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NATURAL RESOURCES DEFENSE COUNCIL v. THOMAS

July 15, 1988

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
LEE M. THOMAS, et al., Defendants, LEAD INDUSTRIES ASSOCIATION, et al., Intervenors


Joyce Hens Green, District Judge.


The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, DISTRICT JUDGE

 Congress enacted the Clean Air Act, 42 U.S.C. §§ 7401 et seq., "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1). This case vividly demonstrates, however, that the Act's laudable goal is more easily stated than it is achieved. Plaintiffs have now moved to enforce, and defendants to modify, this Court's July 26, 1983 Order and Decree, which established a timetable for implementation of state and federal plans to help ameliorate the dangers posed by airborne lead pollution. *fn1"

 I. The Statutory Scheme

 The Clean Air Act Amendments of 1970 were passed as "a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution." Union Electric Co. v. EPA, 427 U.S. 246, 256, 49 L. Ed. 2d 474, 96 S. Ct. 2518 (1976). After earlier efforts at air pollution control -- such as the Clean Air Act of 1963 and the Air Quality Act of 1967 -- proved ineffective because of resistance at the state and local level, "Congress reacted by taking a stick to the States" and "imposed upon [the Environmental Protection Agency] and the States a comprehensive planning task of the first magnitude which was to be accomplished in a relatively short time." Train v. NRDC, 421 U.S. 60, 64, 68, 43 L. Ed. 2d 731, 95 S. Ct. 1470 (1975).

 The process of air pollution cleanup begins when the Administrator of the Environmental Protection Agency (EPA) places an air particulate on a list of substances "which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). Within twelve months of that time, the Administrator must publish an air quality criteria document, which describes the adverse effects of the pollutant on the public, and a proposed national ambient air quality standard, which sets the acceptable level of concentration consistent with an adequate margin of public health and safety. See 42 U.S.C. §§ 7408(a)(2) & 7409(a)(2). The final national ambient air quality standard must be promulgated within the next 90 days. Id. § 7409(a)(1)(b).

 Although the Act establishes a cooperative undertaking to achieve pollution control, the states "have the primary responsibility for assuring air quality" within their boundaries. 42 U.S.C. § 7407(a). Accordingly, each state is required to submit, within nine months after the date on which a pollutant is placed on the Administrator's list, a state implementation plan (SIP) that details the state's program for implementing the national air quality standards. The Administrator then has four months within which to approve or disapprove the SIP. See 42 U.S.C. § 7410(a)(2). If the plan is disapproved or if no plan is submitted, the Administrator is required to "promptly prepare and publish" a proposed federal implementation plan (FIP) that achieves compliance with air standards. Id. § 7410(c)(1). A final FIP must be published by the Administrator within six months after the date on which SIPs were to have been submitted. 42 U.S.C. 7410(c)(1)(C).

 Finally, the Act sets an outer limit on the time for attaining national air quality goals. State plans should seek to achieve the air standards "as expeditiously as practicable but . . . in no case later than three years from the date of approval of such plan." 42 U.S.C. § 7410(a)(2)(A). The three-year clock begins ticking for each state either on the date on which its SIP is approved or on the date that a FIP is promulgated in its place.

 II. The History of This Litigation

 Over a decade ago, on March 31, 1976, the Administrator of EPA placed lead on the list of airborne pollutants that posed a danger to the public health and welfare. Beginning a trend that would continue, the Administrator's final rule setting a national ambient air quality standard for lead was not passed until October 5, 1978, approximately 18 months after the deadline established by the Act.

 The Administrator and the states were also unable to comply with the statutory directives for submission and approval of SIPS and FIPS: as of July 1982, only 19 state plans had been approved. Accordingly, on July 30, 1982, the Natural Resources Defense Council and several other plaintiffs *fn2" filed suit to compel the EPA and its Administrator to either approve pending state plans or to disapprove the SIPS and pass FIPS instead. After a period of settlement negotiations, the parties submitted, and this Court approved, a proposed Order and Decree, which noted that the parties had agreed to resolve the litigation in accordance with a 17-page Settlement Agreement. See July 26, 1983 Order and Decree (July 1983 Order). In the Settlement Agreement, the parties recognized that the duties created by the Clean Air Act had not been fulfilled with respect to lead pollution, divided the states without approved SIPS or final FIPS into three groups and established new deadlines for action by EPA for each group of states. *fn3"

 On August 20, 1986, however, NRDC filed a motion to enforce the July 1983 Order. Although acknowledging that the Administrator had adhered to many of the deadlines in the Settlement Agreement, plaintiffs noted that, with respect to four major industrial states (Alabama, Indiana, Nebraska and New Jersey), EPA had substantially failed to meet the dates set for approval of state plans or passage of federal plans. *fn4" As relief, NRDC asked this Court to (1) declare that defendants had violated the July 1983 Order and (2) set a strict timetable for action by EPA in those four states, with all agency action taken within 90 days of a ruling by the Court. *fn5"

 On September 26, 1986, defendants opposed plaintiffs' motion and filed their own motion to modify the July 1983 Order. Defendants stated that plaintiffs' proposed schedule was unworkable and that the agency was moving to overcome many technical and administrative problems to approve the outstanding state plans. Defendants asked this Court to modify the July 1983 Order to allow sufficient time -- far longer than plaintiffs suggested *fn6" -- for the Administrator to take appropriate action and they requested an extension of time in three additional jurisdictions (Minnesota, Texas and the Northern Mariana Islands) not mentioned by plaintiffs. In February 1987, defendants moved for leave to file a revised schedule for one state (Alabama), which the Court granted on February 17, 1988. Defendants supplemented their motions in September 1987 and April 1988 with status reports to the Court. On April 18, 1988, defendants moved to file ...


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