Opinion
No. C 02-05102 CRB.
March 5, 2003
MEMORANDUM AND ORDER
Plaintiffs Medical Advocates, Sierra Club and Latino Issues Forum ("plaintiffs") bring this lawsuit against the U.S. Environmental Protection Agency ("EPA") alleging violations of the Clean Air Act ("CAA"). San Joaquin Valley Unified Air Pollution Control District ("District") intervened as a defendant on January 3, 2003.
Plaintiffs now move for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure with respect to their claim that the EPA failed to promulgate a federal implementation plan ("FIP") to control emissions in the San Joaquin Valley. EPA and District both oppose the motion. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, plaintiffs' motion is granted in part and denied in part.
STATUTORY OVERVIEW OF THE CLEAN AIR ACT
Congress enacted the CAA, 42 U.S.C. § 7401 et. seq., to afford all residents of the United States safe, clean and healthy air to breathe. Particulate matter having a diameter of less than or equal to ten microns ("PM-10") is regulated under the CAA. See id. a § 7602(t). EPA has established various air quality standards for PM-10. See 40 C.F.R. § 50.6(a), (b). Under the CAA, each state must adopt a pollution control plan, also referred to as a state implementation plan ("SIP"), with measures to ensure compliance with national air quality standards. 42 U.S.C. § 7410(a)(1). Such plans must be submitted to and approved by EPA. See id. § 7410. When a local agency fails to fulfill its duty in supplying a SIP by the applicable deadline, the EPA requires EPA to take the following actions: 1) step in to promulgate a FIP to ensure the locality's compliance with national air quality standards and 2) impose sanctions against the locality. See id. §§ 7410(c)(1), 7509(a), 7509(b). Indeed, "FIPs are specifically meant to fill in the gaps where a State has failed to submit an SIP or where the State's SIP does not satisfy minimum criteria under the CAA."Administrator, State of Ariz. v. USEPA, 151 F.3d 1205, 1212 (9th Cir. 1998).
The Act classifies regions that do not meet the specified air quality standards as "moderate" or "serious" based on the severity of PM-10 pollution levels. 42 U.S.C. § 7513. Regions classified as moderate are subject to certain statutory deadlines and requirements. By November 15, 1991, each PM-10 moderate region was required to submit a SIP to EPA containing all reasonably available control measures ("RACM") to reduce PM-10 emissions. See id. a § 7513a(a). Further, each designated moderate region was to have attained national air quality standards by December 31, 1994. See id. a § 7513(c). Regions that could not meet the air standard requirements by December 31, 1994 could be downgraded by EPA to "serious" status. See id. a § 7513(b)(1). Those regions carrying the serious classification were required to submit a SIP containing all best available control measures ("BACM") to reach the air quality standards no later than 18 months after being classified as serious. See id. § 7513a(b)(1). All serious areas were to have attained national air quality standards for PM-10 no later than December 31, 2001. See id. § 7513(c)(2). Any serious areas failing to meet the December 31, 2001 deadline were required to submit to EPA by December 31, 2002 a plan to reduce PM-10 emissions by 5% per year, known as a "serious 5% plan." See id. § 7513a(d).
FACTUAL BACKGROUND
Plaintiffs are non-profit organizations. Plaintiffs claim that the San Joaquin Valley remains one of the most dangerous places in the nation to breathe because it has never attained the CAA standards for particulate matter ("PM-10"), a deadly air pollutant. PM-10 poses serious health risks, such as cardiovascular and respiratory disease and damage to lung tissue.
Plaintiffs maintain that on December 16, 1991, EPA made a formal finding that the San Joaquin Valley had failed to submit a SIP to attain air quality standards designated under the CAA by the statutory deadline of November 15, 1991. Plaintiff claim that this finding triggered a mandatory duty on EPA to promulgate a FIP for the San Joaquin Valley within two years, or by December 16, 1993. EPA has never developed a FIP for the San Joaquin Valley. Plaintiffs request that EPA promulgate a FIP for the San Joaquin Valley by May 5, 2003.
Defendant EPA does not dispute that it has a mandatory duty to promulgate a FIP, but it does object to plaintiffs' proposed timetable. Due to the complexity of the issue and the quantity of data that must be gathered, EPA proposes that a reasonable deadline for signature of a "final FIP" is November 15, 2004.
LEGAL STANDARD
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burdens the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
DISCUSSION
A. EPA's Duty To Promulgate a FIP
Pursuant to the controlling provisions of the CAA, EPA has a non-discretionary duty to promulgate a FIP for the Valley. The CAA states in relevant part as follows:
The [EPA] Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator —
(A) finds that a State has failed to make a required submission or finds that the plan or plan revision submitted by the State does not satisfy the minimum criteria established under subsection (k)(1)(A) of this section, or
(B) disapproves a State implementation plan submission in whole or in part,
unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.42 U.S.C. § 7410(c)(1) (emphasis added).
On December 16, 1991, EPA made a formal finding that the District had failed to submit the required SIP by the statutory deadline of November 15, 1991. See Pls.' Mot. for Summ. J. Ex. A (letter from Daniel McGovern, EPA, to Gov. Wilson of Dec. 16, 1991). At that point, EPA had a mandatory duty to promulgate a FIP for the Valley within two years, or by December 16, 1993, unless the District submitted and EPA approved a SIP. Because EPA still has not promulgated a FIP for the Valley, and because neither the SIP supplied by the District on December 24, 1991 nor any subsequently submitted SIPs have ever been approved by EPA, EPA's non-discretionary duty to develop a FIP is long overdue.
Plaintiffs report that District submitted two more PM-10 SIPs to EPA, on October 12, 1994 and July 17, 1997, but that EPA took no action on either of those submissions. See Pls.' Mot. for Summ. J. at 7.
The Ninth Circuit has acknowledged the non-discretionary character of EPA's duty to promulgate a FIP under the Act when a local region fails to comply. See, e.g., Coalition for Clean Air v. Southern Cal. Edison, 971 F.2d 219, 224-25 (9th Cir. 1992); Delaney v. EPA, 898 F.2d 687, 695 (9th Cir. 1990). Of note is the Ninth Circuit's finding in Coalition for Clean Air that "[c]learly Congress intended that EPA's obligation to promulgate a FIP would be triggered by any one of the three triggering events contained in § 110(c)(1) as amended." 971 F.2d at 225 (emphasis added). Under that section, EPA must promulgate a FIP whenever it finds that a state has failed to submit a plan, the plan submitted fails to meet minimum criteria, or EPA disapproves of a SIP for some other reason.
EPA does not dispute that it has a mandatory duty to promulgate a FIP for particulate matter (PM-10) for the Valley. Rather, EPA disputes the time frame of the remedy requested by plaintiffs.
District argues that there are triable issues of fact as to whether an approvable plan has been submitted to EPA and whether that plan should be acted upon before the federal-plan duty arises. Under the provisions of the CAA, the District was required to submit a SIP to EPA by November 15, 1991. See 42 U.S.C. § 7513a(a). District submitted its plan to EPA on December 24, 1991. See District's Opp'n To Pls.' Mot. for Summ. J. at 7. Thus, the plan was submitted one month late. Nonetheless, District relies on section 7410(k)(1)(B) of the Act to argue that its plan was deemed complete by operation of law on June 24, 1992, since EPA did not determine that the plan failed to meet minimum criteria within six months of receipt.
Section 7410(k)(1)(B) provides in relevant part as follows:
Any plan or plan revision that a State submits to the Administrator, and that has not been determined by the Administrator (by the date 6 months after receipt of submission) to have failed to meet the minimum criteria established pursuant to subparagraph (A), shall on that date be deemed by operation of law to meet such minimum criteria.42 U.S.C. § 7410(k)(1)(B).
At that point, claims the District, EPA had twelve months to act upon the plan. See id. § 7410(k)(2). District believes that its moderate plan is still pending with EPA. District also contends that it is very close to finishing its "serious 5% plan," estimating a completion date of April 2003. Thus, District submits that EPA should act on this plan, not develop a FIP.
Whether or not EPA was duty-bound to take action on a plan that was submitted one month late, there is no dispute that EPA should have acted long ago. If EPA was required to act on the plan that District submitted on December 24, 1991, that action should have been completed by June 24, 1993. If, on the other hand, EPA had no obligation to consider the December 24, 1991 submission, it was still required to promulgate a FIP within two years of determining that District failed to submit a timely plan — that is, no later than December 16, 1993. Either way, EPA action is long overdue. Accordingly, summary judgment will be entered against the EPA on the issue of the agency's duty to promulgate a FIP for the San Joaquin Valley as soon as possible.
B. Time Frame for Compliance With Duty to Promulgate FIP
The Court declines to set a compliance deadline at this time. The parties have been ordered to appear before a magistrate judge who will make a recommendation to the Court in this regard.
CONCLUSION
For the reasons stated herein, plaintiffs' motion for partial summary judgment is granted as to the duty of EPA to promulgate a FIP for the San Joaquin Valley. Plaintiffs' motion is denied with respect to the time frame requested for EPA to so act.