ELR Citation: ELR 20101
No(s). C-84-0656 WHO (N.D. Cal. Dec 11, 1984)

The court holds the Environmental Protection Agency (EPA) and its Administrator in contempt for failure to regulate or delist radionuclides under §112 of the Clean Air Act pursuant to the court's earlier order. The court first notes that since it has already decided the non-discretionary duties imposed on the Act by EPA, the only remaining questions are whether defendants are in contempt and, if so, what must be done to remedy that situation. The court rules that EPA's withdrawal of its proposal to regulate three of four source categories does not satisfy its legal obligations. On two earlier occasions, EPA argued that for pollutants for which it has proposed standards, §112 gives it three options: promulgating final emission standards, deciding on the basis of the rulemaking record that radionuclides do not pose a health hazard, or deciding that the record was insufficient to support regulation. Both times, the court rejected the third alternative as inconsistent with the clear language of the Act and ordered EPA either to promulgate final regulations or to delist the pollutant. The court rules that EPA's consistent interpretation of §112 as offering the three options is irrelevant to the contempt citation in light of the court's clear rejection of that interpretation and the court's position as the ultimate arbiter of statutory meaning. The court rejects as incomprehensible the argument that its earlier orders were vague on this point, and as unconvincing EPA's renewed attempts to fashion an impossibility defense. The record demonstrates, the court finds, only that EPA believes that it could do a better job with more time. The court orders EPA within 30 days to promulgate final radionuclide standards for all four categories covered in the proposal or to delist the pollutant on the basis of evidence of lack of risk found in the rulemaking record.

[Other decisions in this case are published at 15 ELR 20080 and 20082. Related decisions are published at 12 ELR 20457 and 13 ELR 20231.]

Counsel for Plaintiffs are listed at 15 ELR 20080.

Counsel for Defendant
William Pedersen, Associate General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7606