Natural Resources Defense Council, Inc. v. Gorsuch

Nos. 2153-73, 75-0172, -1267, -1698 (D.D.C. May 7, 1982)

The court denies a motion by the Environmental Protection Agency (EPA) to modify a consent decree in proceedings pertaining to the issuance of regulations governing toxic pollutants under § 301 of the Federal Water Pollution Control Act. It concludes that EPA must be pushed to work harder, considering that the statutory compliance date for the regulations is July 1, 1984. The court orders EPA to file a schedule of suggested dates for proposing and promulgating specified sets of regulations by June 21, 1982. The schedule is to provide for promulgation of previously proposed regulations within 180 days of the court's order and for proposal of additional regulations within 180 days of the order, followed by promulgation within an additional 180 days.

[The court's decision upholding the validity of the consent decree is reported at 12 ELR 20371. EPA's motion to modify the decree is summarized at ELR PEND. LIT. 65742 — ED.]

Counsel for Plaintiffs
Ronald J. Wilson
810 18th St. NW, Washington DC 20006
(202) 628-3160

Counsel for Defendants
Barry Neuman, Donald Stever, Thomas C. Lee
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4081

Ridgway M. Hall Jr.
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Robert C. Barnard
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 828-3000

[12 ELR 20570]

Flannery, J.:

Order

This matter is before the court on Defendants' amended Cross-Motion to Modify the Consent Decree in these consolidated cases. Upon consideration of Defendants' motion and supporting affidavits and Plaintiffs' response thereto, and the Court having heard oral argument of all counsel, the court finds that at the present time the defendants have presented insufficient justification for revising the consent decree in these cases. While recognizing that the defendant agency has in fact been working under the decree since its inception, the court believes that at this point in time the EPA must be pushed to work harder. On this point, the court finds it noteworthy that the statutory compliance date for the industries affected by EPA's regulations in this area is July 1, 1984, a date which is rapidly approaching. A further consideration behind the court's decision is the fact that paragraph 8(a)(4) of the consent decree already provides a procedure whereby EPA can move to effect some of the modifications presently urged upon the court.

In making this decision, the court recognizes the need to retain flexibility in the supervision and implementation of this decree. However, at this time, the requested flexibility appears unwarranted. At this time, the court hopes that this Order will "serve like adrenalin, to heighten the response and to stimulate the fullest use of resources" at EPA; if this results in overstimulation of the agency or if other compelling circumstances indicate the need for palliative measures at some later date, then such measures can be taken by the court at that time. See Natural Resources Defense Council v. Train, 510 F.2d 692, 712 [5 ELR 20046, 20696] (D.C. Cir. 1975). As a result, it is, by the court, this 7th day of May, 1982,

ORDERED that the Cross-Motion to Modify the Consent Decree, as amended, be and hereby is, denied; and it is further

ORDERED that on or before June 21, 1982, defendants shall file with the court and serve on all counsel a schedule of suggested dates for proposing and promulgating each of the following sets of regulations; Aluminum Forming; Battery Manufacturing; Coal Mining; Coil Coating; Copper Forming; Electric & Electronic Components; Foundries; Ink; Inorganic Chemicals (Phase 1); Iron & Steel; Leather Tanning & Finishing; Metal Finishing; Nonferrous Metals (Phase 1); Ore Mining; Organic Chemicals and Plastics & Synthetic Materials; Paint; Pesticides; Petroleum Refining; Pharmaceuticals; Porcelain Enameling; Pulp & Paper; Steam Electric; Textile Mills; and Timber;¹ and it is further

ORDERED that defendants' schedule shall conform to the following restrictions:

1. All regulations previously proposed by defendants shall be promulgated as expeditiously as possible, but no later than 180 days from the date of this order,²

2. All regulations not previously proposed by defendants shall be proposed as expeditiously as possible, but no later than 180 days from the date of this order, and shall be promulgated as expeditiously as possible thereafter, but no later than 180 days following proposal,

3. In developing the most expeditious schedule possible within these restrictions, defendants shall conform their actions to the following conditions:

(a) The schedule shall contain no additional material delays for considering changes in cost data due to changes in regulations under the Resource Conservation and Recovery Act.

(b) The schedule shall contain no time (beyond that required by Agency reviews, as prescribed by condition (d), below) for reviews of any proposals or promulgations of regulations by the Office of Management and Budget under Executive Order 12291, or any delays to prepare impact assessments pursuant to E.O. 12291.³

(c) The schedule shall reflect all possible internal and external agency actions, under defendants' authority to accomplish or request, for minimizing or eliminating any material effects on the suggested dates caused by resource constraints (both funding and personnel). Defendants shall submit with their suggested schedule a report to the court describing any such constraints as well as defendants' actions and requests to remove those constraints.

(d) The schedule shall include no more than 90 days for formal agency review of each regulatory action, including Steering Committee review, Red Border review, and review by the Administrator.

(e) The schedule shall include no additional time to resolve presently unanticipated issues or problems, or to avoid clustering regulatory actions.

(f) The schedule shall reflect defendants' best efforts to resolve all outstanding technical and methodological problems that might materially delay the suggested dates otherwise developed pursuant to conditions (a) through (e); and it is further

ORDERED that for each set of regulations described in paragraphs 31 through 33 of the July 31, 1981 Affidavit of Steven Schatzow (except those regulations excluded pursuant to paragraph 8 of the Decree prior to the date of this Order), defendants shall file with the court and serve on all counsel, on or before June 21, 1982; either: (1) an affidavit justifying an exclusion under paragraph 8 of the Decree; or (2) a suggested schedule for proposing and promulgating the regulation as expeditiously as possible. In developing the most expeditious schedules possible, defendants shall conform their actions to conditions (a) through (f) prescribed in paragraph 3 of this Order.

1. From section D.6(b) of the defendants' proposed order on this motion, it appears that this Timber regulation has already been promulgated; if this is true, then, of course, defendant need not propose a schedule for its promulgation. Because it was included in the defendants' proposed order, this court has, out of an abundance of caution, decided to include it in this order.

2. This will only force the EPA to promulgate three of the thirteen currently proposed regulations in a shorter time period than the agency itself had requested. See Defendant's Proposed Order at Section D.6(b) (requested schedule for regulation proposal and promulgation).

3. The regulations at issue in this case appear, in any event, to be exempted from the strictures of Executive Order 12291. See Executive Order 12291, Section 8(a)(2), 46 Fed. Reg. 13193, 13198 (Feb. 19, 1981) (E.O. 12291 procedures inapplicable if application of same would conflict with statutory or judicial deadlines).