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Sierra Club v. Wheeler

United States District Court, District of Columbia

September 14, 2018

SIERRA CLUB, Plaintiff,
v.
ANDREW WHEELER, Defendant.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY United States District Judge.

         The Clean Air Act requires the Environmental Protection Agency (“EPA” or the “agency”) to develop guidelines to regulate solid waste incinerators. It also provides a private right of action to sue EPA to enforce the law's statutory duties that are nondiscretionary. 42 U.S.C. § 7604(a)(2). Plaintiff Sierra Club brings this lawsuit to compel EPA to comply with three duties related to these guidelines that it asserts are nondiscretionary. Before the Court are the parties' cross-motions for summary judgment. ECF No. 12; ECF No. 13.[1] For the reasons explained below, the Court concludes that two of the duties at issue are not nondiscretionary. Therefore, they may not be enforced through the private right of action invoked by Sierra Club, and claims related to them must be dismissed for lack of subject matter jurisdiction. With respect to the third duty, which the parties agree is nondiscretionary, the Court will order a schedule that establishes deadlines for EPA's compliance that fall between those proposed by the parties. Thus, the Court will grant in part and deny in part Sierra Club's Motion for Summary Judgment (ECF No. 12), and grant in part and deny in part Defendant's Cross-Motion for Summary Judgment (ECF No. 13). The Court will also deny Sierra Club's Motion for Leave to File a Surreply (ECF No. 18).

         I. Background

         A. Statutory Background

         In 1963, Congress enacted the Clean Air Act (“CAA”), 42 U.S.C. § 7401, et seq., “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). Recognizing that the law was “work[ing] poorly, ” S. Rep. No. 101-228, at 128 (1989), Congress passed the Clean Air Act Amendments of 1990, creating an “aggressive regime of new control requirements” to address air pollution problems. Blue Ridge Envtl Def. League v. Pruitt, 261 F.Supp.3d 53, 56 (D.D.C. 2017) (quoting Cal. Cmtys. Against Toxics v. Pruitt, 241 F.Supp.3d 199, 200 (D.D.C. 2017)).

         The 1990 amendments added Section 129 to the CAA. Nat. Res. Def. Council (“NRDC”) v. EPA, 489 F.3d 1250, 1255 (D.C. Cir. 2007). Section 129 provides that the Administrator of EPA (the “Administrator”) “shall establish performance standards and other requirements . . . for solid waste incineration units.” 42 U.S.C. § 7429(a)(1)(A). A “solid waste incineration unit” is defined, with qualifications not relevant here, as “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public.” Id. § 7429(g)(1).

         Section 129 requires the Administrator to establish performance standards and other requirements applicable to both (1) “commercial or industrial” solid waste incineration units (“CISWI” units) and (2) “other categories” of solid waste incineration units (“OSWI” units). Id. § 7429(a)(1)(D)-(E). These standards and other requirements include “guidelines . . . and other requirements applicable to existing units” of both types of incinerators. Id. § 7429(a)(1)(A); see also Id. § 7429(b)(1). Once the Administrator promulgates guidelines for existing units, the law requires that a plan be developed and implemented to enforce them. Reflecting the CAA's “‘core principle' of cooperative federalism, ” Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 156 (D.C. Cir. 2015) (quoting EPA v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1602 n.14 (2014)), Section 129 establishes a framework that gives each state the opportunity to create a state implementation plan (“SIP” or “state plan”) and, for those states that fail to do so, requires the federal government to create a federal implementation plan (“FIP” or “federal plan”). The relevant portion of the statute provides in full:

(2) State plans
Not later than 1 year after the Administrator promulgates guidelines for a category of solid waste incineration units, each State in which units in the category are operating shall submit to the Administrator a plan to implement and enforce the guidelines with respect to such units. The State plan shall be at least as protective as the guidelines promulgated by the Administrator and shall provide that each unit subject to the guidelines shall be in compliance with all requirements of this section not later than 3 years after the State plan is approved by the Administrator but not later than 5 years after the guidelines were promulgated. The Administrator shall approve or disapprove any State plan within 180 days of the submission, and if a plan is disapproved, the Administrator shall state the reasons for disapproval in writing. Any State may modify and resubmit a plan which has been disapproved by the Administrator.
(3) Federal plan
The Administrator shall develop, implement and enforce a plan for existing solid waste incineration units within any category located in any State which has not submitted an approvable plan under this subsection with respect to units in such category within 2 years after the date on which the Administrator promulgated the relevant guidelines. Such plan shall assure that each unit subject to the plan is in compliance with all provisions of the guidelines not later than 5 years after the date the relevant guidelines are promulgated.

42 U.S.C. § 7429(b)(2)-(3). If a state does not have any existing CISWI or OSWI units in its state, it must submit a “negative declaration” saying so to EPA. See 40 C.F.R. § 60.2510 (CISWI); Id. § 60.2982 (OSWI).

         In addition, EPA must review and revise the performance standards and other requirements it promulgates under Section 129 every five years. Specifically, Section 129 states that “[n]ot later than 5 years following the initial promulgation of any performance standards and other requirements . . . applicable to a category of solid waste incineration units, and at 5 year intervals thereafter, the Administrator shall review, and in accordance with [§§ 7429 and 7411], . . . revise such standards and requirements.” 42 U.S.C. § 7429(a)(5).

         Finally, the CAA includes a “citizen suit” provision, which authorizes any person to file suit “against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” Id. § 7604(a)(2). The district court is authorized “to order the Administrator to perform such act or duty.” Id. § 7604(a).

         B. Factual Background

         The parties generally agree on the facts relevant to their dispute. In short, EPA has promulgated guidelines for existing CISWI and OWSI units pursuant to Section 129; many states have failed to submit implementation plans or negative declarations to EPA; and EPA has not finalized corresponding federal implementation plans. See Pl.'s SoMF; Def.'s SoMF; Pl.'s Resp. SoMF; Def.'s Am. SoMF. Moreover, the parties agree that EPA has not reviewed and revised the 2005 OSWI Standards every five years, as required by law. See Pl.'s MSJ Br. at 12; Def.'s MSJ Br. at 6, 9, 17; 42 U.S.C. § 7429(a)(5).

         1. CISWI Standards

         On February 7, 2013, EPA promulgated final amended emission standards for CISWI units (the “2013 CISWI Standards”). Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste, 78 Fed. Reg. 9112 (Feb. 7, 2013); see also Pl.'s SoMF ¶ 4; Def.'s Am. SoMF ¶¶ 25-26.

         In response to these standards, many states have failed to submit either an approvable SIP or a negative declaration to EPA. Pl.'s SoMF ¶ 5; Pl.'s MSJ Br. at 8 & n.2; Def.'s SoMF at 1. On January 11, 2017, the Administrator published for comment a proposed federal implementation plan for the 2013 CISWI Standards. Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration Units, 82 Fed. Reg. 3554 (Jan. 11, 2017); Pl.'s SoMF ¶ 6. That FIP has not been finalized. See Compl. ¶ 46(c); Ans. ¶ 46(c). EPA asserts that it has been “forced to suspend its work on the proposed plan until March 2020 at the earliest” because it must comply with other court-ordered deadlines. Def.'s MSJ Br. at 5.

         2. OSWI Standards

         In 2005, EPA promulgated OSWI standards (the “2005 OSWI Standards”). Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units, 70 Fed. Reg. 74, 870 (Dec. 16, 2005); Pl.'s SoMF ¶ 9. Similarly, some states have failed to submit either an approvable SIP or a negative declaration for these standards. Pl.'s SoMF ¶ 10; Pl.'s MSJ Br. at 11 & n.4; Def.'s SoMF at 1. In December 2006, EPA released for comment a FIP for these standards. Federal Plan Requirements for Other Solid Waste Incineration Units Constructed on or Before December 9, 2004, 71 Fed. Reg. 75, 816 (Dec. 18, 2006). Again, however, EPA has not finalized that plan, which is now more than a decade old. Pl.'s MSJ Br. at 11-12; Def.'s MSJ Br. at 6. In addition, EPA has not reviewed and revised the 2005 OSWI Standards every five years, as required by law. See Pl.'s MSJ Br. at 12; Def.'s MSJ Br. at 6, 9, 17; 42 U.S.C. § 7429(a)(5).

         C. ...


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