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METROPOLITAN WASHINGTON COALITION v. DEPARTMENT OF

June 21, 1973.

METROPOLITAN WASHINGTON COALITION FOR CLEAN AIR, Plaintiff,
v.
DEPARTMENT OF ECONOMIC DEVELOPMENT et al., Defendants


Charles R. Richey, District Judge.


The opinion of the court was delivered by: RICHEY

CHARLES R. RICHEY, District Judge.

INTRODUCTION

 This action arose out of an application by Defendant 900 G Street Associates to Defendant District of Columbia Department of Economic Development for a construction permit to build an eight level structure consisting of three levels of commercial space and six levels of parking space for 419 vehicles on the corner of 9th and G Streets, N.W., Washington, D.C. The case came before the Court on a Complaint for a Declaratory Judgment and Injunctive Relief under Section 1 of the Declaratory Judgment Act (28 U.S.C. §§ 2201-2202), by Plaintiff, Metropolitan Washington Coalition for Clean Air, a non-profit corporation organized under the laws of the District of Columbia, against the District of Columbia Government and Parking Management, Inc. (hereinafter PMI) and 900 G Street Associates (hereinafter Associates). Associates has applied to the District for a construction permit to construct a commercial and parking garage building at the 9th and G Streets site, which will be operated by PMI.

 In order for the parking facility to be built at the present location, Associates believed it necessary to obtain 115 feet of public alley space and, therefore, PMI made application to the City Council to close the alley. After receiving the recommendations of the D.C. Redevelopment Land Agency and the National Capital Planning Commission and after conducting a hearing at which Plaintiff appeared and registered opposition to the alley closing, the City Council closed the public alley on April 3, 1973, thus paving the way for Associates' application for a construction permit currently being reviewed by the Department of Economic Development. In its recommendation to the City Council, NCPC concluded that the closing of the alley was necessary for carrying out a program of physical improvements consistent with the pedestrianization program and the objective of expanded commercial development along G Street. The recommendation of NCPC to close the alley and the resulting application by Associates for a construction permit have generated the issues before the Court discussed below.

 ISSUES PRESENTED

 Plaintiffs have filed a complaint seeking to have the Department of Economic Development enjoined from issuing either a building permit or a preliminary excavation permit for the construction of a high-rise garage proposed by Parking Management Inc. for 9th and G Streets, N.W. until such time as the developers have applied for and received from the Department of Environmental Services a permit for the construction of a "stationary source." The Court, therefore, must determine whether such a permit is required by the Air Quality Control Regulations of the District of Columbia. Further the Court must decide whether the National Capital Planning Commission acted in contravention of the National Environmental Policy Act when it did not issue an environmental impact statement accompanying its alley closing recommendation to the City Council. Finally, the Court is asked to decide whether the action of the Office of the Surveyor in recording the closing of the aforesaid alley allegedly before the applicable statutes had been fully complied with should be declared null and void.

 CONCLUSIONS OF LAW

 In order to obtain the Temporary Restraining Order or Preliminary Injunction which Plaintiff seeks, it must demonstrate each of the following conditions to the satisfaction of the Court: (1) that there is a strong probability that it will prevail on the merits of its case; (2) that there is an imminent danger of serious and irreparable harm by reason of the Defendants' actions; (3) that there is no adequate remedy at law; and (4) that no substantial harm will befall the Defendant if the Court issues the requested order, and that it will be in the general public interest for the Court to issue the order and thus immediately restrain the Defendants' actions. Virginia Petroleum Jobbers Ass'n. v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (1958).

 I. PLAINTIFF HAS FAILED TO DEMONSTRATE A STRONG PROBABILITY THAT IT WILL PREVAIL ON THE MERITS OF ITS CASE

 A. Present D.C. Regulations do not Require Consideration of Vehicular Emissions Associated with the Operation of a Parking Garage Before a Permit to Construct May be Issued.

 Plaintiff contends that the District must assess all air pollutant emissions associated with the proposed parking garage in order to determine that its operation will not interfere with the attainment or maintenance of national air quality standards. While the Court agrees with Plaintiff that the D.C. regulations, particularly Section 8-720(g) require a determination by the Commissioner that the operation of the proposed garage will not prevent or interfere with the attainment or maintenance of any applicable local or national ambient air quality standard, the Court respectfully does not believe that the Commissioner must incorporate a consideration of the proposed garage's indirect effects on air quality into the generally accepted interpretation of "stationary sources," that is, "facilities that affect or may affect air quality primarily because of their own air pollutant emissions." Since automobiles are not fixtures of the proposed building, their projected emissions within the building do not appear from the District's interpretation of "stationary source" *fn1" to be a factor in the computation necessary to determine whether the proposed parking facility is exempt from the stationary source provisions under Section 8-2:720(j). Therefore, a permit may not be required.

 Unquestionably the presence of the automobiles in and around the proposed facility will affect that location's air quality. But the federal Environmental Protection Agency (EPA) has not required, and the District of Columbia has not promulgated regulations providing for a stationary source review for parking garages that contemplate a determination of the impact of automobiles associated with the garage. The failure to issue such regulations, to the extent that it interfered with the attainment of national ambient air standards in the District or with the District's control strategy in its clean air implementation plan, was illegal under the Clean Air Act of 1970 (42 U.S.C. § 1857 et seq.). Natural Resources Defense Council v. EPA, 154 U.S. App. D.C. 384, 475 F.2d 968 (1973). Nonetheless, the Court is constrained to find that the District of Columbia has adopted effective regulations which exempt from review sources like the proposed garage. Administrative decisions pursuant to these regulations have the force of law, unless of course, the Commissioner abused his discretion by approving a new stationary source whose presence would prevent or interfere with the attainment of any applicable local or national ambient air standard. Meaningful changes to the District's ill-conceived procedures are imminent as the discussion below points out. Unfortunately, the new procedures will be in force too late to expand the scope of new source review in the matter before the Court.

 In a recent notice of a proposed rule-making issued under the Clean Air Act (42 U.S.C. § 1857 et seq.), the EPA Administrator made the following comment concerning a ...


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