CALIFORNIA COMMUNITIES AGAINST TOXICS et al v. MCCARTHY

Filing 49

MEMORANDUM AND OPINION re 23 Plaintiffs' motion for summary judgment and 31 Defendant's cross motion for partial summary judgment. Signed by Judge Tanya S. Chutkan on 3/13/2017. (lctsc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CALIFORNIA COMMUNITIES
AGAINST TOXICS, et al.,
Plaintiffs,
v.
SCOTT PRUITT, Administrator,
United States Environmental Protection
Agency,

Defendant.

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Civil Action No. 15-cv-512 (TSC)

MEMORANDUM OPINION
Plaintiffs, a number of environmental advocacy groups, bring this action against the
Environmental Protection Agency (EPA) pursuant to the Clean Air Act’s citizen suit provision,
42 U.S.C. § 7604(a)(2), to compel the agency to perform rulemakings mandated by the Act to
protect people and the environment from pollution. Plaintiffs and the EPA have both filed for
summary judgment. The EPA does not contest liability for the underlying failure to act. All that
is left for the court to determine, then, is what constitutes an appropriate and reasonable timeline
for the EPA to complete its mandated activity. Having considered the parties’ briefs, their
presentations at the motions hearing held on January 6, 2017, Defendant’s supplemental
declaration filed in this case and in case 16-cv-364, and Plaintiffs’ response to the supplemental
declaration, Plaintiffs’ motion for summary judgment will accordingly be GRANTED,
Defendant’s cross-motion for summary judgment will be DENIED, and Plaintiff’s request as to
the specific remedy will be GRANTED in part and DENIED in part.

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I.

BACKGROUND
A. Statutory background
Congress amended the Clean Air Act (CAA), the comprehensive federal law that

regulates air emissions from stationary and mobile sources, in 1990, creating “an aggressive
regime of new control requirements to address four crucially important air pollution problems:
urban smog, hazardous air pollution, acid rain, and depletion of the stratospheric ozone layer.”
The Hon. Henry A. Waxman, An Overview of the Clean Air Act Amendments of 1990, 21 ENVTL.
L. 1721, 1723 (1991). Prior to the amendments, the Act required the EPA “to set risk-based air
pollution standards.” Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 857 (D.C. Cir. 2001).
The amendments abandoned the risk approach and instead required the EPA “to set the most
stringent standards achievable . . . that is, standards ‘based on the maximum reduction in
emissions which can be achieved by application of [the] best available control technology.’” Id.
(quoting S. REP. NO. 101–228, at 133 (1989), U.S. Code Cong. & Admin. News at 3385, 3518).
The amendments set forth a two-step process for regulating hazardous air pollutants, or
“HAPs”. First, the EPA establishes emission floors for each pollutant and source category, and
then the agency sets stricter but “achievable” standards—taking into account “the cost of
achieving such emission reduction, and any non-air quality health and environmental impacts
and energy requirements.” Id. at 858; 42 U.S.C. § 7412(d)(2). With the amendments, Congress
also created a specific list of 189 HAPs for the EPA to regulate, and gave the EPA the authority
to revise the list. 42 U.S.C. § 7412(b).
The EPA regulates HAPs by regulating different types of sources that emit HAPs. These
sources include “major sources,” which emit the most pollutants, “area sources,” which are
stationary sources of HAPs that emit fewer HAPs than major sources; “stationary sources,”
defined as “any building, structure, facility, or installation which emits or may emit any air
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pollutant;” and “new sources,” defined as “a stationary source the construction or reconstruction
of which is commenced after the Administrator first proposes regulations.” Id. § 7412(a); 42
U.S.C. § 4211. The 1990 amendments required the EPA to publish, within one year of the
amendments’ 1990 passage, “a list of all categories and subcategories of major sources and area
sources . . . of the air pollutants listed pursuant.” Id. § 7412(c)(1). Additionally, the statute
required the agency to “from time to time, but no less often than every 8 years, revise, if
appropriate, in response to public comment or new information,” the list of categories and
subcategories of major sources and area sources. Id. For each list of categories and subcategories, the EPA was required to establish emissions standards. Id. § 7412(c)(2). The statute
required that within five years, the listed sources cover 90% of emissions of the 30 worst HAPs,
and regulations of those sources were to be completed within ten years. Id. § 7412(c)(3).
The amendments contained a number of additional deadlines. The EPA was to establish
standards regulating emissions for 40 source categories within two years; to establish standards
for 25 percent of the listed categories within four years; an additional 25 percent within seven
years; and the remaining within ten years of November 1990. Id. § 7412(e)(1). For new source
categories that the EPA would add pursuant to its responsibility to revise the list from time to
time, the agency was to promulgate emissions standards within two years of the listing. Id. §
7412(c)(5).
The amendments required the EPA to review and revise emissions standards at least
every eight years in order to take into account developments in technology—in other words, to
review the step one technology “floor”—and either promulgate new standards or determine that
new standards were not necessary. Id. § 7412(d)(6). The agency was also required to, first,
submit a report to Congress within six years of the amendments on the remaining risk to public

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health and actual health impact of HAPs, and, if Congress did not act based on the
recommendations in that report, review the standards within eight years to determine whether
any changes were necessary to “provide an ample margin of safety to protect public health” or to
“prevent . . . an adverse environmental effect,” subject to considerations like cost—in other
words, the step two risk determination. Id. § 7412(f)(2)(A).
The process by which the EPA promulgates new standards, or determines that new
standards are not necessary, includes public notice and comment—the agency must issue a notice
of proposed rulemaking, hold a public comment period, respond to significant comments, and
issue a final rule explaining any changes from the proposal. 42 U.S.C. § 7607(d), (h).
B. Plaintiffs’ claim
Plaintiffs sued the EPA administrator for failure to take mandatory, non-discretionary
actions regarding the following 20 listed major source categories:1
Source Category
Solvent Extraction for Vegetable Oil
Boat Manufacturing
Surface Coating of Metal Coil
Cellulose Products Manufacturing
Ethylene Production
Paper and Other Web Coating
Municipal Solid Waste Landfills
Hydrochloric Acid Production
Reinforced Plastic Composites Production
Asphalt Processing & Roofing Manufacturing
Integrated Iron & Steel Manufacturing
Engine Test Cells/ Stands
Site Remediation
Miscellaneous Organic Chemical
Manufacturing
Surface Coating of Metal Cans

Date emissions standard promulgated
April 12, 2001 (66 Fed. Reg. 19,006)
August 22, 2001 (66 Fed. Reg. 44,218)
June 10, 2002 (67 Fed. Reg. 39,794)
June 11, 2002 (67 Fed. Reg. 40,044)
July 12, 2002 (67 Fed. Reg. 46,258)
December 4, 2002 (67 Fed. Reg. 72,330)
January 16, 2003 (68 Fed. Reg. 2227)
April 17, 2003 (68 Fed. Reg. 19,076)
April 21, 2003 (68 Fed. Reg. 19,375)
April 29, 2003 (68 Fed. Reg. 22,976)
May 20, 2003 (68 Fed. Reg. 27,646)
May 27, 2003 (68 Fed. Reg. 28,774)
October 8, 2003 (68 Fed. Reg. 58,172)
November 10, 2003 (68 Fed. Reg. 63,852)
November 13, 2003 (68 Fed. Reg. 64,432)

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The Complaint included a twenty-first major source category about which the parties have
stipulated to voluntary dismissal without prejudice: Semiconductor Manufacturing.
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Surface Coating of Miscellaneous Metal Parts
and Products
Organic Liquids Distribution
Stationary Combustion Turbines
Surface Coating of Plastic Parts and Products
Surface Coating of Automobiles & LightDuty Trucks

January 2, 2004 (69 Fed. Reg. 130)
February 3, 2004 (69 Fed. Reg. 5038)
March 5, 2004 (69 Fed. Reg. 10,512)
April 19, 2004 (69 Fed. Reg. 20,968)
April 26, 2004 (69 Fed. Reg. 22,602)

(Pls. Statement of Material Facts, ECF No. 23, ¶ 2); (Def. Resp., ECF No. 31 Attachment
1, at 1). The parties agree that more than eight years have passed since the promulgation dates of
emissions standards for the 20 source categories. (Pls. Stat. ¶ 3); (Def. Resp. at 1). The parties
agree that the EPA has not completed the reviews required by the statute at § 7412(d)(6) (the
regular eight-year review of standards after their promulgation) and § 7412(f)(2) (the residual
risk review). (Pls. Stat. ¶ 4); (Def. Resp. at 1).
C. Proposed remedies
i. Plaintiff’s proposed timeline
Plaintiffs have proposed a timeline requiring the EPA to complete the overdue
rulemakings within one to two years. Specifically, Plaintiffs’ plan would require the agency, for
ten of the categories, to issue notices of proposed rules within eight months of the court’s order
and promulgate final rules within one year; and for the remaining ten categories, to issue notices
of proposed rules within 20 months of the court’s order and promulgate final rules within two
years.
ii. EPA’s proposed timeline
The agency has proposed a timeline to complete the rulemakings within five years, as
follows:

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Source Category
Solvent Extraction for Vegetable
Oil
Boat Manufacturing
Surface Coating of Metal Coil
Cellulose Products Manufacturing
Ethylene Production
Paper and Other Web Coating
Municipal Solid Waste Landfills
Hydrochloric Acid Production
Reinforced Plastic Composites
Production
Asphalt Processing & Roofing
Manufacturing
Integrated Iron & Steel
Manufacturing
Engine Test Cells/ Stands
Site Remediation
Miscellaneous Organic Chemical
Manufacturing
Surface Coating of Metal Cans
Surface Coating of Miscellaneous
Metal Parts and Products
Organic Liquids Distribution
Stationary Combustion Turbines
Surface Coating of Plastic Parts
and Products
Surface Coating of Automobiles &
Light-Duty Trucks

Original
Promulgation
4/12/2001

Proposal Date

Final Rule Date

2/19/2020

2/17/2021

8/22/2001
6/10/2002
6/11/2002
7/12/2002
12/4/2002
1/16/2003
4/17/2003
4/21/2003

2/26/2020
12/5/2019
10/10/2018
1/17/2019
4/1/2020
7/22/2020
7/12/2018
4/15/2020

5/19/2021
11/26/2020
12/18/2019
5/14/2020
7/28/2021
11/17/2021
7/11/2019
7/7/2021

4/29/2003

9/26/2018

9/18/2019

5/20/2003

8/16/2017

11/6/2018

5/27/2003
10/8/2003
11/10/2003

8/29/2018
11/7/2018
6/17/2020

8/21/2019
1/15/2020
10/13/2021

11/13/2003
1/2/2004

12/5/2019
10/4/2017

11/26/2020
12/10/2018

2/3/2004
3/5/2004
4/19/2004

6/17/2020
5/20/2020
10/4/2017

10/13/2021
9/15/2021
12/10/2018

4/26/2004

8/30/2017

11/21/2018

The EPA has identified nine phases involved in the risk and technology review (“RTR”)
rulemaking. Phase I (2 months) involves establishing a project team, determining whether to
hire a contractor, identifying stakeholders interested in rule development, preparing written
materials and conducting meetings with stakeholder groups, and—because the agency anticipates
that it will have contractors perform work for all 20 categories—developing a work plan for the
contractor and a back-and-forth between the agency and the contractor about the work plan.

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(Tsirigotis Decl., ECF No. 31 Ex. A, ¶ 12). The EPA notes that the Integrated Iron and Steel and
Ethylene Processes source categories have completed Phase I. (Id.).
Phase II (3 months) involves preliminary information collection from project files, the
agency’s library, major university libraries, public libraries, and the Internet, and gathering data
on emissions from facilities in the source category. (Id. ¶ 13). The Integrated Iron and Steel and
Ethylene Processes source categories have also completed Phase II. (Id.). Phase III (0 to 28
months) involves collecting supplemental information, which the agency believes will be
necessary for “most” of the 20 categories. (Id. ¶ 14). At this stage, for each of the 20 categories,
the agency will either find that additional information is not needed, collect information from 9
or fewer entities in a source category, or send information requests to 10 or more entities in a
source category, the latter of which requires Office of Management and Budget (OMB) approval.
(Id.). The agency anticipates that it will not need to collect additional information for seven
categories: Integrated Iron and Steel, Auto and Light Duty Truck, Miscellaneous Metal Parts,
Plastic Parts, Metal Can, Metal Coil, and Solvent Extraction for Vegetable Oil. (Id.). It
anticipates collection from fewer than 9 entities for six other categories, and anticipates
requesting information from more than 10 entities for seven source categories. (Id.). The EPA
estimates that the OMB process and information request to more than 10 entities adds 24 months
to the total time for this phase, resulting in a 28-month timeframe for those seven categories.
(Id.).
Phase IV (3 to 4 months) involves data analysis to determine inputs for risk models. (Id.
¶ 15). Two projects have already begun Phase IV: Integrated Iron and Steel and Auto and Light
Duty Trucks. (Id.). Phase V (2 to 6 months) constitutes the risk analysis and technology review.
(Id. ¶ 16). Phase VI (12 to 15 months) involves development of the rule proposal package,

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including drafting the proposed rules and briefing materials, drafting supporting documentation,
and submitting those documents to the EPA workgroup for review. (Id. ¶ 17). Phase VII (3
months) is the public comment period, including one month for publication in the Federal
Register and a planned 60-day comment period. (Id. ¶ 18). Phase VIII (3 to 5 months) involves
the summarizing of comments and developing responses to comments. (Id. ¶ 19). Phase IX (6
to 8 months) is the development of the final rule package, involving drafting changes based on
the comments, preparing recommendations based on comments and briefing for EPA
management, and preparing the final rule and updating supporting documentation. (Id. ¶ 20).
II.

LEGAL STANDARD
A. Summary judgment
Summary judgment is appropriate where there is no disputed genuine issue of material

fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986).
B. Remedy
The Clean Air Act’s citizen-suit provision provides that district courts can “order the
Administrator to perform” an act or duty mandated by the statute, and can “compel . . . agency
action unreasonably delayed.” 42 U.S.C. § 7604(a). District courts are empowered to set
deadlines which the agency must meet. See Nat. Res. Def. Council, Inc. v. Train, 510 F.2d 692,
704 (D.C. Cir. 1974) (upholding district court’s use of a timetable for agency action as a
reasonable means of compelling statutory duties unreasonably delayed). An agency has a “heavy
burden” to demonstrate that a remedial timeline is too strict: it must show that the timeline is “an
impossibility.” Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D.C. Cir. 1979) (citing Train,
510 F.2d at 712). Courts can take into consideration “constraints” such as “budgetary and
manpower demands . . . [that are] beyond the agency's capacity or would unduly jeopardize the
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implementation of other essential programs” and the limitations on the agency’s ability to
evaluate available control technology. Id. (quoting Train, 510 F.2d at 712).
III.

ANALYSIS
As evidence of the feasibility of their proposed two-year timeline, Plaintiffs point to the

statutory framework and contend that any inability on the agency’s part to complete the RTR
rulemakings would be inconsistent with what Congress envisioned. (Pls. Mot. for Summ. J. at
20-21). Because Congress ordered the EPA to promulgate emissions standards, from scratch, for
40 source categories in two years, Plaintiffs contend, the reviews they seek should be easily done
within the same amount of time. Additionally, Plaintiffs claim, Congress clearly envisioned that
the EPA would be conducting multiple, parallel rulemakings for multiple source categories at
one time. Plaintiffs also point to the EPA’s extensive practice and familiarity with Clean Air Act
rulemakings, and suggest the use of templates. (Id. at 22).
The EPA responds that its experience with rulemaking has led it to the conclusion that
the timetable it proposes is the “best estimate of the minimum reasonable time for completion of
the risk and technology reviews and promulgation of additional standards, if needed.” (Def.
Resp. at 2); (Tsirigotis Decl. ¶ 8). Since 2012, the EPA notes, it has not completed an RTR in
less than 2.5 years from the start of the project. (Tsirigotis Decl. ¶ 21, Attachment 1).
Additionally, the EPA suggests that it is currently engaged in seven other rulemakings, several of
which are court-ordered, and therefore it has fewer resources available for the 20 RTRs at issue.
(Id. ¶ 7). It explains that the rulemakings at issue are “relative[ly] complex[]” and Plaintiffs’
timeline could “possibly . . . eliminat[e] [its] ability to consider any new information received
during the comment period.” (Def. Opp. at 3). It points to the importance of Congress’s
directive that the public be able to participate in rulemaking, and suggests that Plaintiffs’

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timeline would inhibit that important mission. (Id. at 11). It notes that the original two-year
timeline for standards promulgation cannot be compared to RTR rulemakings, which Congress
gave the EPA eight-year periods to do, and which “entail[] issues that are outside the scope of
the original NESHAP rulemaking and may be complex and time-consuming to resolve.” (Id. at
22).
Plaintiffs reply that while reviewing an existing standard may require some different
analysis than developing the standard in the first place, if anything, the former should take less
time. (Pls. Reply at 7). Plaintiffs also point out that Congress did not contemplate the RTRs
taking eight full years, but rather, occurring at least every eight years. (Id.) The court agrees: if
the RTRs were begun immediately after the completion of the most recent set of RTRs, they
would be futile, as there would not yet be developments in technology. A standard of how often
something should take place does not describe how long the thing should take. Plaintiffs doubt
the validity or relevance of the EPA’s citation to previous RTRs that have taken at least 2.5
years, pointing out that those timelines resulted from settlements, and in some instances
constituted “renegotiated” timelines, rather than court orders. (Reply at 12). The court finds the
2.5-year timeframe to be a useful benchmark, regardless of its provenance. If the agency
negotiated a settlement for a particular timeline, that number represents a shorter timeline than
the agency asked for, and if it needed to renegotiate, then the agreed-upon timeline was in fact
impossible. The court sees little pragmatic value in ordering the agency to meet deadlines that
proved impossible in the settlement context.
Plaintiffs point to inaccuracies in the specific amounts of time Defendants identified as
necessary for each phase of the rulemaking. First, Plaintiffs argue, the timing throughout is
overestimated, because it takes other obligations into account. (Pls. Reply at 18). Second,

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Plaintiffs argue, Phases I and II are nearly complete already. (Id.). Third, Phases III and V are
speculative and refer to actions the EPA may not need to take. (Id. at 19, 23). Fourth, Plaintiffs
note that the EPA requested two months for Phase IV in a comparable district court case in
Northern California involving the yeast manufacturing source category, but now states that Phase
IV takes three to four months. (Id. at 22-23); see Club v. McCarthy, 2016 WL 1055120 at *5
(N.D. Cal. March 15, 2016). Fifth, Plaintiffs contend that the OMB review described by
Defendants in Phase VI is discretionary and therefore should not interfere with the EPA’s
fulfillment of Clean Air Act responsibilities. (Id. at 23) (citing In re United Mine Workers of
America Int’l Union, 190 F.3d 545, 551 (D.C. Cir. 1999) (finding 90-day OMB review required
by Executive Order No. 12,866 does not set aside statutory timetables created by Congress)).
Last, Plaintiffs argue that Phases VII-IX are routinely conducted in approximately half of the 12
to 16 months the Tsirigotis Declaration states the EPA requires. (Id. at 24).
The EPA responds that the speculative time included in their Phase III and VI estimates
is necessary, because the agency cannot know in advance whether additional information will be
needed to complete the RTRs, and it would be “impracticable” for the agency to have to request
an extension upon determining that more time is needed. (Def. Reply at 11). The agency states
that Phases I and II are not complete. (Id. at 17). It differentiates the two-month estimate for
Phase IV identified in the California case on the basis that the nutritional yeast manufacturing
source category was less complex than the source categories at issue in this case. (Id. at 18).
The agency argues that whether or not OMB review is “discretionary,” nothing in the language
of Congress prohibits the agency from determining how to employ its staff and implement
coordination between staff and management. (Id. at 19). And the agency explains that in other
contexts where Phases VII through IX were completed in under seven months, the rulemakings

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were either simpler, or there had already been a long stretch of time in Phase VI, or there were
fewer rules being made. (Id. at 21).
The EPA also states that the quality of the rules would suffer if it had to meet Plaintiffs’
timeline. (Def. Opp. at 23). Plaintiffs respond that the EPA’s mandate is to produce adequate
rules, and a conclusory claim that more time would result in a better rule is not enough. (Reply
at 15). The court agrees that more time could always result in a better product, but the relevant
legal standard in this circumstance is “impossibility.” The EPA has nowhere stated that
Plaintiffs’ timeline is “impossible,” nor that producing an adequate rule under that time frame is
“impossible,” nor that public participation within that timeframe would be “impossible.” The
court agrees with Plaintiffs’ contention that the agency’s justifications for its inability to meet
their timeline are too vague; citing other obligations but failing to describe what they are, what
type of resources they consume, and whether they could be delayed to prioritize the RTR
rulemakings at issue. (Pls. Reply at 5, 10).
Absent an actual contention, backed by evidence, of “impossibility,” the court will not
accede to the agency’s suggested timeline. But, while the court does not doubt the urgency of
revising and promulgating standards to regulate emissions, addressing the ongoing health and
environmental threats they pose, the court finds, like another court in this district did in Sierra
Club v. Johnson, 444 F. Supp. 2d 46, 58 (D.D.C. 2006), that Plaintiffs’ timeline may be “simply
too compressed at this stage to afford any reasonable possibility of compliance.” Accordingly,
the court will impose a schedule in between that requested by Plaintiffs and that proposed by the
agency.

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IV.

CONCLUSION
For the reasons set forth above, the court will GRANT IN PART and DENY IN PART

Plaintiffs’ motion for summary judgment; DENY Defendant’s motion for summary judgment,
and enter judgment in favor of Plaintiffs. The court will order completion of all 20 source
category RTRs within three years.
A corresponding order will issue separately.
Date: March 13, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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