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11 ELR 20202 | Environmental Law Reporter | copyright © 1981 | All rights reserved Natural Resources Defense Council, Inc. v. CostleNo. 79-2411 (S.D.N.Y. January 9, 1981)The court orders the Environmental Protection Agency (EPA) to initiate rulemaking proceedings for the testing of priority chemicals, as required under § 4 of the Toxic Substances Control Act. A year ago the court issued partial judgment, 10 ELR 20274, ruling that EPA must submit plans to initiate rulemaking proceedings within 12 months after receiving a list of such chemicals from the federal interagency testing committee. EPA then submitted to the court an expedited schedule for testing the priority chemicals. The court now rules that EPA must initiate rulemaking proceedings at the rate set forth in the expedited schedule or publish in the Federal Register reasons for not initiating such proceedings. Further, EPA is required to file written reports with the court semi-annually for the next three years on the Agency's progress with the testing program. Counsel for Plaintiff Ross Sandler Counsel for Defendants Counsel for Intervenor-Defendant Chemical Mfrs. Ass'n Edmund B. Frost, David Forsyth Zoll Peter Barton Hutt, Robert M. Sussman Counsel for Intervenor-Defendant American Petroleum Inst. Counsel for Intervenor-Defendant Synthetic Organic Chemical Pierce, J.: This action came on for a hearing before the Honorable Lawrence W. Pierce, United States District Judge, on motion by plaintiff for partial summary judgment, and the issues with respect to partial judgment having been duly heard, and the Court having considered all pre- and post-hearing submission and a decision and order having been duly rendered on February 4, 1980, and there being no just reason for delay of the entry of this final judgment, it is hereby ORDERED, ADJUDGED and DECREED that judgment be entered immediately by the Clerk of the Court in favor of plaintiff, Natural Resources Defense Council, Inc., and against Douglas Costle, as Administrator, and United States Environmental Protection Agency, hereinafter defendants, declaring and adjudging defendants in violation of Title 15 United States Code, § 2603(e)(1)(B); and it is further ORDERED, ADJUDGED and DECREED that defendants shall bring themselves into compliance with Title 15, United States Code, § 2603 by either initiating a rulemaking proceeding under Title 15, United States Code, § 2603(a) or publishing in the Federal Register reasons for not initiating such a proceeding for the chemicals and categories of chemicals as have been listed and designated by the Interagency Testing Committee pursuant to Title 15, United States Code, § 2603(e)(1)(B) in the First through Fifth Reports [11 ELR 20203] of the Committee (such chemicals and categories hereinafter referred to as the ITC Backlog Chemicals); and it is further ORDERED, ADJUDGED and DECREED that the defendants shall take the action described above at the rate set forth in the schedule contained in the affidavit of Steven D. Jellinek and submitted to the Court on September 12, 1980, a copy of which is annexed hereto (hereinafter "Jellinek Schedule"); and it is further ORDERED, ADJUDGED and DECREED that the defendants, with respect to any chemical or category of chemicals listed and designated by the Interagency Testing Committee subsequent to the Fifth Report (such chemicals and categories of chemicals hereinafter referred to as "New ITC Chemicals"), shall either initiate a rulemaking proceeding under Title 15, United States Code, § 2603(a) or publish in the Federal Register reasons for not initiating such a proceeding within the twelve months specified by Title 15, United States Code, § 2603(e)(1)(B); and it is further ORDERED, ADJUDGED and DECREED that, in the event defendants fail to comply with the duties set forth in the immediately preceeding paragraph with respect to new ITC Chemicals, plaintiff shall enforce such duty by commencing a new action and not by motion in this action, and with respect to such new action, there shall be no requirement upon plaintiff either to serve prior notice or await expiration of sixty days as otherwise required by 15 U.S.C. § 2619(b)(1)(A); and it is further ORDERED, ADJUDGED and DECREED that the Administrator of EPA or the subordinate official to whom he has delegated authority under Title 15, United States Code, § 2603(a) and (e), shall file with the Court and serve upon all parties on February 13, 1981 and July 1, 1981 and on January 1, and July 1, 1982 and 1983, and on December 31, 1983, written reports on the progress with respect to the ITC Backlog Chemicals and/or categories selected from the Jellinek Schedule upon which the defendants plan to take action during the year of the report and tentative dates of action within such year; (b) a statement as to whether the defendants expect to be able to comply with the Jellinek Schedule for the year in which the report is filed and, if not, a detailed statement why such compliance with not be made; and (c) should defendants fail to meet any year end goal for any year as set out in the Jellinek Schedule, a detailed explanation as to the reasons for the failure to meet the schedule along with a statement as to when the required action shall be taken; and it is further ORDERED, ADJUDGED and DECREED that, upon defendants taking such action as is required by Title 15, United States Code, § 2603(e)(1)(B) with respect to the ITC Backlog Chemicals, this Court's order shall be deemed complied with, and the remedy stage of this action shall be terminated, all without prejudice to any party commencing a new action on such New ITC Chemicals as may be outstanding at that time; and it is further ORDERED, ADJUDGED and DECREED that this judgment and order, and such further orders as are issued hereunder, shall be without prejudice to the right of any party, including defendants, to seek further relief; and it is further ORDERED, ADJUDGED and DECREED that the Court will retain jurisdiction of this action to assure compliance with this judgment and order and to consider an application by plaintiff for an award of fees and costs pursuant to Title 15, United States Code, § 2619(c)(2); and it is further ORDERED, ADJUDGED and DECREED that the Court's opinion of February 4, 1980 and this order shall constitute its findings of fact, conclusions of law and final judgment in this action.
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