Appeal from an order of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, denying appellants' motion for summary judgment which was made on the ground that City regulations concerning gasoline were preempted by 42 U.S.C. § 1857f-6c(c)(4)(A). Reversed.
Mulligan and Van Graafeiland, Circuit Judges and Gagliardi, District Judge.*fn*
Plaintiffs-appellants appeal from an opinion and order dated March 8, 1974 of the Hon. Charles E. Stewart, Jr., United States District Judge for the Southern District of New York, reported at 372 F. Supp. 335, denying their motion for summary judgment on Count I in their complaints. This otherwise unappealable interlocutory order is before the court pursuant to 28 U.S.C. § 1292(b). Since the only issue before this court is whether certain local air pollution regulations are preempted by the federal statute and regulations governing the same subject, we will review the local and federal law, as well as the history of this litigation, before proceeding to the merits.
On August 20, 1971 the City of New York amended its Administrative Code to provide for controls regulating the lead content and the volatility of gasoline offered for sale in the City. §§ 1403.2-13.11 and 1403.2-13.12 of Chapter 57 of the Administrative Code of New York City (N.Y.C. Admin. Code). The City's regulations provided for a staggered reduction in the lead content of gasoline. By January 1, 1973 it was to contain no more than 0.5 gram of lead per gallon and a year later the lead content of gasoline sold in New York City was not to exceed 0.075 gram per gallon. N.Y.C. Admin. Code § 1403.2-13.11(a)(3) and (4).
Congress in 1970 amended the Clean Air Act, 42 U.S.C. §§ 1857 et seq. (the Act), authorizing the Administrator (Administrator) of the Federal Environmental Protection Agency (E.P.A.) to issue regulations controlling or prohibiting the use of a fuel or fuel additive upon finding that its use either endangered the public health or welfare or that it significantly impaired the performance of any emission control device. P.L. 91-604, § 9(a) (Dec. 31, 1970), 84 Stat. 1698, codified at 42 U.S.C. § 1857f-6c(a). A preemption provision was included in the section:
Except as otherwise provided in subparagraph (B) or (C), no State (or political subdivision thereof) may prescribe or attempt to enforce, for purposes of motor vehicle emission control, any control or prohibition respecting use of a fuel or fuel additive in a motor vehicle or motor vehicle engine -
(i) if the Administrator has found that no control or prohibition under paragraph (1) is necessary and has published his finding in the Federal Register, or
(ii) 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.
42 U.S.C. § 1857f-6c(c)(4)(A). The statute allows a state to issue regulations with respect to fuels for purposes of motor vehicle emission control if such regulations are provisions contained in an implementation plan provided for in 42 U.S.C. § 1857c-5 and approved by the Administrator. 42 U.S.C. § 1857f-6c(c)(4)(C).*fn1
On January 10, 1973 the Administrator, in order to prevent the impairment of catalytic converters, an emission control device, promulgated regulations that were to become effective on February 9, 1973 governing the lead content of gasoline. 38 Fed. Reg. 1254-56. These regulations, which are still in effect, provided, inter alia, that all retail gasoline outlets dispensing 200,000 or more gallons annually must offer for sale at least one grade of unleaded gasoline. They also required that the nozzles on lead and unleaded gas pumps be different sizes. 40 C.F.R. § 80.22. Unleaded gasoline was defined as "gasoline containing not more than 0.05 gram of lead per gallon." 40 C.F.R. § 80.2(g).
The Administrator on December 6, 1973, based on the needs of public health, published more regulations concerning the lead content in gasoline which were to become effective January 7, 1974. 38 Fed. Reg. 33734-41. These regulations provided a staggered schedule for gasoline refiners to follow in reducing the fuel's lead content to the ultimate goal of 0.5 gram per gallon after January 1, 1979. 40 C.F.R. § 80.20. The promulgated schedule was in the Administrator's judgment "reasonable from the standpoint of protection of health and from the standpoint of economic and technological feasibility." 38 Fed. Reg. 33734. Lead additive manufacturers were required to submit quarterly reports to the Administrator showing the amount of lead shipped to each refinery during the reporting period. 40 C.F.R. § 80.25. A panel of the District of Columbia Circuit set aside these regulations on December 20, 1974. Consequently, the E.P.A. suspended their enforcement. 40 Fed. Reg. 7480 (Feb. 20, 1975). On March 19, 1976, sitting en banc, the District of Columbia Circuit upheld the regulations. Ethyl Corporation v. Environmental Protection Agency, 176 U.S. App. D.C. 373, 541 F.2d 1. The E.P.A. reinstated the reporting requirements of 40 C.F.R. §§ 80.20(a)(3), 80.25 on April 1, 1976. 41 Fed. Reg. 13984. Certiorari was denied by the Supreme Court on June 14, 1976, 426 U.S. 941, 96 S. Ct. 2662, 2663, 49 L. Ed. 2d 394, and since the litigation as to the regulations' validity was ended, the E.P.A. published a notice on July 9, 1976 announcing its termination of the suspension of their enforcement. 41 Fed. Reg. 28352. The Agency amended the regulations concerned with public health, 40 C.F.R. § 80.20, on September 28, 1976. It changed the lead phase-down schedule by moving the required date for gasoline with 0.5 gram of lead per gallon from January to October, 1979 and also added new reporting requirements. It left in effect a 0.8 gram per gallon standard to begin January 1, 1978. 41 Fed. Reg. 42676.
Appellant Exxon Corporation (Exxon) on November 6, 1972 applied to the New York City Environmental Protection Administration for a variance from the provisions of N.Y.C. Admin. Code § 1403.2-13.11(a)(3) which was to become effective on January 1, 1973 and required that all grades of gasoline intended for use in New York City not have a lead content exceeding 0.5 gram per gallon. Exxon requested the relief on two grounds: that this restriction was an onerous burden and that the E.P.A. was preparing national regulations on lead in gasoline. The E.P.A. on January 10, 1973 issued its fuel regulations based on emission control devices, 40 C.F.R. § 80.22. On February 16, 1973 the City rejected Exxon's application for a variance from its regulations. Exxon then commenced this action against the City of New York on March 9, 1973. It was consolidated with a similar action against the same defendant begun on March 14, 1973 by Getty Oil Co. (Eastern Operations), Inc., Gulf Oil Co.-U.S., Mobil Oil Corporation, and Sun Oil Company of Pennsylvania (Getty plaintiffs). Appellants' complaints, as now amended, allege in Count I that 42 U.S.C. § 1857f-6c and the regulations issued thereunder preempted N.Y.C. Admin. Code § 1403.2-13.11(a)(3) and (4). In Count II it is alleged that the City regulations ...