9 ELR 20243 | Environmental Law Reporter | copyright © 1979 | All rights reserved

Illinois v. Costle

Nos. 78-1689, -1715, -1734, -1899 (D.D.C. January 3, 1979)

In a lawsuit brought by the State of Illinois and several environmental groups over the Environmental Protection Agency's (EPA's) failure to meet the statutory deadlines for promulgating regulations for the hazardous waste management program under the Resource Conservation and Recovery Act of 1976, the court establishes a timetable under which the Agency must issue the regulations by December 31, 1979. Finding that EPA is proceeding in good faith given the limited resources available, the court accepts the Agency's proposed schedule but orders EPA to report each quarter beginning March 31, 1979 any anticipated deviations from the implementation schedule.

Counsel for Plaintiffs
George W. Wolff, Ass't Attorney General
500 S. 2d St., Springfield IL 62701
(217) 782-1090

William A. Butler
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

William G. Brashares
Cladouhos & Brashares
1750 New York Ave. NW, Washington DC 20006
(202) 833-1101

Counsel for Defendants
Barry J. Trilling
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2800

Dorothy A. Darrah, James Rogers, Lisa Friedman
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 426-4497

Counsel for Intervenors Manufacturing Chemists Ass'n, Central & South West Corp., American Paper Institute, and National Forest Products Ass'n
Andrew T. A. MacDonald
Wilmer, Cutler & Pickering
1666 K St. NW, Washington DC 20006
(202) 872-6000

Thomas H. Truitt
Wald, Harkrader & Ross
1320 19th St. NW, Washington DC 20036
(202) 296-2121

John R. Quarles, Jr.
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 872-5000

[9 ELR 20243]

Gesell, J.:


The court: As I indicated after the discussion and argument yesterday, in view of the urgency of this matter, the court is going today to give its ruling orally.

I have a form of order which I will sign and copies of that order can be obtained from the deputy clerk. It hasn't been reproduced but it can be after these brief remarks.

These four proceedings are proceedings to enforce the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 9601.

The court has previously found that the Environmental Protection Agency is in default of deadlines which were set by the Congress for the promulgation of various regulations implementing the provisions of the Act relating to hazardous and solid wastes.

The court has jurisdiction based on the holding of our court of appeal in Natural Resources Defense Council, Inc. v. Train, at 510 F.2d 692 [5 ELR 20046 (D.C. Cir. 1974).].

Plaintiffs in various forms and manner ask the court now to establish a specific schedule for the promulgation of some 10 regulations which are necessary to implement the provisions of the Act the court has just referred to.

In response to the court's request, EPA has submitted a proposed schedule which has been the focus of these decree proceedings.

[9 ELR 20244]

There is no question that EPA has a duty to promulgate hazardous and solid waste regulations; and I think there is agreement that that duty is to promulgate those regulations as quickly as reasonably possible.

The proposed schedule which EPA has submitted is challenged; and it is for the court to determine whether that schedule or some other schedule is mor appropriate.

Of course, the court cannot appropriate funds; it cannot let out consulting contracts to develop the necessary technical information; it cannot hire personnel; and it cannot manage the Agency's effort.

The most the court can do is to use its influence to assure that everything reasonable is being done to carry out the obvious desire of Congress that there be prompt action to abate the hazards to our environment which the Act addresses.

The issue, therefore, before the court is a very narrow one. The question is whether EPA, within the resources available to it, is proceeding in good faith.

This issue is not seriously disputed. Indeed at the argument and discussion with the court yesterday, in large part it appeared that the good faith of the Agency was not being contested. The quarrel here concerns techniques, approaches to the problem, and the validity of the various estimates. But there is no actual showing which enables the court at this stage to disregard the estimates which EPA has made. Some opinions of counsel were expressed but there is certainly no factual ground on which the court can hold that the EPA's estimates of scheduling are not a substantial and proper measure of what can be done as quickly as reasonably possible.

The Agency, itself, recognizes that the estimates are nothing more than estimates; that they are subject to change; and that they are optimistic.

The court is inclined to feel that this characterization of the estimates has merit. Certainly on the basis of the representations made in the excellent factual affidavits filed by the Agency, it is apparent that there is not only a shortage of funds, a shortage of personnel, but a lack of necessary technical information; that the issues are extremely complex; and the scope of the regulations is extensive.

There is need to cooperate with state and municipal governments. There is need to coordinate with other federal agencies. There is the necessity of developing regulations that properly mesh with other regulatory responsibilities of the Agency. There is certainly a desirable and necessary need for extensive public hearings and public participation in the formulation of these regulations.

Great care is required in the hope that upon the inevitable court review of all these regulations, they will withstand the vigorous and persistent attack which will be made by undoubtedly parties to these proceedings and many other parties not before the court.

All of the past experience indicates that it is difficult and hazardous to attempt to estimate the time required in meeting these more or less arbitrary deadlines which Congress has set in various EPA matters.

The court cannot and should not ignore the fact that not only does EPA have other responsibilities in the regulatory area, but that it is presently under very exacting demands in other proceedings to accomplish its regulatory functions.

The court, accordingly, has determined that it must for the time being accept the position of the Agency with respect to the schedule. It appears to the court that it is a good faith schedule which on the basis of present knowledge is in the public interest.

On the other hand, the court has taken note and accepted the view of the Environmental Defense Fund and other plaintiffs here that if a definite schedule is ordered by the court, it is more likely in some vague and undefinable way that that schedule will be achieved.

The court also recognizes that since the schedule is an estimated schedule, that it is subject to change, hopefully change in the direction of a more prompt promulgation of one or more of the regulations. Certainly considering the time that has passed and all of the circumstances revealed by this record, any extension of the promulgation dates, as presently estimated, would require the most careful and severe scrutiny of the court.

With these considerations in mind, the court has fashioned an order directing that the regulations be promulgated on the final dates set in the schedule submitted to the court. The order goes further and requires that EPA shall, at the end of each quarter, commencing March 31, 1979, file with the court in affidavit form over the signature of Mr. Costle a statement indicating any departures from the detailed implementing schedules that the EPA proposed on December 4, with a statement of reason or reasons therefor, together with an up-dated current estimate of the final promulgation date of each regulation.

The court is also directing that whenever it appears to EPA that a date set by the court as the outside date for promulgation of these regulations cannot be met, it shall immediately — and I emphasize, immediately — file an affidavit with the court over the signature of the Administrator, explaining the facts and circumstances why it does not appear feasible to meet the date as ordered.

The court is also directing that all of these filings not only, of course, be served on the parties but is directing that copies of the filings be furnished to the appropriate Oversight Committees of the Senate and House of Representatives.

On the matter of special interest to the Citizens for a Better Environment, the court feels the plaintiff's request there for an interpretation of § 3001 of the Act is premature; that plaintiff should be required to pursue the matter before the Agency in the rule-making proceedings and that that aspect of its complaint fails to state a cause of action on which relief can be granted and ultimately the matter, of course, will have to be reviewed by the court of appeals.

Now, all of you, I think, are aware of the court's concerns in this case but I don't want to terminate these proceedings without making it perfectly clear that in acceding to this schedule temporarily, as the court has done, the court is not in any respect discounting the position of the plaintiffs, particularly of the Environmental Defense Fund, that this is a matter that can properly be labeled one approaching crisis proportions.

Well-meaning statutes are not self-implementing. We need a national will to protect the environment from the threatening health and pollution hazards which this Act addresses. There is need of a massive commitment of funds, talent, and purpose to these objectives.

If the court could do anything about it, the court would; but these are not matters within the reach of the chancellor's foot. There is little a court of equity can do.

These are matters of national policy, political priorities; and I would urge upon the parties with everything at my command that they consider the appropriateness of continuing to rely on courts to accomplish objectives which can only be effectively accomplished in a democracy by resort to the polls, resort to the political processes which the Constitution preserves.

There is little I can do. I have done the most I can. But there are other forums where these issues could be far more properly and effectively ventilated.

I appreciate the care with which these masses of papers have been prepared by the parties. They have been of great help to me.

I will await with interest the reports from the Agency pursuant to the order which I am now handing to the Deputy Clerk.

Thank you.


After detailed consideration of the proposed schedule submitted by the Environmental Protection Agency, the supporting affidavits, and the briefs and arguments of all the parties, it appearing that the Environmental Protection Agency (EPA) is proceeding in complete good faith and conscientiously to promulgate the regulations in dispute, and that a more expedited schedule does not appear at this stage to be in the public interest, the court, for the reasons stated more fully in open court this day,

ORDERS that each of the regulations listed below shall be promulgated in final form no later than the dates indicated below: [9 ELR 20245]

RegulationFinal Promulgation Date
Sections 3001, 3002,
3003, and 3004December 31, 1979
Sections 3005 and 3006October 31, 1979
Sections 4004(a) and
1008(a)(3)July 31, 1979
Sections 4002(b)June 30, 1979
Section 1008(a)(1)January 31, 1980
And it is further

ORDERED that the EPA shall, at the end of each quarter commencing March 31, 1979, file with the court in affidavit form over the signature of the Administrator of the Agency, a statement indicating any departures from the detailed implementing schedules which the EPA proposed to the court on December 4, 1978, and the reason or reasons therefor, together with the Agency's current best estimate of final promulgation dates, and it is further

ORDERED that whenever it appears that any promulgation date as set by the court cannot be met, the EPA shall immediately file with the court in affidavit form, over the signature of the Administrator, an explanation why non-promulgation of the regulation, as ordered, does not appear feasible; and it is further

ORDERED that copies of all filings made with the court, as heretofore ordered, shall be served on the parties to these actions and submitted to the appropriate oversight committees of the United States Senate and House of Representatives.

9 ELR 20243 | Environmental Law Reporter | copyright © 1979 | All rights reserved