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Sierra Club v. Gorsuch

Citation: 12 ELR 20457
No. No. Civ. 81 2436 (WTS), 17 ERC 1748/(N.D. Cal., 01/22/1982)

The court rules that the Environmental Protection Agency (EPA) violated § 112 of the Clean Air Act by failing to promulgate emission standards for radionuclides and orders the Agency to prepare a proposed schedule for issuance of the standards. Under § 112 EPA shall, within 180 days of placing any pollutant on its List of Hazardous Air Pollutants, establish national emission standards for that pollutant. Congress' use of the word "shall" renders meritless intervenors' argument that either EPA's duty or the 180-day deadline are discretionary or flexible. Though conceding that the development of the required standard is a very difficult undertaking, the court finds that EPA has not shown that such difficulties justify its almost complete lack of progress toward issuing the standards. It therefore grants plaintiffs' motion for partial summary judgment and orders EPA to submit to the court, within 30 days, a proposed schedule for completing the rulemaking process.

[The pleadings in this case are summarized at ELR PEND. LIT. 65707 — Ed.]

Counsel for Plaintiffs
Roger Beers, Kathryn Burkett Dickson
Beers & Dickson
380 Hayes St., Suite 1, San Francisco CA 94102
(415) 861-1401

Counsel for Defendants
Francis Boone, Ass't U.S. Attorney
450 Golden Gate Ave., Box 36055, San Francisco CA 94102
(415) 556-3215

Dean K. Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2800

Counsel for Defendants-Intervenors Alabama Power Co. et al.
Donald P. Irwin, Lee B. Zeugin
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200