Sierra Club v. Gorsuch, C 81 2436 WTS.

Decision Date30 September 1982
Docket NumberNo. C 81 2436 WTS.,C 81 2436 WTS.
Citation551 F. Supp. 785
CourtU.S. District Court — Northern District of California
PartiesSIERRA CLUB; Richard Sextro; Michael H. Shuman, Plaintiffs, v. Anne GORSUCH, in her official capacity as Administrator of the United States Environmental Protection Agency; and the Environmental Protection Agency, Defendants, and Alabama Power Company, et al.; the Fertilizer Institute, et al.; and American Mining Congress, Defendant-Intervenors.

Roger Beers, Kathryn Burkett Dickson, Beers & Dickson, San Francisco, Cal., for plaintiffs.

Francis Boone, Asst. U.S. Atty., San Francisco, Cal., Dean K. Dunsmore, Environmental Defense Section, Land and Natural Resources Division, U.S. Dept. of Justice, Washington, D.C., for defendants EPA and Gorsuch.

Donald P. Irwin, Lee B. Zeugin, Hunton & Williams, Richmond, Va., E. Milton Farley, III, Hunton & Williams, Washington, D.C., Robert A. Goodin, Armour, St. John, Wilcox & Goodin, San Francisco, Cal., for Alabama Power, et al.

Charles G. Miller, McKenna, Conner & Cuneo, San Francisco, Cal., for Fertilizer Institute.

Hamel, Park, McCabe & Saunders, Edward A. McCabe, Anthony J. Thompson, Robert W. Frantz, Theodore A. Howard, Washington, D.C., Feeney & Sparks, Thomas E. Feeney, David W. Rudy, San Francisco, Cal., for American Mining Congress.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This is a civil action under the Clean Air Act ("Act"), 42 U.S.C. § 7401 et seq. Plaintiffs Sierra Club, an environmental organization, and two individuals, bring this action pursuant to the citizens' suit provision of the Act (42 U.S.C. § 7604), alleging that the Environmental Protection Agency ("EPA" or "Agency") has failed to perform its duty under the Act with respect to establishing national emission standards for radionuclides — a hazardous air pollutant. Plaintiffs seek declaratory and injunctive relief.1

Section 7412(b)(1)(A) and (B) of the Act provide in pertinent part as follows:

The Administrator shall ... publish (and shall from time to time thereafter revise) a list which includes each hazardous air pollutant for which he intends to establish an emission standard under this section.
Within 180 days after the inclusion of any air pollutant in such list, the Administrator shall publish proposed regulations establishing emission standards for such pollutant together with a notice of a public hearing within thirty days. Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant is clearly not a hazardous air pollutant.

The evidentiary record shows without dispute that on November 8, 1979, the EPA listed radionuclides as a hazardous air pollutant. However, the Agency has failed to publish proposed regulations establishing emission standards for the listed pollutant within 180 days after such listing as required by the Act. No such proposed regulations have been published in the nearly three years since the date of the listing.

The record also contains evidentiary material presented by the EPA and the intervenors tending to explain this long delay upon the ground that compliance with the statute is difficult or impossible, because EPA needs additional time to study radionuclides in order to issue the proposed regulations; and, further, because the EPA is constrained by claimed limitations on staff and budget.

On March 8, 1982, this court granted plaintiffs' motion for partial summary judgment and ruled 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. The EPA was ordered to present to the Court a proposal for compliance with Section 7412 and to discuss the proposal with all other parties; and, further, to notify the court whether the proposal could be unanimously approved.

The EPA has presented its proposal for compliance, alleging that it will need until as late as 1989 — more than nine years after the statutory 180 day deadline — to issue proposed regulations for "some" emission sources.

Plaintiffs object to any such extension of time for compliance and request that the court enter an Order requiring the EPA to issue its proposed regulation within 180 days from the date of such Order. It appearing that no agreement can be reached by the parties, the case is again before the court on plaintiffs' motion asking the Court to fix a schedule for compliance with Section 7412.

The first issue is whether, and, if so, to what extent, this Court can excuse performance or extend the time for compliance beyond the time fixed by Congress.

It has been held that a court, under such circumstances as are here presented, and in the exercise of its equitable powers, may extend the time for compliance within Congressionally-mandated time limit, if the Court finds that it would be infeasible or impossible for the EPA, acting in good faith, to meet the Congressional deadline — either because of limited staff or budget or because of the need for further study. Alabama Power Co. v. Costle, 204 U.S.App.D.C. 51, 636 F.2d 323, 359 (1980); NRDC v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 712-13 (1975); Illinois v. Costle, 12 ERC 1597 (D.C.C.1979).

However, it has also been held in those same cases that a court must "scrutinize such claims carefully", NRDC v. Train, supra, 510 F.2d at 713; and also that "the agency's burden in such case is especially heavy" and "that the agency bears ... a heavy burden to demonstrate the existence of an impossibility." Alabama Power Co. v. Costle, supra, 636 F.2d at 359.

In NRDC v. Train, supra, the Circuit Court for the District of Columbia first recognized an infeasibility or impossibility justification for an agency's non-compliance with a Congressional deadline. The Court essentially held that a Court should not use its powers to require an agency "to do an impossibility." Id. However, the Court noted that in evaluating an impossibility defense, a district court must "separate justification grounded in the purpose of the Act from the footdragging efforts of a delinquent agency." Id. 510 F.2d at 713.

Congress, in enacting the Clean Air Act, expressly stated that one of the purposes of Subchapter I of the Act (of which Section 7412 is a part) was to ... accelerate a national research and development program to achieve the prevention and control of air pollution." 42 U.S.C. § 7401(b)(2) (emphasis added).

Moreover, the purpose behind the adoption of the various amendments to the Act in 1977, including Section 7412, was "to assure that regulatory action can effectively prevent harm before it occurs; to emphasize the predominant value of protection of public health" and, further, "to reflect awareness of the uncertainties and limitations in the data which will be available to the Administrator in the foreseeable future to enable him to execute his rulemaking duties under the ... act, because of the limitations on research resources and the fact that decisionmaking about the risks to public health from air pollution fall on `the frontiers...

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