Letter of intent to sue - PennFuture

Citizens for Pennsylvania's Future425 6th Ave., Ste. 2770Pittsburgh, PA 15219®P 412-258-6680F 412-258-6685info@pennfuture.orgwww.pennfuture.orgFebruary 16, 2012Dr. Bruce M. Dixon, DirectorAllegheny County Health Department3333 Forbes AvenuePittsburgh, PA 15213Re:Allegheny County Health Department’s Failure to Comply with Pennsylvania’sDiesel Powered Motor Vehicle Idling ActDear Dr. Dixon:By letter dated February 13, 2012, Citizens for Pennsylvania’s Future (“PennFuture”)provided notice to the Allegheny County Health Department (“ACHD”) of PennFuture’s intentto sue ACHD under the Clean Air Act for ACHD’s violations of Pennsylvania’s Diesel-PoweredMotor Vehicle Idling Act (the “Act”) 1 at its facilities at 39 th Street and Penn Avenue inPittsburgh. This letter is to respond to Allegheny County Health Department AssistantSolicitor’s Michael Parker’s February 14, 2012 email to PennFuture (which you were copied on;a copy of the email is also attached for your reference). Pictures attached to Mr. Parker’s emailshow that ACHD has taped copies of an idling restriction sign which are printed or photocopiedon regular-sized office paper to the inside of a door on one of its buildings; that door is at the endof a vestibule and the vestibule apparently may be closed off by a windowless wooden securitydoor at the front of the vestibule. Mr. Parker contends that those signs demonstrate ACHD’scompliance with the Act.Mr. Parker is incorrect. ACHD is not in compliance with the Act. The Act requires thatthe owner of a facility subject to the Act must “erect and maintain a permanent sign;” 2photocopies of an idling restriction sign taped to the inside of a glass door are not “permanent.”Also, PennDOT’s one-page guidelines for sign placement (which are linked to by thePennsylvania Department of Environmental Protection’s Bureau of Air Quality on its website 3and attached to this letter for your reference) authorize only 24” x 24” and 48” x 48” signs for135 P.S. §§ 4401-10. The Act has been incorporated into Pennsylvania’s State Implementation Plan.Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Diesel-Powered Motor VehicleIdling Act, 76 Fed. Reg. 45705 (Aug. 1, 2011).2335 P.S. § 4608 (emphasis added).http://www.dep.state.pa.us/dep/deputate/airwaste/aq/cars/idling.htm.

use under the Act. PennDOT has not approved signs scaled to fit onto sheet of regular-sizedoffice paper for use under the Act.Further, PennDOT’s guidelines also state that to comply with the Act, 24” x 24” idlingrestriction signs “should be mounted throughout the parking area at reasonable intervals to bereadily visible to vehicles subject to the idling restriction,” or, alternatively, that a 48” x 48”sign “may be prominently erected at all entrances to the parking area so it is readily visibleby vehicles subject to the idling restriction.” Obviously, signs taped to the inside of a glass doorat the end of a vestibule (as are those shown in the pictures attached to Mr. Parker’s email) areneither “mounted throughout the parking area” nor “prominently erected at all entrances to theparking area.” Nor are the signs “readily visible to vehicles.” Mr. Parker’s email itself statesthat vehicle operators will see the signs after they exit their vehicles – which they may very wellhave left idling – to sign in with ACHD. We note that will occur only if the signs are not hiddencompletely by the apparently-windowless wooden security door which may be closed at the frontof the vestibule, and if the operators do in fact stop to sign in before making their deliveries.Mr. Parker’s email demonstrates that ACHD is more concerned with avoiding theminimal cost of posting PennDOT-approved anti-idling signs 4 than it is with complying with theAct and reducing harmful and unnecessary emissions from idling vehicles at its facility, and thatACHD lacks the knowledge needed to enforce the Act in Allegheny County. ACHD’soveremphasis on expense reduction at the expense of robust enforcement of the air pollutioncontrol laws and regulations has become more and more pronounced in recent years and hasapparently reached a new low; ACHD is now spinning to avoid complying with a law it ischarged with partial responsibility for enforcing against others.Mr. Parker’s February 14, 2012 email demonstrates that ACHD has been, and remains, inviolation of the Act’s signage requirements. If it is not already obvious from the foregoing,PennFuture still intends to file suit against ACHD under the citizen suit provisions of the CleanAir Act within 60 days of February 13, 2012 if ACHD does not comply with all provisions of theAct. As PennFuture noted in its February 13, 2012 letter to you, ACHD’s continuedintransigence will expose it to liability for civil penalties under the Act and the Clean Air Act.Sincerely,John K. BaillieSenior AttorneyHeather SageVice-President4By way of example, PennDOT approved idling restriction signs may be obtained for $92.68 each (for 24” x24” signs) or $287.62 (for 48” x 48” signs):http://www.accuform.com/store/product.cfm?pID=755241444F167C&optionList=161895&optionList=161903.February 16, 2012Page 2 of 3

Cc (w/encl.): Hon. Rich FitzgeraldNoreen Malone, DEP SWRODr. James ThompsonMichael Parker, Esq.February 16, 2012Page 3 of 3