Environmental Defense Fund, Inc. v. Gorsuch

Nos. 81-2083, -2269 (D.D.C. February 12, 1982)

The court holds that the Environmental Protection Agency (EPA) violated the clear directive of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to promulgate a revised national contingency plan (NCP) and emergency response guidelines within specific deadlines. It finds that interim Agency response efforts in the absence of the plan and guidelines do not satisfy the statutory mandate. The court grants plaintiffs' motion for summary judgment and orders EPA to propose revisions to the NCP within 30 days and republish the revised plan along with emergency response guidelines within 90 days.

[The pleadings in this case are summarized at ELR PEND. LIT. 65712 & 65730 — Ed.]

Counsel for Plaintiffs
Khristine L. Hall, David J. Lennett
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Defendants
David O. Ledbetter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4450

Lee C. Schroer
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

[12 ELR 20376]

Pratt, J.:

Memorandum Opinion

Plaintiffs in these consolidated cases¹ seek an order for declaratory and injunctive relief compelling the Environmental Protection Agency (EPA) and named officials to discharge their duties to timely revise and republish a national contingency plan and to promulgate and publish emergency guidelines as set forth in §§ 105 and 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.A. §§ 9605 and 9606, Pub. L. No. 96-510.² Under that statute, promulgation of these documents is now overdue. Since the material facts supporting the relief sought by plaintiffs are straightforward and uncontroverted, we grant plaintiffs' motions for summary judgment and direct that defendants fulfill their statutory obligation in the order accompanying this opinion for the reasons set forth below.

Background

At issue in these cases are two provisions of the recently enacted Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.A. §§ 9601-9657 (1980 Sp. Pamphlet), commonly referred to as the "Superfund" Act. This very detailed and complex Act is Congress' response to the growing toxic waste problem in this country. It creates a 1.6 billion dollar Hazardous Substance Response Fund³ that is designed to "insure that sufficient financial resources are available for the Government to be able to move immediately to contain and clean up oil or designated hazardous substance discharges and, second, to provide assurancethat those suffering defined economic damages resulting from such discharges will be adequately compensated for those damages."⁴ Additionally, CERCLA creates broad federal authority to respond to releases of hazardous substances. These "response actions" are of two types: removal actions and remedial actions. Removal actions are essentially short-term clean up actions taken relatively quickly to protect the public health and the environment from the immediate effect of "released hazardous substances" such as in leaks or spills. 42 U.S.C.A. § 9601(23). Remedial actions contemplate a long-term approach "consistent with permanent remedy." The cleanup of dangerous abandoned waste sites is an example. Id. at § 9601(24). Both types of response actions are financed by the fund.

The response actions described above and extensively defined in the statute are authorized to be undertaken within the framework of the revised National Contingency Plan (NCP) mandated by § 9605. See 42 U.S.C.A. § 9604. Section 9605, one of the statutory provisions here at issue, contemplates modification and extension of the NCP originally implemented pursuant to § 311(c)(2) of the Clean Water Act, 33 U.S.C. § 1321(c)(2). The existing NCP governs cleanups of oil and certain hazardous substances discharged into navigable waters, but the revisions contemplated by § 9605 will apply to a wider range of hazardous substances released into all environmental media, besides navigable waters, and will include, additionally, a section to be known as "the natural hazardous substance response plan." Section 9605 provides, inter alia, that

[w]ithin one hundred and eighty days after the enactment of this Act, the President shall, after notice and opportunity for public comments, revise and republish the national contingency plan . . . to reflect and effectuate the responsibilities and powers created by this Act . . . . Such revision shall include a section of the plan to be known as the national hazardous substance response plan which shall establish [12 ELR 20377] procedures and standards for responding to releases of hazardous substances . . . .

The section continues, spelling out in much detail, the minimum requirements of the national hazardous substance response plan.

Responsibility for the revision of the NCP was originally delegated to the Council on Environmental Quality⁵ but was later redelegated to EPA in Executive Order No. 12316, 46 Fed. Reg. 42237 (August 20, 1981). The primary responsibility for the revision and republication of the NCP rests squarely on EPA.

As in he case of § 9605 above, the second CERCLA provision here at issue, § 9606 directs that

[w]ithin one hundred and eighty days of the enactment of this Act, the Administrator of the Environmental Protection Agency shall . . . establish and publish guidelines for using the imminent hazard, enforcement, and emergency response authorities of this section and other existing statutes administered by the Administrator of the Environmental Protection Agency to effectuate the responsibilities and powers created by this Act. Such guidelines shall to the extent practicable be consistent with the national hazardous substance response plan . . . .

42 U.S.C.A. § 9606(c).

CERCLA was enacted on December 11, 1980 and became effective immediately. 42 U.S.C. § 9652. The statutory deadline for promulgation of the emergency guidelines and for the republication of the revised NCP was therefore June 9, 1981. EPA has released neither of these two documents. After EPA declined to indicate a schedule for promulgation, plaintiffs filed these suits to compel the agency to comply with the statute. Plaintiffs have now moved for summary judgment.

Discussion

The language of the statute clearly places defendant EPA under a mandatory duty to act. Association of American Railroads v. Costle, 562 F.2d 1310 [7 ELR 20730] (D.C. Cir. 1977). This duty is non-discretionary. Indeed, EPA does not argue that it does not have a duty to revise and republish the NCP or to promulgate the emergency guidelines within the deadline that Congress specifically established. EPA also concedes that there is no genuine issue of material fact that these duties have been breached: the NCP has not been noticed for public comment or revised and republished after notice and opportunity for public comment as mandated by § 9605, nor has EPA established and published the emergency response guidelines of § 9606(c) as required.⁶ In such a situation, where the material facts are undisputed, summary judgment is appropriate. Waldie v. Schlesinger, 509 F.2d 508, 510 (D.C. Cir. 1974). Here, the "complete failure of federal officials to comply with mandatory statutory and regulatory directives . . . warrant[s] relief in the nature of mandamus or mandatory injunction." Carpet, Linoleum and Resilient Tile Layers Local No. 419 v. Brown, 656 F.2d 564, 568 (10th Cir. 1981). EPA itself recognizes that this court may grant such equitable relief as it deems appropriate. In view of the Congressional intent clearly manifested in the statute, we think it appropriate that a court-ordered pubilcation schedule now be established. See NRDC, Inc. v. Train, 510 F.2d 692, 697, 704 [5 ELR 20046, 20696] (D.C. Cir. 1975).

We brush aside as diversionary the objections that EPA attempts to interpose to our granting this relief. EPA claims that it has "effectively exercised" CERCLA's authority under the statutory scheme on an "interim basis" and that a revised NCP is not a necessary precedent to proceeding with an effective response program. This is no excuse for defendants' present inaction because Congress was concerned with taking immediate action to protect the public from exposure to toxic wastes and certainly contemplated that response efforts should occur prior to mandated revision in the NCP.126 CONG. REC. S14965, S14963, S14972 (daily ed. Dec. 3, 1980) (remarks of Sen. Randolph). This attempted explanation does not meet the thrust of plaintiffs' complaint because this is a case where the "original [statutory] timetable evidences a Congressional concern that the regulations be issued expeditiously." Association of American Railroads, supra at 1322. Defendants have ignored the intent expressed in the statute. Response actions after the promulgation deadline were to be pursuant to a revised NCP that would be "subject to normal rulemaking procedures and, once adopted, would provide the framework for all actions under the Act." 126 CONG. REC. H11788 (daily ed. Dec. 3, 1980) (remarks of Rep. Florio).

EPA concedes that its interim procedures have not had the benefit of public comment or publication and its own affidavits and accompanying submissions show that there have been 27 incidents that have been addressed on such an interim basis, after the promulgation deadline. The agency itself recognizes that the revised National Contingency Plan is the "cornerstone of Superfund response actions."⁷ Where, as is made clear by EPA, responses are made after the statutory deadline for the publication of a revised NCP and guidelines and on the basis of interim procedures not subjected to the specified rulemaking process, the injury to these plaintiffs and to the public at large is manifest.⁸ As was said in Association of American Railroads, supra,

Congress has not provided the agency with the type of discretion it evidently desires and contends for in this case. We are bound to effectuate the legislative will and we perceive it to be unambiguous in this context. If the EPA desires an element of flexibility in its operations, the agency must look to Congress and not the courts.

Id., at 1320 (emphasis in original).

Conclusion

We conclude that defendants have unlawfully failed to discharge their statutory and non-discretionary duties to revise and republish the supplemental National Contingency Plan required under § 9605 as well as to establish and publish the guidelines mandated by § 9606. 5 U.S.C. § 706(1).

An appropriate order setting forth a timetable within which defendants are to comply has been entered.⁹

Order

Upon consideration of plaintiffs' motions for summary judgment, defendants' opposition thereto, and the entire record herein, and it appearing that defendants have failed to perform their statutory duties, it is by the court this 12th day of February, 1982

ORDERED that plaintiffs' motions for summary judgment are granted; and it is

ORDERED that defendnts shall notice the proposed National Contingency Plan revisions in the Federal Register not later than thirty (30) days from the date of this order with opportunity [12 ELR 20378] for public comments within thirty (30) days following said notice, and it is

ORDERED that defendants shall republish the revised National Contingency Plan within ninety (90) days from the date of this order, and it is

FURTHER ORDERED that defendants shall establish and publish in the Federal Register the guidelines for emergency response authorities within ninety (9) days from the date of this order.

1. In Civil Action No. 81-2083, Environmental Defense Fund, Inc. (EDF) sues the Environmental Protection Agency (EPA), its Administrator, Anne M. Gorsuch, and the Office of Management and Budget (OMB) and its Director, David Stockman. In Civil Action No. 81-2269 the State of New Jersey and Jerry English, Commissioner of the New Jersey Department of Environmental Protection sue the same defendants. The State of Connecticut and Stanley J. Pac, Commission of Environmental Protection of the State of Connecticut have intervened as party-plaintiffs in Civil Action No. 81-2269.

2. 94 Stat. 2767.

3. 42 U.S.C.A. § 9631 (1980 Sp. Pamphlet). The fund receives 7/8 of its revenue from a tax on raw materials and feedstocks used to produce industrial chemicals. The remaining 1/8 of fund revenue is from the Treasury.

4. 126 CONG. REC. H9239 (daily ed. Sept. 18, 1980) (Remarks of Rep. Livingston). The fund is to be used to finance cleanup operations at sites where the "release of a hazardous substance," 42 U.S.C.A. § 9601(22), endangers or threatens to endanger human health or the environment. See 42 U.S.C.A. §§ 9604, 9611. Liability provisions contained in the Act provide for fund reimbursement from parties responsible. 42 U.S.C.A. § 9607.

5. Executive Order No. 12286 (Jan. 19, 1981). The Council on Environmental Quality had earlier been delegated the responsibility for preparation and revision of the original NCP under § 311 of the Clean Water Act. Executive Order No. 11735, Section 4 (Aug. 3, 1973).

6. Answer of defendants to amended complaint in Civil Action No. 81-2083, P13; Objections of defendants to plaintiffs' statement of material facts not in issue, P5; answer of defendants to complaint in Civil Action No. 81-2269, P14.

7. See Statement of Anne M. Gorsuch, Adm., EPA, before the Subcommittee on Commerce, Transportation, and Tourism on July 29, 1981. Appendix A to plaintiff EDF's response to defendants' opposition to plaintiffs' motion for summary judgment, at 6. Response actions are to be performed consistent with the national contingency plan. 42 U.S.C.A. § 9604(a)(1). "Following publication of the revised national contingency plan, the response to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan." 42 U.S.C.A. § 9605. The plan is to provide "consistency and cohesiveness" to such actions. S. REP. 96-848, 96th Cong. 2d Sess. 52 (1980). Government response actions financed by the superfund are authorized only to the extent they are consistent with the NCP and the cost-benefit considerations to be contained in that document. 42 U.S.C.A. § 9611(a). Significantly, liability ofwrongdoers and other private parties to reimburse expenditures from the fund is created for government response costs incurred "not inconsistent with the national contingency plan." 42 U.S.C.A. § 9607(a)(4)(A).

In sum, the superfund statutory scheme ties the methods of response, and the recovery of response costs to NCP standards, all of which were to have been subject to notice, public comment, and publication before June 9, 1981.

8. As an example, the failure of EPA to timely promulgate the revised NCP has impaired the ability of the plaintiff states and the states generally to effectively discharge statutory responsibilities imposed upon them by CERCLA. See 42 U.S.C.A. § 9605(8)(B) (priorities for remedial action to be submitted by the states within one year after December 11, 1980 and annually thereafter).

9. We do not regard the language of Executive Order No. 12316, issued August 14, 1981, which makes all amendments to the NCP, whether in proposed or final form, subject to review and approval by the Director of the Office of Management and Budget, as being an impediment to the observance of this schedule.