Environmental Defense Fund, Inc. v. Gorsuch

Nos. 81-2083, -2269 (D.D.C. March 18, 1982)

The court extends for a period of 15 days the public comment period and final deadline for promulgation of the revised National Contingency Plan (NCP) required by the Comprehensive Environmental Response, Compensation, and Liability Act. Originally, on February 12, 1982 the court ordered the Environmental Protection Agency (EPA) to promulgate the revised NCP by May 13, 1982, 12 ELR 20376. While it notes that EPA unreasonably delayed the filing of its motion for the extension and that the original order is consistent with the Act, the court finds that the extension is in the public interest. Thus, it extends the public comment period from April 13 to April 28, 1982 and the final deadline until May 28, 1982.

[The proposed NCP is analyzed at 12 ELR 10040 — Ed.]

Counsel are listed at 12 ELR 20376.

[12 ELR 20401]

Pratt, J.:

Memorandum Order

The federal defendants in these consolidated case have moved "that the Court reconsider and amend" certain portions of an Order entered by this Court on February 12, 1982 where thirty days were allowed for public comment on proposed revisions to the National Contingency Plan (NCP) and where final publication of the revised NCP was ordered sixty days thereafter, or by May 13, 1982.

Initially we note that, consistent with the practice of EPA in connection with its CERCLA responsibilities, the agency has unreasonably delayed in making this motion. The relief sought by counsel for defendants is in the nature of a "motion to alter or amend a judgment" and under the provisions of FED. R. CIV. P. 59(e) must be served not later than 10 days after entry of judgment. Here, of course, defendants waited some 20 days, significantly muting their claim of hardship.

Although defendants submit their motion ostensibly under FED. R. CIV. P. 60(b)(6) (any other reason justifying relief from operation of judgment), we think that defendants have failed to demonstrate such "extraordinary circumstances" as to warrant our discretionary modification of the February 12, 1982 Order. The three-month court-ordered time schedule established in that Order, coming some eight months after publication of the final revised NCP was due, is entirely consistent with the 180 day promulgation period contemplated by Congress in the statute.

Nevertheless, since it appears that an increase in the public comment period is in the public interest and may be helpful given the complexity of the proposed NCP and the importance of this document, the public comment period will be extended fifteen (15) days with an accompanying extension of fifteen (15) days in the deadline for review of the comments and final promulgation of the revised NCP.

Consistent with the above, it is by the Court this 18th day of March, 1982

ORDERED that defendants shall receive public comments regarding the proposed revisions to the National Contingency Plan for a period of forty-five (45) days from March 14, 1982, or until April 28, 1982, and it is

ORDERED that defendants shall republish the revised National Contingency Plan within seventy-five (75) days of March 14, 1982, or by May 28, 1982, and it is

FURTHER ORDERED that the Order of February 12, 1982, except as modified above, shall remain in full force and effect.