dragged its feet" on the seven strategies; third, whether New Jersey is a "national leader" in ozone control generally; and fourth, whether New Jersey will fail to meet the EPA's ozone standards by the December 31, 1987 deadline even with all seven strategies implemented, because "upwind" states produce most of the ozone afflicting New Jersey.

 The second, third, and fourth fact issues suggested by New Jersey are all irrelevant to the motion at hand. The question of New Jersey's liability in this case is unrelated to the state's intentions, the state's ozone control efforts aside from the seven SIP strategies, and the predicted efficacy or inefficacy of those seven strategies. Liability in this case turns on the sole issue of whether New Jersey has complied with its own federally mandated plan. The Senate committee that devised the procedure for citizen suits under the Clean Air Act made it clear that in a citizen suit for SIP enforcement, "the issue before the courts would be a factual one of whether there had been compliance." S.Rep.No. 91-1196, 91st Cong., 2d Sess., at 37 (1970). In Friends of the Earth, the Second Circuit adopted this view, citing the Senate Committee passage. 535 F.2d at 178-79. The Second Circuit stated that "a plan, once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state." Friends of the Earth, 535 F.2d at 169. As a result, a district court "is obligated, upon a showing that the state has violated the plan, to issue appropriate orders for its enforcement." Friends of the Earth, 535 F.2d at 173. See also, National Resources Defense Council v. N.Y. Department of Environmental Conservation, 535 F.2d at 173 (S.D.N.Y. 1987). I agree with the position taken by the Second Circuit, and therefore dismiss the aforementioned second, third, and fourth fact arguments as unrelated to the SIP enforcement action at hand. If New Jersey doesn't like its ozone SIP or considers its obligations under the SIP to be undeserved, it should plead that case to the EPA. See 42 U.S.C. §§ 7410(a)(3) and 7410(f); Train v. National Resources Defense Council, 421 U.S. 60, 89-90, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975); Friends of the Earth, 535 F.2d at 178.

 First, an examination of the text of the SIP itself reveals little reason, if any, to doubt that New Jersey did manifest in the SIP an objective intention to commit itself to the scheme of rulemaking and enforcement argued for by plaintiffs. Pages i-ii of the SIP describe the process by which the SIP was created. The SIP states that the EPA has required "a revised plan . . . demonstrating attainment of the ozone . . . standards by December 31, 1987." Later portions of the SIP describe, inter alia, the seven strategies at issue as necessary if New Jersey is to attain the EPA's ozone standards. See the 1983 SIP at pages 14, 15, 19, 20, 23, 27, 28, and 49. At page 1, the SIP describes itself as "how New Jersey proposes to eliminate unhealthful concentrations of . . . ozone." At page 3, the SIP states that it "addresses the attainment of the ozone . . . ambient standards by 1987." At page 4, the SIP asserts that it "would extend stationary source control [a term which covers the seven strategies at issue here] to all significant sources of volatile organic substances." In regard to the Stage II vapor control strategy, the SIP states that "when measures to reduce VOS emissions from filling automobile gasoline tanks are adopted in New Jersey (see Schedule for Implementation), they will supplement the gasoline distribution standards (Stage I requirements) already contained in subchapter 16." 1983 SIP at pages 47-48. The "Schedule for Implementation" referred to here is contained elsewhere in the SIP, and lists the rulemaking and enforcement deadlines argued for by plaintiffs. It will be more fully described below. In regard to the other six strategies at issue on this motion, the SIP states that "New Jersey commits to the following stationary source extraordinary measures: barge loading of gasoline, . . . lowering emission rate exclusions in N.J.A.C. 7:27-16.6, lowering coating rate exclusions in section 16.5, automobile refinishing operations, architectural coatings, and consumer solvents." 1983 SIP at page 49. ...


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