ELR Citation: ELR 20248
No(s). 81 Civ. 6678 (WCC) (S.D.N.Y. Jan 12, 1983)

The court orders the Environmental Protection Agency (EPA) to propose within 180 days national emission standards for hazardous air pollutants (NESHAPS) for inorganic arsenic under §112 of the Clean Air Act. The court earlier had granted partial summary judgment for plaintiff, declaring that defendant had violated a non-discretionary duty to regulate the pollutant under §112. Noting that a district court sitting as a chancellor in equity need not mechanically grant an injunction in response to every violation of the law, the court nonetheless rules that Congress had limited the court's discretion to ignore violations of the timetables in the Clean Air Act, and particularly those in §112. The court rejects EPA's argument that the doctrine of administrative impossibility relieves EPA of its obligations. It finds that the Agency's claimed inability to develop the standards in time does not raise a material issue of fact, but merely reflects a difference between EPA's current regulatory philosophy and that which Congress articulated in the Act. The court also declines to defer to the Agency's interpretation of the statute, because it is inconsistent with the clear directive of Congress.

Counsel for Plaintiff
Robert Abrams, Attorney General; Marcia J. Cleveland, Mary L. Lyndon, James Periconi
Two World Trade Ctr., New York NY 10047
(212) 488-4141

Counsel for Defendant
John S. Martin Jr., U.S. Attorney; Gaines Gwathmey III
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Christopher C. Herman
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-7630