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January 28, 1986

LEE M. THOMAS, Administrator, U.S. Environmental Protection Agency, et al., Defendants

Flannery, J.

The opinion of the court was delivered by: FLANNERY

This matter comes before the court on the parties' cross-motions for summary judgment. Plaintiffs' motion has appended to it various public documents as well as documents under seal regarding deliberations between defendants. Defendants' motion, originally filed in July of 1985, was supplemented in December of 1985. This court has allowed groups representing the electric utilities industry to file a single amici curiae brief.

 I. Background

 In November of 1984, Congress enacted the Hazardous and Solid Waste Amendments of 1984 ("1984 Amendments"), Pub. L. 98-616 (Nov. 8, 1984), which amended the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6924. RCRA is a comprehensive statute designed to regulate the management of hazardous and solid wastes. One of the new amendments, Section 3004(w) of RCRA, 42 U.S.C. § 6924(w), provides that "(n)ot later than March 1, 1985, the (Environmental Protection Agency or "EPA") Administrator shall promulgate final permitting standards under this section for underground tanks that cannot be entered for inspection."

 This deadline was not met. Plaintiffs contend that EPA's ability to promulgate the regulations was further prevented by the unlawful interference of the Office of Management and Budget ("OMB"). Plaintiffs, Environmental Defense Fund Inc. ("EDF") and two individuals brought suit in this court on May 30, 1985. Plaintiffs seek an order that EPA must promulgate the regulations by April 25, 1986. Plaintiffs also seek injunctive relief against OMB to prevent similar interference in the future.

 Defendants EPA and OMB want until June 30, 1986 to promulgate the regulations. Further, they contend that this court has no jurisdiction to grant injunctive relief against OMB of this kind. The electric utilities groups, Edison Electric et al., agree with defendants.

 II. Jurisdiction

 Both parties agree that RCRA gives this court jurisdiction to order the Administrator of EPA to perform nondiscretionary duties and allows this court to set a date by which EPA must promulgate the hazardous waste tank regulations. 42 U.S.C. § 6972(a)(2). The only real dispute is by which deadline EPA can reasonably be ordered to promulgate final standards.

 Jurisdiction to grant injunctive relief against OMB is the more controversial aspect of this suit. At the crux of this disagreement is the lawfulness of OMB's activity pursuant to the Congressional deadline and pursuant to Executive Order 12291, 46 Fed. Reg. 13193 (Feb. 17, 1981), 3 C.F.R. 127 (1982) ("EO 12291").

 OMB's authority is qualified by the rule. Section 8(a)(2) of EO 12291 exempts regulations "for which consideration or reconsideration under the terms of this Order would conflict with deadlines imposed by statute or by judicial order." Further, "(n)othing in this subsection shall be construed as displacing the agencies' responsibilities delegated by law." Sec. 3(f)(3). The executive order also limits OMB's authority by authorizing OMB to exercise its review only "to the extent permitted by law." Secs. 2, 3(a), & 6(a).

 Plaintiffs contend that OMB's interference with the promulgation of the EPA regulations unlawfully delayed their promulgation, in violation of both the RCRA amendments and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Plaintiffs argue that under 28 U.S.C. § 1331 and § 1361, this court may exercise inherent equitable powers to grant injunctive relief preventing further OMB interference.

 Defendants respond that ordering OMB to refrain from reviewing any proposed regulations under RCRA whenever such review would delay promulgation of the regulation beyond a statutory deadline is an unjustifiable and inappropriate use of this court's power. As defendants see it, neither the RCRA nor the APA gives this court jurisdiction over OMB in this matter. Further, there is no jurisdiction to enforce any constraints found within the Executive Order itself.

 There is no doubt that this court has jurisdiction over both plaintiffs' RCRA and APA claims against the Administrator of EPA. 42 U.S.C. § 6972(a)(2) and 5 U.S.C. § 702. In compelling EPA to perform non-discretionary duties, however, it is also appropriate to fashion equitable relief to ensure that such duties are performed without the interference of other officials acting outside the scope of their authority in contravention of federal law. Though injunctive relief is not appropriate in these circumstances, as discussed below, there can be no doubt that an executive agency or agencies can be enjoined by this court from failing to execute laws enacted by Congress.

 III. Discussion

 While the merits of relief against EPA and relief against OMB can be discussed separately, first a discussion of what exactly caused the delay in promulgating the regulations is in order. From the documents released by OMB and EPA under seal, an interesting ...

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