Plaintiffs' motion for a preliminary injunction. Citizens Ass'n of Georgetown v. Washington, 370 F. Supp. 1101 (D.D.C. 1974). Plaintiffs also allege that the corporate defendants are in violation of D.C.R.R. 8-2:720(a) which requires that construction of any "stationary source" of air pollution proceed only upon issuance of an air quality permit. Upon consideration of the Clean Air Act and upon our construction of the Act, we have concluded that Plaintiffs fail to demonstrate that Defendants are in violation of any "emission standard or limitation" as defined by the Clean Air Act. However, this decision calls for a judgment on the merits rather than a dismissal for want of jurisdiction.
42 U.S.C. § 1857h-2(a) extends federal court jurisdiction to cases not otherwise cognizable, without excluding jurisdiction provided by other provisions. 42 U.S.C. § 1857h-2(e). The importance of § 1857h-2(a) as a jurisdictional provision is that it confers federal jurisdiction over violations of "emission limitations" even if those standards are only proscribed by state or local statutes, if the state or local statute is part of an implementation plan. Moreover, the potential plaintiff is relieved of meeting the jurisdictional amount of $10,000.00.
The Court also concludes that jurisdiction under 28 U.S.C. § 1331(a) is well-founded. A substantial federal question exists as to whether the Clean Air Act in its entirety requires that the Maloney and Inland developments be reviewed by a federal district court, prior to or during construction, to determine if construction will interfere with the attainment and maintenance of the national ambient air quality standards in the District by May 31, 1977.
IV. PLAINTIFFS FAILED TO DEMONSTRATE THAT THE CORPORATE DEFENDANTS VIOLATE THE CLEAN AIR ACT
In order to prevail in this case, Plaintiffs must: (1) show that the corporate defendants have violated an "emission standard or limitation" as defined in the Clean Air Act, or a District of Columbia regulation implementing the Act; or (2) demonstrate that Defendants' construction will in fact cause a violation in 1977 of the national ambient air quality standards. We conclude that Plaintiffs have failed in the first respect as a matter of law and in the second respect as a matter of fact. This decision is limited to the buildings now under construction by Georgetown-Inland North Corporation and Maloney Concrete Company. The other Inland developments have not been issued building permits, are at an indefinite stage of planning, and may be subject to District of Columbia or EPA regulations concerning "indirect sources" or parking facilities when construction begins.
A. The Corporations Are Not in Violation of an "Emission Standard or Limitation" as Defined by the Clean Air Act.
42 U.S.C. § 1857h-2(a) gives jurisdiction to the federal district court to hear suits in which a party alleges a violation of (1) an "emission standard or limitation under this chapter" or (2) an order issued by a state or the Environmental Protection Agency (hereinafter, "EPA") with respect to such a standard or limitation. The second type of violation (violation of an order) is not in question, so the Court does not need to discuss it here. 42 U.S.C. § 1857h-2(f) defines the terms "emission standard or limitation under this chapter" to mean "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard [or a motor vehicle standard, not applicable here] which is in effect under this chapter . . . or under an applicable implementation plan." All of these terms are "terms of art"; they are defined by Congress within other provisions of the Act as discussed below. These terms have precise definitions under the Act and this Court is not free to add or subtract from their legislative content if it is unambiguous. We will discuss each term in turn.
The terms "emission limitation" and "schedule or time table of compliance" are defined in 42 U.S.C. § 1857C-5(a) (2) (B). Each state is required to adopt an implementation plan to meet the national primary and secondary air quality standards under § 1857c-5(a) (1). "Emission limitation" is a broad term for those measures within state implementation plans which are necessary to insure attainment and maintenance of the national primary and secondary air quality standards. See National Resources Defense Council v. EPA, 489 F.2d 390 (5th Cir. 1974) at note 2. "Schedules or timetables of compliance" are timetables for compliance with the emission limitations, which timetables are also to be found in the implementation plans. 42 U.S.C. § 1857c-5(a) (2) (B). That is, Congress has directed each state to adopt a plan sufficient to meet the national primary and secondary air quality standards. Such a plan must be implemented by state (and perhaps local) statutes establishing standards or rules of conduct to limit emission of harmful pollutants into the air and schedules for meeting those standards. It is these standards and schedules that are referred to in the Act by the terms "emission limitations" and "schedules or timetables of compliance."
Plaintiffs have not alleged that the corporate defendants are in violation of any "emission limitation" or "schedule of compliance" which is provided by any existing District of Columbia statute or regulation. They do allege that the corporations did not comply with D.C.R.R. 8-2:701 et seq., but, as discussed below, that allegation is insufficient as a matter of law.
"Standard of performance" is a more narrow term than "emission limitation" and is defined in 42 U.S.C. § 1857(a) (1) as that degree of emission limitation which the Administrator of EPA establishes for new sources within each category of stationary sources. By definition under the Act, a "standard of performance" can only apply to "new stationary sources". 42 U.S.C. § 1857c-6(a) (2) (b) (1) (B). A "new stationary source" is any "stationary source" (building, structure, facility or installation which emits or may emit any air pollutant) of which construction or modification is commenced after the publication of the regulations which prescribe an applicable standard of performance. 42 U.S.C. § 1857c-6(a) (2), (3). § 1857c-6(e) makes unlawful the operation of any new source in violation of any standard of performance applicable to that source; that is, violation of a standard of performance is a violation of federal law.
The statutory definition of "new source" is not complete; rather, the statute contemplates regulations which establish the "sources" to be regulated and the standards of performance applicable in each case. See, e.g., 42 U.S.C. § 1857c-6(a) (2), (e). No court can judge whether a building is in violation until the regulations are effective. In promulgating regulations which establish rules of conduct, under the stationary source provisions of the Act (42 U.S.C. §§ 1857c-6, c-7), the EPA did not include buildings with garages as a category of "stationary sources". 40 C.F.R. § 60.1 et seq.
The EPA soon recognized that facilities which attract automobiles may not themselves fall within the definition of "stationary source" but could nonetheless endanger attainment of the national standards because of associated automobile activity. Accordingly, EPA regulations concerning implementation plans were modified June 18, 1973, to require state plans to contain "legally enforceable procedures adequate to enable the State or local agency to determine" whether construction of a building would result in a violation of the state "control strategy" or would "interfere with attainment or maintenance of a national standard whether directly, because of emissions from it, or indirectly, because of emissions resulting from mobile source activities associated with it." 40 C.F.R. § 51.18(a). This regulation does not by itself establish any self-executing provisions for such a determination, but directs the state to implement such provisions. Thus, 40 C.F.R. § 51.18(a) requires the District of Columbia to establish review procedures for the construction of "indirect sources". Subsequent regulations effectively exempt the District of Columbia from "indirect source" review. See 40 C.F.R. § 52.22(b) (15) at 39 Fed. Reg. 25300 (1974).
On November 15, 1973, EPA promulgated regulations which establish the procedure for reviewing some "indirect sources" in the District. 40 C.R.F. § 52.493 at 38 Fed. Reg. 31536. These regulations establish for the first time a rule of conduct applicable to the construction of certain parking facilities (an "indirect source") in the District. 40 C.F.R. § 52.493(d)-(g). But these regulations only apply to construction or modification of certain parking facilities commenced after November 12, 1973. 40 C.F.R. § 52.493(c) at 38 Fed. Reg. 31537. Since the corporate Defendants' construction was commenced prior to November 13, 1973, these regulations are not applicable to them. This effective date has since been changed to January 1, 1975. 39 Fed. Reg. 1849 (1974).
Therefore, Plaintiffs have failed to show any violation of a "standard of performance" as defined by the Act.
Finally, the term "emission standard" is defined by its use in 42 U.S.C. § 1857-7(b)-(d) as an emission limitation applicable to a "hazardous air pollutant". A "hazardous air pollutant" is specifically defined as an air pollutant for which no ambient air quality standard is applicable. 42 U.S.C. § 1857(a) (1). That is, "emission standard" is a term applicable only to air pollutants for which an air quality standard is not in effect. Since Plaintiffs here contend that the Defendants' facilities will emit air pollutants for which air quality standards are in effect, Defendants facilities cannot be in violation of any "emission standard".
B. Plaintiffs Failed to Demonstrate Sufficiently That Inland's and Maloney's Buildings are in Violation of District of Columbia Regulations Applicable to "Stationary Sources" of Pollutants
Upon reconsideration of all arguments made after this Court's determination of the issues presented by Plaintiffs' motion for preliminary injunction, we conclude that the Defendants Maloney and Inland were not required to obtain stationary source construction permits pursuant to the District of Columbia Air Quality Control Regulations, Title 8, Sec. 2:701 et seq. Their buildings are not "stationary sources" within the meaning of those regulations. See Metropolitan Washington Coalition for Clean Air v. Dep't of Economic Dev., 373 F. Supp. 1096 (D.D.C. 1974). Thus, Defendants are not in violation of those District regulations.
As discussed above, EPA regulations now require state implementation plans to contain procedures to review " indirect sources." However, the District has not implemented such review and the EPS-promulgated regulations applicable to certain "indirect sources" do not apply to the Maloney and Inland projects now under construction. See text, supra, at page 8.
C. The Plaintiffs Failed at Trial to Carry Their Burden of Proof to Establish that the Defendants' Developments will Cause the National Ambient Air Quality Standards to be Exceeded in 1977.
The national ambient air quality standards which the District of Columbia must meet by May 31, 1977, for carbon monoxide, non-methane hydrocarbons, and photochemical oxidants, are as follows:
Carbon Monoxide 9 p.p.m. 8-hour concentration
35 p.p.m. 1-hour concentration
Oxidants 0.08 p.p.m. 1-hour concentration
Hydrocarbons 0.24 p.p.m. 3-hour concentration
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