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Community In-Power And Development Association, Inc. v. Pruitt

United States District Court, District of Columbia

March 31, 2018

COMMUNITY IN-POWER AND DEVELOPMENT ASSOCIATION, INC., et al. Plaintiffs,
v.
E. SCOTT PRUITT, in his official capacity as Administrator of the Environmental Protection Agency, Defendant. Source Category Date of Original Promulgation Deadline for Action Pursuant to § 7412(d)(6) and § 7412(f)(2) Source Category EPA Proposed Rule Date EPA Final Rule Date EPA ESTIMATE FOR FINAL RULEMAKING BY SOURCE CATEGORY Source Category Phase I Days Phase II Days Phase III Days Phase IV Days Phase V Days Phase VI Days Phase VII Days Phase VIII Days Phase IX Days Final Rule Date

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON, UNITED STATES DISTRICT JUDGE.

         Several environmental advocacy groups (“Plaintiffs”) have banded together to file this action against the Environmental Protection Agency (“the EPA” or “the agency”) pursuant to the Clean Air Act's citizen suit provision, 42 U.S.C. § 7604(a)(2). Plaintiffs seek to compel the EPA to perform obligatory and long-overdue rulemakings to protect people and the environment from hazardous air pollution (see Compl., ECF No. 1, ¶ 1), and the EPA admits that it has violated the Clean Air Act's prescriptions, insofar as the agency has failed to promulgate revised emission standards for the nine source categories of pollutants at issue in this case in a timely fashion (see EPA's Mem. in Opp'n to Pls.' Mot. for Summ. J. & in Supp. of Cross-Mot. for Summ. J. (“Def.'s Mem.”), ECF No. 29-3, at 6).[1] Based on that admission, all that remains of this dispute is a determination of how quickly the EPA must act to issue the revised emission standards.

         Before this Court at present are Plaintiffs' and the EPA's motions for summary judgment regarding that sole issue. (See Mot. of Pls. for Summ. J. (“Pls.' Mot.”), ECF No. 21; EPA's Cross-Mot. for Summ. J. (“Def.'s Cross-Mot.”), ECF No. 23.) The parties propose drastically different timelines for the EPA to act: Plaintiffs request a completion schedule of no more than two years from the date of this Court's Order (see Pls.' Mot. at 46), while the EPA asks for approximately seven years, until January of 2025, to complete the required rulemakings (see EPA's Reply Mem. in Supp. of Cross-Mot. for Summ. J. (“Def.'s Reply”), ECF No. 34, at 6). Having considered the parties' briefs, their presentations at the motion hearing held on November 30, 2017 (see generally Tr. of Mot. Hr'g (Nov. 30, 2017) (“Hr'g Tr.”), ECF No. 40), and the EPA's declarations, this Court will order the EPA to comply with its statutory obligations as expeditiously as possible, although not on the extremely compressed timeline Plaintiffs propose. Specifically, the EPA must complete all nine overdue rulemakings over the next three and a half years, and no later than October 1, 2021. Accordingly, Plaintiffs' motion for summary judgment will be GRANTED IN PART and DENIED IN PART, and Defendant's cross-motion for summary judgment will be DENIED. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. The Clean Air Act

         Congress enacted the Clean Air Act, 42 U.S.C. § 7401, et seq., in 1963, “to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.” Id. § 7401(b)(1). In 1990, Congress overhauled the Act and implemented “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.” Cal. Cmtys. Against Toxics v. Pruitt, 241 F.Supp.3d 199, 200 (D.D.C. 2017); see also Blue Ridge Envtl. Def. League v. Pruitt, 261 F.Supp.3d 53, 55 (D.D.C. 2017) (explaining that the overhaul resulted from Congress's recognition that the Act had “worked poorly” up to that point). Among many other changes, the 1990 amendments created an initial list of hazardous air pollutants, such as cyanide, mercury, and phosphorous, see 42 U.S.C. § 7412(b)(1), and imposed a series of deadlines by which the EPA was required to promulgate, and periodically revise, emission standards for sources that emit those pollutants, see Id. § 7412(c)(1), (c)(2), (d).

         Two of those deadlines are relevant here. First, the Act states that the EPA “shall review, and revise as necessary (taking into account developments in practices, processes, and control technologies), emission standards promulgated under this section no less often than every 8 years[.]” Id. § 7412(d)(6) (emphasis added). This means that, within that timeframe, the EPA must conduct what is known as a “technology review” to determine whether the agency should modify current emission standards in light of any improvements in pollution control technology. (Decl. of Panagiotis Tsirigotis (“June Tsirigotis Decl.”), ECF No. 29-5, ¶ 4.) Second, the EPA must consider any risks to public health or the environment that remain despite the agency's previously-implemented emission standards, and develop additional standards to mitigate any residual risks. (See id.) This “residual risk review” must occur “within 8 years after promulgation of standards for each category or subcategory of sources[.]” 42 U.S.C. § 7412(f)(2)(A) (emphasis added).

         The EPA division that is primarily responsible for performing these reviews, as well as any associated rulemakings, is the Sector Policies and Programs Division (“SPPD”) within the Office of Air Quality Planning and Standards, Office of Air and Radiation. (See June Tsirigotis Decl. ¶¶ 2-3; Decl. of Panagiotis Tsirigotis, Attach. 1 to June Tsirigotis Decl., ECF No. 29-5, ¶ 4.) That division generally performs both the technology review and the residual risk review at the same time, through a combined “risk and technology review” (“RTR”) assessment, which is supposed to take place within the eight-year window set forth in the Clean Air Act. (June Tsirigotis Decl. ¶ 4.)

         B. Procedural History

         Plaintiffs filed the complaint in the instant case on June 8, 2016, alleging that the EPA has failed to complete timely either the mandatory technology review or the mandatory residual risk review for the emission standards associated with nine source categories of hazardous air pollutants. (See Compl. ¶¶ 54-57.)[2] The applicable due dates for the mandated reviews with respect to each of the nine pollutants are as follows:

Source Category
Date of Original Promulgation
Deadline for Action Pursuant to § 7412(d)(6) and § 7412(f)(2)
Primary Copper Smelting
June 12, 2002
June 12, 2010
Generic MACT II - Carbon Black Production
July 12, 2002
July 12, 2010
Generic MACT II - Cyanide Chemicals Manufacturing
July 12, 2002
July 12, 2010
Generic MACT II - Spandex Production
July 12, 2002
July 12, 2010
Flexible Polyurethane Foam Fabrication Operations
Apr. 14, 2003
Apr. 14, 2011
Refractory Products Manufacturing
Apr. 16, 2003
Apr. 16, 2011
Semiconductor Manufacturing
May 22, 2003
May 22, 2011
Primary Magnesium Refining
Oct. 10, 2003
Oct. 10, 2011
Mercury Emissions from Mercury Cell Chlor-Alkali Plants
Dec. 19, 2003
Dec. 19, 2011

(See Id. ¶ 1, Table A.)

         Because the required reviews are long overdue at this point, Plaintiffs' complaint asks this Court to declare that the EPA has violated the Clean Air Act, and order the agency to perform the mandated rulemakings for the nine source categories “in accordance with an expeditious deadline specified by this Court[.]” (Id. ¶ 58; see also Pls.' Mot. at 45 (arguing that the Court should compel the EPA to perform the nine overdue rulemakings “as expeditiously as possible” and “within the fastest possible timeframe”).) For five of the source categories, which Plaintiffs do not specify, Plaintiffs propose that the EPA be required to issue notices of proposed rules within eight months of this Court's Order, and to promulgate final rules within one year. (See Pls.' Mot. at 46.) For the remaining four source categories, which again Plaintiffs do not specify, Plaintiffs request that notices of proposed rules be issued within twenty months of this Court's Order, and final rules be promulgated within two years. (See id.) Thus, Plaintiffs would have the agency promulgate final rules for five source categories by March 31, 2019, and promulgate final rules for the remaining four source categories by March 31, 2020.

         Although the EPA admits “that it has not yet completed its duty to conduct the technology and residual risk reviews pursuant to 42 U.S.C. § 7412(d)(6) and (f)(2) for the nine [source] categories” at issue in this case (Def.'s Mem. at 6), it argues that “[t]he issue . . . is not the shortest time period in which [the agency] can issue a rule, but rather the time that is needed for [the agency] to complete a rulemaking that is sufficiently thorough to meet the purpose intended by Congress” (id. at 28). The EPA further maintains that Plaintiffs' proposed schedule “would undermine the soundness of the [emissions] rules by not allowing enough time for the [a]gency to gather necessary emissions data or to properly allow for public participation” (id. at 16), and thus, Plaintiffs' schedule “would require a significant compromise on the quality of the rule at issue” (id. at 28). Instead, the EPA requests significantly more time to complete the mandated rulemakings, as indicated in the schedule below:

Source Category
EPA Proposed Rule Date
EPA Final Rule Date
Mercury Emissions from Mercury Cell Chlor-Alkali Plants
July 23, 2021
July 22, 2022
Semiconductor Manufacturing
Nov. 11, 2021
Nov. 10, 2022
Generic MACT II - Cyanide Chemicals Manufacturing
Dec. 9, 2021
Dec. 8, 2022
Generic MACT II - Spandex Production
Dec. 9, 2021
Dec. 8, 2022
Generic MACT II - Carbon Black Production
Feb. 24, 2022
Feb. 23, 2023
Primary Copper Smelting
Nov. 17, 2022
Feb. 8, 2024
Flexible Polyurethane Foam Fabrication Operations
July 20, 2023
Oct. 10, 2024
Refractory Products Manufacturing
Aug. 24, 2023
Nov. 14, 2024
Primary Magnesium Refining
Oct. 19, 2023
Jan. 16, 2025

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