Sierra Club v. Ruckelshaus

No. C-84-0656 WHO (N.D. Cal. December 11, 1984)

The court holds the Environmental Protection Agency (EPA) and its Administrator in contempt for failure to regulate or delist radionuclides under § 112 of the Clean Air Act pursuant to the court's earlier order. The court first notes that since it has already decided the nondiscretionary duties imposed on the Act by EPA, the only remaining questions are whether defendants are in contempt and, if so, what must be done to remedy that situation. The court rules that EPA's withdrawal of its proposal to regulate three of four source categories does not satisfy its legal obligations. On two earlier occasions EPA argued that for pollutants for which it has proposed standards, § 112 gives it three options: promulgating final emission standards, deciding on the basis of the rulemaking record that radionuclides do not pose a health hazard, or deciding that the record was insufficient to support regulation. Both times the court rejected the third alternative as inconsistent with the clear language of the Act and ordered EPA either to promulgate final regulations or to delist the pollutant. The court rules that EPA's consistent interpretation of § 112 as offering the three options is irrelevant to the contempt citation in light of the court's clear rejection of that interpretation and the court's position as the ultimate arbiter of statutory meaning. The court rejects as incomprehensible the argument that its earlier orders were vague on this point, and as unconvincing EPA's renewed attempts to fashion an impossibility defense. The record demonstrates, the court finds, only that EPA believes that it could do a better job with more time. The court orders EPA within 30 days to promulgate final radionuclide standards for all four categories covered in the proposal or to delist the pollutant on the basis of evidence of lack of risk found in the rulemaking record.

[Other decisions in this case are published at 15 ELR 20080 and 20082. Related decisions are published at 12 ELR 20457 and 13 ELR 20231.]

Counsel for Plaintiffs are listed at 15 ELR 20080.

Counsel for Defendant
William Pedersen, Associate General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7606

[15 ELR 20101]

ORRICK, J.:

Opinion

On October 31, 1984, this Court issued an order requiring the Administrator of the Environmental Protection Agency and the Environmental Protection Agency (the "EPA") to show cause why they should not be held in contempt for failure to comply with the Court's Opinion and Order entered July 27, 1984, as amended by the court's Order of September 17, 1984 (hereinafter both referred to as the "Order"). A contempt hearing was held on [15 ELR 20102] November 21, 1984. The Court, after having carefully considered defendants' memorandum of points and authorities in response to order to show cause, the declarations of William Ruckelshaus, Administrator of the EPA, and Richard J. Guimond, an EPA staff person in charge of developing standards for radionuclides for the EPA, the parties' papers, and the oral arguments presented at the contempt hearing, hereby finds defendants in contempt of court.

The history of this suit is chronicled in detail in the Court's Opinion entered July 27 and will be briefly summarized here. In 1977, Congress determined that radionuclides pose a potentially serious health hazard, and amended the Clean Air Act, 42 U.S.C. § 7401 et seq. to require the EPA to investigate radionuclides and to determine whether or not emissions of radionuclides may reasonably be anticipated to endanger public health. 42 U.S.C. § 7422. Under the Act, once the EPA determines that a radioactive pollutant, such as radionuclides, pose a health risk, the EPA is required to list such pollutant on the "hazardous pollutant" list, and to issue emission standards on a timetable fixed by statute. See 42 U.S.C. §§ 7412, 7422.

In November 1979, the EPA issued its determination that radionuclides increase the risk of cancer, genetic damage, and death, and added radionuclides to the list of "hazardous pollutants" regulated pursuant to the Act. 42 U.S.C. § 7412. Having made that determination, the EPA was then required by statute to issue proposed regulations establishing emission standards within 180 days of listing radionuclides. See 42 U.S.C. § 7412(b)(1)(B). The EPA did not issue the proposed regulations within the 180 days prescribed by statute and in 1982 the Sierra Club sued the EPA and its Administrator to force compliance with the statutory mandate. In that suit, the court found that the EPA had failed to "perform its mandatory statutory duty to issue proposed radionuclide emission standards within 180 days of listing them as a hazardous air pollutant," and required that the proposed regulations be issued. See Sierra Club v. Gorsuch, 551 F. Supp. 786, 787 [13 ELR 20321] (N.D. Cal. 1982). The EPA finally issued proposed regulations on April 6, 1983, approximately three years after the mandatory deadline set by statute.

Once proposed regulations are issued, the Act requires the EPA to take one of two options within 180 days of issuance of the proposed regulations. The EPA must either (1) issue final standards for radionuclide emissions, or (2) make a finding on the basis of information presented at hearings during the rulemaking that radionuclides are clearly not a hazardous pollutant. 42 U.S.C. § 7412(b)(1)(B). Contrary to this mandatory scheme, the EPA failed to either issue the final standards or make the requisite finding and delist radionuclides within the 180 day time period. Plaintiff Sierra Club once more sued the EPA and its administrator in order to force the EPA to comply with the nondiscretionary duties imposed upon it by the Act. On July 27, 1984, this Court found that defendants had failed to comply with the Act, granted plaintiff's motion for summary judgment, and ordered the EPA to issue final regulations governing emission standards within 90 days.

Subsequently, the parties moved the Court to amend its July 27 Order. Defendants requested that the Order allow the EPA to either issue final emission standards or to take any other actions "permitted by law," arguing that its interpretation of 42 U.S.C. § 7412 permits the EPA a host of options not specifically provided for in the statute. Plaintiff requested that the Order be amended to allow the EPA only the two options provided for in the statute, arguing that the basis of the suit surrounded what is "permitted by law" and that the statute clearly gives the EPA only two options.

On September 17, 1984, this Court rejected defendants' expansive interpretation of the governing statute, holding that under the express, unambiguous language of § 7412, the EPA has but two options: to either issue final standards for radionuclide emissions, or find that radionuclides are clearly not a hazardous pollutant based upon the information presented at hearings during the rulemaking. The Court specifically ordered the EPA to exercise one of those two options within 90 days ofthe Court's July 27 Opinion.¹

On October 23, 1984, the Administrator of the EPA, while affirming the health risk of radionuclides, signed a Federal Register Notice announcing the EPA's withdrawal of the proposed radionuclide emission standards for three of the four categories of sources for which the EPA had proposed standards.² Withdrawal of the proposed regulations absent a finding that radionuclides clearly do not pose a health risk is not one of the options afforded the EPA under the clear language of 42 U.S.C. § 7412 or this Court's Order.

Congress divided jurisdiction to review agency actions pursuant to the Clean Air Act between the district and appellate courts.The district court may enforce nondiscretionary agency actions, 42 U.S.C. § 7604(a); the Court of Appeals for the District of Columbia may review the merits of regulations, including the risks associated with the pollutant, and the adequacy of the date before the EPA in promulgating regulations pursuant to the Act, 42 U.S.C. § 7607(b)(1). This Court's jurisdiction, therefore, is limited to determining whether the EPA has complied with the nondiscretionary duties imposed by Congress. In the Order, this Court stated in no uncertain terms what mandatory, nondiscretionary duties are imposed by 42 U.S.C. § 7412: issue final regulations or delist based upon a proper finding that radionuclides do not pose a health hazard. Under the guise of an interpretation of the pertinent statute and the Order, defendants have done neither. Therefore, the only issues presently before this Court are (1) whether defendants are in contempt of this Court's Order, and if so, (2) what actions defendants must take in order to purge the contempt.

III

Defendants admitted at the contempt hearing that Mr. Ruckelshaus, as Administrator of the EPA, did not issue final regulations or delist radionuclides based upon a proper finding. The thrust of the defendants' argument against finding them in contempt is that the Order only required that EPA "take final action" with regard to its proposed radionuclide emission standards, and that the EPA took final action on October 23, 1984, by withdrawing emission standards for three of the four emission sources.³ Mr. Ruckelshaus states that his decision to withdraw emission standards for the three sources "viewed by itself, was proper and defensible," and was supported by his legal counsel. See Ruckelshaus decl. at 8. Mr. Ruckelshaus states further that his counsel advised him that they believed that they could defend a "reading of Section 112 that would require the Administrator to make . . . either (1) a final decision to issue regulations, or (2) a final decision that no regulation were necessary, or (3) a final decision that the record would not support a decision to regulate." Id. at 9.

Regardless of whether the EPA's actions were supported by the opinions of its legal counsel, the Court finds that this argument in justification for the EPA's actions is evasive and unpersuasive. Defendants' interpretation of 42 U.S.C. § 7412, viewed by itself, is simply irrelevant. The proper interpretation of § 7412 has been the very essence of this litigation since its inception. The EPA proffered, and vigorously defended, its interpretation of the statute in opposition to plaintiff's summary judgment motion, decided on July 27, 1984, and once again as part of defendants' motion to amend, which culminated in the Order of September 17, 1984. On both occasions, the Court rejected the very interpretation of the statute that is once again being forwarded by the EPA, instead adopting the express and unambiguous language of the statute. Importantly, nowhere in Mr. Ruckelshaus' declaration does he state that he or his counsel believed their actions were a proper and defensible interpretation of the Order.

[15 ELR 20103]

The statutory language provides the EPA only two options. This Court has already interpreted the statute to mean exactly what it says. The EPA is not entitled to ignore the terms of the Order simply because it differs from the EPA's own interpretation of § 7412. The fact that Mr. Ruckelshaus, as Administrator of the EPA, chose to adopt the legal interpretation of 42 U.S.C. § 7412 that he "thought best" is simply irrelevant, and in no way evidences a good-faith attempt to comply with the Order.⁴

Defendants' second argument against being held in contempt is that the Order is not sufficiently clear so as to be enforceable by contempt. The Order of September 17 reads in pertinent part:

The Administrator of the EPA will issue final standards for radionuclide emissions or a finding on the basis of information presented hearings during the rulemaking, that radionuclides are clearly not a hazardous pollutant, under Section 112 of the Clean Air Act, 42 U.S.C. § 7412, within ninety (90) days from the date of this Opinion and Order, July 25, 1984.

It is frankly incomprehensible to the Court that Mr. Ruckelshaus and his counsel at EPA could find ambiguity in the above language.⁵ The Order, which closely tracks the language of the statute, clearly and unambiguously sets forth the possible EPA actions. Defendants' argument that the Orderis not sufficiently clear so as to be enforceable by contempt is patently meritless.

Finally, defendants attempt to justify the actions taken on a quasi impossibility theory. Defendants assert that Mr. Ruckelshaus could not lawfully comply with the Order because the EPA did not have sufficient time within which to renotice proposed standards for uranium mines, one of the four sources for which proposed regulations were issued. The most obvious weakness of this argument is that it is nonresponsive as to the other three sources for which proposed regulations had been issued.

Mr. Ruckelshaus' declaration does not state that there was no possibility of issuing final regulations by the Court-ordered dead-line for the sources other than uranium mines. In fact, Richard Guimond, the staff person responsible for directing the EPA's regulatory environmental radiation protection program, specifically recommended that Mr. Ruckelshaus promulgate final standards at levels slightly less stringent than the level proposed for the other three sources. Guimond decl. at 17. According to Mr. Guimond, control technology is readily available to reduce radionuclide emissions from these sources, and developing emission standards is relatively straightforward. Id. at 7. Evidently, Mr. Ruckelshaus simply decided to withdraw the proposed standards for the three sources, even against the advice of his principal staff expert.

The Scientific Advisory Board Resport ("SAB Report"), which was issued on August 17, 1984, and which reviewed the scientific bases for the EPA's proposed emission regulations, cannot be relied upon as a justification for noncompliance with the Order. While the SAB Report stated several concerns with the EPA's procedures that Mr. Ruckelshaus felt could not be formally resolved within the time that remained to him for decision, the body of the SAB Report "generally supported the assessment and risk estimates made by EPA." Id. at 16.

Much of defendants' quasi impossibility arguments are directed toward regulation of uranium mines. The EPA declined to withdraw standards governing radionuclide emissions from uranium mines, but also declined to issue final emission standards.Although the Court is not unsympathetic to the task of promulgating accurate and fair regulations that would withstand judicial review, the difficulty in issuing workable final regulations cannot be a valid excuse for noncompliance with the Order.

The EPA has not demonstrated that timely issuance of final regulations for uranium mines is impossible, only that it would be easier to issue more accurate standards with more time. Indeed, the EPA has been arguing this point with respect to uranium mines since 1982. In response to Judge Sweigert's ruling that the EPA failed to perform its mandatory duty to issue proposed emission standards within 180 days of listing radionuclides as a hazardous air pollutant, the EPA offered to issue such proposed regulations by 1989, more than nine years after the statutory dead-line. See Sierra Club v. Gorsuch, supra, 551 F. Supp. at 789. In the instant case, the EPA would not even go as far as to identify a date on which it thought final regulations for uranium mines could be promulgated! When asked how long it would take the EPA to promulgate final emission regulations, EPA's counsel refused to give the Court any time estimate. Unfortunately, Judge Sweigert's 1982 statement has even more validity today: "To accept EPA's proposal for further, indefinite, and virtually open-ended extension of the time for compliance, without a more convincing demonstration of evident impossibility, would be to, in effect, repeal the Congressional mandate." Id. Therefore, the difficulty in issuing final regulations for uranium mines does not excuse or justify EPA's failure to comply with the Order.

Civil contempt is characterized by a court's desire to compel obedience to a court's order. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983), citing Shillitani v. United States, 384 U.S. 364 (1966). The contempt must be proven by clear and convincing evidence. Falstaff, supra, 702 F.2d at 778 n. 1. For the reasons set forth above, this Court finds defendants William Ruckelshaus, as Administrator of the EPA, and the EPA in contempt.

In sum, the Clean Air Act imposes mandatory, nondiscretionary duties upon the EPA. This Court has jurisdiction to enforce nondiscretionary agency actions. 42 U.S.C. § 7604(a). In the Court's Opinion and Order of July 27, 1984, as amended on September 17, 1984, the Court rejected defendants' broad interpretation of 42 U.S.C. § 7412, and required the EPA to comply, within 90 days, with the express and unambiguous provisions of that statute.

Defendants have admitted that they have not issued final emission standards, nor delisted radionuclides based upon a proper finding that radionuclides are clearly not a hazardous pollutant. Instead, defendants have argued that their interpretation of the Act should take precedence over this Court's interpretation, that the Court's Order is ambiguous, and that compliance is simply too difficult. Having carefully reviewed the parties' papers, declarations, and oral argument, this Court finds that defendants' arguments are unpersuasive and that there is clear and convincing evidence that defendants are in contempt.

Having found defendants in contempt, this Court must fashion an appropriate remedy. To that end,

IT IS HEREBY ORDERED hat defendant must:

1. (a) Issue within 30 days of the filing of this Opinion and Order final radionuclide emission standards for DOE facilities, NRC-licensed and non-DOE federal facilities, and elemental phosphorus plants, and

(b) Issue with 120 days final radionuclide emission standards for uranium mines; OR

2. Make a finding on the basis of the information presented at hearings during the rulemaking, that radionuclides are clearly not a hazardous pollutant.

1. The Order of September 17, 1984, reads in pertinent part as follows:

The Administrator of the EPA will issue final standards for radionuclide emissions or a finding on the basis of information presented at hearings during the rulemaking, that radionuclides are clearly not a hazardous pollutant, under Section 112 of the Clean Air Act, 42 U.S.C. § 7412, within ninety (90) days from the date of this Opinion and Order, July 25, 1984.

2. These four categories are: DOE facilities, NRC-licensed facilities, elemental phosphorus plants, and underground uranium mines. The EPA also affirmed its decision not to regulate emissions from five other sources for which no proposed regulations had been issued. These five categories are not part of this lawsuit.

3. The EPA did not issue final regulations or delist radionuclides emitted from uranium mines, but declined to withdraw any proposed regulations as to that source.

4. The fact that the EPA's interpretation of § 7412 has been consistent with the agency since the enactment of the statute is likewise unpersuasive. It is extraordinary to suggest that an agency's interpretation of a statute is somehow elevated to a position of precedence over a district court's interpretation simply by the consistence of the agency's interpretation. The Supreme Court has emphasized that the courts are the final authorities on issues of statutory construction. See Volkswagenwerke v. Federal Maritime Commission, 390 U.S. 261, 272 (1968).

5. Indeed, defendants do not specify which terms of the Order are vague.