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AMERICAN LUNG ASSN. v. KEAN

June 29, 1994

AMERICAN LUNG ASSOCIATION, et al., Plaintiffs,
v.
THOMAS H. KEAN, Governor of New Jersey, et al., Defendants.



The opinion of the court was delivered by: HAROLD A. ACKERMAN

 ACKERMAN, District Judge:

 This matter comes before the court on the motion of plaintiffs to enforce the scheduling order entered by this court on November 19, 1987 ("Scheduling Order" or "Order") and on the cross-motion of defendants New Jersey Department of Environmental Protection and Energy ("DEPE") and certain state officials (collectively, "State defendants") to amend the Scheduling Order.

 For the following reasons, plaintiffs' motion is granted and State defendants' cross-motion is denied.

 As I have fully recounted the background of this case in several prior opinions, I will only briefly summarize the events leading up to the present set of motions. See American Lung Ass'n v. Kean, 670 F. Supp. 1285, 1286-1289 (D.N.J. 1987) ("American Lung I"), aff'd, 871 F.2d 319 (3rd Cir. 1989); American Lung Ass'n v. Kean, 26 ERC 1865 (D.N.J. Nov. 19, 1987) ("American Lung II"); American Lung Ass'n v. Kean, Civil Act. No. 87-288, slip op. at 2-4 (D.N.J. Apr. 14, 1989) ("American Lung III"); American Lung Ass'n v. Kean, Civ. Act. No. 87-288 (D.N.J. April 19, 1991) ("American Lung IV").

 Pursuant to the Clean Air Act of 1970 (the "Act"), the United States Environmental Protection Agency ("EPA") promulgates National Ambient Air Quality Standards ("NAAQS") for certain air pollutants, including ozone. 42 U.S.C. § 7409. Each state is required to develop a state implementation plan ("SIP") which sets forth the strategies the state will employ to bring the level of air pollutants into compliance with the NAAQS. Once a SIP is approved by the EPA, the state is bound as a matter of federal law to comply with its provisions. See American Lung, 871 F.2d at 322.

 In 1977, Congress amended the Act to extend the deadlines for attainment of certain NAAQS. The 1977 amendments provided that states not yet in attainment must attain compliance with most NAAQS "as expeditiously as practicable, but . . . not later than December 31, 1982." 42 U.S.C. § 7502 (a)(1). States with severe ozone problems, such as New Jersey, could receive an additional extension to December 31, 1987 for attainment of ozone NAAQS by complying with certain requirements. 42 U.S.C. § 7502(a)(2). These included the filing of revised SIPs containing stringent measures for attainment of the NAAQS. 42 U.S.C. § 7502(c).

 In 1983, New Jersey submitted a revised SIP which the EPA approved with minor changes. See 48 Fed. Reg. 51,472 and 51,479 (Nov. 9, 1983). The SIP contains nine strategies for controlling levels of ozone through the reduction of chemical substances known as "volatile organic substances" ("VOS") or "volatile organic compounds" ("VOC"), which are emitted into the air.

 On January 27, 1987, plaintiffs American Lung Association and other non-profit groups commenced this citizen suit pursuant to Section 304 of the Act, 42 U.S.C. § 7604, to compel defendants to comply with the terms of the SIP. On September 24, 1987, I granted plaintiffs' motion for partial summary judgment, holding that the state had failed to implement seven of the nine strategies prescribed in the SIP to bring it into compliance with the ozone NAAQS. See American Lung I, 670 F. Supp. 1285. One of these strategies was the promulgation and enforcement of regulations pertaining to the control of ozone vapor emissions from solvent-based consumer and commercial products. After giving the parties an opportunity to submit proposed timetables for compliance with the SIP, on November 19, 1987, this court ordered the implementation of the seven ozone-reduction strategies in accordance with the schedule proposed by the state. See American Lung II, 26 ERC at 1872. With respect to the regulation of solvent-based consumer and commercial products, the Scheduling Order contains the following timetable: Submit proposed rules to OAL n1 7/22/88 Publish in the New Jersey Register 8/29/88 Public Hearing 9/30/88 Adopt and submit to OAL 12/30/88 Commence compliance (effective date of rule) 2/28/89 Require full compliance 2/28/90

 Id. at 1875.

 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. *fn2" 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 ...


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