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13 ELR 20400 | Environmental Law Reporter | copyright © 1983 | All rights reserved Luckie v. GorsuchNo. CIV-81-573-GLO-RMB (D. Ariz. February 25, 1983)The court dismisses Clean Air Act, Resource Conservation and Recovery Act (RCRA), and Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) claims against the Environmental Protection Agency (EPA) pressed by residents of a community developed on top of an asbestos dump. The court first holds that the citizen suit provisions of the Clean Air Act and RCRA give it jurisdiction only if EPA has failed to perform mandated duties. The court then considers plaintiff's Clean Air Act enforcement claims, but holds that each claim either involves an action under EPA's discretion or involves facts that plaintiffs failed to allege. The court holds enforcement under Clean Air Act § 113(a)(1) to be almost wholly discretionary. Plaintiffs failed to allege facts under § 113(a)(2) that would require EPA to take over the state's enforcement role. And the plaintiffs failed to allege facts that would require EPA to regulate the source in question as a major stationary source under § 113(b). The court next considers plaintiffs' claims thaty EPA has failed to promulgate valid asbestos emission standards under Clean Air Act § 112. The court holds that while a district court may rule on whether EPA in fact has promulgated an emission standard, it may not otherwise rule on the standard. The regulation in question is an emission standard, and plaintiffs' challenge to the appropriateness of that standard is a claim that under § 307 must be brought in the D.C. Circuit within 60 days of promulgation. Turning to plaintiffs' RCRA claims, the court holds that all the acts plaintiffs claim EPA failed to do are discretionary. The court refuses to order EPA to do a progress report on the study called for by RCRA § 8002(f). The court rules that RCRA § 3001(b)(3)(A)(ii) allows EPA temporarily to delay promulgation of hazardous mining waste regulations. And the court holds that enforcement of RCRA is generally discretionary. Turning to plaintiffs' CERCLA claims, the court holds that CERCLA does not authorize citizen suits or suits for injunctive relief against EPA. Alternatively, the court holds that implementation of specific remedial programs under CERCLA is within EPA's discretion. The court concludes that since all plaintiffs' federal claims are groundless, the court lacks jurisdiction. However, the court grants plaintiffs leave to amend their complaint to allege additional facts that could establish a cause of action under the Clean Air Act. Counsel for Plaintiffs Counsel for Defendants Don Overall, Ass't U.S. Attorney Todd Gulick Bilby, J.: This is a Motion to Dismiss claims against the Environmental Protection Agency (EPA) and its administrator, Anne Gorsuch. Plaintiffs seek relief from the EPA for damages which resulted from the development of a residential community atop an asbestos dump site.Plaintiffs make various claims, the essence of which is that the EPA has failed to enforce various environmental laws, resulting in damages to plaintiffs property. Plaintiffs state ten claims in their complaint: Clean Air Act (CAA) 1. Failure to enforce CAA regulations governing emissions from asbestos mills. 2. Failure to promulgate valid emissions standards. Resource Conservation and Recovery Act (RCRA) 3. Failure to mandate compliance with the RCRA permit requirements. 4. Failure to take action against Defendant owner/operators. 5. Failure to enforce RCRA regulations requiring financial responsibility and continuity of operations. 6. Failure to regulate asbestos as a hazardous waste. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 7. Failure to take remedial or enforcement action with regard to the situation at the Mountain View Mobile Home Estates. 8. Failure to promulgate guidelines under Section 106 of the CERCLA. 9. Failure to establish a board of Arbitrators. 10. Failure to establish an Agency for Toxic Substances and Disease Registry and a National Registry of Serious diseases and injuries. In addition, the plaintiffs also seek relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, and Federal Question Jurisdiction, 28 U.S.C. § 1331. The plaintiffs seek enforcement of the CAA and RCRA under the citizen suit provision of those statutes. These provisions allow citizens to bring suits: against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. (emphasis added). See CAA, § 7604(a)(2); RCRA, § 6972(a)(2). This court has jurisdiction to compel the EPA Administrator to perform acts which are mandated by the statute. [The citizen suit provisions also allow citizens to sue the U.S. where it has violated any permit, standard, regulation, order, etc. See CAA, § 7604(a)(1); RCRA, § 6972(a)(1). However, plaintiffs do not make such a claim, nor do they state facts which would support one]. EPA argues the acts complained of in this suit are discretionary with the administrator, hence, this court has no jurisdiction to hear these claims. Citing City of Seabrook v. Costle, 659 F.2d 1371 [11 ELR 21068] (5th Cir. 1981). Plaintiffs claim "The defendant EPA Administrator has negligently or intentionally failed and refused to comply with mandatory duties placed upon her . . . ." Bell v. Hood, 327 U.S. 678 (1946), held that where the question of jurisdiction is intertwined with the plaintiff's cause of action, the court has jurisdiction to determine whether the plaintiff's case states a claim. In Bell the plaintiffs alleged facts, which if true, would have been violations of his fourth and fifth amendment rights. However, the plaintiff sued for damages (a Bivens claim, but long before such claims were recognized). The district court dismissed the action for want of jurisdiction. The Supreme Court reversed. It held that the complaint alleged violations of the constitution, thus, the court had jurisdiction. The only question remaining was whether the facts as alleged stated a cause of action. The case at bar is similar. To the extent the plaintiff alleges the EPA has failed to perform its mandated functions, the court has jurisdiction under CAA, § 7604(a)(2) and RCRA, § 6972(a)(2). Therefore, this court has jurisdiction to determine whether the facts alleged state a claim upon which relief can be granted, i.e., do the facts, as stated, indicate mandatory duties. On the other hand, the case law indicates this court has no jurisdiction to review any decision of the administrator once she has exercised her discretion. See City of Seabrook v. Costle, supra, 659 F.2d 1371; Wisconsin Environmental Decade, Inc. v. Wisconsin P & L Co., 395 F. Supp. 313 (W.D. Wis. 1975). Therefore, this court has jurisdiction to determine whether facts as alleged indicate the EPA failed to perform mandatory duties, but has no jurisdiction to review discretionary decisions of the EPA, even if an abuse of discretion is alleged. The plaintiff makes two claims under the CAA. First, the EPA has promulgated regulations pursuant to CAA, § 7412(b), but has failed to enforce them. Alternatively, plaintiff claims, the regulations promulgated under § 7412(b) are not valid emissions standards since these regulations do not set forth quantifiable limits on the release of asbestos. Hence the EPA has failed to comply with § 7412(b). In Count II the plaintiff claims jurisdiction under CAA, § 7412. This section directs the EPA Administrator to list hazardous air pollutants and establish standards and regulations for their control. See 42 U.S.C. § 7412(b). The act prohibits, with some exceptions, non-compliance with such standards. Plaintiffs allege that standards have been established and regulations promulgated under § 7612, citing 40 C.F.R. § 60.21 et. seq. Plaintiffs also allege the EPA has failed to enforce these regulations; the defendant developers and asbestos companies having violated these regulations. The actual jurisdictional basis for this action is not § 7412, but the citizen suit provisions of § 7604(a). Section 7604(a) allows a citizen to bring an action in District Court against: (1) violators of emission standards, or state or EPA orders, CAA, § 7604(a)(1); or (2) the EPA for failure to perform a mandatory duty, CAA, § 7604(a)(2); or (3) persons who are involved in the construction of a major emitting facility without the proper permits, or in violation of permit conditions, CAA, § 7604(a)(3). It is not alleged that the EPA has violated parts (1) or (3) of § 7604, nor are facts alleged which would support such an allegation. The essence of plaintiffs claims is that the EPA has failed to enforce the standards and regulations promulgated under § 7412, and this duty is mandatory. The EPA's duties regarding the enforcement of the CAA are set forth in § 7413(a) and (b). Sections 7413(a)(1) and (2) delineate the EPA duties where the state has enacted an EPA approved State Implementation Plan (SIP), but has failed to enforce it. Section 7413(a)(1) provides a mechanism for EPA enforcement of an SIP against an individual violator. Section 7413(a)(2) allows the EPA to enforce the SIP where violations are so widespread that it indicates the state has failed to enforce the plan. These sections recognize that while a state may enforce its own environmental laws under an EPA approved SIP, the EPA still has ultimate responsibility to enforce the CAA. In addition, section 7413(a)(3) provides a mechanism for EPA enforcement of the RCRA against an individual violator where there is no state plan (i.e., where the EPA is directly responsible for RCRA enforcement). Finally, section 7413(b) provides the EPA with enforcement procedures for dealing with violations by owners or operators of major stationary sources. In order to determine whether such duties are mandatory or discretionary it is necessary to examine the wording of the statute. Where such wording is unclear or ambiguous, it will be necessary to look at the purpose of the statute and the legislative history. See Sierra Club v. Train, 557 F.2d 485 [7 ELR 20670] (5th Cir. 1977); Manatee County, Florida v. Train, 583 F.2d 179, 182 [8 ELR 20851] (5th Cir. 1978). 1. SIP Compliance of Individual Violators Section 7413(a)(1) applies where there exists an SIP, and an individual has violated the plan. This section provides a procedure so the EPA can secure compliance with the state plan should the state-fail to undertake enforcement. The section provides: Whenever, on the basis of any information available to him the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such [13 ELR 20402] finding. [After thirty days] . . . the Administrator, may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b) of this section. (Emphasis Added). The plaintiffs argue that this section imposes three mandatory duties on the EPA. First, the EPA is required to make a finding of a violation if presented with evidence of such a possibility. Second, if the EPA finds a violation, it must issue a Notice of Violation to the violator (and the State). Third, the EPA must order compliance or start a civil action to enforce the plan (i.e., EPA can do either, but one option is required), citing Wisconsin Environmental Decade, Inc. v. Wisconsin Power & Light, 395 F. Supp. 313 (W.D. Wis. 1975) [hereinafter cited Environmental Decade]. In Environmental Decade the defendant Utility Co. (WPL) was given permission to add a coal burning boiler to increase its power generating capability. Plaintiffs alleged the burning of coal would result in excessive sulfur dioxide emissions in violation of Wisconsin's State Implementation Plan (SIP).The state, nevertheless, approved the project and issued the appropriate permits. The plaintiffs notified the EPA that the WPL was in violation of Wisconsin's SIP and requested EPA to issue notices of violation. The EPA, however, felt no action was appropriate at the time. The plaintiff then sued the EPA, among others, to require them to enforce the CAA and Wisconsin's SIP. The EPA argued that its duty to give notice of the State Plan violations was discretionary. Furthermore, even if such a duty were not discretionary, the duty would not arise until the EPA made a finding that a violation existed, and no such allegation was ever made. Environmental Decade first concluded that once the EPA finds a violation, the duty to issue a notice of such a violation is mandatory. 395 F. Supp. at 317. The court distinguished between the EPA's duty to notify violators when a violation was found, and their duty to order compliance or initiate a civil action. Since the statutory language provided that the EPA shall issue notices of violation, such a duty was mandatory. The court discounted EPA's authority regarding prosecutorial discretion. The court noted "the relief sought is not a prosecution or enforcement action, with all their attendant commitment of governmental resources, but rather the issuance of a notice of violation." 395 F. Supp. at 318. See also New England Legal Foundation v. Costle, 475 F. Supp. 475 [10 ELR 20438] (D. Conn. 1979); Kentucky ex rel. Hancock v. Ruckelshaus, 497 F.2d 1172 [4 ELR 20484] (6th Cir. 1974) [In an action against the EPA to have the administrator require Federal governmental agencies who were operating facilities to comply with state permit regulations, the court determined that the EPA was required to issue notices of violations (under § 7413(a)(1))]. Thus, there is a mandatory duty to issue a Notice of Violation. The notice of violation is mandated only after the EPA finds a violation. The question is whether this duty to find a violation is itself mandatory or discretionary. Environmental Decade held that the "Administrator is obligated to make a finding when information regarding a violation is presented to him." 395 F. Supp. at 320. The court reasoned that if Congress intended to make the duty to issue a notice mandatory, it would not make such a duty an empty one by allowing the Administrator to make, or not make, a finding as he saw fit. City of Seabrook v. Costle, 659 F.2d 1371 [11 ELR 21068] (5th Cir. 1981) reached a different conclusion, holding the duty to make a finding was discretionary with the Administrator. The court noted: The language of neither § 113 [§ 7413(a)(1)] nor any other section of the statute imposes a mandatory duty on the Administrator to make a finding everytime some information concerning a possible violation of a SIP is brought to his attention. In absence of a clear statutory mandate, we decline to impose such as duty on the Administrator. Id. at 1374. Seabrook specifically rejected the Environmental Decade view for two reasons. First, Environmental Decade itself recognized that neither the language of the statute, nor the legislative history clearly support a mandatory duty to make findings. Secondly, this view minimized the importance of prosecutorial discretion. Seabrook gave a heavy emphasis to the idea that the EPA has almost absolute discretion in initiating enforcement proceedings. Seabrook viewed the "finding" stage as part of this enforcement aspect of the EPA's function. See also New Mexico Citizens v. Train, 6 ERC 2061, 2065 (D.N.M. 1974) [The court held it could not compel the EPA to make a finding of violation. The court noted that § 7413(a)(1) requires the Administrator to issue a Notice of Violation only if he finds a violation exists, but there is no mandatory duty to find a violation]. This court finds the reasoning of Seabrook more compelling than that of Environmental Decade. The EPA has no mandatory duty to make a finding of a violation. The administrator's duty to enforce the CAA, and its emission standards and regulations has been uniformly held to be discretionary. See Hancock v. Ruckelshaus, supra, 497 F.2d at 1177; New England Legal Foundation, supra, 475 F. Supp. at 433 ["once a Notice of Violation has been issued, the decision to proceed further is discretionary with the EPA, and is not subject to review"]. Environmental Decade, supra, 395 F. Supp. at 317, 319, is also in line with this view. Therefore, even if the EPA had found a violation and gave notice to violators and the state, the decision to take further enforcement action (i.e., issue an order of compliance or commence a civil action) is within the discretion of the EPA administrator. Plaintiffs' complaint fails to allege that Arizons has a plan to implement the CAA and its regulations. Nor do they allege that the defendant developers or asbestos companies violated such a plan. [However, plaintiffs did indicate in pleadings requesting Reconsideration of the Denial of CAA claims against Defendant Sarn, that they had information which indicated Arizona had such a plan and failed to enforce it]. Nevertheless, plaintiffs fail to allege that: (1) EPA was provided sufficient information from which it could base a finding that a violation of a state implementation plan existed; (2) EPA failed to make a finding of a violation; or (3) the EPA failed to issue a notice of a violation. The plaintiff does allege the EPA promulgated emission standards under § 7412(b), but failed to enforce them. This enforcement duty falls more appropriately under § 7413(a)(3), infra. Section 7413(a)(2) provides a means by which the EPA can take over the enforcement of a state implementation plan where the administrator finds violations of the SIP so widespread as to indicate a state failure to enforce its SIP. This section is inapplicable to the facts as alleged in this case.It is intended to allow the EPA to enforce a state plan after giving notice to the state of its failure to enforce the SIP. 1970 U.S. CONG. CODE AND ADMIN. NEWS 5356, 5380. The plaintiff has failed to allege that violations of a state plan were so numerous as to indicate the State had failed to enforce it. Therefore, no claim is stated under this section. Section 7413(a)(3) applies where the EPA is directly responsible for enforcing the RCRA. It allows the EPA to take enforcement action against violators of emission standards. The section provides: (3) Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of . . . Section 7412(c) of this title [relating to standards for hazardous emission], . . . he may issue an order requiring such a person to comply with such section or requirement, or he may bring a civil action in accordance with subsection (b) of this section (emphasis added). This section appears to be directly applicable to the circumstances in this case. The legislative history notes that: In case of a violation of . . . a Federal emission standard for hazardous pollution emission standard for hazardous pollutants, the Administrator may enforce such standards either through an order requiring any violator to comply orby bringing court action against any violator. (Emphasis added). 1970 U.S. CODE CONG. AND ADMIN. NEWS at 5380. The plaintiff has alleged (1) the EPA promulgated emission standards and (2) they have failed to enforce them. The question is whether the duty to enforce is a mandatory one. The duty to enforce is discretionary with the Administrator for the reasons discussed, supra. The only question here is whether the duty to make a finding of a violation is mandatory. CAA, § 7413(a)(3) does not impose a duty to give notice. Thus, the "duty" to make a finding of a violation is also within the discretion of the Administrator. Section 7413(b) provides special procedures for enforcing the RCRA or state implementation plans as against the owners and operators of major stationary sources. A "major stationary source" is one "which emits or has the potential to emit one hundred tons per year" of any air pollutant. CAA, 42 U.S.C. § 7602(j). The section provides: (b) The Administrator shall, in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty . . . whenever such person — [violates any requirement of an applicable SIP, or violates RCRA, § 7412(c)]. CAA, 42 U.S.C. § 7413(b) (emphasis added). "[U]se of the word 'shall' generally indicates a mandatory intent unless a convincing argument to the contrary is made." Sierra Club v. Train, supra, 557 F.2d at 489. Extrinsic aids can be helpful, such as looking at the purpose of the statute, its language as a whole or its legislative history. Id. [Sierra Club went on to conclude that the word "shall" denoted discretionary duties of the EPA administrator in enforcing the FWPCA. However, in that case the legislative history of the FWPCA indicated that the wording in the statute was a compromise between the house and senate versions. The conference committee adopted the more discretionary version of the enforcement provision]. The EPA does not indicate any similar legislative history with regard to CAA, § 7613(b). In fact, the Congress specifically chose to treat major stationary sources differently from other violators in prescribing civil penalties against them. This section was amended to its present form in 1977, Pub. L. 95-96, § 111(b). The section's predecessor provided that the Administrator "may commence a civil action for appropriate relief . . . whenever any person" was in violation of the provisions listed, supra. This indicates Congress' intent to require the actions set forth in § 7413(b). However, plaintiffs' complaint does not make any allegatons that: (1) the asbestos plant is a major stationary source and (2) it violated a state implementation plan (or federal attempt to enforce it as required by § 7413(a)(2)), so the court does not have jurisdiction over claims under § 7413(b). B. Failure to Promulgate Emission Standards Plaintiffs allege that the EPA failed to promulgate "valid Emissions Standards governing the release into the atmosphere of asbestos fibers." Plaintiffs' First Amended Complaint, Count II, P XI. The EPA contends it has promulgated such standards. See 40 C.F.R. § 60.22, 38 Fed. Reg. 48299 (April 6, 1973), 39 Fed. Reg. 15398 (May 3, 1974); 40 Fed. Reg. 48299 (Oct. 14, 1975). Plaintiffs argue these regulations do not set forth quantifiable limits, so they are not emission standards, citing Adamo Wrecking Co. v. United States, 434 U.S. 275 [8 ELR 20171] (1978). Plaintiffs also argue that since no emissions standards have been promulgated, dispite a mandatory duty to so, this court has jurisdiction under § 7604(a)(2). The EPA notes that under CAA, § 7607(b)(1), any review of actions by the administrator in promulgating emission standards [including those under § 7412] "may be filed only in the United States Court of Appeals for the District of Columbia." (emphasis added). Petitions must be filed within sixty days from the promulgation of a standard. Id. The D.C. Circuit has exclusive jurisdiction to review challenges to any of the administrator's actions covered by § 7607. Getty Oil Company v. Ruckelshaus, 467 F.2d 349, 356 [2 ELR 20683] (3rd Cir. 1972), cert. denied, 409 U.S. 1125 (1973). Furthermore, the district courts lack jurisdiction to review such challenges. See Harrison v. PPG Industries, Inc., 446 U.S. 578 [10 ELR 20353] (1980); Kennecott Copper Corp. v. Costle, 572 F.2d 1349 [8 ELR 20373] (9th Cir. 1978); Lubrizol Corp. v. Train, 547 F.2d 310 [7 ELR 20106] (6th Cir. 1976); Utah Power & Light Co. v. EPA, 553 F.2d 215 [7 ELR 20197] (D.C. Cir. 1977); City of Highland Park v. Train, 519 F.2d 681 [5 ELR 20408] (7th Cir. 1975), cert. denied, 424 U.S. 927 (1976). The reason is simple: by centralizing appeals in the District of Columbia within a limited time period, Congress hoped to avoid useless delays in the implementation of important national programs caused by incessant litigation and inconsistent decisions. Lubrizol Corp. v. Train, supra, 547 F.2d at 315. Plaintiffs do not dispute the law or analysis, supra. They do argue this court can determine whether the regulations are in fact emission standards. If not, the EPA has failed to comply with their mandatory duty to promulgate such standards under § 7412, and this court can order the EPA to do so. In Adamo Wrecking Co. v. United States, supra, 434 U.S. 275, the EPA filed criminal charges against the defendant under 42 U.S.C. § 1857c-8(c)(1) [now 42 U.S.C. § 7413(c)(1); failure to comply with an "emission standard"]. The EPA alleged the Defendant demolished a building containing asbestos without following the "work practice" procedures as set forth in § 60.22(d)(2) [specifying "procedures to be followed in connection with building demolitions, but ]did[ not by its terms limit emissions of asbestos which occur during the course of a demolition." Adamo, supra, 434 U.S. at 277]. The defendant raised the defense that this regulation was not an "emission standard." While the district court agreed with this argument and dismissed the indictment, the court of appeals reversed holding that a challenge to an admissions [sic] standard could only be made in the court of appeals, citing CAA, § 7607. The Supreme Court agreed with the district court, and reversed the court of appeals. Adamo noted that a violation of an emission standard was an element of the crime. Congress established a variety of civil and criminal penalties for violations of the CAA, with the most stringent criminal penalties associated with the violations of emission standards (as opposed to a violation of an EPA order or state implementation plan, etc.). The court reasoned that because congress precluded the review of emission standards, it was important to determine whether or not a regulation was an emission standard. In other words, while a criminal defendant could not raise as a defense that an emission standard was inappropriate, ineffective or unfair, a defendant could seek a determination that a regulation was not an emission standard, hence, not the proper basis for criminal prosecution. The court also cautioned district courts not to engage in judicial review of emission standards, as precluded by § 7607, under the guise of trying to determine whether or not a regulation was an 'emission standard.' The narrow inquiry to be addressed by the court in a criminal prosecution is not whether the Administrator has complied with appropriate procedures in promulgating the regulations in question, or whether the particular regulation is arbitrary, capricious or supported by the Administrative record.Nor is the court to pursue any of the other familiar inquiries which arise in the course of an administrative review proceeding. The question is only whether the regulation which the defendant is alleged to have violated is on its face an "emissions standard" within the broad limits of the congressional meaning of the term. Adamo Wrecking, supra, 434 U.S. at 285. Thus, the plaintiffs argue that they are not seeking a review of the validity of the regulations in question, rather they seek determination that these regulations are not "emission standards." The Supreme Court defined an emissions standard as a "quantitative 'level' to be attained by the use of 'techniques', 'controls' and 'technology,'" Adamo, supra, 434 U.S. at 286. The court's holding that a "work practice" regulation is not an emission standard may be distinguished from the case at bar. The regulation in Adamo set forth procedures to be followed in the demolition of a building containing asbestos. The regulation did not specify and levels or limits on the amount of asbestos that could be released, but only described procedures to be taken when demolishing a building containing asbestos. Again, the court did this because violation of an emission standard was an element of the crime that the defendant was charged with. In this case, the EPA argues it has set a quantitative level for asbestos emissions, so the regulations promulgated under § 7412 are emission standards.Section 61.22 sets forth a number of regulations regarding standards for asbestos emissions. Subsection (a) provides "(a) Asbestos Mills: there shall be no visible emissions to the outside air from any asbestos mill." [Oneexception is allowed where an owner or operator elects to clean emissions containing particulate asbestos according to methods described in § 61.23]. The EPA argues the quantitative standard has been set; it is no visible emissions. The plaintiff argues this is not an emissions standard because it is not quantifiable. However, there is a limit set, "no visible emission." What the plaintiffs really contest is that this standard alone is inadequate in that it does not cover invisible asbestos particulate. However, the question of whether the regulation is sufficient can only be considered by the D.C. Court of Appeals. Therefore, this portion of the complaint is dismissed because (1) the regulation in question is an emission standard, and (2) this court has no jurisdiction to review regulations promulgated under § 7412. Resource Conservation and Recover Act (RCRA) Plaintiffs claim EPA has several mandatory duties: (a) Prepare a comprehensive study on the adverse effects of solid waste from mines. (b) Promulgate regulations establishing performance standards applicable to owners and operators of facilities dealing with hazardous wastes [this includes (a) taking into account various factors and characteristics in promulgating criteria to identify hazardous wastes, and (b) listing asbestos as a hazardous waste within the meaning of § 6903(5) (Plaintiffs wish to produce evidence showing asbestos is a "hazardous waste")]. (c) Enforce various provisions of the RCRA. For the reasons set forth, infra, the plaintiff fails to state a claim. The Administrator is directed to "conduct a detailed and comprehensive study on the adverse effects of solid wastes from active and abandoned surface and underground mines on the environment, . . ." RCRA, 42 U.S.C. § 6982(f). This report is not due until October, 1983. Id. Evidently, the plaintiff wants a progress report. Plaintiff argues that EPA has two distinct mandatory duties to (1) investigate and study the subject of the report, and (2) publish its findings no later than October, 1983. Plaintiff wants a judicial determination that the EPA is preparing its investigation and study. Separation of powers prevents this court from telling an administrative agency how to do its job, so this claim is dismissed. B. Failure to Promulgate Regulations Plaintiffs claim the EPA failed to promulgate various regulations to (1) identify and list asbestos as a hazardous waste (under § 6921) and (2) establish performance standards applicable to owners and operators of facilities dealing with such wastes (under § 6924). EPA argues the need for such regulations is premature. Subchapter III of the RCRA, entitled Hazardous Waste Management, contains several interrelated provisions. See RCRA, §§ 6921, 6924 and 6982. RCRA, § 6924 provides that the EPA Administrator "shall promulgate regulations" which establish performance standards applicable to facilities dealing with hazardous wastes. (Emphasis added). RCRA, § 6903(5) defines hazardous waste as a solid waste which may (a) cause or contribute to an increase in mortality or serious illness; or (b) which poses a substantial hazard to human health or the environment. Plaintiffs argue that asbestos is a hazardous waste, and then seek to produce evidence showing that asbestos falls within this definition. RCRA, § 6921(b) also provides "the Administrator shall promulgate regulations identifying the characteristics of hazardous wastes." The EPA is also to list particular hazardous wastes (within the meaning of § 6903(5)). RCRA, § 6921(b)(1). However, this section identifies several exceptions, including: "Solid waste for the extraction, beneficiation, and processing of ores and mineral, including phosphate rock and overburden from the mining of uranium ore." RCRA, § 6921(b)(2)(A)(ii). The exception is to continue until six months after the study required under § 6982(f) is completed and submitted to Congress. Wastes within the exception "subject only to regulations under other applicable provisions of Federal and State Law." RCRA, § 6921(b)(3). This section recognizes the importance of the study of waste from ore and mineral mines as a prerequisite to the promulgation of regulations to deal with such wastes. Plaintiffs respond with four arguments. First, the question of whether the asbestos purchased by GSA from the asbestos companies is within the scope of the exception in § 6921(B)(3)(ii) is a question of fact (not proper for a motion to dismiss). However, plaintiffs allege this fact in their complaint. General Allegations, P IX. In fact, they argue that the EPA has a mandatory duty to prepare a study under § 6985 precisely because asbestos falls within the provision. The EPA agrees (they only argue the study is not due until October, 1983). Second, Plaintiffs argue that the exception in § 6921(B)(3)(A)(ii) does not "preclude or even affect the obligation of the administrator to list hazardous wastes" under § 6921(B). Plaintiffs cite no authority for this proposition, nor does the legislative history support this theory. The plain language of the statute indicates, that congress wanted the studies complete before the EPA prepared its regulations identifying the characteristics of hazardous wastes from ores and mineral sources. It is logical to assume that congress would want the study's findings to be incorporated in the promulgated regulations. Furthermore, congress provided that wastes listed in § 6921(b)(3)(A)(ii) are subject to the provisions of other federal and state laws, so solid wastes will not be left unregulated. Third, plaintiffs argue the meaning of § 6921(b)(3) is one of statutory construction and not subject to a motion to dismiss, i.e., this court is asked to take evidence (in a trial setting) about the meaning of this provision. This theory is unique and invalid. Statutory construction is a question of law. This court can intrepret the statute without a trial. Finally, plaintiffs argue that whether asbestos material is a "solid waste" is a question of fact. Plaintiffs' Response, at 38. This argument has no merit; if asbestos is not a solid waste, it is not covered by the RCRA. Plaintiffs also argue that EPA acknowledged a duty to prepare and enforce regulations regarding asbestos when it filed a complaint in the District Court of New Hampshire (No. 81-299-D). In that case, the EPA claimed, inter alia, that an asbestos dump site "may present an imminent and substantial endangerment to health and welfare and the environment." Complaint, at 6, P23. The complaint further alleged that asbestos was a hazardous waste as per § 6903(5). This, plaintiff argues, proves that the EPA recognizes asbestos as a hazardous waste, so it must promulgate and enforce regulations to deal with asbestos. However, as pointed out, supra, § 6921(b)(3) provides that until the required studies are completed, the EPA may regulate solid wastes from ore and minerals through other federal and state law. The EPA excercised its discretion in enforcing a perceived violation under § 6973. The decision to undertake this enforcement action is within the discretion of the EPA. See Discussion, infra. The exercise of that discretion in one case does not mandate its exercise in this case. Therefore, these claims are dismissed. Plaintiffs make several allegations in their complaint regarding EPA's failure to enforce the RCRA: (1) Failure to regulate asbestos as a hazardous waste. (2) Failure to require financial responsibility and continuity of operations as required by the RCRA regulations. (3) Failure to mandate compliance with RCRA permit requirements. (4) Failure to take action against defendant asbestos companies and site developers. The first duty is dependent upon the completion of the study as required by RCRA, § 6982(f). See Discussion, supra. The other duties are said to stem from §§ 6928(a) and 6973. Section 6928(a) provides, inter alia: COMPLIANCE ORDERS. — (1) . . . whenever on the basis of any information the Administrator determines that any person is in violation of any requirement of this subchapter, the Administrator may issue an order requiring compliance . . . or the Administrator may commence a civil action . . . for appropriate relief, including a temporary or permanent injunction. Plaintiffs argue that this section is similar to CAA, § 7413(a)(1), and requires that the EPA make a finding, either negative or positive, that a violation occurred under the RCRA, citing Environmental Decade, supra, 395 F. Supp. 313. However, as indicated in the discussion, supra, section 7413(a) does not impose a duty upon the EPA Administrator to make a finding that a violation occurred under the RCRA. Even if it did, the language in § 6928(a) is very different from that of § 7413(a)(1). Section 7413(a)(1) requires the administrator to issue a "Notice of Violation" if "on the basis of information available to him the administrator finds that any person is in violation" of an implementation plan (emphasis added). Environmental Decade held this language indicated an implicit mandatory duty to make a finding of a violation. Contra, City of Seabrook, supra, 659 F.2d 1371; New Mexico Citizens v. Train, supra, 6 ERC 2061. This language is not present in RCRA, § 6928(a). Section 6928(a) gives the EPA Administrator the discretion to order compliance or commence a civil suit if the Administrator has any information to indicate a violation exists. There is no duty to issue notice nor language requiring a finding. Another section giving the EPA authority to enforce the RCRA is § 6973. This section provides: . . . [U]pon receipt of evidence that the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court to immediately restrain any person contributing to such handling, storage, treatment, transportation, or disposal or to take such other action as may be necessary. (Emphasis added). The language of this section indicates a discretionary duty to bring an action to abate or enforce an "imminent and substantial endangerment." These claims are dismissed, since they are based upon a discretionary function of the EPA. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) In count XI of plaintiffs First amended complaint, Plaintiffs make four claims against the EPA: (1) failed to take remedial or enforcement actions with regard to the situation at the Mountain View Estates, (2) failed to promulgate the appropriate regulations, (3) failed to establish a board of arbitrators, (4) failed to establish an agency for Toxic Substances and Disease Registry and a National Registry of Serious Diseases and Illnesses. [Plaintiffs' response to Defendant's Motion to Dismiss allege another nine mandatory duties which the EPA failed to perform. See Plaintiffs Response, at 25. While the statutory language regarding some of these duties may indicate mandatory duties (i.e., "the Administrator shall . . ." perform some act) the plaintiff did not include these allegations in their complaint]. The nature of CERCLA indicates that a cause of action is not available to citizens for injunctive relief. Plaintiffs ask this court to mandate the defendant EPA administrator to, inter alia, declare an imminent and substantial endangerment to the public health and welfare and environment as a result of the release of asbestos particles into the atmosphere, and to take the appropriate enforcement actions against the defendant asbestos companies and site developers. The act does provide that when the President determines there exists some "imminent and substantial endangerment" to the public health and welfare, or the environment, the President "may" direct the Attorney General to "secure such relief as may be necessary to abate such danger and threat." See CERCLA, § 9606. The district court is also given jurisdiction to grant the appropriate relief. Id. However, unlike the CAA, RCRA and FWPCA, CERCLA does not contain any citizen suit provisions. Nor does the act allow suits against the Administrator for failure to execute any non-discretionary provisions of the Act. CERCLA does allow claimants to file claims against the fund. Such claims must be in accordance with the "national contingency plan" (to be established under § 9621(c)), and the cost must be approved under the plan and certified by a "responsible Federal Agent" (CERCLA, § 9611). However, the only persons liable under the act are the owners or operators of hazardous waste sites. In addition, they are only liable for damages, i.e., the cost of remedial action, the necessary cost of responding to given dangers, or damage for injury, destruction or loss of natural resources, see CERCLA, § 9607(a)(4)(A)-(C). CERCLA does not provide for injunctive relief. McCastle v. Rollins Environmental Services, 514 F. Supp. 936 (M.D. La. 1981); Bartlett Landfill, Inc. v. Comeford, 80-C-5785 (N.D. Ill. January 27, 1981). Both McCastle and Bartlett Landfill make it clear that the courts were unwilling to recognize jurisdiction under the act since "recovery is limited under the statute and there is no authorization for injunctive relief in favor of private persons." McCastle, 514 F. Supp. at 940. Even if this court were to recognize a private cause of action to compel the EPA to do its mandatory duties, such a ruling would not help the plaintiffs in this case. The duties of the EPA (on behalf of the President) to take specific remedial action is discretionary. The language of § 9606 [abatement action] leaves much room for discretion in deciding whether to seek such relief. Section 9606 provides: (a) . . . when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court . . . in which the threat occurs shall have jurisdiction to grant such relief as the public interest and equities of the case may require. In addition, it must be recognized that, while a trust of $600 million is established under CERCLA, and these monies must be used for particular purposes [see § 9611, Uses of Funds], the act does not require the use of funds on every eligible use brought to the attention of the Administrator. A federal agency has discretion in spending appropriated funds, so long as there is no explicit statutory directive on how the money is to be spent. See, e.g., United States v. Capitol Assistance Corp., 460 F.2d 256 (9th Cir. 1972), cert. denied, 409 U.S. 941; McCarey v. McNamara, 390 F.2d 601 (3rd Cir. 1968); Copland Lake Dev. Corp. v. United States, 490 F. Supp. 386 (E.D.N.Y. 1980); Sodus Central School District v. Kreps, 468 F. Supp. 884 (E.D.N.Y. 1978). Therefore, all claims under CERCLA are dismissed since the act provides no jurisdiction for citizen action or injunctive relief. See McCastle, supra; Bartlett Landfill, Inc., supra. V. The Declaratory Judgment Act, 28 U.S.C. § 2201, is only procedural. It does not confer jurisdiction, Moore v. Johnson, 582 F.2d 1228, 1231 (9th Cir. 1978); Geri-Chor Intern. v. Multisonics Dev. Corp., 580 F.2d 981, 984 (9th Cir. 1978). Nor does the act create a cause of action, Seaback v. Cullen, 224 F. Supp. 15 (N.D. Cal. 1963), aff'd, 338 F.2d 663 (9th Cir. 1964), cert. denied, 380 U.S. 972. The Mandamus Act, 28 U.S.C. § 1361, et. seq., is also not applicable to this case. "[T]o invoke § 1361 the act to be compelledmust be mandatory or ministerial and not discretionary." Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 [8 ELR 20373] (9th Cir. 1978); Short v. Murphy, 512 F.2d 374 (6th Cir. 1975); United States v. Walker, 409 F.2d 477, 481 (9th Cir. 1969). In addition, there exist alternative remedies to compel mandatory duties (under the citizen suit provisions of the CAA and RCRA) which preclude the use of § 1361. See Kennecott, supra; Carties v. Secretary of State, 165 U.S. App. D.C. 130, 506 F.2d 191 (D.C. Cir. 1974), cert. denied, 421 U.S. 947 (1975). [The acts sought to be compelled under CERCLA are within the discretion of the EPA (as delegated by the President), hence it is not covered by the Mandamus Act.] Plaintiffs claim this court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This section confers jurisdiction on federal district courts over suits arising under the Constitution, Laws or Treaties of the United States. Section 1331 does not grant jurisdiction in and of itself. To bring a case within § 1331, a "plaintiff must have a substantial claim founded directly upon federal law." Hagdorn v. Union Carbide Corporation, 363 F. Supp. 1061, 1068 (N.D. W. Va. 1973), citing Gully v. First National Bank, 299 U.S. 109, 112 (1936). Since this court has dismissed plaintiffs' claims pursuant to RCRA, CAA and CERCLA, there is no jurisdiction under § 1331. For the reasons set forth the Defendants' Motion to Dismiss is GRANTED, provided Plaintiffs shall have until thirty days from the entry of this order in which to amend their complaint regarding claims under CAA, § 7413(b), Major Stationary Sources. 13 ELR 20400 | Environmental Law Reporter | copyright © 1983 | All rights reserved |