602 F.Supp. 892 (N.D.Cal. 1984), C-84-0656, Sierra Club v. Ruckelshaus

Docket Nº:C-84-0656 WHO.
Citation:602 F.Supp. 892
Party Name:SIERRA CLUB, Plaintiff, v. William D. RUCKELSHAUS, in his official capacity as Administrator of the United States Environmental Protection Agency; and the United States Environmental Protection Agency, Defendants. Idaho Mining Association, Defendant-Intervenor.
Case Date:July 24, 1984
Court:United States District Courts, 9th Circuit, Northern District of California

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602 F.Supp. 892 (N.D.Cal. 1984)

SIERRA CLUB, Plaintiff,

v.

William D. RUCKELSHAUS, in his official capacity as Administrator of the United States Environmental Protection Agency; and the United States Environmental Protection Agency, Defendants.

Idaho Mining Association, Defendant-Intervenor.

No. C-84-0656 WHO.

United States District Court, N.D. California.

July 24, 1984

On Order of Contempt Dec. 11, 1984.

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[Copyrighted Material Omitted]

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On Order of Contempt

Roger Beers, Beers & Dickson, San Francisco, Cal., for plaintiff.

Joseph P. Russoniello, U.S. Atty., Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., Dean K. Dunsmore, U.S. Dept. of Justice, Washington, D.C., for defendants.

Albert J. Beveridge, III, Carl Eardley, Gary H. Baise, Don G. Scroggin, Beveridge & Diamond, P.C., Washington, D.C., E. Lewis Reid, Michael R. Marron, Marron, Reid & Sheehy, San Francisco, Cal., for defendant-intervenor Idaho Mining Ass'n.

OPINION

ORRICK, District Judge.

The Sierra Club, an organization devoted to the preservation of the environment, filed this suit against William D. Ruckelshaus as Administrator of the United States Environmental Protection Agency (the "EPA") to compel the EPA to comply with certain requirements of the federal Clean Air Act, 42 U.S.C.§§ 7401 et seq. Because the sole question in the case is a matter of statutory interpretation and enforcement, plaintiff filed a motion for summary judgment, which is now before the Court. Also before the Court is a motion for intervention filed by the Idaho Mining Association pursuant to Federal Rule of Civil Procedure 24(a). For the reasons detailed below, the motion to intervene and plaintiff's motion for summary judgment are both granted.

I

The dispute now before this Court had its genesis in 1977 when Congress determined that radionuclides posed a potentially serious health hazard. 1 Radionuclides are radioactive particles that may be released into the atmosphere from a wide range of sources, including facilities that use radioactive materials (nuclear power plants, weapons factories, hospitals), and uranium and phosphate mining operations. Finding that no federal agency regulated these emissions, Congress amended the Clean Air Act, instructing the EPA to investigate radionuclides and to determine if these emissions indeed posed a health risk. 42 U.S.C. § 7422. 2 The Act then required

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the EPA, if it determined that radionuclides posed a health risk, to issue emission standards on a timetable fixed by statute. See 42 U.S.C. §§ 7412, 7422.

After investigation, the EPA in November 1979 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 Clean Air Act, 42 U.S.C. § 7412.

Having made that determination, the EPA was required by statute to issue proposed regulations, which were to be followed by final regulations:

"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 [of the proposed standards], 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 clearly is not a hazardous pollutant. * * *"

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 in Sierra Club v. Gorsuch, 551 F.Supp. 785, 786 (N.D.Cal.1982) (Sweigert, J.). On plaintiff's motion for summary judgment in that case, the court 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." Id. at 787.

By way of designing an appropriate remedy, Judge Sweigert at first offered to allow the EPA to develop a compliance schedule and to attempt to agree with plaintiff as to that schedule. The EPA, in response, offered to issue proposed regulations by 1989, more than nine years after the mandatory statutory deadline. Judge Sweigert, finding that Congress had set the 180-day limit for the precise purpose of rapidly implementing clean air standards, rejected the EPA's proposal and ordered it to issue proposed regulations for radionuclides within 180 days. See id. at 789. The EPA finally issued proposed standards for radionuclide emissions on April 6, 1983, approximately three years after the deadline set by statute.

The next stage in the Clean Air Act's regulatory process is the issuance of final regulations governing emissions of the hazardous air pollutant. Section 7412(b)(1)(B), quoted above, mandates that the EPA will either issue the final emission standards, or make a determination that radionuclides do not pose a health risk, within 180 days after issuance of the proposed regulations. The final regulations for radionuclide emissions were, therefore, due on October 3, 1983; to date the EPA has not issued final regulations.

The Sierra Club has again sued in the case now before this Court for a judgment ordering the EPA to comply with the mandatory requirement of 42 U.S.C. § 7412.

II

The proposed intervenor in this lawsuit, Idaho Mining Association ("the Association"), represents numerous companies that mine more than 50 percent of the elemental phosphorus produced in the United States. Radionuclides are emitted when elemental phosphorus is mined and processed.

Intervention in a lawsuit is permitted of right upon the timely application of anyone with an interest in the subject matter of the litigation, who is so situated that disposition of the case may "as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest

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is adequately represented by existing parties." F.R.Civ.P. 24(a). 3

Because Association members mine phosphorus, they will be directly affected by final radionuclide emission standards. 4 Although the Association is arguably more concerned with the content of the regulations, a matter not before this Court, than with when they are issued, and would have the opportunity to litigate the merits of the regulations at a later date, 5 such an after-the-fact remedy

"may, 'as a practical matter,' afford much less protection than the opportunity to participate in * * * proceedings that seek to ensure sustainable regulations in the first place, with no need for judicial review. * * * [I]t may [also] be that review might be had only after final effectiveness, during a period when appellants may be subject to compliance and enforcement [of the regulations]."

Natural Resources Defense Council v. Costle, 561 F.2d 904, 909 (D.C.Cir. 1977). Thus, the Association's interests might be impaired if intervention in this action were not allowed.

Finally, although both the Association and the EPA oppose the motion for summary judgment, the ultimate interests of the mining Association clearly differ from those of the EPA. 6 See id. at 912 (agency's interest in content of regulation will differ from the interest of the one governed by those regulations). Accordingly, the motion for intervention by the Association is granted.

III

In its brief opposing summary judgment, the EPA admits that "it has not made the required determinations within the time established by 42 U.S.C. § 7412(b) and that it is under a statutory obligation to make these determinations." Def.Br. at 2:10-13. Nonetheless, the EPA and the Association oppose summary judgment. The EPA argues, first, that the Sierra Club has no standing and, second, that this Court should exercise its discretionary power to refuse the remedy sought. The Association argues that issuance of these regulations is not, in fact, a matter of great urgency and that certain procedural steps must be completed by the EPA before final standards are promulgated.

A

In enacting the Clean Air Act, Congress specifically provided for citizen suits to enforce the Act. Section 7604(a) provides in pertinent part that:

"any person may commence a civil action on his own behalf--

* * *

* * *

(2) 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 * * *."

An association has standing to sue if it or its members are in a position to suffer actual or threatened injury. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

Although the government raised no objection to the Sierra Club's standing to sue in the prior suit before Judge Sweigert, it here argues that plaintiff has failed to prove "its membership and alleged injury

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or threatened injury thereto." See Def. Br. at 6.

In response to the standing argument the Sierra Club has offered the declaration of Eugene Coan, Assistant Conservation Director of the Sierra Club, demonstrating that members of the Sierra Club live in close proximity to specific facilities that emit radionuclides. 7 See Plf. Reply Br. at 4 and Declaration of Coan. That declaration more than adequately illustrates the threat of injury to Sierra Club members and establishes plaintiffs' standing to sue.

B

The Association's first argument against summary judgment is that "the fixing of an early date for issuing final regulations is not urgent." Assoc.Br. at 7. Taking as an example the EPA's hypothetical that radionuclide emissions from a particular phosphorus plant pose only one potential cancer death in 100 years of plant operation, the Association urges that there is no emergency and that this...

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