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NATURAL RESOURCES DEFENSE COUNCIL v. REILLY

January 14, 1992

NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiff,
v.
WILLIAM K. REILLY, et al., Defendants.



The opinion of the court was delivered by: PRATT

 This Court has before it two motions by plaintiff to enforce a consent decree that established deadlines for the Environmental Protection Agency ("EPA") to promulgate water pollution regulations for the offshore oil and gas extraction industry. On April 5, 1990, this Court entered a Final Order and Decree that incorporated a Settlement Agreement signed by the parties. On December 21, 1990, plaintiff filed a Motion to Enforce Consent Decree and For Order to Show Cause, seeking relief from defendants' alleged failure to comply with the Court's November 16, 1990 deadline for the proposal of water pollution regulations for the offshore oil and gas industry. On April 22, 1991, plaintiff filed its Second Motion to Enforce Consent Decree seeking relief from defendants' alleged violation of the consent decree by not proposing any effluent limitations for radium-226 and radium-228. Defendant EPA opposes. For the reasons that follow, we deny both motions.

 Background

 These motions arise out of a fifteen-year dispute whereby plaintiff Natural Resources Defense Council ("NRDC") has striven to compel the EPA to fulfill its statutory mandate under the Clean Water Act ("CWA"). 33 U.S.C. §§ 1251 - 1386. Under the terms of the CWA, the EPA was required by September 15, 1976, to propose and publish standards for the amounts and kinds of wastes that could be disposed of by the oil and gas extraction industry into the nation's waterways. *fn1" When the EPA did not promulgate these standards by 1979, the NRDC filed the instant suit. A settlement agreement was reached in July 1980 whereby the EPA agreed to a schedule to issue the standards. See Settlement Agreement (approved July 9, 1980) ("1980 Settlement Agreement"). Under the 1980 Settlement Agreement, the EPA was to propose standards by November 30, 1981, or as soon after as possible. Final standards were to be promulgated within 60 days of the close of the public comment period, or else the EPA was to provide an alternative time by which the final standards were to appear. See 1980 Settlement Agreement at 5. The proposed regulations were not published until August 1985. See 50 Fed. Reg. 34,592 (Aug. 26, 1985). However, the EPA did not promulgate any final rules.

 In September 1988, as no final regulations had ever been issued, NRDC moved to reopen the case. In March 1990, the parties presented this Court with a settlement agreement that established a new timetable for the proposal and promulgation of the regulations. The Settlement Agreement was approved by the Court on April 5, 1990 and incorporated into a Final Order and Decree, with the Court retaining jurisdiction. See Final Order and Decree.

 The 1990 Settlement Agreement provides that the EPA shall promulgate effluent limitations based upon the application of Best Available Technology Economically Achievable (BAT) and Best Conventional Pollution Control Technology (BCT) for produced water, *fn2" drilling fluids, *fn3" drill cuttings, *fn4" well treatment fluids *fn5" and produced sand waste streams *fn6" for new sources in the offshore oil and gas extraction point source category. See Settlement Agreement § I. The Settlement Agreement sets out a time schedule for the promulgation of the regulations. The EPA was to propose or repropose effluent limitations guidelines and standards by November 16, 1990, and to promulgate final effluent guidelines and standards by June 19, 1992. Settlement Agreement § I.A, I.B. Section II of the Settlement Agreement required the EPA to determine by November 16, 1990 whether to propose limitations guidelines and new source performance standards for "domestic and sanitary wastes and deck drainage waste streams." If the EPA determines that such regulations should be promulgated, it is required to promulgate final guidelines and standards by June 30, 1993. Settlement Agreement § II. The Settlement Agreement also provides that the parties are free to petition the Court for an interpretation or modification of the Agreement. See Settlement Agreement § V.

 The December 1990 Motion

 On December 21, 1990, plaintiff NRDC moved to enforce this Court's April 5, 1990 Final Order and Decree and for an order to show cause as to why the defendant Administrator of the EPA should not be held in contempt for violating the decree. NRDC claims that the terms of the Settlement Agreement mandated that the EPA propose effluent limitations guidelines and standards for certain wastes produced by offshore oil and gas facilities by November 16, 1990 and that an "initial" proposal submitted on that date was an intentional circumvention of the "plain language and clear intent of the Court's decree." See Plaintiff's Motion to Enforce Consent Decree, and For Order to Show Cause Why the Defendant Administrator of the Environmental Protection Agency Should Not Be Held in Contempt for Violating the Decree ("December 1990 Motion") at 1. Plaintiff points to the abbreviated nature of the initial proposal and to the fact that defendants allegedly contacted plaintiff a week prior to the November 16, 1990 deadline when defendants sought plaintiff's consent to an amendment of the decree which would have postponed the schedule. See Memorandum in Support of December 1990 Motion at 11. In response, defendants assert that the initial proposal, which was published in the Federal Register on November 26, 1990, fulfilled the terms of the Settlement Agreement. Further, defendants argue that since the EPA then published a proposed rule on February 28, 1991, *fn7" "NRDC's concerns have been fully addressed." EPA's Second Supplemental Memorandum in Opposition to December 1990 Motion at 1.

 Contrary to defendants' assertion, this Court does not believe that the "initial proposal" of November 16 met the clear intent of the Settlement Agreement despite defendants' claim that it met the obligations of Paragraph I.A of the Settlement Agreement.

 The interpretation of a consent degree is primarily a matter of contract law. See United States v. Western Electric Co., 269 App. D.C. 436, 846 F.2d 1422, 1427 (D.C. Cir. 1988). Generally, the scope of a consent decree "must be discerned within its four corners." United States v. Armour & Co., 402 U.S. 673, 6821, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971). However, as with other contracts, reliance on aids to construction is proper, "including 'the circumstances surrounding the formation of the consent decree.'" See United States v. Western Electric Co., 269 App. D.C. 436, 846 F.2d 1422, 1427 (D.C. Cir. 1988) (quoting United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 43 L. Ed. 2d 148, 95 S. Ct. 926 (1975)). Decrees in which the government is a party are treated as any other agreement, and there is "no doctrinal basis for the district court to defer to the [government's] interpretation of the decree or its views" about the issues. United States v. Western Electric Co., 283 App. D.C. 299, 900 F.2d 283, 297 (D.C. Cir. 1990). Therefore, we look to the language of the agreement and the contemporaneous understandings of its purposes. See 900 F.2d at 293.

 Section I of the Settlement Agreement reads:

 I. With respect to produced water, drilling fluids and drill cuttings, well treatment fluids and produced sand waste streams, as described at 50 Fed. Reg. 34,595c (August 26, 1985), the Administrator shall develop and promulgate regulations establishing and requiring achievement of effluent limitations guidelines based upon application of BAT and BCT, and standards of performance for new sources in the offshore subcategory of the oil and gas extraction point source category, according to the following schedule and requirements:

 A. By November 16, 1990, EPA shall propose or repropose effluent limitations ...


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