Sierra Club v. Gorsuch

No. Civ. 81 2436 WTS (N.D. Cal. March 8, 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

[12 ELR 20458]

Sweigert, J.:

Memorandum of Decision

This is a civil action brought under the Clean Air Act (Act), 42 U.S.C. § 7401, et seq. Plaintiffs, an environmental organization and two individual United States citizens, bring this action pursuant to the citizens' suit provision of the Act (42 U.S.C. § 7604), alleging that the defendant Environmental Protection Agency (EPA) has failed to fulfill its duty under the Act by not establishing national emission standard or alternative controls for radionuclides — a hazardous air pollutant. Plaintiffs seek declaratory and injunctive relief designed to force the EPA to fulfill its duty.

The court has permitted the intervention of (1) a group comprised of 86 utility companies (Alabama Power Company, et al.); (2) the Fertilizer Institute, Inc. and the Florida Phosphate Council, two non-profit trade associations, and (3) the American Mining Congress (AMC), an industrial trade association representing the producers of most of the nation's coal, metals, industrial and agricultural minerals.

The matter is currently before the court on plaintiffs' motion for partial summary judgment. In their motion plaintiffs seek:

1.A declaration that the Act imposes a mandatory non-discretionary duty upon the EPA to issue proposed radionuclide emission standards within 180 days of the listing of radionuclides as hazardous air pollutants, which occurred on November 8, 1979;¹

2. A declaration that the EPA has failed to fulfill this duty;

3. An order directing the EPA to prepare immediately a specific proposed schedule for issuing proposed radionuclide standards and to meet with all parties within 30 days of the entry of the order to determine if the parties can agree on a final schedule for compliance with the Act; and

4. An order directing the parties to inform the court if they cannot agree on a final schedule so that the court can establish a schedulr for EPA's promulgation of the required regulations.

The record on the pending matter consists of plaintiffs' unverified complaint; the affidavits of Wallace S. Pitts (Pitts Aff.) and G. Hoyt Whipple (Whipple Aff.), two scientists, in opposition to plaintiffs' motion; the declaration of Donald P. Irwin (Irwin Decl.), one of the attorneys for the intervenors, in opposition to plaintiffs' motion; and the declaration of Edward F. Tuerk (Tuerk Decl.), an EPA official, in opposition to plaintiffs' motion.

Plaintiffs rely on § 112 of the Clean Air Act, 42 U.S.C. § 7412, for the proposition that "within 180 days after the inclusion of any air pollutant in [the official government List of Hazardous Air Pollutants], the [EPA] shall publish proposed regulations establishing emission standards for such pollutant together with a notice of a public hearing within thirty days." 42 U.S.C. § 7412(b)(1)(B) (emphasis added).

The record shows without dispute that radionuclides were placed on the government's List of Hazardous Air Pollutants on November 8, 1979, and that the EPA has yet to issue any proposed radionuclide regulations or to schedule a public hearing, more than a year and a half after the statutory deadline.

The defendants and intervenors, who join in opposing plaintiffs' motion,² contend that placing radionuclides on the official government List of Hazardous Air Pollutants did not subject the EPA to a mandatory time schedule for proposing regulations or conducting a public hearing. They cite two cases for the proposition that the term "shall" in a statute may be directory only and not mandatory, particularly where there are no consequences for failing to comply set forth in the statute. Fort Worth National Corp. v. Fed. S & L Corp., 469 F.2d 47, 48 (5th Cir. 1972); United States v. Reeb, 433 F.2d 381, 385 (9th Cir. 1970), cert. denied, 402 U.S. 912. Defendants further contend that where the purpose of the statutory time frame is to organize, coordinate and expedite proceedings only, scheduling provisions are generally construed as directive. Ralpho v. Bell, 569 F.2d 607, 627 (D.C. Cir. 1977). None of these cases cited by defendants involve a regulatory act similar to the Clean Air Act.

Moreover, there is arguably a penalty for failure by the EPA to comply with the Act in that the EPA can be sued under the Act for failure to perform its duty and ordered to comply with the Act. Under 42 U.S.C. § 7604, the section of the Act under which this suit was brought, "any person may commence a civil action on his own behalf . . . (2) against the [EPA] where there is alleged a failure of the [EPA] to perform any act or duty under this [Act] which is not discretionary with the [EPA], . . . ." The provision goes on to state that "The district courts shall have jurisdiction, . . . to enforce such an emission standard or limitation, or such an order, or to order the [EPA] to perform such act or duty, as the case may be."

In addition, the Second Circuit has held that the EPA's duty to regulate hazardous substances according to the statutory timetable, under a provision in the Act parallel to § 7412, is mandatory under the Act's express terms. Natural Resources Defense Council, Inc. v. Train, 545 F.2d 320, 324-28 [7 ELR 20004] (2d Cir. 1976). In that case, the circuit court affirmed a decision by the district court ordering the EPA to comply with the Act on a court supervised schedule, reasoning that the Legislature drafted the statute as it did in order "to eliminate, not perpetuate, opportunity for administrative foot-dragging." Id., at 328.

Defendants next cite several cases for the proposition that impossibility may be an excuse for failure to perform by a government agency.The Group Against Smog and Pollution, Inc. v. United States Environmental Protection Agency, No. 78-1534 (D.C. Cir. 9/23/81) slip opinion, 15-16 n.68 [11 ELR 20982]); Alabama Power Co. v. Costle, 636 F.2d 323 [10 ELR 20001] (D.C. Cir. 1980); Env. Def. Fund v. Env. Prot. Agency, 636 F.2d 1267 [10 ELR 20972] (D.C. Cir. 1980); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692 [5 ELR 20046, 20696] (D.C. Cir. 1975); Nat. Res. Def. Coun., Inc. v. Train, 411 F. Supp. 864 [6 ELR 20366] (S.D.N.Y.), aff'd 545 F.2d 320 (2d Cir. 1976). Defendants rely on the affidavits and declarations submitted in opposition to the plaintiffs' motion to show that it would have been impossible for the EPA to comply with the law given the complexity of regulating radionuclides.

It has been held that an agency may depart from the requirements [12 ELR 20459] of a regulatory statute due to administrative impossibility; however, "the agency's burden of justification in such a case is especially heavy." Alabama Power Co. v. Costle, supra, 636 F.2d at 357-60; Env. Def. Fund v. Env. Prot. Agency, supra, 636 F.2d at 1383.

A considerable showing has been made by defendants of the difficult and time-consuming steps that go into regulating radionuclides. See affidavits and declarations in opposition to plaintiffs' motion. However, defendants have not sufficiently shown (1) an express complexity exception to the statute; (2) why much of the necessary regulatory groundwork was not done prior to listing radionuclides on the List of Hazardous Air Pollutants; i.e., before the statutory time periods of § 7412 were triggered; or (3) why even proposed regulations and a hearing have not been issued and held more than a year and a half after the deadline for doing so.

In the cases recognizing administrative impossibility as a justification for avoiding the requirements of a statutory deadline, the courts have required the government agency to substantially comply with the law as best it could.Natural Resources Defense Council, Inc. v. Train, supra, 510 F.2d 692, 712-13. Here, the EPA has failed to publish any proposed regulations as to even some of the different types of radionuclides.

Defendants rely upon The Group Against Smog and Pollution, Inc. v. United States Environmental Protection Agency (Group Smog, supra, slip opinion, for the proposition that imposibility may relieve the EPA from its duty to comply with the Clean Air Act's time limits. It is true that in Group Smog the Distric of Columbia Court of Appeals refused to "secondguess the agency's judgment concerning the time necessary to study the developing technology" of certain air pollution controls and to "issue regulations that reflect that technology." Slip opinion at 15-16 n.68. However, even in Group Smog, the court had ordered the agency to submit its own timetable for promulgating regulations. Ibid. The court declined to impose a schedule of its own because it concluded that the agency's timetable did not "appear to be unduly protracted." Ibid. Plaintiffs in the case at bar are merely requesting at this time what was ordered in Group Smog: that the EPA submit its own proposed timetable for promulgating regulations. Certainly after one and half years the agency should have a definite idea of how much additional time will be needed for it to comply with the statute.

Plaintiffs are not demanding that the EPA comply with the statute in full immediately; they are merely seeking a declaration that the EPA has a statutory duty that it is not presently fulfilling, along with an order directing the agency to immediately issue a proposed schedule for its compliance with the law, and to meet with all parties to see if an agreement can be reached, with court approval, on a reasonable final schedule. Or, failing in that, that the court be notified so it can conduct an additional hearing to establish such a schedule.

The defendants contend finally that merely injecting an impossibility defense into this action raises an issue of fact as to the reasonableness of the EPA's delay which precludes summary judgment.

This contention is not persuasive. The EPA is not asserting that it will be forever impossible for it to issue regulations for radionuclides; only that it was impossible for it to do so within the time period established by the Act. Since plaintiffs seek, at this time, only to force the EPA to develop a reasonable schedule for proposing the regulations and for holding the required public hearing, it cannot be said that it is impossible for the EPA to do that much.

Only if the parties cannot agree on a timetable, and if the court must determine what is a "reasonable" schedule, will the actual difficulties of regulating radionuclides and the impossibility of performing within a certain period of time become factual issues.

The motion for partial summary judgment is granted and the EPA is directed to issue a proposed schedule for compliance with the Act within thirty (30) days. Dated: March 8, 1982.

Order

This matter having come before the court, Honorable William T. Sweigert, United States District Judge, presiding, and the issues having been duly presented, and a Memorandum of Decision having been duly rendered and filled herein,

IT IS HEREBY ORDERED that plaintiffs' motion for partial summary judgment is granted; and it is further ORDERED, ADJUDGED and DECLARED that:

1. The Clean Air Act, 42 U.S.C. § 7412, imposes a mandatory, non-discretionary duty upon the Environmental Protection Agency ("EPA") to issue proposed radionuclide emission standards or alternative controls together with a notice of public hearing thereon, within 180 days of the listing of radionuclides as hazardous air pollutants, which occurred on November 8, 1979;

Order Granting Partial Summary Judgment

2. Defendant EPA is in violation of its statutory duty pursuant to the Clean Air Act because it has failed to issue proposed radionuclide emission standards or controls within the required time period;

3. Defendants are directed to prepare and transmit to the other parties a specific proposed schedule for issuing proposed radionuclide emission standards or alternative controls and conducting rulemaking hearings thereon as required by § 112 of the Clean Air Act, 42 U.S.C. § 7412, within thirty (30) days from the entry of this Order;

4. Within forty-five (45) days from the entry of this Order, the parties shall confer to determine whether they can agree upon a schedule. Upon such agreement, the parties shall submit a stipulation which sets forth the schedule for this court's approval and entry of a further order thereon;

5. In the event the parties cannot agree on such a schedule, they shall so advise the court by motion or otherwise. The court shall then conduct an additional hearing, if necessary, and take such additional action as is appropriate;

6. This court shall retain jurisdiction over this matter until the defendants have complied with the terms and conditions of this partial judgment.

1. The listing was not published in the Federal Register until December 27, 1979, but the actual notice of listing is dated November 8, 1979. 44 Fed. Reg. 76738 (1979).

2. Since defendant and the intervenors join in their opposition to plaintiffs' motion, all further references to "defendants" will refer to either the EPA or one of the intervenors, or some combination thereof.