State of Ill. v. Gorsuch, Civ. A. No. 78-1689

• Decision Date: 13 November 1981
• Docket Number: 78-1734 and 78-1899.,78-1715,Civ. A. No. 78-1689
• Citation: 530 F. Supp. 337
• Parties: STATE OF ILLINOIS, Plaintiff, v. Anne M. GORSUCH, et al., Defendant and Intervening Defendants; ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. Gary M. DIETRICH, et al., Defendants and Intervening Defendants; CITIZENS FOR A BETTER ENVIRONMENT, Plaintiff, v. Anne M. GORSUCH, et al., Defendant and Intervening Defendants; NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION, Plaintiff, v. Anne M. GORSUCH, et al., Defendant and Intervening Defendants.
• Court: U.S. District Court — District of Columbia

530 F. Supp. 337

STATE OF ILLINOIS, Plaintiff, v. Anne M. GORSUCH, et al., Defendant and Intervening Defendants;

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. Gary M. DIETRICH, et al., Defendants and Intervening Defendants;

CITIZENS FOR A BETTER ENVIRONMENT, Plaintiff, v. Anne M. GORSUCH, et al., Defendant and Intervening Defendants;

NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION, Plaintiff, v. Anne M. GORSUCH, et al., Defendant and Intervening Defendants.

Civ. A. Nos. 78-1689, 78-1715, 78-1734 and 78-1899.

United States District Court, District of Columbia.

November 13, 1981.

Russell R. Eggert, Dean Hansell, Asst. Attys. Gen., Environmental Control Div., Chicago, Ill., for State of Ill.

Anthony Z. Roisman, Chief, Hazardous Waste Section, Land and Natural Resources Div., Dept. of Justice, Washington, D. C., Lisa K. Friedman, Asst. Gen. Counsel, U. S. Environmental Protection Agency, Washington, D. C., for all defendants.

Michael K. Glenn, Chadbourne, Parke, Whiteside & Wolff, Washington, D. C., for intervening defendant American Paper Institute and National Forest Products Assn.

William A. Butler, Washington, D. C., Jacqueline M. Warren, New York City, Khristine L. Hall, Environmental Defense Fund, Washington, D. C., for Environmental Defense Fund.

Bill S. Forcade, Robert Goldsmith, Citizens for a Better Environment, Chicago, Ill., Ellyn Weiss, Sheldon, Harmon, Roisman & Weiss, Washington, D. C., for Citizens for a Better Environment.

William C. Brashares, Charles A. Samuels, Cladouhos & Brashares, Washington, D. C., for National Solid Waste Management Assn.

John R. Quarles, Jr., Morgan, Lewis & Bockius, Stark Ritchie, Washington, D. C., for intervening defendants American Petroleum Institute, Inc., et al.

Thomas H. Truitt, Toni G. Allen, Stanley M. Spracker, Wald, Harkrader & Ross, Washington, D. C., for intervening defendants Central & South West Corp., et al.

John H. Pickering, Andrew T. A. Macdonald, Wilmer, Cutler & Pickering, Washington, D. C., for intervening defendant Manufacturing Chemists Assn.

MEMORANDUM AND ORDER

GESELL, District Judge.

The issue before the Court is whether or not it has jurisdiction in this proceeding to require the Environmental Protection Agency (EPA) to continue in effect and to implement regulations promulgated by EPA in response to a Court Order resulting from the Agency's failure to meet promulgation deadlines established by Congress. See Resource Conservation and Recovery Act (RCRA), 42 U.S.C.A. § 6901 et seq. (1977 & 1981 Supp.). The regulations at issue were promulgated in January, 1981, in response to this Court's Order of December, 1979. They established operating standards for new and existing incinerators and surface impoundment storage facilities to control the release of dangerous waste substances into the environment.

Plaintiff Environmental Defense Fund (EDF) filed the present motion for declaratory and injunctive relief in response to a notice which appeared in the Federal Register on July 24, 1981, 46 Fed.Reg. 38318, indicating that EPA intended to initiate rulemaking to withdraw the January regulations as they apply to existing storage impoundments and incinerators. The notice also indicated that the Agency would not process permits for existing facilities pending action by this Court on a motion which was to be but never was filed requesting a further extension of the deadline for promulgating standards. On October 13, 1981, subsequent to the filing of EDF's motion, EPA sent to the Federal Register a proposal temporarily to suspend the effective dates of the January regulations insofar as they applied to existing incinerators and storage surface impoundments. The basis for this proposal was the numerous comments received by the Agency asserting that the regulations were technically and economically infeasible. The October 13 notice also stated that it was EPA policy, effective that day, "to defer the processing of permits for existing ... impoundments and incinerators ...."

The arguments presented to the Court are partially semantic. EDF points to § 3010(b) of RCRA, 42 U.S.C.A. § 6930(b) (1977), which provides that regulations shall go into effect six months after their promulgation and...