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CITIZENS FOR A BETTER ENVT. v. DEUKMEJIAN

August 28, 1990

CITIZENS FOR A BETTER ENVIRONMENT, et al., Plaintiffs,
v.
GEORGE DEUKMEJIAN, et al., Defendants. SIERRA CLUB, Plaintiff, v. METROPOLITAN TRANSPORTATION COMMISSION, et al., Defendants


Thelton E. Henderson, United States District Judge.


The opinion of the court was delivered by: HENDERSON

THELTON E. HENDERSON, UNITED STATES DISTRICT JUDGE

 This matter came before the Court on plaintiffs' motion for reconsideration on May 31, 1990. On June 25, 1990 the parties submitted additional data and information upon request of the Court. After careful consideration of all written and oral arguments, and supporting documents, the Court grants in part, and denies in part, plaintiffs' motion for the reasons set forth below.

 As explained more fully in this Court's earlier opinion, *fn1" plaintiffs brought this action under the Clean Air Act ("Act"), 42 U.S.C. §§ 7401, et seq. to remedy the failure of state and local agencies to fully comply with the "1982 Bay Area Air Quality Plan." This federally mandated "1982 Plan" was designed to bring the San Francisco Bay Area into compliance with minimum federal air quality standards for ozone and carbon monoxide, two particularly harmful pollutants.

 After extensive briefing and hearings, this Court found defendants California State Air Resources Board ("ARB"), Metropolitan Transportation Commission ("MTC"), and Bay Area Air Quality Management District ("District") liable for failing to implement certain portions of the 1982 Plan, and imposed strict timetables which required corrective action as "expeditiously as practicable." CBE v. Deukmejian, 731 F. Supp. at 1458-162, and Order of January 10, 1990.

 Plaintiffs now urge the Court to reconsider two aspects of our previous holdings. First, they seek reconsideration of this Court's determination that defendants are not liable for violating the 1982 Plan's "contingency plan" with respect to stationary sources of pollution. Second, plaintiffs contend that, in fashioning its remedy, the Court should have employed a standard that required action as "soon as possible" rather than as "expeditiously as practicable." Each of these contentions is addressed in turn.

 II. CONTINGENCY PLAN WITH RESPECT TO STATIONARY SOURCES

 The overall aim of the 1982 Plan was to attain National Ambient Air Quality Standards ("NAAQS") for ozone and carbon monoxide by 1987, the deadline legislated by Congress. The 1982 Plan's primary strategy for achieving this goal for ozone was to reduce hydrocarbon emissions *fn2" through (1) an Inspection and Maintenance ("I & M") Program for automobiles and (2) emission control measures for 23 categories of stationary sources. *fn3" CBE v. Deukmejian, 731 F. Supp. at 1453, 1982 Plan at 3-5.

 The 1982 Plan also required that defendants make "Reasonable Further Progress" ("RFP") toward attainment each year. If the Plan's "primary" strategy, described above, failed to yield RFP in the Bay Area for any given year, *fn4" defendants were required to implement the 1982 Plan's "contingency plan," which mandated adoption of additional measures to further reduce emissions in both the stationary source and transportation sector. Id.

 As we previously found, the Bay Area failed to achieve RFP for several years, thus triggering defendants' duty to implement the contingency plan. Id. The instant dispute centers on the exact scope of that duty with respect to stationary sources. In their original motions for summary judgment, plaintiffs argued that the 1982 Plan's contingency plan required defendants to adopt, absent a showing of RFP, sufficient additional stationary source control measures to attain NAAQS for ozone. Id. We rejected this interpretation of the contingency plan as being unsupported by the language of the 1982 Plan and contrary to case law which precludes enforcement of a plan's goals apart from specific strategies contained in the plan to achieve those goals. Id.

 Plaintiffs now take a different and more meritorious tack. *fn5" The 1982 Plan may not require sufficient contingency measures to attain NAAQS, they concede, but it does require sufficient contingency measures to make reasonable further progress. We agree that a fair reading of the 1982 Plan compels this conclusion, and defendants do not appear to strenuously disagree. Rather, the more serious dispute concerns how RFP should be measured.

 (1) Scope of the contingency plan

 We start with the unassailable premise that the 1982 Plan commits defendants to make reasonable further progress, however that might be defined. 1982 Plan at 33("[The 1982 Plan] . . . will provide for reasonable further progress in the interim"), and 34; see also, 42 U.S.C. § 7502(b)(3) (plan provisions shall require, in the interim, reasonable further progress); 48 Fed. Reg. 5074, 5080 (Feb. 3, 1983) ("[The 1982 Plan] contains a strategy . . . which will provide for reasonable further progress").

 Equally plain is the Plan's commitment, expressed numerous times, to adopt contingency measures in the event reasonable further progress is not made. For example, the Plan explains that:

 
The [1982 Plan is] divided into two parts, addressing ozone and carbon monoxide separately. Each of these parts is further divided into primary and contingency components: the primary component contains those control measures that are recommended for implementation at this time; the contingency component contains those control measures that are recommended for later evaluation and implementation if it is demonstrated that reasonable further progress toward attainment of federal standards cannot be achieved with the primary measures (emph. added).

 See also, 1982 Plan at 11 ("If emissions are not decreasing at rates that will allow standard attainment by 1987, then further controls must be adopted and implemented"), and 34, 150; February 2, 1989 EPA letter to Boyd at 2 ("The 1982 Plan includes provisions to adopt contingency measures for both ozone and carbon monoxide if reasonable further progress is not achieved").

 Nor does any party dispute that, if reasonable further progress has not been made, the only mechanism provided by the 1982 Plan to compensate for such failure and to achieve the required RFP is through implementation of the contingency plan. Indeed, it is apparent that the very purpose of the contingency plan was to ensure that defendants could meet their federally mandated obligation to make reasonable further progress toward attainment, should the "primary" ...


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