551 F.Supp. 785 (N.D.Cal. 1982), C 81 2436, Sierra Club v. Gorsuch

Docket Nº:C 81 2436 WTS.
Citation:551 F.Supp. 785
Party Name:SIERRA 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.
Case Date:September 30, 1982
Court:United States District Courts, 9th Circuit, Northern District of California

Page 785

551 F.Supp. 785 (N.D.Cal. 1982)

SIERRA 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.

No. C 81 2436 WTS.

United States District Court, N.D. California.

Sept. 30, 1982

Page 786

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.

Page 787

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...

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