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NATURAL RESOURCES DEFENSE COUNCIL v. UNITED STATES

July 1, 1992

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff, CITY OF NEW YORK and STATE OF NEW YORK Intervenor-Plaintiffs, against UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and WILLIAM K. REILLY, as Administrator of the United States Environmental Protection Agency, Defendants.


The opinion of the court was delivered by: DENIS R. HURLEY

 HURLEY, District Judge

 The above-captioned action is a citizens' suit under the federal Clean Air Act. Plaintiffs, Natural Resources Defense Counsel, Inc., the City of New York and the State of New York challenge the failure of defendant United States Environmental Protection Agency ("EPA") to issue requirements concerning motor vehicle inspection and maintenance programs ("I/Ms"), as mandated by Congress. Currently before the Court is plaintiffs' motion for summary judgment. Pursuant to that motion, plaintiffs seek an order compelling defendant to issue the I/Ms within four months of this Order. The Court grants plaintiffs' request for the reasons stated below.

 BACKGROUND AND STATUTORY SCHEME

 Pursuant to the Clean Air Act, 42 U.S.C. §§ 7401-7671q, the EPA is responsible for identifying pollutants that endanger the public health or welfare, and for promulgating such determinations in the form of national ambient air quality standards ("NAAQSs"). Each state is responsible for ensuring that its ambient air meets the NAAQS. Pursuant to that responsibility, each state must draft and submit for approval a state implementation plan ("SIP") which provides for compliance with the NAAQS. 42 U.S.C. § 7410(a). Areas that do not meet the NAAQS are designated "nonattainment areas". See id. § 7407(d).

 The Clean Air Act was extensively amended in November 1990. Pub. L. No. 101-549, 104 Stat. 2399 (1990). Under the amended Clean Air Act (the "Act"), states are required to designate ozone and carbon monoxide nonattainment areas according to the severity of the air pollution, *fn1" and to comply with ozone and carbon monoxide NAAQS within specified time periods. Id. §§ 7512(a)(1), 7511(a)(1), (2). To achieve such compliance, the Act directs states to adopt revised SIPs which would include a number of measures to reduce motor vehicle air pollution. One measure requires states with nonattainment areas for ozone and carbon monoxide to develop motor vehicle inspection and maintenance programs. See id. §§ 7511a, 7512a. Depending on the severity of the nonattainment area, these motor vehicle and maintenance programs must be either "basic" or "enhanced". See id. §§ 7511a, 7512a. For example, pursuant to the Act, New York would be required to revise its SIP by November 15, 1992 to include enhanced motor vehicle inspection and maintenance programs for all urban areas with a population over 100,000. See id. § 7511(b)(1)(A).

 To ensure that the states adopt effective programs, Congress required EPA to develop, oversee and implement I/Ms by November 15, 1991. Id. § 7511a(a)(2)(B)(ii). These I/Ms would represent minimum criteria for basic and enhanced programs. Congress further required that the I/Ms be incorporated by the states in their SIP revisions. Id. To date, EPA has failed to comply with the Congressional mandate. As a result, New York State has been unable to prepare its revised SIP, due by November 15, 1992.

 In plaintiffs' original papers, they requested an order compelling EPA to issue draft I/Ms within ten days of the Court's determination of this motion and then to issue final I/Ms within sixty days. However, in their reply papers, plaintiffs propose a four month schedule for issuance of the final I/Ms. Defendant does not contest its duty to issue regulations by November 15, 1991, nor does it contest that it missed that deadline. Instead, defendant suggests a seven-month schedule in which to produce the final I/Ms.

 DISCUSSION

 I.

 The Act states that "within 12 months after . . . [November 15, 1990], the Administrator shall" publish the required guidance for the states to adopt in their SIPs. 42 U.S.C. § 7511a(a)(2)(B)(ii) (emphasis added). Thus, it is undisputed that the Act imposes a mandatory, nondiscretionary duty on EPA to issue the required motor vehicle inspection and maintenance guidance by November 15, 1991 and that EPA has failed to comply with that deadline. It is also undisputed that this Court has the authority to compel EPA to comply with this nondiscretionary duty by a date certain established by court order. Id. § 7604(a) ("the district court shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to . . . order the Administrator to perform . . . a [nondiscretionary] duty."); see Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 705 (D.C. Cir. 1975). *fn2"

 Thus, the issue currently before the Court is not whether EPA's sluggishness has violated a statutory mandate, nor is it whether this Court has the equitable power to impose a deadline on EPA. Both of these issues are clear and undisputed. The only issue the Court must resolve is what remedy it should order to address EPA'S failure to heed the Congressional directive enunciated in the Act.

 II.

 In support of its motion for an order requiring that final regulations be promulgated four months from this Memorandum and Order, plaintiffs argue that EPA has a nondiscretionary duty with which it has failed to comply, and that it should now be required to fulfill that duty in compliance with a revised timetable. EPA maintains, on the other hand, that "working in the most diligent manner that is practicable, and taking into account all the required steps in the formal rule-making process, EPA can promulgate regulations within an ambitious approximately seven months of this Court's order, which is considerably faster than such major regulations ordinarily take." ...


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