June 26, 1976
Page 20865
EPA'S ENFORCEMENT LETTERS
ADMINISTRATIVE EDICT CANNOT AMEND THE LAW
Mr. MUSKIE. Mr. President, on June 3, 1976, the Assistant Administrator of the Environmental Protection Agency issued three documents purporting to establish an enforcement policy with regard to the July 1, 1977, deadline for point sources under the Federal Water Pollution Control Act.
These documents create a mechanism called an "Enforcement Compliance Schedule Letter," which, upon its issuance, would have the effect of extending the period of compliance beyond the statutory deadline. This device is without basis in the Federal Water Pollution Control Act. It is unlawful.
There are distressing aspects to this most recent effort on the part of EPA to avoid admittedly difficult problems and there are two points I would like to make.
First, this new EPA enforcement policy demonstrates a willingness to consolidate within EPA, an executive branch agency, the authority of the legislature and of the judiciary. Problems, however difficult, should not provide the stimulus to disobey the law.
The Federal Water Pollution Control Act of 1972 established a deadline of July 1, 1977 — actually for completion of the control requirements established pursuant to the 1965 act. There is no provision for extension of this statutory deadline as was recognized in an opinion of the Administrator in "In the Matter of Bethlehem Steel Corp." In that opinion, the Administrator upheld and quoted his General Counsel—
The Administrator has no discretion to extend the date of compliance.
I ask unanimous consent that this decision be printed in the RECORD at the conclusion of these remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. MUSKIE. EPA has also properly maintained this position in litigation; State Water Control Board vs. Train (8 ERC 1609) and continues to maintain that position in the appeal taken by the State of Virginia. I ask unanimous consent that this decision be printed in the RECORD at the conclusion of these remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. MUSKIE. Mr. President, section 301 of the 1972 act prohibits discharge of pollutants without authorization. Section 402 authorizes permits for the discharge of pollutants in compliance with the requirements of the act, including deadlines. Enforcement is authorized under section 309 — authorizing Federal EPA enforcement — and section 505 — authorizing citizens to seek enforcement in the Federal courts. Section 309 places mandatory burdens on the Administrator to enforce whenever, on the basis of information available to him, a violation of any condition or limitation occurs. The law gives three alternative enforcement routes:
First. He "shall" notify person alleged of the finding of noncompliance, and, if after 30 days, noncompliance continues, he "shall" issue an enforcement order; or
Second. He shall directly issue an enforcement order; or
Third. He shall bring an action directly in the Federal district court.
Paragraph (4) subsection (a) of section 309 sets forth the contents of all enforcement orders referred to above. Among these, the orders shall state with reasonable specificity the nature of the violation and specify time for compliance "not to exceed 30 days." If such order is not complied with, the Administrator must proceed to court.
There is no discretion granted to the Administrator either on the question of whether to take an enforcement action or to modify or alter the objective of that enforcement action. Enforcement must be of compliance and compliance must be within the terms of the statute; namely, the requirements of section 301, section 302, et cetera.
The Administrator has no discretionary authority under the statute to alter in any way the 1977 deadlines of the act. While it is possible that a court in issuing "appropriate relief" might create new timetables under the equitable jurisdiction of the court, the Administrator has no such authority.
In the event of noncompliance beyond the dates provided for in the act — which may be extended only for the limited period of 30 days beyond the initial EPA order — the Administrator must go to Federal district court to seek the appropriate remedy. That appropriate remedy could include a consent order, an injunction, fines, or a combination of remedies. If Congress does not amend the law, only the authority of the court exists to alter the terms of compliance under the statute.
The Committee on Public Works has rejected as illegal a similar approach taken by EPA under the Clean Air Act. The Administrator has been told repeatedly that relief from deadlines is only available in the Congress and in the courts.
The Senate report (S. Rept. 94-717) on the bill, S. 3219, to amend the Clean Air Act, is very clear:
Rather than use this provision, which the Agency has burdened with procedural and substantive requirements so that it is unworkable, the Environmental Protection Agency has adopted the practice of issuing enforcement orders under section 113 (a) that extend far beyond the deadlines in the law or any dates applicable under section 110(f). This procedure has no basis in law. The only authority for extended deadlines is section 110(f).
Under the guise of semantics, the Assistant Administrator of EPA has seriously eroded a firm statutory position on extensions to the minimal requirements. The enforcement letter extension program removes enforcement credibility in anticipation of problems, which brings me to my second concern.
The Assistant Administrator's directive transfers the authority to grant extensions of the deadlines to the regional administrator and the States, thus assuring no national policy but rather 10 regional policies, and perhaps more. Inequity and rewards for delay are bound to occur. If, as the Deputy Administrator of EPA indicates in a companion memorandum, only 230 or so point sources will be subject to such extensions, the control and administration over such extensions at the national level, if Congress should ever grant the necessary authority, would not be an overwhelming burden.
There is no reason to suggest the laggard will respond to an EPA extension letter any better than they have responded to the process under the law to date. As the act requires, persons not in compliance must be brought into court and the authority of the court used to balance equities and supervise remedies, including any court-granted extensions.
The 1972 act created a regulatory program with national minimums to regulate inequities.
Statutory deadlines are essential to the equitable scheme established under the 1972 act. Only in the most extreme circumstances and under court order should there be departures. Otherwise, the recalcitrants are rewarded and no penalty accrues.
At a minimum, if Congress should grant authority for extensions, any economic advantage to the source resulting from delay in compliance, whether through their fault or through the fault of the Government, should be eliminated to prevent those sources which complied from being penalized by their respect for and obedience of the law.
The Assistant Administrator's directive seems motivated by a practical problem, which, even if true, is not grounds to violate the law. Yet the practical problem — supposedly a flood of litigation — is anticipatory. And even the Deputy Administrator's figures undermine the claim of a flood of litigations. Two hundred and thirty cases spread among 94 Federal district courts is hardly a flood.
If relief is needed, it should be sought from Congress. And any such request should be accompanied by data on how many cases will be brought to each district court. Also, a request should justify why actions brought under section 309 would not produce a result which is in the public interest or carry out the purposes of the Federal Water Pollution Control Act.
The case has not been made that relief need be granted. Certainly, taking the extreme step of amending the law by administrative memo is not justified. Respect for the law cannot result from this type of action. I hope the Administrator will personally review this action, and, to the extent he concludes such extension authority is necessary, will seek it from Congress.
I am taking the unusual step of commenting in the Senate on this administrative matter because it represents another attempt by an agency of the executive branch to act in a manner unauthorized by law.
Previously, this spring, the Administrator departed from the fabric of the Federal Water Pollution Control Act to accommodate a problem with a cluster of steel plants in Ohio. The act requires application of national minimum controls on plants of a class or category, wherever located. Yet, the Administrator in violation of his authority selected out of a class a few plants and eliminated the statute's requirements applicable to them. The new enforcement procedure proposed by EPA would provide an opportunity for regional administrators to authorize similar noncompliance with the law for selected point sources. Only citizen suits would be available to enforce the law. This is tantamount to repeal of deadlines.
Respect for the law is not going to be achieved if the Administrator develops a pattern of altering, without authority, the application of the law. Those who complied cannot conclude other than that their investments were not only not necessary, they were economically senseless. This view would drastically affect progress in the protection of our environment. We would lose the momentum we have gained.
I hope the Administrator will carry out the law in all areas. If difficulties arise, he should seek amendment. He should not take the law into his own hands.
Exhibit 1 [Docket No. PAAH0058]
BEFORE THE ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON,
D.C.
In the matter of : National Pollutant Discharge Elimination System, permit for Bethlehem, Pennsylvania Plant (Permit No. PA 0011177) Bethlehem Steel Corporation, Permittee
DECISION OF THE ADMINISTRATOR
On September 3, 1975, Bethlehem Steel Corporation ("Permittee") filed a petition for review of a decision issued on August 21, 1975, by the Regional Administrator, Region III in the above-captioned proceeding.
The petition recites that on December 3l, 1974, the Regional Administrator, Region III, issued a National Pollutant Discharge Elimination System (NPDES) permit for Permittee's Bethlehem, Pennsylvania plant, following a public hearing held on December 13, 1974. At the hearing, Permittee proposed a compliance schedule for the completion of some 22 projects involved in designing, purchasing and installing facilities required to meet the permit effluent limitations, which called for the completion of Phase I by January 1, 1979, and Phase II by July 1, 1979. The permit issued on December 31, 1974, however, requires that final permit conditions be met no later than July 1, 1977.
On January 16, 1975, Permittee requested an adjudicatory hearing on the following issue:
"May the Environmental Protection Agency establish an effective date for final permit conditions later than July 1, 1977 where final permit conditions are based upon the best practicable control technology currently available and on water quality standards."
On May 29, 1975, the foregoing question was referred to the General Counsel of EPA as a certified issue of law, pursuant to 40 CFR 125.36(m)(3). The General Counsel concluded, in a decision issued on July 24, 1975, that Section 301 of the Federal Water Pollution Control Act, as amended (the "Act") :
... clearly requires the achievement, by July 1, 1977, of effluent reductions based on the more stringent requirements of either section 301(b)(1)(A) or 301(b)(1)(C) of the Act. The Administrator has no discretion to extend the date of compliance."
The August 21, 1975, decision of the Regional Administrator, Region III, adopted the conclusion of law decided by the General Counsel and found no factual or legal question remaining to be resolved in this proceeding. Accordingly, Permittee's requests to modify the permit and/or convene an adjudicatory hearing were denied. The subject petition for review of the Regional Administrator's decision was filed thereafter within the prescribed 10 day period.
Permittee takes exception to the conclusion of the General Counsel (on the same grounds argued in its brief submitted to the Office of General Counsel in connection with the issuance of the General Counsel's decision in the following particulars: (1) the General Counsel's decision addresses the "issue"of whether the effluent limitations in the permit were based on effluent guidelines, proposed guidelines, or water quality standards, which Permittee states is not relevant to the issue in controversy, i.e., whether the Administrator may extend the July 1, 1977, compliance date contained in the Act; (2) the General Counsel's decision suggests that Permittee is challenging the effluent guidelines and the date for compliance set forth therein, rather than the compliance date of July 1, 1977, as set forth in the Act, which they contend is properly reviewable in an adjudicatory hearing since "the compliance date is a condition in the permit as a consequence of the Act and not as a consequence of regulations ..." and (3) the General Counsel's decision does not contain an analysis of the legislative history of the Act to determine whether Congress intended that the Administrator have discretion to extend compliance dates for final compliance beyond July 1, 1977. In summary, Permittee contends that the July 1, 1977, compliance date set forth in the Act "is merely an interim date set by Congress for achieving the ultimate objectives and goals by 1983 and 1985," and, as such, may be extended by the Administrator upon a proper showing of inability to comply by that date.
I have examined the language of the Act, as well as its legislative history, and am unable to find any basis to disagree with the conclusion of the General Counsel that, as a matter of law, the Administrator does not have authority or discretion under the Act to extend the July 1, 1977, deadline. The fact that the General Counsel's decision may have addressed other issues which Permittee does not consider relevant to the central issue raised, does not alter the fact that the central issue — the mandatory July 1, 1977, deadline — also was decided.
That issue being the only matter for which review has been requested by the Permittee. I see no need to prolong this proceeding by requesting additional briefs and argument on possible varying interpretations of the Act which might be offered.
Accordingly, the Decision and Order of the Regional Administrator, Region III, which relied upon the aforementioned decision of the General Counsel, is hereby affirmed and the subject permit, as originally issued, shall take effect immediately with the issuance of this decision.
RUSSELL E. TRAIN.
Dated: September 30, 1975.
EXHIBIT No. 2
FRIENDS OF THE EARTH V. CAREY V.S. COURT OF APPEALS,SECOND CIRCUIT
Friends of the Earth, Friends of the Earth New York Branch, Natural Resources Defense Council, Inc., Sierra Club, Citizens for a Better New York, Citizens for Clean Air, Inc., Committee for Better Transit, Inc., Environmental Action Coalition; Inc., Harlem Valley Transportation Association, Institute for Public Transportation, NYC Clean Air Campaign, New York State Transportation Coalition, West Village Committee, David Sive, and Paul Dubrul v. Hugh Carey, Abraham Beame, David J. Yunich, Michael J. Cobb, Alfred Eisenpreis, Moses L. Kove, Elinor Guggenheimer, Robert A. Low, Michael Lazar, John Zuccotti, Morris Tarshis, Paul O'Dwyer, J. Douglas Carroll, Jr., William J. Ronan, Theodore Karagheuzoff, P.E., James Melton, Ogden Reid, State of New York, City of New York, New York City Transit Authority, No.757497, April 26, 1976
Affirmed in part and reversed in part.
David Schoenbrod and Ross Sandler, New York, N.Y., for appellants.
W. Bernard Richland, corporation counsel, Alexander Gigante, Jr., Nina G. Goldstein, and Isaac Klepfish, New York, for appellees.
James P. McMahon, Stuart Riedel, Nancy A. Serventi. and Terrance J. Nolan, New York, for appellee New York City Transit Authority.
Full text of opinion
Before: Mansfield Timbers, and Meskill, Circuit Judges.
Mansfield, Circuit Judge:
This appeal arises out of the efforts of a group of the country's leading environmental and citizens' groups to enjoin and roll back the increase in New York City transit fares from 50 cents to 85 cents per ride and to enforce the "clean air" provisions of the Transportation Control Plan for the Metropolitan New York City Area ("the Plan") , which have long been approved pursuant to the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857, et seq. ("the Act") . Defendants include the State and City of New York and named officials of both governmental entities as well as officials of the New York City Transit Authority' ("TA") . The dispute raises important questions concerning the viability of the citizen suit provision of the Act, $ 304, 42 U.S.C. § 1857h–2, and the enforceability of the air quality standards enacted by Congress under that statute.
THE STATUTE
To understand the issues a brief preliminary outline of the relevant statutory provisions governing the state's obligation to clean up the air of Metropolitan New York City is necessary.
Expressing dissatisfaction with earlier efforts at air pollution abatement, Congress enlarged the federal government's role through enactment of the Clean Air Act Amendments of 1970, 42 U.S.C. § § 1857, et seq. The United States Environmental Protection Agency ("EPA") was instructed to establish national air quality standards of two types; (1) "primary ambient" (outdoor surrounding air) standards necessary for protection of the public health, § 109(b) (1), 42 U.S.C. § 1857c4(b)(1), and (2) "secondary ambient" standards "requisite to protect the public welfare from any known or anticipated adverse effects associated with" air pollution, § 109(b)(2). Each of the 50 states was obligated within nine months thereafter to submit to the EPA an implementing plan for achievement of these standards, § 110(a)(1), 42 U.S.C. § 1857c5 (a)(1).
In particular, the states' plans were to satisfy the primary, health-related standards "as expeditiously as practicable" but in no case later than three years from the date of EPA approval, § 110(a)(2)(A)(i), and the secondary standards within a "reasonable time" to be fixed by a timetable, § 110(a)(2)(A)(ii). According to the approved timetable, state plans were to be filed by April 1973 and the primary air quality standards met by May 31, 1975. See Natural Resources Defense Council, Inc. v E.P.A., 475 F.2d 968 [4 ERC 1945] (D.C. Cir. 1973). Should a state plan prove unsatisfactory in satisfying the ambient standards, the EPA itself is directed by Congress to develop an appropriate implementing plan in its stead, § 110(c)(1).
Since abatement and control of air pollution through systematic and timely attainment of the air quality standards is Congress' overriding objective, a plan, once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state. Modifications are permitted by the Act only cautiously and grudgingly. The EPA is authorized to approve revisions of the original plan, § 110(a)(3), only if it is satisfied that the revised plan still meets the requirements of the national air quality standards, § 110(a)(2). In addition, a state may request postponement of plan implementation "for not more than one year."' § 110(f), provided it "can satisfy the stringent conditions" imposed by that provision, Train v. N.R.D.C., 421 U.S. 60, 90 (1975). In all other cases full compliance with the plan is mandated. See id. at 8990.
FACTS
The history of New York State's steps toward compliance with the Clean Air Act through July 1974 is detailed in our prior opinion. See Friends of the Earth v. E.P.A., 499F. 2d 1118 [6 ERC 1781] (2d Cir. 1974). It is sufficient for present purposes to note that the State submitted to the EPA a plan called the Transportation Control Plan for the Metropolitan New York City Area ("the Plan"), containing 32 mandatory "strategies" or schedules of specific actions to be taken by certain dates to abate air pollution. The strategies were designed to meet the 1975 primary air quality deadline, to maintain air quality beyond that date, to create contingency steps or procedures should the primary strategies fail, and to plan for attainment of the secondary ambient air quality standards. The Plan was approved by the EPA on June 22, 1973, with certain revisions.
In 1974 environmental and citizens' groups attacked the Plan by way of a petition for review, Friends of the Earth v. E.P.A., supra, arguing that several of the strategies were vaguely worded and inadequate in light of the air pollution standards mandated by the Act. Officials from the federal and state governments defended the strategies. We upheld the Plan in most respects, returning a few provisions to the EPA for further explanation. Friends of the Earth v. E.P.A., supra. Consequently, with the acceptance by the EPA and judicial ratification by this court, the Plan became binding upon and enforceable against state and local officials, subject only to the narrow revision and postponement provisions allowed by the Act.
Nevertheless, enforcement of the Plan's strategies suffered because of inaction on the part of those legally obligated to put it into effect. In 1974, at the original argument before this court, the State had already fallen behind in compliance and consequentlyboth the EPA and citizen groups had consented to eight other strategies. Administrative action apparently had not even been commenced to enforce the remaining twenty. As of that date, although the Plan was designed to reduce carbon monoxide pollution by 78%, carbon monoxide levels in the City (95% of which are attributable to motor vehicles) had actually increased since pre-Plan days by some 25% and were now five times the level set by federal health standards. Thus these violations were significantly harmful to public health.
In late July the Transit Authority announced a pending transit fare increase from35 cents to 50 cents. Believing that such an increase would undermine implementation of the Plan, plaintiffs returned to the district court on July 28, 1975, and, through an order to show cause, sought a preliminary injunction restraining the fare increase and ordering Plan enforcement. On August 4,1975, plaintiffs moved for partial summary judgment enforcing four strategies that indisputably were being violated and that were cited as violations by the EPA. See note 7 supra. In addition, plaintiffs again requested the enforcement of the entire Plan.
Four days later the EPA ruled that the State had failed to complete its application for a revision and on January 8, 1975, issued notices of violation with respect to 12 of the 32 strategies contained in the Plan, § 113(a)(1) , 42 U.S.C. § 1857c8(a)(1) . The EPA, however, refused to initiate judicial enforcement proceedings as authorized by § 113 of the Act and instead attempted to negotiate consensual administrative orders. By July 1975, three months after the March 31 deadline for satisfaction of the primary ambient standards had expired, the City and State remained in explicit violation of four of the most important strategies, and requested that the court order immediate enforcement of the Plan's strategies. The court, however, was unable at that time, because of lack of jurisdiction, to order compliance, 499 F.2d at 1128, in the absence of a suit to enforce the Plan. The Act expressly provides only two methods for securing enforcement: a suit initiated by the EPA, § 113, 42 U.S.C. §1857c-8, or a citizen suit pursuant to § 304, 42 U.S.C. §1857h-2, which authorizes citizens, as private attorneys general, to enforce state implementation plans provided (a) the citizen gives 60 days' notice of a violation to the EPA, the state and the alleged violator, and (b) the EPA or state has failed within the 60 day period to secure compliance or to bring an action for enforcement. Section 304(a)(1) provides that upon meeting these requirements "[a]ny person may commence a civil action on his own behalf—
"(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation ..."
Pursuant to this authority the present citizen action was commenced.
On August 5, 1974, plaintiffs served their citizen suit notice of violations, §304(b)(1)(A), and, after the required 60 day notice period had expired without compliance by the State and without the initiation of enforcement proceedings by the EPA, plaintiffs on October 11, 1974 commenced their action in the Southern District of New York and applied for preliminary relief. The City sought to avoid injunctive relief on the ground that the Plan was in the process of being formally revised. The State's Assistant Attorney General, on the other hand, adopted a somewhat ambivalent position. See Friends of the Earth v. Wilson, 389 F. Supp. 1394, 1395-96 [7 ERC 1939] (S.D.N.Y.1974). He admitted "that he had a great deal of difficulty with his clients' arguments." He also acknowledged that the Plan "is a legally enforceable plan, is a legally adequate plan and that the state is committed ... to fulfilling its responsibilities thereunder."
However, he then informed the court that the "State apparently has no intention of implementing certain strategies," while admitting that "[i]f there is a valid legal ground for such a refusal, we have not been able to find it, your honor." In addition, he disputed the legal contention of both the city officials and the State Department of Environmental Conservation "that the proposed revision precluded enforcement of the plan," by noting that the revision was "speculative at best" and that the Governor-elect had opposed any such revision. Events a mere four days later proved the speaker correct concerning the uncertain nature of the "pending" revision.
The district court, Sevin T. Duffy, Judge, recognized that the State and City in effect conceded that they were in noncompliance with the Plan. However, on December 16, 1974, Judge Duffy denied relief, stating that in light of the proposed revision he would await clarification of the EPA's position and that the court lacked the expertise to supervise enforcement, which would involve "highly technical" problems. 389 F. Supp. at 1396.
On August 28, 1975, the district court again denied plaintiffs' requests for relief on several grounds. In refusing to enjoin the fare increase Judge Duffy noted that the original complaint and statutory notice required by § 304(b)(1) had failed to name the Transit Authority ("TA"), the agency to which responsibility for the fare increase had been delegated. Therefore, although notice was given to its sister agency, the Metropolitan Transportation Authority, and to the state authorities officially responsible for compliance with the Plan, and although TA officials had notice in fact, the district court dismissed the complaint as to the TA for violating "[s]tandards of fairness and due process." In addition, the court found that there was a "substantial question" as to whether the court had subject matter jurisdiction over the fare increase since the terms of the Plan did not prohibit such an increase.
The district court also refused enforcement of the Plan. Even though the defendants had not denied plaintiffs' allegations that they were in outright violation of at least four important strategies and were in various stages of noncompliance with the remaining twenty-eight, the district court apparently proceeding on the basis of unsupported assumptions derived from "a plethora of paper emanating from the parties, concluded that "there exist many true issues of fact ..." The court also apparently relied upon the fact that several orders were "presently under negotiation" between EPA and the State. However, the court neither defined these "issues of fact" nor explained the reasons for its unwillingness to enforce those strategies as to which the defendants were clearly in default other than to state that enforcement would necessitate excessive supervision by the district court "where there is already a federal agency charged with the enforcement of the Plan." Accordingly, he ordered that the action be dismissed unless plaintiffs joined the EPA as a party within 10 days. On the following day, August 29, 1975, plaintiffs filed their notice of appeal from the district court's order.
DISCUSSION
Since the district court appears to have labored under some fundamental misconceptions regarding not only the purpose of the citizen suit provisions of the Clean Air Act but also the roles of the parties and the court's own duty in such a suit, some clarification of these matters is essential at the outset.
In enacting § 304 of the 1970 Amendments, Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests. Fearing that administrative enforcement might falter or stall, "the citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the Act would be implemented and enforced." Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 700 [7 ERC 1209](D.C. Cir. 1975). The Senate Committee responsible for fashioning the citizen suit provision emphasized the positive role reserved for interested citizens:
"Government initiative in seeking enforcement under the Clean Air Act has been restrained. Authorizing citizens to bring suits for violations of standards should motivate governmental agencies charged with the responsibility to bring enforcement and abatement proceedings."
Senate Committee on Public Works, S. Rep. 91-1196, 91st Cong. 2d Sess., at 3536 (1970).
See also Committee of Conference, H.R. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970), reprinted in U.S.E.P.A., Legal Compilation (Air), Vol. III, at 1386-87 (1973). And the Congress apparently was sufficiently pleased with the operation of the citizen suit section of the Clean Air Act to essentially duplicate the provision in the subsequently enacted Water Pollution Control Act of 1972, § 505, 33 U.S.C. § 1365.
Thus the Act seeks to encourage citizen participation rather than to treat it as curiosity or a theoretical remedy. Possible jurisdictional barriers to citizens actions, such as amount in controversy and standing requirements, are expressly discarded by the Act. As additional encouragement the Act expressly authorizes courts to award costs of litigation to any party when "appropriate," § 304(d); see Natural Resources Defense Council, Inc. v. E.P.A., 512 F.2d 1351, 1357 [7 ERC 2041] (D.C. Cir. 1975); Natural Resources Defense Council, Inc. v. E.P.A., 484
F.2d 1331 [5 ERC 1879] (1st Cir. 1973).
"The courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party. This should extend to plaintiffs in actions which result in successful abatement but do not reach a verdict. For instance, if as a result of a citizen proceeding and before a verdict is issued, a defendant abated a violation, the court may award litigation expense borne by the plaintiffs in prosecuting such actions." Senate Committee on Public Works, supra, at 37.
Once a citizen suit to enforce an EPA-approved state implementation plan has been properly commenced, the district court is obligated, upon a showing that the state has violated the plan, to issue appropriate orders for its enforcement. The court may not, over the plaintiff's objection, escape this obligation on the ground that the EPA is attempting to negotiate consent orders or has not been joined as a party in the citizen suit. Indeed, since it is EPA's failure to obtain compliance and to seek enforcement that brings the citizen suit into play, it would defeat the very purpose of that enforcement mechanism to require that the EPA be dragged reluctantly into the enforcement proceedings. The statute simply obligates the citizen plaintiff to provide the EPA with notice of the Plan's violation and of the upcoming private enforcement suit, § 304(b)(1)(A). The agency can then decide for itself whether or not to participate in the proceedings. "[T]he Administrator has the right to intervene in the suit, but he is not required to be a participant in such litigation and his absence does not render the action infirm." Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 81415 [7 ERC 1811] (D.C. Cir. 1975).
Of course the EPA's participation in a citizen enforcement suit is welcomed by the court, since the EPA, as the agency vested by Congress with important overall responsibilities related to the matter under consideration, possesses expertise which should enable it to make a major contribution. But both the underlying rationale and legislative history surrounding the citizen suit provision demonstrate that Congress intended the district court to enforce the mandated air quality plan irrespective of the failings of agency participation. As noted earlier, the very purpose of the citizens' liberal right of action is to stir slumbering agencies and to circumvent bureaucratic inaction that interferes with the scheduled satisfaction of the federal air quality goals.
Nor may the district court deny citizen enforcement of an approved state implementation plan on the ground that the task of supervising enforcement would be unduly burdensome or require the court to grapple with "highly technical" problems. Whatever may be the wisdom of having added this chore to the others imposed by new legislation upon the federal judiciary, Congress' intention that the courts must accept the duty is clear and unmistakable. Realizing that the responsibility for enforcement would thus fall upon the courts, Congress nevertheless viewed a plan's strategies as containing sufficiently clear and specific guidelines to enable a federal judge to direct compliance, armed as he is with the power to obtain such expert advice and assistance as may be necessary to guide him.
"Enforcement of pollution regulations is not a technical matter beyond the competence of the courts. The citizen suit provision is consistent with principles underlying the Clean Air Act, that is, the development of identifiable standards of air quality and control measures to implement such standards. Such standards provide manageable and precise benchmarks for enforcement." Senate Committee on Public Works, supra, at 37.
Indeed federal courts are daily called upon to resolve complex and difficult questions in many diversified fields such as antitrust, patent, and admiralty. Furthermore, in adopting § 304, Congress specifically considered but rejected arguments advocating the deletion or weakening of the citizen suit section of the Act on the ground that enforcement difficulties would overburden the courts.
With these principles in mind we turn to the issues which are the immediate subject of this appeal: whether the district court erred in (1) refusing to enjoin the transit fare increase, and (2) refusing to enforce those strategies of the Plan which admittedly are being violated and to take steps toward enforcement of the other provisions of the Plan. With respect to the first of these two matters — the fare increase — we hold that the district court did not abuse its discretion in denying preliminary relief. As for the enforcement of the Plan's strategies, we direct the district court immediately to issue such orders as are necessary to enforce those strategies admittedly being violated and to conduct an expeditious hearing to determine the remaining violations and to enforce the other strategies as required by the Plan.
THE TRANSIT FARE INCREASE
Notice
The district court's primary basis for refusing to enjoin the transit fare increase was its finding that the notice given by the plaintiffs to the TA, the governmental agency to which responsibility for the transit fare schedules is delegated by the state, was inadequate. We disagree and find that the notice was clearly sufficient.
On August 5, 1974, as prescribed by the Clean Air Act, § 304(b)(1)(A), 42 U.S.C. § 1857h-2(b) (1), plaintiffs sent their citizen suit notice of violations, including a comprehensive 34-page Table of Violations, to the Governor of New York State, the EPA, and the New York State Department of Environmental Conservation. While claiming that this notice met the requirements of the Act, plaintiffs additionally sent individual notice to each of 15 agents and agencies of the State to whom the State had delegated some responsibility for Plan compliance.
In this latter group were officials of New York City and officers of the Metropolitan Transportation Authority ("MTA"), the TA's sister agency, including their joint chairman, David L. Yunich. Although the MTA and the TA technically are separate corporate entities under state law, they have the same chief executive, the same Board of Directors, issue a combined annual report, and, at the time of this suit, were represented by the same General Counsel. Thus David L. Yunich, the head of TA and named defendant in this action, had actual notice of the alleged violations and of the proposed suit, as did the General Counsel of TA, although the notice was addressed to both men in their capacities as MTA rather than TA officials.
The complaint, filed after the 60-day notice period had expired, again named as defendants the state and city officials and David L. Yunich "in his official capacity as chairman of the [MTA]."
When plaintiffs later sought to amend their complaint to add the TA as a defendant, the latter moved to dismiss on the ground that the 60-day notice required by the Act had not been provided.
The district judge accepted the TA argument in light of "[s]tandards of fairness and due process and dismissed the complaint. We hold this technical, crabbed reading of the statute’s notice requirement to be clearly erroneous and reinstate the complaint as to the TA.
The district court’s excessively restrictive construction of the citizen suit notice requirement is completely at odds with the announced purpose of the statute’s, which looks to substance rather than to form in an effort to facilitate citizen involvement. As the Senate Committee on Public Works, supra, at 36, noted in authorizing the establishment of regulations governing the notice requirement of § 304:
"The regulations should not require notice that places impossible or unnecessary burdens on citizens but rather should be confined to requiring information necessary to give a clear indication of the citizens' intent."
Courts have consistently echoed the theme that the 60 day notice requirement is to be construed flexibly and realistically in order to further its essential purpose of providing "administrative agencies time to investigate and act on an alleged violation" rather than to hinder citizen participation. Natural Resources Defense Council, Inc. v. Callaway, 524 F. 2d 79, 84, n. 4 [8 ERC 1273] (2d Cir. 1975); Conservation Society of South Vermont, Inc. v. Secretary of Transportation, 508 F. 2d 927, 93839 [6 ERC 1236] (2d Cir. 1974), vacated on other grounds, 96 S. Ct. 19 (1975) .
[1] Looking both to the letter of the statute and to the purposes underlying the citizen suit provision, plaintiffs adequately performed their responsibility of providing informative notice. Under the Act the parties required to be notified were the "Administrator," § 304(b)(1)(A)(1), the "State in which the violation occurs," § 304(b)(1)(A)(ii), and the "alleged violator," § 304(b)(1) (A)(iii). It is undisputed that the Administrator and the State were both notified. The only remaining question is whether the requirement of notice to the "alleged violator"obligates the citizen to give formal notice directly to all of the involved agencies of the State in addition to notice to the primary State officials. Since the agencies merely act as delegates of the State, we hold that it does not.
As the State of New York recognizes, it, rather than its local agency, is responsible under the Act and relevant regulations for the creation and enforcement of its Air Pollution Abatement Plan, § 107(a), 42 U.S.C. § 1857c-2; 40 C.F.R. § 51.11(f). Although it may choose to act through designated agents such as the TA, such designation does not relieve the State of its responsibility to carry out the Plan. See 40 C.F.R. § 51.11(f). For purposes of receiving formal statutory notice, the State and its agencies therefore must be treated as one; service of notice upon the State is service upon the "alleged violator" within the meaning of § 304(b)(1)(A)(iii), since the State as the principal is legally responsible for the acts of its agent. The Act's notice requirement was therefore satisfied by service of notice upon the State as the alleged violator.
Our interpretation of the Act's provision for citizen suit notice accords with EPA's own practice of treating notice to the State as notice to the TA. Before commencing suit under § 113(a)(1), 42 U.S.C. § 1857c-8(a)(1), the EPA must give notice of the violation to "the person in violation of the plan and the State in which the plan applies ..." On January 8, 1975, in issuing notices pursuant to this section for alleged noncompliance with the express bus strategy of the Plan, responsibility for which is delegated by the State to the TA, the EPA notified the State, not the TA directly, that the State and City of New York are "in violation of the Transportation Control portion of the New York City ... Plan." Subsequently it was the State, not the TA, that admitted violation of the strategy in a consent order dated April, 1975. The Act does not require or warrant the imposition of more onerous burdens of notice upon citizen plaintiffs than upon the EPA itself. As evident here, a state air pollution plan is likely to involve participation on the part of literally dozens of state and local agencies. To require that precise formalistic notice be provided to each is to erect wholly unrealistic barriers to citizens access to the courts as insured by Congress. The citizen would be relegated to a guessing-game reminiscent of strict common law pleading long ago discarded.
Nor does the record support the district court's conclusion that the notice in this case violated "[s]tandards of fairness and due process." This statement first turns upon the court's erroneous assumption that the TA "is nowhere mentioned in the complaint." In fact, ¶ 44 of the Amended Complaint and the accompanying Table of Violations expressly refer to the Transit Authority as failing to perform its responsibilities under the Act. This complaint, which must be construed liberally, International Controls Corp. v. Vesco, 490 F.2d 1334, 1351 (2d Cir.), cert. denied, 417 U.S. 932 (1974); Local 33, International Hod Carriers v. Mason Tenders, 291F.2d 496, 502 (2d Cir. 1961), is plainly sufficient in apprising the TA of the allegations leveled against it and the relief sought. Moreover, it is undisputed that actual notice was provided both to David L. Yunich and to the MTA. Regardless of the hat being worn by the joint officials of the MTA and TA, this notification in fact advised them of the proposed citizen suit and afforded them the requisite opportunity and time to investigate and to act on the alleged violation. This amply satisfies the language and spirit of the Act and the purposes to be served by a notice requirement under prevailing liberal pleading rules. Accordingly, we reinstate the TA as a defendant in the action.
Subject matter jurisdiction
As a further ground for refusing to enjoin the transit fare increase the district court stated that "[t]here is also a substantial question in my mind as to whether this Court has subject matter jurisdiction over the fare increase," since jurisdiction was grounded upon the Clean Air Act, § 304(a)(1), and the Plan promulgated thereunder "does not contain any language prohibiting a fare increase." We agree that jurisdiction is not available in this enforcement proceeding to test the validity of the fare increase.
[2] The citizen suit provision of the Act speaks in specific terms, conferring jurisdiction on the court to entertain any citizen suit claiming a violation of "an emission standard or limitation under this chapter" or of "an order issued by the Administrator or a State with respect to such a standard or limitation " § 304(a)(1). The stabilization of transit fares is not an expressed strategy of the Plan as adopted by the State, accepted by the E.P.A , and upheld by this court. Friends of the Earth v. E.P.A., supra, 499 F.2d at 1125. As a result, the fare increase is not an overt violation of the above provisions of § 304 and we lack subject matter jurisdiction to review the propriety of the TA's action.
In finding lack of jurisdiction to roll back the transit fare increase at this time, however, we hasten to point out that our earlier decision in Friends of the Earth v. E P.A., supra, was predicated on the assumption that compliance with the Plan's other strategies, particularly those limiting parking spaces in business districts and providing express bus service, would achieve the overriding objective of "compelling [drivers] to use other modes of travel besides automobiles ...." See id. at 1125. This basic assumption has proven to be misguided. Noncompliance with most of the specified provisions of the Plan is undisputed, resulting in heavy increases in air pollution. Under present conditions, both the EPA and state authorities agree, furthermore, that the transit fare increase can be expected to produce approximately a 10% loss of rapid transit ridership, which would have an adverse influence on the Plan's central aim of inhibiting reliance on the automobile. Further, both apparently are in accord that a formal § 110 revision of the Plan may be necessary to take into account the fare rise. Should these serious predictions prove to be accurate, the EPA or citizen groups, of course, are free to seek appropriate revisions of the Plan under the Act. But such review does not rest upon § 304 and accordingly we are without jurisdiction to order transit fare relief.
Enforcement of the plan
[3] The primary relief sought by the citizen plaintiffs is enforcement of the Plan, which was approved by the EPA pursuant to § 110(a) (2) of the Clean Air Act, 42 U.S.C. § 1857c-5(a)(2), and upheld by this court some 20 months ago, Friends of the Earth v. E.P.A., supra. Specifically, the plaintiffs seek reversal of the district court's denial of partial summary judgment which would compel enforcement of the four strategies of the Plan being violated by the State. Plaintiffs also desire to pursue their claim that the State is in default in implementing the remaining strategies and to obtain judicial enforcement of these strategies. The plaintiffs' right under the Act to seek such an enforcement order is beyond challenge, § 304, 42 U.S.C. § 1875h-2. They have fully discharged their responsibility to provide statutory notice, § 304(b)(1)(A), sixty days have passed without any action by the EPA or the State that would displace their citizen suit, § 304(b)(1) . The district court, however, ordered that their action be dismissed "in its entirety unless the plaintiffs within 10 days" serve additional notice on the EPA to induce the agency's intervention.
The court reasoned that the "fact that the parties have advised that there are other orders presently under negotiation" between the State and the EPA "clearly [raises] a question of fact." Further, the court concluded that "the general policy is that the courts should not grant relief which requires continuous judicial supervision." Consequently, Judge Duffy in effect made the EPA an indispensable party to the action and rejected the task of judicial supervision as too onerous. We reverse and remand with instructions set forth below.
EPA-State negotiations
In denying relief under the citizen suit provisions the court referred to the existence of ongoing negotiations between the EPA and State and City Authorities designed to reach consent decrees carrying out the Plan's mandated strategies. We join the district court in recognizing the utility of such deliberations and the desirability of attaining compliance through consensual means. But it is equally clear that the statute empowers neither the EPA nor the State to delay the approved Plan's strategies through negotiations, be they formal or otherwise. Negotiations are no substitute for enforcement and for timely compliance with the Plan's mandated strategies. Consequently, the district court erred in permitting the continuation of EPA-State discussions to bar suit by citizen groups seeking judicial enforcement of the Plan's expressed provisions. The Act authorizes only two procedural routes for modifying the Plan: a § 110(a)(3) revision or a § 110(f) postponement. In all other instances, the State is relegated to a lone option: compliance. See Train v. N.R.D.C., supra, 421 U.S. at 89-90; Metropolitan Washington Coalition for Clean Air v. District of Columbia, supra, 511 F.2d at 811. As the Senate Committee that devised the citizen suit procedure made clear:
"[T]he factual basis for enforcement of [the Plan's] standards would be available at the time enforcement is sought, and the issue before the courts would be a factual one of whether there had been compliance." Senate Committee on Public Works, supra, at 3'7.
The EPA-State conversations hardly satisfy either of the exclusive modification mechanisms authorized under the Act. In relying upon the negotiations as a basis for deferring enforcement, the district court in effect granted a de facto revision beyond that permitted by Congress and without any of the performance safeguards that precondition the granting of modifications and postponements under § 110 of the Act. Such a step plainly violates the statutory scheme and cannot be used to nullify the citizen's statutorily guaranteed right of enforcement.
EPA as an indispensable party
For reasons already stated the district court's decisions to convert the EPA into an indispensable party and to deny relief because of the burdensomeness of this judicial supervision it would entail were clearly erroneous. The suggestion that, in compelling joinder of the EPA, the district court merely applied the broad discretion granted it under Rules 19 & 21, F.R. Civ. P. is unsound. The general authority thus vested in the judiciary to manage ordinary litigation does not entitle the court to contradict a clear-cut, specific legislative schema or to emasculate the citizen suit provision created by Congress. In doing so, and in denying citizen enforcement of the lawfully established Plan, the district court abused its discretion under the Act.
CONCLUSION
We are aware that enforcement of the air quality plan might well cause inconvenience and expense to both governmental and private parties, particularly when a congested metropolitan community provides the focal point of the controversy. But Congress decreed that whatever time and money otherwise might be saved should not be gained at the expense of the lungs and health of the community's citizens:
"The protection of public health — as required by the national ambient air quality standards and as mandated by provisions for the elimination of emissions of extremely hazardous pollution agents — will require major action throughout the Nation. Many facilities will require major investments in new technology and new processes. Some facilities will need altered operating procedures or a change of fuels. Some facilities may be closed.
"The requirements for State action will be broadened. And the obligation of polluters will be greatly increased. What has been a program focused on uniquely critical area, underfunded and inadequately manned, will become truly national in scope and will require an immediate increase in personnel and funding." Senate Committee on Public Works, supra, at 1. See also House Committee on Interstate and Foreign Commerce, H.R. Rep. No. 911148, 91st Cong., 2d Sess., at 45 (1970).
The record before us is one that cries out for prompt and effective relief if the congressional clean air mandate is to have any meaning and effect in New York City. We cannot disregard the frank statement made by New York State's Assistant Attorney General some two years ago, that this "is a legally enforceable plan ... a legally adequate plan," and that "[i]f there is a valid legal ground for a refusal [to enforce the plan], we have not been able to find it ..." Yet it is beyond serious dispute that the defendants are now almost a year in default in carrying out the principal strategies of the mandated Plan, which are central to achieving the primary ambient air quality standards prescribed by Congress, with the result that the public of New York City is exposed to carbon monoxide pollution that has in the meantime climbed to over five times the federal health standards. The court cannot consistently with its duty be a party to the delaying process that has led to this situation. The Senate Committee on Public Works, discussing the purpose of the citizen suit provision in its Report on the Clean Air Act Amendments of 1970, made this clear:
"If the Secretary and State and local agencies should fail in their responsibility, the public would be guaranteed the right to seek vigorous enforcement action under the citizen suit provisions of section 304.
* * *
"The Committee believes that if the timetables established throughout the Act with respect to ambient air quality standards necessary to protect public health are to be met, the threat of sanction must be real, and enforcement provisions must be swift and direct. Abatement orders, penalty provisions, and rapid access to the Federal District Court should accomplish the objective of compliance." Senate Committee. on Public Works, supra, at 20, 22.
Accordingly, we affirm the denial of the preliminary injunction restraining the transit fare increase.
In all other respects we reverse the district court's decision and remand the case to that court with the following instructions:
1. The Transit Authority should be reinstated as a defendant in the action;
2. Partial summary judgment should be entered in favor of plaintiffs, directing enforcement of the four strategies listed in note 7 supra, the court to take such further steps as are necessary to insure enforcement of these strategies;
3. Further hearings should be held promptly to determine whether the defendants are in default in carrying out any of the remaining strategies and, if so, the court should enter such orders and take such other steps as are necessary to enforce those strategies being violated by the State.
Since time is of the essence in providing such relief as maybe appropriate in this case, we direct that the case be given priority on remand and that, if Judge Duffy's schedule precludes his handling it promptly, the case be reassigned to another judge who is in a position to do so.
The mandate shall issue forthwith.
[Footnotes omitted]