ELR Citation: ELR 20080
No(s). C-84-0656 WHO (N.D. Cal. Jul 25, 1984)

The court holds that the Environmental Protection Agency (EPA) must act on its proposed standards under Clean Air Act §112 for radionuclides within 90 days. The court first grants the petition of the Idaho Mining Association to intervene in the case. It rules that the Association has the requisite interest in the subject matter of the litigation, even though the substance of the radionuclide rules, which will govern many of the Association's members, is not at issue. The court then rules that plaintiff has standing to bring its claim since it has demonstrated that a number of its members live near facilities that would be governed by the radionuclide standards. The court rejects intervenor's argument that injunctive relief is unnecessary because there is no health emergency, ruling that a district court's sole jurisdiction is to enforce the non-discretionary duty imposed by Congress, not to consider the need for regulation. The court also rules that neither §307(d)(6)(A) nor §117(c) authorizes further delay in EPA action. The former allows EPA to extend a deadline for final promulgation of a rule to develop additional supporting documentation only if the statute allowed less than six months between proposal and promulgation. The latter directs EPA to consult with experts in developing rules, but also to do so within the time prescribed by statute. The court rules that EPA has not made a case for exercise of the court's equitable discretion to fashion a remedy other than injunctive relief. To avoid an injunction, EPA has the burden of proving that compliance with the statute is impossible. EPA has made no such demonstration in this case. The court orders EPA to promulgate final rules within 90 days.

[Other decisions in this action are published at 15 ELR 20082 and 20101. Related decisions are published at 12 ELR 20457 and 13 ELR 20231.]

Counsel for Plaintiff
Roger Beers, Kathryn Burkett Dickson
Beers & Dickson
Suite One, Civic Center
380 Hayes Street, San Francisco CA 94102
(415) 861-1401

Counsel for Defendant
Dean Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216