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January 14, 2003


The opinion of the court was delivered by: John D. Bates, United States District Judge.


The City of Tempe, Arizona ("Tempe") and Joseph Lewis ("Lewis") (collectively, "plaintiffs") apply for a preliminary injunction to halt further progress on a development project at Phoenix Sky Harbor International Airport ("PHX") in Phoenix, Arizona. Plaintiffs assert that the Federal Aviation Administration ("FAA") improperly authorized grants for the project, and that the City of Phoenix ("Phoenix") improperly proceeded with construction, without performing the required conformity determination under the Clean Air Act and its implementing regulations. For the reasons stated below, plaintiffs' application is denied.*fn1


A. Regulatory Structure

The Clean Air Act, enacted in 1970 and amended in 1977 and 1990, establishes a joint state and federal program to control air pollution. Under 42 U.S.C. § 7409, the Environmental Protection Agency ("EPA") must establish primary and secondary national ambient air quality standards ("NAAQS") for certain pollutants for the protection of public health and welfare. See 40 C.F.R. Part. 50. As contemplated in 42 U.S.C. § 7410, the measures necessary to attain the NAAQS will be applied to individual sources through an implementation plan prepared by each state, subject to EPA review and approval, for each "air quality control region" within the state. A state implementation plan must specify emission limitations and other measures necessary to attain and maintain the NAAQS for each pollutant. 42 U.S.C. § 7410 (a)(2)(A)-(K).

In 40 C.F.R. § 93.153 (c)(2), the EPA exempted from the Subpart B requirements certain federal actions that "would result in no emissions increase or an increase . . . that is clearly de minimis." Specifically identified as exempt are "[r]outine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities." 40 C.F.R. § 93.153 (c)(2)(iv). EPA's rule also sets threshold emissions levels for specific pollutants and provides that any action for which the total of direct and indirect emissions is below the applicable threshold level is exempt from the requirement of a conformity determination under Subpart B. 40 C.F.R. § 93.153 (c)(1).

B. The Center Runway Project

PHX is a major passenger and cargo facility for the southwestern United States and among the busiest airports in the country. Declaration of Dave Krietor ¶¶ 3-4. In 1999, PHX staff began planning a construction project involving the 10,300 foot-long Center Runway, one of PHX's three runways. Id. ¶ 9. PHX staff had determined that the Center Runway, which was built in the 1970s and is composed of bituminous asphaltic pavement, had become degraded over the years and required reconstruction by 2002. Id. ¶ 6, 9; Declaration of Kevin Flynn ¶ 19; Administrative Record ("AR") No. 29 (section entitled "Program Narrative").

Working with the FAA, PHX staff developed a proposal for the Center Runway Project involving: (i) milling the existing bituminous asphalt pavement on the Center Runway and overlaying it with 18-inch thick Portland Concrete Cement ("PCC"); (ii) select milling and overlaying of portions of two taxiways; (iii) construction of tapers along existing taxiways; (iv) removal of abandoned utility lines; (v) modification of existing taxiway/runway lighting systems; (vi) alteration of existing taxiway and runway signage; (vii) temporary construction access; and (viii) onsite grading and localized drainage improvements. Krietor Decl. ¶ 14.*fn2 This development was to take place in several phases. Phase I, which began on July 8, 2002, and has recently been completed, involved drainage, electrical and earthwork, mill and asphalt replacement for two taxiways, and preparation for concrete and asphalt work. Id. The remainder of the Project was scheduled to continue as follows:

Phase II: Phase II begins January 6, 2003 and is 50 days in duration. During this phase, the Center Runway will be completely shut down seven days a week for 24 hours per day for milling of the existing asphalt surface and application of the PCC overlay. In addition, some electrical and drainage work will be accomplished during this phase.
Phase III: This phase will begin on approximately February 26, 2003 for 40 days. During this phase the Center Runway will be reopened to a reduced length of 7,500 feet, with 1,000 foot safety areas on each end. Completion of the concrete paving will occur as well as electrical and drainage work. At the end of this phase, the Center Runway will be reopened to its full length of 10,300 feet.
Phase IV: This phase will commence on approximately April 7, 2003 and is 150 days in duration. During this phase, the Project will be completed (e.g., modification of existing taxiway/runway lighting systems, alteration of existing taxiway and runway signage, etc.).

Krietor Decl. ¶ 15.

In early 2001, Phoenix applied to the FAA for funding for the Center Runway Project under the FAA's Airport Improvement Program. See AR No. 29. Thereafter, the FAA approved four grants totaling over $40 million. See Flynn Decl. ¶ 10. With respect to each grant, the FAA indicated in its project evaluation report that no air quality conformity determination was necessary because the "proposed project is exempted in accordance with 40 C.F.R. § 93, Subpart B, Section 93.153, Paragraph (c)(2)." AR Nos. 26 (dated April 18, 2001), 40 (dated September 18, 2001), 51 (dated July 30, 2002), and 57 (dated September 24, 2002).

On October 16, 2002, Tempe, which is located two miles from PHX, and Lewis, who resides 2.5 miles from PHX, filed the complaint in this case against the FAA, Phoenix, and certain of their officials.*fn3 Plaintiffs charge that defendants failed to comply with the Clean Air Act, 42 U.S.C. § 7401, et seq., and specifically the Conformity Provision, 42 U.S.C. § 7506, because the FAA funded the Center Runway Project, and Phoenix moved forward with construction, without performing a conformity determination. Complaint ¶¶ 13, 15. According to plaintiffs, such a determination is required under the EPA regulations at 40 C.F.R. Part 93, Subpart B, because the Center Runway Project will cause significant emissions of particulate matter ("PM10"). These emissions, plaintiffs claim, will have adverse health consequences for Tempe's citizens (including Lewis) and its city officials and employees, and will result in damage to Tempe's buildings. Compl. ¶¶ 3-4. Furthermore, plaintiffs assert, because "the physical expansion of existing Tempe industries, and the physical development of future industries, will produce PM10s, [the Center Runway] project will have . . . significant negative economic ramifications for Tempe as it will curtail such economic development due to the region already having reached or exceeded threshold levels for PM10 emissions." Id. ¶ 3.

Plaintiffs' complaint contains two principal counts: (i) a claim against the FAA under the Administrative Procedure Act, 5 U.S.C. § 701, et seq. ("APA"), and the Conformity Provision, 42 U.S.C. § 7506, based on the FAA's alleged failure to conduct a conformity determination; and (ii) a claim against Phoenix under Arizona Rev. Code § 28-2411, et seq., for failure to comply with federal law requiring a conformity determination. Plaintiffs seek declaratory relief against the FAA under 28 U.S.C. § 2201 (a), an order compelling performance by the FAA under 28 U.S.C. § ...

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