Alaska Cmty. Action on Toxics v. U.S. Envtl. Prot. Agency

• Decision Date: 07 May 2013
• Docket Number: Civil Action No. 12–1299(JDB).
• Citation: 943 F.Supp.2d 96
• Parties: ALASKA COMMUNITY ACTION ON TOXICS et al., Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY et al., Defendants, and American Petroleum Institute, Intervenor–Defendant.
• Court: U.S. District Court — District of Columbia

943 F.Supp.2d 96

ALASKA COMMUNITY ACTION ON TOXICS et al., Plaintiffs,

v. U.S. ENVIRONMENTAL PROTECTION AGENCY et al., Defendants,andAmerican Petroleum Institute, Intervenor–Defendant.

Civil Action No. 12–1299(JDB).

United States District Court, District of Columbia.

May 7, 2013.

Hannah Chang, Marianne L. Engelman Lado, Earthjustice, New York, NY, Timothy David Ballo, Earthjustice, Washington, DC, for Plaintiffs.

Eileen T. McDonough, U.S. DOJ–Environmental Defense Section, Washington, DC, for Defendants.

Steven J. Rosenbaum, Covington & Burling LLP, Washington, DC, for Intervenor–Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Plaintiffs Alaska Community Action on Toxics, Cook Inletkeeper, Florida Wildlife Federation, Gulf Restoration Network, Louisiana Environmental Action Network, Louisiana Shrimp Association, Sierra Club, and Waterkeeper Alliance bring this action against defendants the U.S. Environmental Protection Agency and its Administrator, Lisa Jackson (collectively, “EPA”), under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(2), and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. Plaintiffs assert sixty-five causes of action in their complaint, all of which are based on the fact that EPA's list of dispersants and other products that may be used in the event of an oil discharge—called the NCP Product Schedule—does not specify the waters or quantities in which listed products may be used. EPA and intervenor-defendant American Petroleum Institute (“API”) have moved to dismiss plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motions to dismiss will be granted.

BACKGROUND

Congress passed the Clean Water Act (“CWA” or the “Act”) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Section 311 of the Act, as amended by the Oil Pollution Act of 1990, is directed at preparing for and responding to oil spills. See id. § 1321. Pursuant to section 311(d), EPA is required to “prepare and publish a National Contingency Plan for removal of oil and hazardous substances.” See id. § 1321(d)(1).¹ The National Contingency Plan (“NCP”) must “provide for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances,” and must include a number of items set forth by statute. Id. § 1321(d)(2). Relevant here, the NCP must include:

A schedule, prepared in cooperation with the States, identifying—

(i) dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the Plan,²

(ii) the waters in which such dispersants, other chemicals, and other spill mitigating devices and substances may be used, and

(iii) the quantities of such dispersant, other chemicals, or other spill mitigating device or substance which can be used safely in such waters,

which schedule shall provide in the case of any dispersant, chemical, spill mitigating device or substance, or waters not specifically identified in such schedule that the President, or his delegate, may, on a case-by-case basis, identify the dispersants, other chemicals, and other spill mitigating devices and substances which may be used, the waters in which they may be used, and the quantities which can be used safely in such waters.

Id. § 1321(d)(2)(G). EPA has promulgated both the NCP, see40 C.F.R. §§ 300.1 et seq., and the schedule of dispersants required by section 311(d)(2)(G), known as the NCP Product Schedule, see40 C.F.R. §§ 300.900 et seq.

EPA first implemented the Act's requirement to prepare a product schedule (formerly section 311(c)(2)(G) of the Act) in Annex X to the NCP. See 38 Fed.Reg. 21,887, 21,906 (Aug. 13, 1973). Annex X provided that chemical agents could not be used to treat an oil discharge unless they were listed on EPA's Product Schedule. The original schedule included 30 dispersantsand other products, but did not identify the waters or quantities in which they could be used. Annex X also set forth procedures by which On–Scene Coordinators (“OSC”) could authorize the use of listed products in responding to oil spills.³ In 1982, EPA substantially revised the NCP and at that time established Subpart H in place of Annex X. See47 Fed.Reg. 31,180, 31,201 (July 16, 1982). Subpart H permitted OSCs to authorize the use of products previously listed on the schedule prepared pursuant to Annex X, but did not include testing procedures or a process for adding dispersants to that schedule. Id. EPA proposed revisions to Subpart H in December 1983, and in July 1984 published a final rule amending Subpart H to specify testing and data requirements for adding dispersants to the product schedule. 49 Fed.Reg. 29,192, 29,192 (July 18, 1984). In the final rule, EPA explained the NCP Product Schedule as follows:

Under today's rule, Subpart H is similar to Annex X in that it does not identify the waters or quantities in which listed dispersants and chemicals may safely be used. The wide variability in waters, weather conditions, organisms living in the waters, and types of oil that might be discharged requires a flexible approach. Thus, the waters and quantities in which a dispersant or chemical agent may safely be used are to be determined in each case by the OSC on the basis of all relevant circumstances. The data requirements for placement of a product on the NCP Product Schedule are designed to provide sufficient data for OSCs to judge whether and in what quantities a dispersant may safely be used to control a particular discharge. The standardized testing procedures set out in the rule are intended to ensure that OSCs have comparable data regarding the effectiveness and toxicity of different products.

Id. at 29,193; see also48 Fed.Reg. 56,484, 56,484 (Dec. 21, 1983) (proposed rule giving similar explanation as to why “EPA's NCP Product Schedule does not identify the waters in which listed dispersants and chemicals may be used or the quantities of those dispersants or chemicals that can safely be used in such waters”).

EPA further revised the NCP in 1990 and again in 1994, after the Oil Pollution Act of 1990 amended the oil spill provisions of the CWA. Although EPA made many changes to the NCP in light of the 1990 legislation, its decision “not [to] identify the waters or quantities in which listed dispersants and chemicals may safely be used” did not change. See49 Fed.Reg. at 29,193. The NCP has not been revised since 1994.

Today, former Subpart H is now Subpart J, “Use of Dispersants and Other Chemicals,” 40 C.F.R. §§ 300.900–.920. See55 Fed.Reg. 8666, 8808 (Mar. 8, 1990). Subpart J regulations implement section 311(d)(2)(G) of the CWA and set forth the procedure for adding dispersants to the NCP Product Schedule. See id. §§ 300.900(a), 300.920. For a product to be added to the schedule, the manufacturer of the product must submit technical product data specified in 40 C.F.R. § 300.915 to EPA. Id.§ 300.920. For dispersants, the required data includes the results of effectiveness and toxicity testing. See id. § 300.915(a).

The listing of a product on the NCP Product Schedule “does not mean that EPA approves, authorizes, or encourages the use of that product on an oil spill; rather, the listing of a product means only that data have been submitted to EPA as required by Subpart J of the NCP.” 59 Fed.Reg. 47,384, 47,407 (Sept. 15, 1994); see also40 C.F.R. § 300.920(e). Accordingly, the NCP Product Schedule, which is maintained by EPA and published on its website, includes the following disclaimer:

[PRODUCT NAME] is on the U.S. Environmental Protection Agency's NCP Product Schedule. This listing does NOT mean that EPA approves, recommends, licenses, certifies, or authorizes the use of [PRODUCT NAME] on an oil discharge. This listing means only that data have been submitted to EPA as required by subpart J of the National Contingency Plan, § 300.915.

See40 C.F.R. § 300.920; Pls.' Opp'n to EPA's Mot. to Dismiss [ECF 21] (“Pls.' Opp'n to EPA MTD”), Ex. A.

The listing of a product on the NCP Product Schedule does mean that the product is potentially eligible for use on an oil discharge. 40 C.F.R. § 300.905(a)(1). The Subpart J regulations direct Regional Response Teams and Area Committees, which are organizational bodies that have responsibility for preparing and planning for oil discharges, to address the desirability of using products listed on the NCP Product Schedule and to develop “preauthorization plans” where appropriate. See id. § 300.910(a). Preauthorization plans should address “the specific contexts in which [listed] products should and should not be used” and factors such as “the potential sources and types of oil that might be spilled, the existence and location of environmentally sensitive resources that might be impacted by spilled oil, available product and storage locations, available equipment and adequately trained operators, and the available means to monitor product application and effectiveness.” See id. Preauthorization plans are reviewed by representatives from EPA, the Department of Commerce, and the Department of the Interior, and by states having jurisdiction over the waters to which a plan applies; if a plan is approved, then preauthorized products may be used as specified when an oil spill occurs. Id. In an oil spill situation not covered by a preauthorization plan, the OSC may authorize the use of products listed on the NCP Product Schedule if the OSC obtains the concurrence of an EPA representative and, as appropriate, representatives from the affected states. Id. § 300.910(b). The OSC may authorize the use of any dispersant, regardless of whether it is listed on the NCP Product Schedule and without obtaining any concurrences, if, “in the judgment of the OSC, the use of the product is...