By April 12, 1985, it was clear that OMB had serious differences with EPA over what regulations to propose. At a meeting of April 16, 1985 between OMB and EPA staff members, OMB sought significant changes in the proposed regulations in four areas. The idea, apparently, was to shift the goal of the regulations away from EPA's philosophy of containing all leaks of waste disposals to OMB's philosophy of preventing only leaks of waste that can be demonstrated by risk analysis to threaten harm to human health.
Internal disagreement within OMB further delayed OMB's consideration of the regulations. Some OMB staff members apparently felt that OMB should not be dictating substantive policy decisions to EPA while others felt the precedent being set an important one for OMB review of other RCRA regulations.
After this suit was filed on May 30, 1985, OMB continued to seek specific changes in EPA's proposed regulations as well as changes not previously discussed. After various negotiations regarding the substance of the regulations, OMB completed its review and cleared the proposed regulations on June 12, 1985. The EPA Administrator signed them June 14, 1985 and the proposed regulations were published in the Federal Register on June 26, 1985, 50 Fed. Reg. 26444, after OMB approved some last-minute stylistic changes made by EPA staff.
A. The Final Date for Promulgating the Regulations
The parties agree and this court finds that the Administrator of EPA has failed to comply with his non-discretionary duties under § 3004(w) of the RCRA. There is disagreement, however, about when the final regulations should be ordered promulgated. Plaintiffs contend that a reasonable time is April 25, 1986 while defendants prefer a deadline of one year from the date the regulations were proposed (i.e. June 30, 1986).
Defendants justify their time-table in an affidavit filed by John H. Skinner, Director of EPA's Office of Solid Waste ("OSW"). Public comments were received on the proposed regulations during a two-month period in the summer of 1985. EPA's technical staff evaluated these comments from September through November 1985. After completing a risk assessment, EPA will develop final draft rules by the end of February 1986. By mid-April, 1986, an EPA work group will comment on the final draft and OSW will complete a revised draft in light of these comments. By the end of May, 1986, OSW will prepare the final rulemaking package for senior level review within EPA (known as "Red Border" review) and for OMB review. The time for doing this will be streamlined and the two agencies review will be done concurrently. The regulations will then become final by June 30, 1986.
Plaintiffs argue that one year is unnecessarily long. EPA has not received as many public comments as was anticipated. EPA's prior and current promulgation schedules are in the neighborhood of nine months, not one year (e.g., the schedule now being followed for comparable small generator rules). As plaintiffs see it, this is the kind of unwarranted delay which this and other courts have struck down before. NRDC v. Ruckelshaus, 21 ERC (BNA) 1953, 14 ELR 20817 (D.D.C. Sept. 14, 1984); State of New York v. Gorsuch, 554 F. Supp. 1060 (S.D.N.Y. 1983); Environmental Defense Fund v. Gorsuch, 17 ERC 1099 (D.D.C. 1982); Sierra Club v. Gorsuch, 551 F. Supp. 785 (N.D. Cal. 1982); State of Illinois v. Gorsuch, 530 F. Supp. 340 (D.D.C. 1981).
Promulgation of regulations 16 months after a Congressional deadline is highly irresponsible. Congress was aware of the complexity of these hazardous waste regulations and yet decided that quick promulgation was of paramount importance. Now that the damage is done, however, this court must fashion an equitable remedy that best achieves the Congressional purpose. This court has previously felt bound to accept a proposed schedule by EPA where EPA demonstrates through affidavit that it is "proceeding in good faith," Illinois v. Gorsuch, 12 ERC 1597, 1598 (D.D.C. 1979), rather than mandate flat guidelines of its own. NRDC v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 712-13 (D.C. Cir. 1975). After reviewing the proposed schedule set forth by EPA in this case, it appears that the June 30, 1986 deadline is reasonable. This date is only two months later than the date sought by plaintiffs. Therefore, it is ordered that the regulations be promulgated by that time. Failure to do so would be capricious and would merit stronger equitable treatment.
B. OMB's Interference with the Promulgation Process
From the discussion above, it seems clear that OMB did contribute to the delay in the promulgation of the regulations by insisting on certain substantive changes. The released documents show that EPA was ready to announce proposed regulations in the Federal Register as early as March 31, 1985, but due to OMB it did not happen until three months later.
A certain degree of deference must be given to the authority of the President to control and supervise executive policymaking. Sierra Club v. Costle, 211 U.S. App. D.C. 336, 657 F.2d 298, 405 (D.C. Cir. 1981) (regarding whether oral communications between EPA and the White House must be docketed on the rule-making record when EPA revises Clean Air Act provisions). Yet, the use of EO 12291 to create delays and to impose substantive changes raises some constitutional concerns. Congress enacts environmental legislation after years of study and deliberation, and then delegates to the expert judgment of the EPA Administrator the authority to issue regulations carrying out the aims of the law. Under EO 12291, if used improperly, OMB could withhold approval until the acceptance of certain content in the promulgation of any new EPA regulation, thereby encroaching upon the independence and expertise of EPA. Further, unsuccessful executive lobbying on Capitol Hill can still be pursued administratively by delaying the enactment of regulations beyond the date of a statutory deadline. This is incompatible with the will of Congress and cannot be sustained as a valid exercise of the President's Article II powers.
Such concerns were noted by Congress when EO 12291 was passed. In order to ensure the legality of the operation of EO 12291, James C. Miller III, now the director but then the administrator of OMB's Office of Information and Regulatory Affairs ("OIRA"), appeared before a congressional committee and stressed the importance of construing narrowly the authority granted to OMB. Mr. Miller testified:
President Reagan's Executive order imposes on the agencies only "to the extent permitted by law" and only to the extent that its terms would not "conflict with deadlines imposed by statute or by judicial order." The limited application of (EO 12291) is a crucial point, one that insures (its) legality and the legality of actions pursuant to (it). . . . If a statute or a court order establishes a date for a rulemaking action, the Executive Order 12291 cannot delay that action.
Testimony of James C. Miller III, in Role of OMB in Regulation: Hearing Before the Subcomm. on Oversight and Investigation of House Comm. on Energy & Commerce, 97th Cong., 1st Sess 46 (1981).
The Justice Department has also emphasized that EO 12291 must be construed narrowly to survive legal challenge.
(I)t is clear that the President's exercise of supervisory powers must conform to legislation enacted by Congress. In issuing directives to govern the Executive Branch, the President may not, as a general proposition, require or permit agencies to transgress boundaries set by Congress.