the first twenty-three [stationary source] measures, [which include the four stationary sources at issue] down through 'Letterpress/Offset Printing,' will be implemented as new regulations by the BAAQMD." Plan at 101 (emph. added). If this language does not evidence a commitment to carry out a specific strategy, the Court would be hard pressed to coin a phrase that did. Moreover, the 23 measures are no minor matter; rather they are at the core of the Plan's strategy, accounting for 56 of the 85 tons/day reduction that the Plan represented would be achieved.
Notwithstanding the above, the District denies any commitment to adopt the 23 measures because the Plan at times describes them in a tentative or prospective manner. For example, the Plan at page four states that "twenty-three new regulations are proposed by the Bay Area Air Quality Management District for implementation" (emph. added). It is obvious, however, that terms such as "proposed" and "recommended" were used because the Plan was submitted to EPA as a proposal. Indeed, by definition the entire Plan was "tentative" until approved by the Agency. Once approved, however, the Plan became mandatory. Friends of the Earth, 535 F.2d at 169 (approved SIP is "controlling and must be carried out by the State"). The District can not escape its commitments simply because the Plan was prepared in proposal form. American Lung Ass'n, 670 F. Supp. at 1290-91.
The District also relies on an affidavit by the District's Air Pollution Control Officer, which essentially states that the District never intended to commit to implementation of all 23 stationary source measures. Feldstein Decl. at para. 4-5. This after-the-fact declaration deserves no weight; even assuming the District actually harbored some unexpressed intent that the 23 measures only represent "suggestions," such intent is irrelevant given that SIP strategies are mandatory and enforceable upon EPA approval.
Moreover, the Court finds this aspect of the declaration particularly disingenuous, given the District's obligation to submit for EPA approval a SIP containing enforceable strategies for achieving NAAQS by 1987. 42 U.S.C. § 7502(a)(2), (c); Connecticut Fund for Environment, Inc. v. EPA, 672 F.2d 998, 1001 (2nd Cir. 1982), cert. denied, 459 U.S. 1035, 103 S. Ct. 445, 74 L. Ed. 2d 601 (1982) (SIP "must contain, in enforceable form, all measures needed for attainment"); 46 Fed.Reg. 7182, 7186 (Jan. 22, 1981). The District can not represent to EPA that the Plan contains enforceable strategies when seeking its approval to avoid the specter of sanctions, but then represent to this Court that it never intended those strategies to be enforceable.
Third, the District contends that ordering adoption of stationary source measures by a certain time, without first allowing a public hearing on the advisability of such a course would run afoul of Cal.Health & Safety Code §§ 40725-27. These sections, however, were not enacted until 1986; at the time the 1982 Plan was adopted, their predecessor, former Health and Safety Code § 40703, provided only that a "district board shall not adopt, amend, or repeal any rule or regulation without first holding a public hearing thereon." The 1982 Plan incorporates this provision when it states that "the state Health and Safety Code requires public notice and hearings prior to actual adoption of a regulation. . . ." Plan at 101.
Thus, to accept the District's argument would require the Court to find the Plan internally inconsistent -- because enforcing one part of the Plan (the stationary source plan) would violate another (the public hearing provision). Traditional rules of construction counsel against such a result, where as here, it can be reasonably avoided. Cf., Hughes Air Corp. v. Public Utilities Comm'n, 644 F.2d 1334, 1338 (9th Cir. 1981) ("basic rule of statutory construction is that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless").
It is readily apparent that the public hearings referenced in the Plan are for the purpose of addressing the specific shape and form of the 23 stationary source measures -- not whether they should be undertaken at all or the amount of emissions reduction to be achieved thereby. Indeed, this is the only reasonable construction. These latter matters having already been determined by the Plan,
and having been rendered mandatory by virtue of EPA's approval, are binding on the District. They are not subject to reassessment by a future public hearing. Cf. NRDC v. New York, 668 F.Supp at 854-855 (state rule-making process can not interfere with federal enforcement of SIP). Thus, the public hearing requirement does not defeat plaintiffs' standing to enforce the four stationary source measures at issue.
2. Stationary source contingency provisions
If the non-contingent provisions of the Plan prove insufficient "to demonstrate attainment and reasonable further progress within the statutory time frame, then additional measures must be identified, evaluated, and adopted." Plan at 34 (emph. added); see also, Plan at 150 ("if emissions are not decreasing at rates that will allow standard attainment by 1987, then further controls must be adopted and implemented ") (emph. added).
The Plan identifies a number of potential contingency measures for stationary sources but does not commit to any particular one.
Although the ARB previously acknowledged the Plan's commitment to adopt stationary source contingency measures if emission targets were not met,
it now disavows any such commitment because the Plan does not mandate adoption of any particular contingency stationary source measure.
This latter position can not be reconciled with the mandate that SIPs contain " in enforceable form, all measures needed for attainment." Connecticut Fund, 672 F.2d at 1001 (emph. added). Where, as here, the SIP expressly calls for contingency measures in specific circumstances, the contingency plan is necessarily an integral and indispensable component of the SIP. Indeed, absent the contingency measures, it is doubtful the 1982 Plan could have won EPA approval.
Additionally, the promise to implement additional measures, should the Bay Area fail to make sufficient progress toward reducing ozone levels, is expressed in unambiguous terms. We discern no principled basis, consistent with the Clean Air Act, for disregarding this unequivocal commitment simply because the particulars of the contingency measures are not provided. Thus, we hold that the basic commitment to adopt and implement additional measures, should the identified conditions occur, constitutes a specific strategy, fully enforceable in a citizens action, although the exact contours of those measures are not spelled out.
Our holding finds support in Atlantic Terminal Urban Renewal Area Coalition v. New York City Dep't of Environmental Protection, 697 F. Supp. 157 (S.D.N.Y. 1988). In that case, the plaintiffs sought to enforce a provision in New York's SIP which required New York City to take affirmative, albeit unspecified steps, to reduce carbon monoxide emissions if an environmental impact statement for a project identified a violation or exacerbation of the Carbon monoxide standard. The Court found the provision was enforceable in a citizens' action because the provision at issue "contains a commitment on the part of the City to act, and thereby does more than restate a goal [to meet NAAQS]." Id. at 161-162. Similarly, here, the stationary source contingency provisions represent an unequivocal promise to act that is independent of the Plan's overall objectives.
3. Transportation contingency measures
Finally, we turn to plaintiffs' standing to enforce the contingency plan for the transportation sector. As summarized earlier, the first component provides as follows:
"If the RFP [reasonable further progress] target is not met, MTC may delay certain categories of projects in the TIP [Transportation Improvement Program] if they are shown to have significant adverse impact on air quality. The criteria for delaying projects and specific projects to be delayed will be determined following the initial public hearing under section b."