importantly, defendant does not offer any evidence to suggest that the time frame proposed by plaintiff would be impossible or infeasible to implement. See id.
The Court also notes that OMB's review of the draft proposed regulations does not at all justify EPA's delay. OMB derives its authority to review EPA regulations from Executive Order No. 12,291, 3 C.F.R. 127 (1982), reprinted in 5 U.S.C.A. § 601 at 380-83 (West Supp. 1992), which expressly acknowledges that OMB's review of regulations does not apply where it would conflict with statutory deadlines. Id. § 8(a)(2) ("the procedures prescribed by this order shall not apply to . . . any regulation for which consideration . . . under the terms of this order would conflict with deadlines imposed by statute."); accord Environmental Defense Fund v. Thomas, 627 F. Supp. 566, 571 (D.D.C. 1986) ("if a deadline has already expired, OMB has no authority to delay regulations subject to the deadline in order to review them under the executive order.").
The Court thus concludes that the evidentiary material submitted by EPA does not meet EPA's heavy burden of demonstrating impossibility or infeasibility. Short of this showing, EPA's proper recourse is to persuade Congress to amend the statute, not to defy the statute and seek relief with this Court. See State of New York v. Gorsuch, 554 F. Supp. at 1066. Because EPA has already failed to comply with the statutory deadline without adequate justification, the Court's only recourse is to develop a revised timetable.
Congress originally prescribed that EPA would have one year to promulgate regulations. According to Mr. Wilson's Declaration, EPA has already made significant progress in formulating regulations. For example, the assigned staff consulted with current vehicle program administrators, EPA Regional Office staff, state organizations, environmental groups and various affected industry groups. Wilson Dec. P 10. Further, the staff prepared a forty-page draft guidance document, pursuant to which public workshops were held. Id. P 11. Public comments were received on the draft and reviewed by the staff. Id. P 13. Finally, various studies were conducted, leading to a draft preamble and regulation which was written and processed through the EPA regulatory workgroup, id. P 19, and forwarded to OMB. Id. P 20. EPA is currently consulting with OMB to resolve all remaining issues on the regulations and supporting documentation. Id. P 22.
While the Court recognizes that because of the public interest in a case such as this, "it would be inappropriate to set an infeasible schedule in order to punish a delinquent agency," Sierra Club v. Thomas, 658 F. Supp. 165, 171 (N.D. Cal. 1987), it finds that EPA is sufficiently far along in the process of devising regulations to comply with the schedule plaintiff proposes. Moreover, the court is mindful of the necessity of completing the final regulations before the November 15, 1992 deadline for the states to submit SIPs.
However, the court will move back plaintiffs' proposed schedule by a few days, as specified below.
For the reasons stated above, plaintiff's motion for summary judgment and the entry of a scheduling order is granted. Accordingly, defendant is directed to publish proposed regulations by July 13, 1992, after which there will be a forty-five day public comment period ending on August 27. A complete staff review and senior EPA management review will take place by October 23, 1992. The Administrator will sign the final rule by October 27 and it will be published in the Federal Register by November 6, 1992.
The Court will retain jurisdiction over this action to supervise compliance with this Order. The Administrator is further ordered to file with the Court a status report detailing compliance with this Order by October 23. If defendants fail to comply with their obligations under this Order, Administrator Reilly must show cause before this Court immediately as to why he should not be held in contempt or otherwise sanctioned.
Dated: Brooklyn, New York
July 1, 1992
DENIS R. HURLEY, U.S.D.J.