air fresheners and consumer insecticides. The rule required that these products reduce their content of VOS to 50% by weight by February 28, 1990, to 25% by February 28, 1992, and to 5% by February 28, 1994. A public hearing on the proposed rule was held on September 22, 1988, during which testimony and written comments were accepted. Certain commentators criticized the adequacy of DEPE's scientific evidence and knowledge and argued that DEPE had an insufficient basis for establishing VOS limits. See 21 N.J.R. at 472.
On January 26, 1989, N.J.A.C. 7:27-23 was adopted "with technical and substantive changes from the proposal." In re the Adoption of Regulations Concerning Volatile Organic Substances in Consumer Products, No. A-1226-89T1, slip op. at 3 (App. Div. Feb. 26, 1990); see 21 N.J.R. 462-483. Specifically, DEPE deferred adoption of any regulations pertaining to consumer insecticides pending further study. The rule retained the requirement that the VOS content of air fresheners be limited to 50% by February 28, 1990. However, DEPE deferred adoption of the proposals which would require further reductions to 25% and 5% pending further study. Finally, DEPE clarified that disinfectant air fresheners were not intended to be governed by the new rule. "As a result of these changes, only non-disinfectant air fresheners with more than 50% VOS [were] subject to the regulation." In re the Adoption, No. A-1226-89T1, slip op. at 4. This meant that "only four specific items out of the entire consumer products market [were] thus affected by the rule." Id. According to the State defendants, the substantive changes to the rule were made because of "DEPE's discomfort with the scientific basis for its VOC content standards for insecticides and the more restrictive standards for air fresheners." Def. Br. at 9-10.
Upon a challenge by a manufacturer of air fresheners, the New Jersey Superior Court, Appellate Division, subsequently invalidated the rule on procedural grounds.
See In re the Adoption, No. A-1226-89T1. Specifically, the Appellate Division concluded that the differences between the proposed rule and the adopted rule were substantial and therefore warranted republication and a new hearing pursuant to the provisions of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1, et seq. Accordingly, the Appellate Division remanded the matter to DEPE "for action consonant with the A.P.A.," including republication and a new hearing. In re the Adoption, No. A-1226-89T1, slip op. at 10.
Since the Appellate Division's ruling in February 1990, DEPE has not attempted to repromulgate this or any other regulation for reducing ozone vapor emissions from solvent-based consumer and commercial products. In addition, the State defendants have frequently failed to submit quarterly status reports as required by the Scheduling Order. Specifically, between July 1990 and the present, the State defendants have submitted only one status report, dated August 31, 1993.
On July 26, 1993, plaintiffs filed the instant motion seeking enforcement of the Scheduling Order. Plaintiffs seek a finding that the State defendants are in violation of this court's Order and the Act because of their failure to implement a consumer and commercial products strategy and to timely file status reports. In addition, plaintiffs ask this court to establish a new schedule for the implementation of the consumer and commercial product strategy in order to ensure New Jersey's compliance with its SIP. Plaintiffs have proposed a timetable under which full compliance would be attained by April 30, 1996.
On September 20, 1993, the State defendants filed a cross-motion seeking to amend the Scheduling Order. At the request of the parties, I deferred consideration of these motions in order to give the parties an opportunity to amicably resolve this matter. On June 1, 1994, the parties informed the court that efforts at settling the matter had failed. The parties have since filed updated submissions with the court and the matter is now ripe for resolution. I note that I have previously retained jurisdiction over the implementation of my Order, see American Lung, 871 F.2d at 329 (citing Scheduling Order at 6), so that these motions are properly before me.
II. Plaintiffs' Motion to Enforce the Scheduling Order
The State defendants concede that the consumer and commercial products strategy has, to this date, not been implemented. The State defendants also concede that they have been remiss in filing status reports as required under the Scheduling Order. Accordingly, it is beyond dispute that the State defendants have not complied with the Order. The reasons for the noncompliance is irrelevant for purposes of liability. See Natural Resources Defense Council, Inc. v. New York State Department of Environmental Conservation, 668 F. Supp. 848, 852 (S.D.N.Y. 1987). I therefore find the State defendants to be in violation of this court's Scheduling Order.
Accordingly, I must enter an appropriate order for enforcement of the Order. See Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d Cir. 1976) ("the district court is obligated, upon a showing that the state has violated the plan, to issue appropriate orders for its enforcement"). As the relevant dates set forth in the Order have long since passed, I am once again confronted with the task of revising the compliance schedule, "consonant with the purpose of the Clean Air Act, to ensure that New Jersey [come] into compliance with the ozone NAAQS 'as expeditiously as practicable.' 42 U.S.C. § 7502(a)." American Lung, 871 F.2d at 327. As noted above, plaintiffs have proposed a revised timetable. Defendants, however, have moved for a much greater modification of the Scheduling Order and it is to this motion that I now turn.
III. State Defendants' Motion to Amend the Scheduling Order
Federal Rule of Civil Procedure 60(b)(5) provides:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. . . .
Id. (emphasis added). Pursuant to this provision, relief may be granted only "upon a showing of exceptional circumstances." Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1119 (3rd Cir. 1979), cert. denied sub nom Thornburgh v. Philadelphia Welfare Rights Organization, 444 U.S. 1026, 62 L. Ed. 2d 660, 100 S. Ct. 689 (1980); accord Mayberry v. Maroney, 558 F.2d 1159, 1163 (3rd Cir. 1977). Put differently, the court should consider "whether in the present circumstances and the state of the law, the decree works extreme and unnecessary hardships upon the defendants." Securities & Exchange Commission v. Warren, 583 F.2d 115, 121 (3rd Cir. 1978); see also Moolenaar v. Government of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987) ("Rule 60(b) does not confer upon the district courts a standardless residual of discretionary power to set aside judgments . . . . The remedy provided by Rule 60(b) is extraordinary, and special circumstances must justify granting relief under it.") (citations omitted).
State defendants argue that the Scheduling Order should be amended so as to enable New Jersey to implement a consumer products program "keyed to USEPA's national program development." Def. Br. at 18. The crux of the State defendants' argument is the passage of the Clean Air Act Amendments of 1990 ("CAAA"), which defendants claim have substantially changed the "consumer product 'playing field'" since this court entered the Scheduling Order. Def. Br. at 19. I will therefore first give a brief synopsis of the relevant provisions of the CAAA.
As with the 1977 amendments to the Act, the CAAA amended the Act to provide states additional time to achieve compliance with the NAAQS for ozone. See 42 U.S.C. § 7511. For a state classified as a "Severe Area" with respect to ozone levels, such as New Jersey, the new attainment date "shall be as expeditiously as practicable but not later than" November 15, 2005. 42 U.S.C. § 7511(a)(1). The CAAA mandates extensive remedial action on the part of the states in order to reduce ozone emissions. See 42 U.S.C. § 7511a.
The 1990 Amendments also contain specific provisions relating to ozone emissions from consumer and commercial products. Pursuant to 42 U.S.C. § 7511b(e)(2)(A), the EPA must conduct a study of VOS emissions from consumer and commercial products. The study must be completed, and a report must be submitted to Congress, by November 15, 1993. Id. The CAAA also provides for federal regulation of ozone emissions. See 42 U.S.C. § 7511b(e)(3). Specifically, upon completion of the report, the EPA must list those categories of consumer and commercial products that it has determined account for at least 80% of VOS emissions from such products in areas that violate ozone NAAQS. The EPA must then divide the list into four prioritized groups for regulation. Every two years after promulgating this list, the EPA must regulate one group of product categories until all four groups are regulated. 42 U.S.C. § 7511b(e)(3)(A). In lieu of regulations, however, the EPA may issue "control technique guidelines" if the EPA determines that such guidelines will be "substantially as effective" as regulations in reducing VOS emissions. 42 U.S.C. § 7511b(e)(3)(C).
Based on these regulations, DEPE claims that the CAAA mandates "a significant new leadership role" for the EPA in the regulation of consumer and commercial products. Def. Br. at 11. Further, DEPE claims that it lacks the requisite expertise and scientific knowledge in the consumer product area. DEPE therefore argues that the most rational, effective, and economical course of action is to follow the national lead which it claims Congress established for the EPA. In following the EPA's lead, DEPE seeks to attain compliance with the ozone NAAQS by the November 15, 2005 deadline.
DEPE, in essence, seeks to be relieved of its obligations under the SIP and the Scheduling Order and to defer any regulatory action until after the EPA has acted. This is clearly impermissible. As an initial matter, the CAAA contains a savings clause which provides for the continuing validity of existing SIPs. 42 U.S.C. § 7410(n)(1) provides:
Any provision of any applicable implementation plan that was approved or promulgated by the [EPA] Administrator pursuant to this section as in effect before November 15, 1990 shall remain in effect as part of such applicable implementation plan, except to the extent that a revision to such provision is approved or promulgated by the Administrator pursuant to this chapter.
Further, the CAAA contains a general savings clause that provides in pertinent part as follows:
No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990 in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990 in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.