Illinois v. Gorsuch

Nos. 78-1689; -1715; -1734; -1899 (D.D.C. November 13, 1981)

The court denies the Administrator of the Environmental Protection Agency's (EPA's) request for a two-year extension of time to promulgate hazardous waste land disposal regulations under § 3004 of the Resource Conservation and Recovery Act (RCRA). The court had previously granted EPA four extensions of time but finds a further extension unwarranted. While the regulation of hazardous wastes involves complex technical and policy issues, the court points out that RCRA's requirement that EPA promulgate regulations within 18 months of enactment indicates that Congress did not intend all such issues to be resolved before regulations are issued. The court orders the Administrator to promulgate regulations by February 1, 1982.

Counsel for Plaintiff
Russell R. Eggert, Dean Hansell, Ass't Attorneys General
Environmental Control Division
Suite 2315, 188 W. Randolph, Chicago IL 60601
(312) 793-2491

Khristine L. Hall
Environmental Defense Fund, Inc.
1528 18th St. NW, Washington DC 20036
(202) 833-1484

Bill S. Forcade, Robert Goldsmith
Citizens for a Better Environment
59 E. Van Buren, Suite 2610, Chicago IL 60605
(312) 939-1530

Ellen Weiss
Harmon & Weiss
1725 I St. NW, Washington DC 20006
(202) 833-9070

Counsel for Defendants
Anthony Z. Roisman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2600

Lisa K. Friedman, Ass't General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-2511

Counsel for Intervenors American Petroleum Institute et al.
Loren K. Olson, John R. Quarles Jr.
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 872-5000

[12 ELR 20102]

Gesell, J.:

Memorandum and Order

In a report filed with the Court October 8, 1981, the Administrator of the Environmental Protection Agency requests that the Court allow the Agency additional time to perform its duty under § 3004 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6924 (1976), to promulgate regulations relating to the design and operation of existing hazardous waste land disposal facilities. This suit was initiated in the Fall of 1978 after EPA had failed to perform its nondiscretionary duty to issue regulations under, inter alia, § 3004 of RCRA by April, 1978. Over the last three years the Court has sought diligently to encourage promulgation of the regulations but in response to requests has granted the Agency the following extensions of time:

In January, 1979, the Court directed the Agency to promulgate regulations by December, 1979.

In December, 1979, the Court set a new deadline of Fall, 1980.

In April, 1981, the Court directed the Agency to report to the Court on its progress in completing the regulations by September, 1981.

In September, 1981, the Court granted the Agency to October, 1981, for the filing of its progress report.

The Administrator has failed in each instance to promulgate regulations by these deadlines and now, incomprehensibly, seeks a further two-year extension on the most shallow showing.

A further extension is not warranted. In her report the Administrator states that regulations governing land disposal of hazardous wastes raise technical and policy issues of great complexity and the Agency's prior research and analysis, conducted for the most part under the supervision of the prior Administrator, do not provide an adequate basis for resolving these issues. The fact that RCRA directs the Administrator to promulgate regulations within eighteen months of the Act indicates that Congress did not direct the Agency to resolve every conceivable problem before issuing regulations. In the more than five years since RCRA was enacted the Agency has had the opportunity to consider various regulatory approaches and numerous comments and suggestions by the affected interests. The Agency may fulfill its mandate to issue regulations as well as satisfy its lingering technical and policy concerns by issuing regulations and later consider revision if the Agency's understanding and experties expand.

The Court denies the request of the Administrator for a further two-year extension and directs the Administrator to promulgate regulations for existing hazardous waste land disposal facilities on or before February 1, 1982. No further extensions will be granted under any circumstances.

SO ORDERED.