The opinion of the court was delivered by: GREEN
This matter is before the Court on plaintiffs Natural Resources Defense Council, Inc. and Environmental Defense Fund, Inc.'s ("NRDC")
motion for partial summary judgment and two motions to dismiss filed by defendants, the United States Environmental Protection Agency ("EPA") and its Administrator. The parties also filed their respective oppositions and supplemental briefs which were joined by several intervenors
during the course of this litigation. For the reasons set forth below, the Court grants in part and denies in part plaintiffs' motion for partial summary judgment and grants in part and denies in part defendants' two motions to dismiss.
In 1977, in recognition of its known carcinogenic effects, then-EPA Administrator William D. Ruckelshaus listed benzene as a hazardous air pollutant pursuant to section 112(b)(1)(A) of the Clean Air Act (the "Act"), 42 U.S.C. § 7412(b)(1)(A). 42 Fed. Reg. 29,332 (1977). Benzene is a constituent of gasoline vapors and gasoline vapors as a whole are carcinogenic. Id. Under the Act, once the EPA determines that a pollutant such as benzene poses a health risk, it is required to issue proposed emission standards within 180 days of listing the pollutant. 42 U.S.C. § 7412(b)(1)(B).
The EPA did not issue the proposed regulations within the timetable prescribed by statute and on July 14, 1983, plaintiff NRDC filed its original complaint seeking an order to compel the EPA to propose or promulgate emissions standards for several stationary sources of benzene under section 112 of the Act. Standards for several categories of benzene emissions sources had been proposed but no final regulations as to these categories were ever promulgated. Furthermore, proposed regulations had not been issued as to several remaining categories of benzene emissions sources.
This Court granted plaintiffs' motion on January 27, 1984, and ordered additionally that the EPA defendants publish notice of the promulgated or proposed standard(s) or its decisions that those actions would not be taken. EPA complied with the Court's order and published its decisions in the Federal Register on June 6, 1984. EPA proposed a standard for coke oven by-product recovery plants, prescribed a final standard for fugitive benzene emissions, and withdrew the proposed standards for maleic anhydride process units, ethylbenzene/styrene process units, and benzene storage tanks. 49 Fed. Reg. 23,478, 23,498, and 23,558 (1984). The proposed standards for maleic anhydride process vents, ethylbenzene/styrene process vents, and benzene storage vessels were withdrawn "based on the conclusion that both the benzene health risks to the public from these source categories and potential reductions in health risks achievable with available control techniques [were] too small to warrant Federal regulatory action under section 112." Id. at 23,494.
Plaintiffs then moved for leave to amend their complaint in this Court under section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2), to allege that the Administrator of the EPA had failed to perform certain nondiscretionary duties under section 202(a)(6) of the Act, 42 U.S.C. § 7521(a)(6), with respect to requiring onboard emissions controls
for motor vehicles which are a source of benzene emissions. Plaintiffs argued that EPA never made a final decision as to this issue. In addition, plaintiffs sought an order compelling the Administrator, within the specified time frame embodied in section 112 of the Act, to propose emission standards with respect to a variety of additional source categories, including eight types of chemical manufacturing process units and other forms of benzene usage, and three elements of the gasoline marketing system. The eight types of chemical manufacturing process units and benzene usage are: ethylene plants, chlorobenzene plants, nitrobenzene plants, linear alkyl benzene plants, cyclohexane, waste disposal from chemical manufacturing, refinery waste disposal, and industrial solvent usage. The three elements of the gasoline marketing system are bulk terminals, bulk plants, and service stations. The Court granted plaintiffs' motion to amend the complaint.
Subsequently, defendants filed their first motion to dismiss which is pending before this Court. When this motion was filed initially, defendants sought dismissal of paras. 4, 5, 21, 11, and 26, and para. 4 of the Prayer for Relief of plaintiffs' amended complaint on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. According to defendants, the claims alleged in these specific paragraphs of plaintiffs' amended complaint warrant dismissal because section 202(a)(6) of the Act does not impose a nondiscretionary duty on the Administrator to determine the feasibility and desirability of requiring onboard emissions controls for new motor vehicles by a specific date. Even if such a duty were imposed by section 202(a)(6), defendants argue that they already discharged it in 1981 when the Administrator published a decision not to require onboard controls under the Act. 46 Fed. Reg. 21,628, 21,629 (1981). Intervenor-plaintiff API supported this motion to dismiss because "the far broader relief sought [by NRDC] in the Amended Complaint does not state a cause of action under section 304 of the Act, 42 U.S.C. § 7604." Memorandum of the American Petroleum Institute, et al. in support of EPA's Motion to Dismiss filed on November 29, 1984, at 1-2.
Plaintiffs then filed a second motion for partial summary judgment on the remaining issues in this case which sought initially an order requiring defendants, (1) within three months of entry of such order, to make a final determination pursuant to section 202(a)(6) of the Act regarding whether onboard and/or stationary controls would be utilized to regulate emissions of benzene and/or other hydrocarbons in the gasoline marketing system; (2) within three months thereafter to propose standards for regulating benzene and/or other hydrocarbons in the gasoline marketing system (or announcing that no regulation would be imposed) pursuant to section 112 or 202(a)(6) of the Act; (3) within six months thereafter to issue final standards for regulating benzene and/or other hydrocarbons in the gasoline marketing system; (4) within six months of entry of such order to propose a standard for emissions of benzene from chemical manufacturing process units and other forms of industrial benzene usage (or announcing that no regulation would be imposed), pursuant to section 112 of the Act; and (5) within six months thereafter to issue a final standard for emissions of benzene from chemical manufacturing process units and other forms of industrial benzene usage.
Next, defendants filed their second motion to dismiss and opposition to plaintiffs' motion for partial summary judgment. Unlike their first motion to dismiss which was directed solely at plaintiffs' claims concerning onboard controls of benzene emissions controls on new motor vehicles, this motion requested dismissal of plaintiffs' claims regarding defendants' alleged nondiscretionary duties under section 112 of the Act to propose and promulgate emission standards for benzene emissions for the gasoline marketing system and chemical manufacturing process units and other forms of industrial benzene usage.
Defendants cited four basic grounds for their motion to dismiss. First, they argued that EPA had no nondiscretionary duty under section 112 to propose and promulgate the benzene emission standards sought by plaintiffs; therefore, the complaint should be dismissed for lack of subject matter jurisdiction. Second, defendants claimed that plaintiffs' complaint raised the basic legal question of whether EPA could regulate some source categories of benzene and not others within the time frame set forth in section 112. According to defendants, that very issue was pending before the United States Court of Appeals for the District of Columbia as part of various challenges of EPA's rulemaking notice of June 6, 1984, and they requested that this Court defer its judgment so that the appeals court could address this basic issue of statutory interpretation. Third, defendants argued that defendants failed to identify with particularity what the "other forms of industrial benzene usage" were in either its initial or amended complaint; therefore, those claims are not properly before the Court. Finally, even if all of defendants' claims were before the Court properly, defendants averred that summary judgment should not be granted because there would remain disputed issues of material fact related to the time schedule proposed by plaintiffs.
Without considering the full merits, this Court transferred this case to the United States Court of Appeals for the District of Columbia pursuant to 28 U.S.C. § 1631 (1982) and in light of the holding in Telecommunications Research & Action Center v. FCC ("TRAC"), 242 U.S. App. D.C. 222, 750 F.2d 70 (D.C. Cir. 1984). At the time of the transfer, this Court determined that plaintiffs' complaint presented basically two issues for resolution: (1) whether section 112 of the Clean Air Act imposes a mandatory duty upon the EPA Administrator to propose and promulgate standards for all source categories of benzene emissions, including chemical manufacturing process units and the gasoline marketing system, and (2) whether the EPA Administrator fulfilled his duty under section 202(a)(6) of the Act when he announced in the Federal Register on April 15, 1981, that onboard vehicle controls would not be required. Natural Resources Defense Council, Inc. v. EPA, No. 83-2011, slip op. at 7 (D.D.C. Oct. 15, 1985). As to the latter issue, this Court determined that EPA had satisfied its duty under section 202(a)(6) on April 15, 1981, when it decided not to require onboard emission controls. Id. at 14. The first issue remained undecided.
Upon consideration of the transfer and the parties' claims, the Court of Appeals retransferred this case. Natural Resources Defense Council, Inc. v. EPA, 1987 U.S. App. LEXIS 9530, No. 86-1010, slip op. at 1 (D.C. Cir. May 5, 1987). It found that the relief sought by plaintiffs, a court order compelling the Administrator of EPA to fulfill an alleged nondiscretionary duty imposed by section 112(b)(1)(A) of the Act, is obtainable only under section 304 of the Act, 42 U.S.C. § 7604. Section 304 vests original jurisdiction in the district courts to determine whether the Administrator has failed to perform "any act or duty under this chapter which is not discretionary." The Court of Appeals determined further that "because TRAC was premised on the absence of a congressional grant of jurisdiction to the district courts . . . ...