Thus, the 85 tpd reduction target -- the reduction necessary to close the gap between 515 tpd and 430 tpd -- is simply a function of subtracting 430 from 515.
Viewed in this context, it is clear that the emissions level and the 85 tpd figure are inextricably intertwined. While the Plan contemplated that a 85 tpd reduction would, in turn, achieve a 430 tpd emission level, it was the emissions level that determined the 85 tpd calculation in the first place. Indeed, the 85 tpd figure has no independent significance other than its contribution toward achieving a specific desired emissions level.
The Clean Air Act's definition of RFP is consistent with our dual approach toward reasonable further progress. It provides that RFP "means annual incremental reductions in emissions of the applicable air pollutant . . . which are sufficient in the judgment of the Administrator, to provide for attainment of the applicable national ambient air quality standard by the date required in section 7502(a) of this title." 42 U.S.C. § 7501. Because reducing emissions sufficiently to attain NAAQS necessarily requires reducing emission levels, both of these aspects of making "reasonable further progress" are encompassed by this definition.
The Court's approach is also most consistent with the Clean Air Act's mandate that SIP strategies lead to attainment. CBE v. Deukmejian, 731 F. Supp. at 1452, 1455. Since the 1982 Plan represented that a 430 tpd emissions level would allow attainment, the Plan necessarily committed to making reasonable further progress toward this level in order to satisfy its obligation to devise a strategy sufficient to achieve NAAQS. While, as mentioned above, hindsight may show that a 430 tpd emission level will not, in fact, allow attainment, this circumstance does not detract from the underlying commitment to achieve the promised emissions level.
The 1982 Plan also comports with this approach. The RFP graph, itself, is framed in terms of emission levels. 1982 Plan at 10. The Plan naturally focuses on the 85 tpd target reductions as well; however, this is because it was assumed that an 85 tpd reduction would achieve the 430 tpd emissions level. See also, 1982 Plan at 112, Table 27 (charting yearly progress in terms of target reductions and emissions levels). The 1987 RFP Report, prepared by the District, MTC, and the Association of Bay Area Governments assesses RFP for ozone in terms of both target reductions and emission levels. With respect to the latter, the Report notes that the 1987 emissions level exceeded the 430 tpd level allowed by the RFP line. "The present estimate," the Report explains, "of ROG [hydrocarbon] emissions in 1987 is 473 tpd . . . [which] is 43 tpd more than the RFP line from the 1982 Plan." Bay Area Air Quality 1987 RFP Report (November 1988) at 16; see also, id. at 23 ("RFP Chart" drawn in terms of emission levels).
The EPA has also construed the 1982 Plan's RFP commitment to encompass the emission levels contained in the RFP graph. In a February 14, 1990 letter to MTC, the EPA voiced various objections to MTC's "Proposed Transportation Control Measures for the Contingency Plan." This proposal was drafted in response to this Court's order that MTC implement the contingency plan for the transportation sector, which required adoption of sufficient contingency measures to "bring the region back within the RFP line." 1982 Plan at H-2. EPA's letter plainly advises MTC that its contingency plan " must show that the contingency [transportation control measures] are sufficient to reduce current levels of emissions of [Hydrocarbons] and [carbon monoxide] in the transportation sector to the emission levels for 1987 committed to in the 1982 Plan." Sierra Club's Reply Memorandum, Exh. B., Attachment A at 2 (emph. added).
Accordingly, we conclude that the reasonable further progress committed to in the 1982 Plan must be measured (using the assumptions and methodologies upon which the 1982 Plan is based), not only by target reductions achieved, but by the overall emissions level as well. We simply can not accept defendants' contention that the 1982 Plan committed only to the 85 tpd target reductions. To do so would ignore the reality, plainly acknowledged by the Plan, that actual progress toward achieving NAAQS is predicated on improving emission levels -- not merely achieving some particular amount of tonnage reduction.
Accordingly, the scope of the remedial order will extend to both the target reduction and emission level components of making reasonable further progress.
III. REMEDIAL STANDARD
In this Court's January 10, 1990 Order Re Consumer Solvents, we ordered defendants to take certain remedial action based on a timetable that was as "expeditious as practicable," or as expeditious as "feasible." Order at 4, 8 (quoting American Lung Ass'n v. Kean, 1987 U.S. Dist. LEXIS 15158, 26 ERC (BNA) 1865, 1867, 1870, 1872 (D.N.J. 1987)). Based on a subsequent decision by the Ninth Circuit Court of Appeals in Delaney v. Environmental Protection Agency [EPA], 898 F.2d 687 (9th Cir. 1990), plaintiffs contend that the proper standard should be as "soon as possible."
Plaintiffs do not, however, seek revision of any remedial timetable the Court has imposed. They agree that the present deadlines already require action "as soon as possible." Rather, they bring this motion to correct the Court's alleged misstatement of the law, and to ensure that the correct standard is applied from this point forward.
The Clean Air Act, itself, does not address what standard courts should employ in determining how quickly plan violations must be remedied, once liability for such violations is established in a citizens enforcement action. Congress, however, did specify that state implementation plans must provide for attainment of NAAQS "as expeditiously as practicable." 42 U.S.C. § 7502(a)(2).
Plaintiffs contend that while this "practicable" standard applies to SIP provisions designed to achieve attainment by December 31, 1987, Delaney mandates that the more stringent "possible" standard apply to remedial orders, at least where the 1987 deadline has passed. We conclude, however, that while Delaney contains supportive language, it does not compel use of the "possible" standard when fashioning a remedy. Nor do we agree that adoption of the "possible" standard is otherwise warranted, given that the two standards, properly interpreted in the context of a citizens enforcement action, are virtually interchangeable.
Delaney concerned a challenge to EPA's approval of SIPs for Pima and Maricopa counties in Arizona. Those SIPs contained measures designed to achieve NAAQS over the next three years, although the applicable 1982 deadline had long since passed. The Ninth Circuit overturned EPA's approval, holding that EPA had acted arbitrarily by allowing the counties three additional years to reach attainment. Rather, given the passage of the 1982 deadline, and pertinent EPA SIP approval guidelines, the Arizona SIPs should have provided for attainment "as soon as possible," using all available control measures. Thus, Delaney concerned standards for SIP approval, not the scope of the court's discretion in fashioning a remedy in a citizen's enforcement action. Delaney, 898 F.2d at 688-692.
Because Delaney is not precisely on point, it does not require reconsideration of the "expeditiously as practicable" standard in the context presented here. We also note that although the Delaney opinion utilized the "as soon as possible" standard, employed by EPA guidelines, it did not do so out of rejection of the "practicable" standard or out of concern that the two standards differed. Rather, it simply had no occasion to compare them. Indeed, the Delaney court appeared to blur them when it criticized Arizona for rejecting measures without demonstrating that such measures were "impracticable" or "unreasonable." Id. at 692.
This brings us to our second point, which is that plaintiffs' motion raises an issue more of semantics than substance. As EPA national guidance documents observed, "'the legislative history shows that Congress set up [the Act] in order to force communities and industry to do their utmost to bring about attainment as rapidly as possible.'" Id. at 691. The urgency expressed by Congress has made the Act's deadlines the "heart" of the statute, Delaney, 898 F.2d at 690. Thus, at the late date of a remedial order, there can be no quarrel that time is truly of the essence. CBE v. Deukmejian, 731 F. Supp. at 1461.
Given this context, we believe that the standard "as expeditiously as practicable" should lead to no different result than the standard "as soon as possible." Under either, courts must require that overdue SIP commitments be satisfied without delay and without rebalancing costs and benefits already balanced. American Lung Ass'n v. Kean, 1987 U.S. Dist. LEXIS 15158, 26 ERC (BNA) 1865, 1870 (D. N.J. 1987). As a practical matter, however, no Court will use its equitable powers to impose remedies that are irrational, albeit "possible." Thus, as long as time is considered paramount, and the term "practical" is strictly construed in keeping with the purposes of the Act, the "as expeditiously as practicable" standard should yield no less results than an "as soon as possible" standard. The fact that plaintiffs agree that the timetables set in this case already require that action be taken as "as soon as possible," underscores the fact that, when properly interpreted, there is no practical distinction between the two standards. Under these circumstances, we are not persuaded that the Court should or need depart from the "as expeditiously as practicable standard" contained in the Act.
Accordingly, and good cause appearing, it is HEREBY ORDERED that:
1. Plaintiffs' motion for reconsideration is denied in part, and granted in part, consistent with this decision,
2. Defendants District and the ARB are liable for failing to fully implement the contingency plan with respect to stationary sources.
3. Defendants District and the ARB shall satisfy the requirements of contingency plan with respect to stationary sources, as interpreted herein, no later than December 31, 1991.
IT IS SO ORDERED.
[SEE REASONABLE FURTHER PROGRESS CHART IN ORIGINAL]