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March 22, 1973

The CITY OF NEW YORK et al., Defendants. GETTY OIL CO. (Eastern Operations), INC., et al., Plaintiffs, v. The CITY OF NEW YORK et al., Defendants

Stewart, District Judge.

The opinion of the court was delivered by: STEWART


STEWART, District Judge:

 These actions, instituted by plaintiff Exxon Corporation on March 9, 1973 and by plaintiffs Getty Oil Co., Mobil Oil Corporation and Sun Oil Company of Pennsylvania on March 14, 1973, seek declaratory and injunctive relief against the enforcement of Section 1403.2-13.11 of the Administrative Code of the City of New York which prescribes the maximum lead content of regular and premium grade gasoline sold within the City of New York.

 Plaintiffs contend that the New York law should be declared null and void because it has been preempted by the promulgation of federal regulations, and because it violates the commerce clause of the Constitution by discriminating against interstate commerce and by imposing extensive and unreasonable burdens on interstate commerce.

 Plaintiffs additionally contend that compliance with the City's lead restrictions would be extremely costly, whereas enforcement of the law would not result in any demonstrable improvement in the City's air quality.

 Upon the application by all of the plaintiffs for a preliminary injunction, these actions were consolidated for a hearing which was held on March 15, 1973. The precise issue before this Court is whether defendants should be preliminarily enjoined from enforcing or taking any steps to enforce the provisions of Section 1403.2-13.11(a)(3) & (4) of Chapter 57 of the Administrative Code of the City of New York; or from imposing upon any of the plaintiffs any fine or penalty pursuant to Section 1403-2-15.25(d) of the Code; or from barring or attempting to bar the purchase, sale, offer for sale, storage or transportation of plaintiffs' gasoline intended for use in the City of New York by reason of any non-compliance with the challenged provisions.

 Section 1403.2-13.11 provides for the gradual reduction of the lead content of gasoline over a four year period from 2.0 grams per gallon in 1971 to 0 grams per gallon by January 1, 1974.

 On November 6, 1972 ten suppliers of gasoline, including plaintiff Exxon Corporation, applied for a variance pursuant to Section 1403.2-3.11 first, upon the grounds that the Federal Environmental Protection Administration was then preparing to prescribe a regulation establishing a national control and/or prohibition of lead as a fuel additive in gasoline and, second, because the 0.5 grams per gallon lead restriction would impose an unnecessary and costly hardship. The application was denied by the Administrator on February 16, 1973. However, enforcement of the 1973 standard was suspended until March 30, 1973 for regular gasoline and until June 28, 1973 for premium gasoline.

 Paralleling these proceedings, on January 10, 1973 the Federal Administrator, by virtue of his authority under the Clean Air Act, promulgated a regulation dealing with the lead content of gasolines which became effective February 9, 1973. Specifically, this regulation requires that at least one grade of gasoline with a lead content of not more than 0.05 grams per gallon be available throughout the United States by July 1, 1974.

 Plaintiffs are subject to substantial civil and criminal penalties if they fail to comply with the challenged provisions of the New York City Administrative Code in that they could be barred from marketing regular gasoline in New York City.

 On this motion for a preliminary injunction the plaintiffs must show a strong likelihood of ultimate success on the merits and that they will suffer irreparable injury unless such relief is granted. E.g., Intercontinental Container Transport Corp. v. New York Shipping Ass'n., 426 F.2d 884 (2d Cir. 1970).

 After considering the arguments ably presented by counsel for all parties and after weighing the equities in this case, I have determined that plaintiffs have not met the compelling burden required of them, and accordingly, I deny their motion for a preliminary injunction.

 42 U.S.C. § 1857f-6c provides for the federal preemption of standards for fuel or fuel additives only when the Federal Administrator has prescribed standards or has found that no control is necessary. Allway Taxi, Inc. v. City of New York, 340 F. Supp. 1120 (S.D.N.Y. 1972). Section 1857f-6c(c)(4)(A)(ii) specifically provides for preemption "if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such fuel or fuel additive, unless State prohibition or control is identical to the prohibition or control prescribed by the Administrator".

 Paragraph (1), referred to in the above quoted section, delegates power to the Federal Administrator to set standards either for the purpose of protecting automobile pollution control devices or for the purpose of protecting the ...

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