Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 1 of 33 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ENVIRONMENTAL JUSTICE HEALTH ALLIANCE FOR CHEMICAL POLICY REFORM, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) 15-cv-05705 (SAS) (HBP) ECF Case MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Jared E. Knicley* Natural Resources Defense Council 1152 15th Street NW, Suite 300 Washington, DC 20005 T: (202) 513-6242 F: (202) 289-1060 jknicley@nrdc.org * Pro Hac Vice motion pending Mitchell S. Bernard (MB 5823) Natural Resources Defense Council 40 West 20th Street New York, NY 10011 T: (212) 727-4469 F: (212) 727-1773 mbernard@nrdc.org Counsel for Plaintiffs December 11, 2015 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 2 of 33 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 STATUTORY AND REGULATORY FRAMEWORK .................................................................2 FACTUAL BACKGROUND ..........................................................................................................4 I. Hazardous-substance spills pose a substantial threat to human health and the environment, particularly for communities of color ...............................................4 II. EPA has never issued regulations to prevent and contain the discharge of hazardous substances from non-transportation-related onshore facilities .......................7 SUMMARY OF ARGUMENT .......................................................................................................9 ARGUMENT ...................................................................................................................................9 I. Standard of Review ..............................................................................................................9 II. EPA has a non-discretionary duty to issue hazardous-substance spill regulations under section 311(j)(1) ....................................................................................12 III. EPA’s forty-two-year delay in issuing hazardous-substance spill regulations is unreasonable ................................................................................................14 IV. A. EPA’s delay exceeds any “rule of reason” ............................................................14 B. EPA’s delay contravenes purposes of the Clean Water Act ..................................15 C. EPA’s delay threatens human health .....................................................................16 D. Regulatory complexity and agency priorities are unpersuasive in light of a forty-two year delay ...........................................................................17 E. The harm caused by EPA’s delay is widespread, continuous, and most severe in communities of color ..............................................................18 Plaintiffs have standing to challenge EPA’s unreasonable delay........................................19 A. NRDC has standing on behalf of its members .......................................................20 B. PCACS has standing on its own behalf .................................................................22 i Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 3 of 33 C. EJHA has standing on behalf of its members ........................................................23 CONCLUSION ..............................................................................................................................23 ii Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 4 of 33 TABLE OF AUTHORITIES CASES Am. Lung Ass’n v. Reilly, 962 F.2d 258 (2d Cir. 1992).........................................................................................10, 16 Bennett v. Donovan, 703 F.3d 582 (D.C. Cir. 2013) .....................................................................................19–20 Bennett v. Spear, 520 U.S. 154 (1997) ...........................................................................................................12 Benzman v. Whitman, 523 F.3d 119 (2d Cir. 2008)...............................................................................................10 Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 290 F.R.D. 409 (S.D.N.Y. 2012) .................................................................................22–23 Bldg. & Const. Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138 (2d Cir. 2006).........................................................................................21–22 Ctr. for Biological Diversity v. EPA, 794 F. Supp. 2d 151 (D.D.C. 2011) ...................................................................................15 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .............................................................................................................5 Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012), aff’d in part, rev’d in part on other grounds sub nom. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014) ................................................12 Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001) .........................................................................................18 Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) .........................................................................10, 15, 16, 17 Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) .............................................................................................6 Families for Freedom v. Napolitano, 628 F. Supp. 2d 535 (S.D.N.Y. 2009)................................................................................10 Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613 (D.C. Cir.), vacated as moot 817 F.2d 890 (D.C. Cir. 1987) ......................18 iii Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 5 of 33 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ...............................................................................................19, 20–21 Fund for Animals v. Williams, 391 F. Supp. 2d 191 (D.D.C. 2005) .....................................................................................5 Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) .....................................................................................................21, 23 In re Am. Rivers & Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) ...............................................................................10, 11, 14 In re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008) .....................................................................................14, 18 In re Int’l Chem. Workers Union, 958 F.2d 1144 (D.C. Cir. 1992) ...................................................................................14–15 In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., No. 07-CIV-10470 (SAS), 2013 WL 6869410 (S.D.N.Y. Dec. 30, 2013) ..........................4 In re Monroe Commc’ns Corp., 840 F.2d 942 (D.C. Cir. 1988) ...........................................................................................15 In re Pesticide Action Network N. Am., 798 F.3d 809 (9th Cir. 2015) .............................................................................................14 In re United Mine Workers of Am. Int’l Union, 190 F.3d 545 (D.C. Cir. 1999) ...............................................................................11, 18, 19 Katz v. Cellco P’ship, 794 F.3d 341 (2d Cir. 2015)...............................................................................................12 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) .............................................................................................................12 Lopez v. Davis, 531 U.S. 230 (2001) ...........................................................................................................12 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .....................................................................................................19–20 Massachusetts v. EPA, 549 U.S. 497 (2007) ...........................................................................................................20 iv Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 6 of 33 MCI Telecomms. Corp. v. FCC, 627 F.2d 322 (D.C. Cir. 1980) .....................................................................................11, 14 Midwest Gas Users Ass’n v. FERC, 833 F.2d 341 (D.C. Cir. 1987) ...........................................................................................11 Nader v. FCC, 520 F.2d 182 (D.C. Cir. 1975) ...........................................................................................15 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ...........................................................................................................12 N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012)...............................................................................................20 N.Y. Pub. Interest Research Grp. v. Whitman, 321 F.3d 316 (2d Cir. 2003)...............................................................................................21 Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011)...............................................................................................22 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) .............................................................................................................10 NRDC v. FDA, 884 F. Supp. 2d 108, 119 (S.D.N.Y. 2012), underlying decision rev’d on other grounds, 760 F.3d 151 (2d Cir. 2014) ......................................................................14 NRDC v. FDA, 884 F. Supp. 2d 127 (S.D.N.Y. 2012), rev’d on other grounds, 760 F.3d 151 (2d Cir. 2014)...............................................................................................11 NRDC v. FDA, 710 F.3d 71 (2d Cir. 2013).................................................................................................10 NRDC v. Fox, 93 F. Supp. 2d 531 (S.D.N.Y. 2000) aff’d in part, vacated in part on other grounds sub nom. NRDC v. Muszynski, 268 F.3d 91 (2d Cir. 2001) .......................10 People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087 (D.C. Cir. 2015) .........................................................................................23 Potomac Elec. Power Co. v. Interstate Commerce Comm’n, 702 F.2d 1026 (D.C. Cir. 1983) .........................................................................................10 v Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 7 of 33 Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150 (D.C. Cir. 1983) .............................................................................15, 16, 17 Pub. Citizen Health Research Grp. v. Brock, 823 F.2d 626 (D.C. Cir. 1987) ...........................................................................................17 Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993) ..................................................................................................22 Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) .................................................................................11, 15, 16 Tummino v. Von Eschenbach, 427 F. Supp. 2d 212 (E.D.N.Y. 2006) .................................................................................4 United States v. Fleet, 498 F.3d 1225 (11th Cir. 2007) .........................................................................................12 United States v. Quirante, 486 F.3d 1273 (11th Cir. 2007) .........................................................................................12 Warth v. Seldin, 422 U.S. 490 (1975) ...........................................................................................................20 Windsor v. United States, 699 F.3d 169 (2d Cir. 2012)...............................................................................................11 STATUTES AND REGULATIONS 5 U.S.C. § 704 ................................................................................................................................13 5 U.S.C. § 706 ................................................................................................................................13 5 U.S.C. § 706(1) ...........................................................................................................................10 33 U.S.C. § 1251(a) ...................................................................................................................1, 16 33 U.S.C. § 1251(a)(1)...................................................................................................................16 33 U.S.C. § 1321(a)(14) ...................................................................................................................3 33 U.S.C. § 1321(b)(1) ..................................................................................................................16 33 U.S.C. § 1321(b)(2)(A) .....................................................................................................3, 5, 17 33 U.S.C. § 1321(j)(1) .....................................................................................................1, 2, 12, 15 vi Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 8 of 33 33 U.S.C. § 1365(a)(2)....................................................................................................... 10, 13-14 Pub. L. No. 92-500, 86 Stat. 816 (1972) ....................................................................................2, 16 40 C.F.R. pt. 112 app. A(1)(G) ........................................................................................................3 40 C.F.R. § 116.3 .............................................................................................................................3 40 C.F.R. § 116.4 .........................................................................................................................3, 8 FEDERAL RULES Fed. R. Civ. P. 56(a) ......................................................................................................................11 OTHER AUTHORITIES Exec. Order No. 11,735, 38 Fed. Reg. 21,243 (Aug. 7, 1973) ........................................................2 Exec. Order No. 12,777, 56 Fed. Reg. 54,757 (Oct. 22, 1991) ................................................... 2-3 In re Continental Oil Co., 1978 WL 26932 (EPA G.C. Oct. 20, 1978) .......................................................................13 38 Fed. Reg. 34,164 (Dec. 11, 1973) .............................................................................................13 43 Fed. Reg. 39,276 (Sept. 1, 1978) ................................................................................................7 44 Fed. Reg. 10,266 (Feb. 16, 1979) ...............................................................................................3 47 Fed. Reg. 10,972 (Mar. 12, 1982) .............................................................................................13 73 Fed. Reg. 74,236 (Dec. 5, 2008) ...............................................................................................13 76 Fed. Reg. 21,652 (Apr. 18, 2011) .............................................................................................13 vii Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 9 of 33 INTRODUCTION Hazardous substances pose an imminent and substantial threat to public health and the environment when discharged into lakes, streams, and other bodies of water. These chemicals are used in countless industrial processes—including oil refining, fertilizer and pesticide manufacturing, and wastewater treatment—all across the United States. Human exposure to these chemicals has been linked to serious acute and chronic health problems, including severe burns to the skin, impairment of nervous system functions, corrosion of the respiratory and gastrointestinal systems, cancer, and even death. Congress recognized the significant threat hazardous-substance spills pose to human health and the environment when it passed the Clean Water Act in 1972. In section 311(j)(1) of the Act, Congress directed the President to issue, as soon as practicable, regulations to prevent and contain the discharge of hazardous substances from, inter alia, onshore facilities. In 1973, the President delegated to the Environmental Protection Agency (EPA) Administrator the duty to issue regulations to prevent and contain discharges of hazardous substances from nontransportation-related onshore facilities, including above-ground storage tanks (hereinafter, “hazardous-substance spill regulations”). Over four decades later, EPA has not yet issued those regulations. Meanwhile, thousands of hazardous-substance spills occur at non-transportationrelated onshore facilities each year, endangering human health and the environment, particularly in communities of color. EPA’s failure to issue hazardous-substance spill regulations defies Congress’ direct mandate under Clean Water Act section 311(j)(1), 33 U.S.C. § 1321(j)(1). The effect of EPA’s delay is to leave countless facilities that Congress intended to be regulated free from federal spill-prevention regulation, even as those facilities continue discharging hazardous substances 1 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 10 of 33 that threaten communities across the country. Prompt resolution of this case is necessary to effectuate congressional will and to protect public health and the environment. The Court should declare EPA’s delay in issuing hazardous-substance spill regulations unreasonable and order the agency to propose and finalize the required regulations by a date certain. STATUTORY AND REGULATORY FRAMEWORK Congress passed the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Pub. L. No. 92-500, § 101(a), 86 Stat. 816, 816 (1972) (codified at 33 U.S.C. § 1251(a)). In section 311(j)(1) of those Amendments, Congress directed that “as soon as practicable after the effective date of this section [October 18, 1972], and from time to time thereafter, the President shall issue regulations . . . (C) establishing procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges.” Id. § 311(j)(1), 86 Stat. at 868 (codified at 33 U.S.C. § 1321(j)(1)). This case concerns a limited portion of that directive: that “the President shall issue regulations . . . to prevent discharges of . . . hazardous substances . . . from onshore facilities . . . , and to contain such discharges.” Id.; see Am. Compl. ¶ 2, ECF No. 20. Less than one year after the 1972 Amendments, President Richard Nixon delegated to the EPA Administrator the “authority of the President” to issue regulations under section 311(j)(1) to prevent and contain discharges of oil and hazardous substances from, inter alia, nontransportation-related onshore facilities. Exec. Order No. 11,735 § 1(4), 38 Fed. Reg. 21,243, 21,243 (Aug. 7, 1973). President George H.W. Bush reaffirmed that delegation to the EPA 2 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 11 of 33 Administrator in 1991. Exec. Order No. 12,777 § 2(b)(1), 56 Fed. Reg. 54,757, 54,760 (Oct. 22, 1991) (AR1083).1 EPA interprets “onshore facility” to include “any facility . . . of any kind located in, on, or under, any land within the United States other than submerged land.” 40 C.F.R. § 116.3 (AR2596). EPA has also defined “non-transportation-related” facility in the oil spill-prevention context. In keeping with that definition, hazardous-substance spill regulations would cover, inter alia, “[i]ndustrial, commercial, agricultural or public [onshore] facilities which use and store” hazardous substances, “but exclud[e] any terminal facility, unit or process integrally associated with the handling or transferring of” hazardous substances “in bulk to or from a vessel.” See 40 C.F.R. pt. 112 app. A(1)(G) (AR0080–81). Non-transportation-related onshore facilities thus include broad classes of industrial facilities, including oil refineries, chemical manufacturing plants, wastewater treatment plants, and indeed any above-ground storage tank containing a hazardous substance. The Clean Water Act defines “hazardous substances” as those “elements and compounds which, when discharged in any quantity into or upon the navigable waters of the United States . . . present an imminent and substantial danger to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, shorelines, and beaches.” 33 U.S.C. § 1321(b)(2)(A); see also id. § 1321(a)(14). EPA has designated a list of hazardous substances, see 40 C.F.R. § 116.4 (AR2597–608), which it last expanded in 1979, see 44 Fed. Reg. 10,266 (Feb. 16, 1979). EPA has not, however, issued regulations under section 311(j)(1) to prevent and contain discharges of 1 This brief provides primary and parallel citations to the Administrative Record in the form “AR[page number].” For the Court’s convenience, pages from the Administrative Record cited in this brief are included as Exhibit 4 to the Yiliqi Declaration. 3 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 12 of 33 hazardous substances from non-transportation-related onshore facilities. See Defs.’ Partial Answer ¶ 27, ECF No. 25. FACTUAL BACKGROUND I. Hazardous-substance spills pose a substantial threat to human health and the environment, particularly for communities of color Thousands of hazardous-substance spills occur at non-transportation-related onshore facilities each year. According to data from the U.S. Coast Guard National Response Center, there were over 20,000 reported hazardous-substance spills from “fixed” and “storage tank” facilities between 2005 and 2014. Decl. of Yiliqi ¶ 9 & tbl.1.2 Of those 20,000 spills, over 900 reached bodies of water. Id. From January 1 through September 13 of this year, there were over 1300 spills, with at least 55 spills reaching bodies of water. Id. ¶ 11 & tbl.2. These figures represent the bare minimum number of hazardous-substance spills during the indicated time periods; as EPA has recognized, “it is likely” that National Response Center data “greatly underestimate the actual number of spills because of significant underreporting.” AR1039; see also Yiliqi Decl. ¶ 6.3 2 The National Response Center maintains lists of self-reported oil and hazardous-substance spills going back to 1990. See Welcome to the National Response Center, U.S. Coast Guard Nat’l Response Ctr., http://www.nrc.uscg.mil. Because the National Response Center’s lists do not indicate whether a facility is “transportation-” or “non-transportation-” related, the spill totals presented herein include only discharges from facilities described as “fixed” or “storage tank” in the National Response Center datasets. See Yiliqi Decl. ¶ 8(e)–(f). 3 Although EPA did not include National Response Center data as part of the Administrative Record, the Court can consider them. First, the record in unreasonable delay cases is not limited to the administrative record produced by the agency. See, e.g., Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 231 (E.D.N.Y. 2006). Moreover, as publicly available government data, the National Response Center data are presumed authentic and reliable and thus subject to judicial notice. See In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., No. 07-CIV-10470 (SAS), 2013 WL 6869410, at *4 (S.D.N.Y. Dec. 30, 2013). And in any event, EPA improperly excluded these data from the Administrative Record. Not only has EPA analyzed portions of the National Response Center data presented by the Yiliqi Declaration as recently as June 2015, see AR0324, but plaintiffs also cited to and analyzed the National Response Center data in their May 4 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 13 of 33 There is no “typical” hazardous-substance spill. Some spills are relatively small, but involve exceptionally dangerous chemicals. See Yiliqi Decl. ¶ 13. Others are much larger, and can involve multiple types of hazardous substances in a single discharge event. For example, a 2013 spill from an above-ground storage tank in Petersburg, Virginia released over 275,000 pounds of iron chloride, 73,000 pounds of hydrochloric acid, 32,000 pounds of ammonium chloride, and 22,000 pounds of zinc chloride into local waterways. Id. ¶ 14. What is common among hazardous-substance spills is that they threaten human health and the environment. By definition, hazardous substances “present an imminent and substantial danger to the public health or welfare” when discharged into waterways. 33 U.S.C. § 1321(b)(2)(A). The nearly 150 different hazardous substances spilled between 2005 and 2014 and reported to the National Response Center include known carcinogens, reproductive toxins, respiratory toxins, neurotoxins, and ocular toxins. See Decl. of Dr. Kristi Pullen ¶ 21. Human exposure to the most commonly reported spilled hazardous substances—including ammonia, benzene, hydrogen sulfide, sulfuric acid, hydrogen cyanide, and hydrochloric acid, see Yiliqi Decl. ¶ 17; id. Ex. 1—is known to cause a range of acute and chronic health problems, including severe burns, impairment of nervous system functions, corrosion of the respiratory and gastrointestinal organs, cancer, and even death. See Pullen Decl. ¶¶ 11–20. Human exposure to these hazardous substances from a spill can occur either through direct exposure at or near the 12, 2015 Notice Letter, see ECF No. 20-1 at 2–3 & nn. 2–5, Ex. A. Thus, the National Response Center data were “before” EPA when it compiled the record, and should be included in the record. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). EPA “may not”—as it attempts here—“skew the record in its favor by excluding pertinent but unfavorable information.” Fund for Animals v. Williams, 391 F. Supp. 2d 191, 197 (D.D.C. 2005). 5 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 14 of 33 site of the spill, or through drinking or recreating in water contaminated by the spill. See, e.g., id. ¶¶ 11–20 (describing pathways of exposure for most commonly spilled hazardous substances).4 Although hazardous-substance spills from non-transportation-related onshore facilities affect communities across the country, see Yiliqi Decl. ¶ 19; id. Ex. 2, communities of color bear a disproportionate burden from the spills. The National Response Center data from 2005 through 2014 show statistically significant correlations between race and hazardous-substance spill occurrence. See Pullen Decl. ¶ 25. Across the lower 48 United States, there is a statistically significant, positive correlation between non-white race or ethnic makeup of a county, and the number of spills that county experiences. Id. These trends are even stronger in certain states. Id. ¶ 26. For instance, in California, the correlation between non-white racial makeup of a county and the number of spills that county experiences is almost five times stronger than it is nationally. Id. Likewise, in Texas, the correlation between percent black population in a county and the number of spills that county experiences is almost four times stronger than the national correlation. Id. These correlations demonstrate that both at the national level and in many states, the number of spills and number of different hazardous substances spilled at the county level increase as populations of color increase. Id. ¶ 27. 4 Although EPA did not include information related to the human health risks associated with exposure to hazardous substances in the Administrative Record, the information on health risks presented in the Pullen Declaration is properly before this Court. Judicial review in this case is not limited to the administrative record and, in any event, the Court may take judicial notice of information from government databases. See supra note 3. Information regarding human health risks posed by hazardous substances is relevant to and necessary for effective judicial review in this case. EPA cannot immunize itself from effective judicial review by preventing the Court from considering evidence as to the consequences of its illegal inaction. Cf. Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (explaining consideration of extra-record evidence is appropriate “to enable judicial review to become effective” including in “cases where agencies are sued for a failure to take action”). 6 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 15 of 33 II. EPA has never issued regulations to prevent and contain the discharge of hazardous substances from non-transportation-related onshore facilities Although EPA has had a duty to issue hazardous-substance spill regulations under section 311(j)(1) for over forty-two years, infra at 12–13, it has never done so. See Defs.’ Partial Answer ¶ 27 (averring that “EPA has not issued regulations under CWA § 311(j)(1)(C) to prevent and contain discharges of hazardous substances from non-transportation related onshore facilities”). In 1978, EPA proposed hazardous-substance spill regulations for the subset of nontransportation-related facilities already operating under National Pollution Discharge Elimination System permits. 43 Fed. Reg. 39,276, 39,276 (Sept. 1, 1978) (AR1007–11). In that same proposal, EPA stated that it “anticipated that in the near future, additional regulations will be published for all other facilities subject to the authority of [EPA] so that hazardous substances pollution prevention regulations will exist for all non-transportation related facilities.” Id. (AR1007). But EPA never proposed hazardous-substance spill regulations that would cover all non-transportation-related onshore facilities; nor did it even finalize its proposed regulations for the subset of facilities already regulated under the National Pollution Discharge Elimination System. As a result, non-transportation-related onshore facilities that produce, use, or otherwise store hazardous substances—including above-ground storage tanks—are not regulated under section 311(j)(1)(C). A recent chemical spill in Charleston, West Virginia highlights the need for spillprevention regulations not only for listed hazardous substances, but for all dangerous chemicals, particularly those stored near public drinking water sources. In January 2014, an above-ground storage tank owned by Freedom Industries ruptured and spilled thousands of gallons of 4methycyclohexane methanol into the Elk River, just upstream from the local water supply intake. See Decl. of Pam Nixon ¶ 6; Pullen Decl. Ex. 1 at 1. The tank was not subject to any spill7 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 16 of 33 prevention regulations or inspection requirements, and had been allowed to fall into disrepair. See Nixon Decl. ¶ 7. The spill contaminated the local water supply, and left around 300,000 people without potable water for nearly a week. Id. ¶ 6. The chemical involved in the Freedom Industries spill is not listed as a hazardous substance under the Clean Water Act, cf. 40 C.F.R. § 116.4, and thus would not be covered under the hazardous-substance spill regulations plaintiffs seek in this case. But the Freedom Industries spill brought to national attention the broader threat posed by the lack of spill-prevention regulations for chemical storage facilities like above-ground storage tanks.5 Shortly after the spill, the Senate Committee for Environment and Public Works called upon EPA to use its authority under section 311(j)(1) to address the unregulated risk of hazardous-substance spills from above-ground storage tanks. See Pullen Decl. Ex. 1 at 1. EPA responded in May 2014 that it was “reviewing” its authority under section 311(j)(1), but did not commit to take further action. See Pullen Decl. Ex. 2 at 1. The Administrative Record reveals that EPA has taken no action since that time to issue hazardous-substance spill regulations under section 311(j)(1). On May 12, 2015, Plaintiffs Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety (PCACS), and Natural Resources Defense Council (NRDC), notified defendants of their intent to bring a citizen suit under the Clean Water Act to compel EPA to issue hazardous-substance spill regulations under section 311(j)(1)(C). See Notice Ltr., ECF No. 20-1. After the sixty-day notice period, plaintiffs filed 5 See, e.g., Jonathan Mattise, In Wake of West Virginia Chemical Spill, Tighter Regulations are Sought for Storage Facilities, Wash. Post, Jan. 20, 2014, https://www.washingtonpost.com/national/health-science/in-wake-of-west-virginia-chemicalspill-tighter-regulations-are-sought-for-storage-facilities/2014/01/20/c786e7ac-822e-11e3-bbe56a2a3141e3a9_story.html; Trip Gabriel et al., Chemical Spill Muddies Picture in a State Wary of Regulations, N.Y. Times, Jan. 18, 2014, at A1; David Zucchino, West Virginia Puzzled, Outraged over Chemical Leak, L.A. Times, Jan. 16, 2014, http://articles.latimes.com/2014/jan/16/nation/la-na-chemical-danger-20140117. 8 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 17 of 33 this suit on July 21, 2015. See Compl., ECF No. 1. On October 19, 2015, in response to a motion to dismiss, plaintiffs amended their complaint to add an alternative claim under the Administrative Procedure Act. See Am. Compl. ¶¶ 37–42. Plaintiffs now move for summary judgment on both counts of their Amended Complaint. SUMMARY OF ARGUMENT EPA has a non-discretionary duty to issue hazardous-substance spill regulations under Clean Water Act section 311(j)(1). But for over four decades, EPA has ignored this duty, subverting the Clean Water Act’s clear purpose to spur expeditious agency action to protect public health and the environment. EPA’s delay has left non-transportation-related onshore facilities, including above-ground storage tanks, unregulated under section 311(j)(1)(C), even while thousands of hazardous-substance spills occur at those facilities each year and a disproportionate number of those spills affect communities of color. A forty-two year delay in the face of a Congressional mandate and significant threats to public health and the environment is unreasonable. Plaintiffs accordingly request that the Court issue an order compelling EPA to comply promptly with its duty to issue hazardous-substance spill regulations under section 311(j)(1)(C). ARGUMENT I. Standard of Review Plaintiffs bring alternative claims, under the Clean Water Act and the Administrative Procedure Act, that allege the same violation: that EPA’s forty-two year delay in complying with its mandatory duty to issue hazardous-substance spill regulations under section 311(j)(1)(C) is unreasonable. Am. Compl. ¶¶ 37–42. The standards of review for both claims are the same. 9 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 18 of 33 The Clean Water Act provides citizens the right to prosecute an action “against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under [the Act] which is not discretionary with the Administrator.” 33 U.S.C. § 1365(a)(2). The Administrative Procedure Act similarly allows a party injured by agency inaction to bring suit to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), to the extent that action is one the agency was “required to take.” See Benzman v. Whitman, 523 F.3d 119, 130 (2d Cir. 2008) (internal quotation mark omitted) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)). When a statute mandates agency action, but does not specify a deadline for that action, the agency’s delay is reviewed for reasonableness. See Am. Lung Ass’n v. Reilly, 962 F.2d 258, 263 (2d Cir. 1992). Courts in the Second Circuit generally turn to D.C. Circuit precedent when evaluating unreasonable delay claims. See, e.g., Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 540 (S.D.N.Y. 2009) (Chin, J.); NRDC v. Fox, 93 F. Supp. 2d 531, 543 (S.D.N.Y. 2000) aff’d in part, vacated in part on other grounds sub nom. NRDC v. Muszynski, 268 F.3d 91 (2d Cir. 2001); cf. NRDC v. FDA, 710 F.3d 71, 84 (2d Cir. 2013). Although an “agency is entitled to considerable deference in establishing a timetable for completing its proceedings,” this deference “is not unbounded . . . since the consequences of dilatoriness may be great.” Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987). Excessive delay “signals the ‘breakdown of regulatory processes,’” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 418 (D.C. Cir. 2004) (quoting Cutler, 818 F.2d at 897 n.156), and “saps the public confidence in an agency’s ability to discharge its responsibilities,” Potomac Elec. Power Co. v. Interstate Commerce Comm’n, 702 F.2d 1026, 1034 (D.C. Cir. 1983). 10 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 19 of 33 In assessing whether an agency’s delay is unreasonable, courts often consider the six socalled TRAC factors: (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’” In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting Telecomm. Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (hereinafter TRAC)). While application of the TRAC factors “necessarily turns on the facts of each particular case,” Midwest Gas Users Ass’n v. FERC, 833 F.2d 341, 359 (D.C. Cir. 1987), “a reasonable time for agency action is typically counted in weeks or months, not years,” Am. Rivers, 372 F.3d at 419, much less decades, see MCI Telecomms. Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980). Unreasonable delay cases are amenable to resolution on cross-motions for summary judgment. See, e.g., NRDC v. FDA, 884 F. Supp. 2d 127, 130, 151 (S.D.N.Y. 2012), rev’d on other grounds, 760 F.3d 151 (2d Cir. 2014). The Court must grant summary judgment if “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012) (internal quotation marks and alterations omitted). 11 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 20 of 33 II. EPA has a non-discretionary duty to issue hazardous-substance spill regulations under section 311(j)(1) In section 311(j)(1), Congress mandated that “as soon as practicable after October 18, 1972, and from time to time thereafter, the President shall issue regulations . . . to prevent discharges . . . of oil and hazardous substances . . . from onshore facilities . . . , and to contain such discharges.” 33 U.S.C. § 1321(j)(1) (emphasis added). Congress’ use of the word “shall” in section 311(j)(1) contains no prerequisites or conditions and is unquestionably mandatory. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661–62 (2007). Therefore, upon its enactment on October 18, 1972, section 311(j)(1) immediately imposed a nondiscretionary duty on the President to issue the regulations required by that section, including the hazardous-substance spill regulations at issue in this case. See Lopez v. Davis, 531 U.S. 230, 241 (2001) (noting Congress’ “use of a mandatory ‘shall’ . . . to impose discretionless obligations”); Bennett v. Spear, 520 U.S. 154, 175 (1997) (“[A]ny contention that the relevant provision of [the Endangered Species Act] is discretionary would fly in the face of its text, which uses the imperative ‘shall.’”); Katz v. Cellco P’ship, 794 F.3d 341, 345 (2d Cir. 2015) (“It is axiomatic that the mandatory term ‘shall’ typically ‘creates an obligation impervious to [] discretion.’” (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998))); Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 126 (D.C. Cir. 2012) (“By employing the verb ‘shall,’ Congress vested a non-discretionary duty in EPA.”), aff’d in part, rev’d in part on other grounds sub nom. Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014); United States v. Fleet, 498 F.3d 1225, 1229 (11th Cir. 2007) (“‘The word ‘shall’ does not convey discretion. It is not a leeway word,’ but a word of command.” (quoting United States v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007))). 12 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 21 of 33 The President delegated his authority and non-discretionary duty to issue oil and hazardous-substance spill regulations for non-transportation-related onshore facilities under section 311(j)(1)(C) to EPA in 1973. See supra at 2–3. Indeed, over the past forty-two years, EPA has repeatedly recognized that section 311(j)(1) requires the issuance of spill-prevention regulations. See, e.g., 38 Fed. Reg. 34,164, 34,164 (Dec. 11, 1973) (AR0993) (characterizing oil spill-prevention regulations as “required by an[d] pursuant to section 311(j)(1)(C)”); In re Continental Oil Co., 1978 WL 26932, at *10 (EPA G.C. Oct. 20, 1978) (noting section 311(j)(1)(C) “requires the President to issue regulations”); 47 Fed. Reg. 10,972, 10,974 (Mar. 12, 1982) (noting “[s]ection 311(j)(1)[] of the [Clean Water Act] requires that regulations be issued”); 73 Fed. Reg. 74,236, 74,239 (Dec. 5, 2008) (stating section 311(j)(1)(C) “requires the President to issue regulations”); 76 Fed. Reg. 21,652, 21,653 (Apr. 18, 2011) (AR0354) (same). In recognition of its non-discretionary duty, EPA has issued rules under section 311(j)(1)(C) to prevent and contain discharges of oil from non-transportation-related onshore facilities. See, e.g., 38 Fed. Reg. at 34,164 (AR0993). The agency, however, has never issued similar regulations under section 311(j)(1)(C) to prevent and contain discharges of hazardous substances from nontransportation-related onshore facilities. See supra at 7–8. EPA’s failure to issue hazardous-substance spill regulations violates Congress’ nondiscretionary directive in section 311(j)(1)(C), and is therefore actionable under the Clean Water Act’s citizen suit provision, 33 U.S.C. § 1365(a)(2). In the alternative, EPA’s failure to issue the required regulations is actionable under the Administrative Procedure Act, 5 U.S.C. § 706.6 6 Plaintiffs’ alternative claims under the Clean Water Act citizen suit provision and Administrative Procedure Act are mutually exclusive. See 5 U.S.C. § 704 (judicial review of agency action available under Administrative Procedure Act only where “there is no other adequate remedy in a court”). For the reasons stated in plaintiffs’ opposition to defendants’ renewed partial motion to dismiss, the Clean Water Act citizen suit provision, 33 U.S.C. 13 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 22 of 33 III. EPA’s forty-two-year delay in issuing hazardous-substance spill regulations is unreasonable A. EPA’s delay exceeds any “rule of reason” The “first and most important factor” in assessing reasonableness is whether the time the agency takes to act is “governed by a rule of reason.” In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (internal quotation marks omitted). Although “[t]here is no per se rule as to how long is too long to wait for agency action, . . . a reasonable time for agency action is typically counted in weeks or months, not years,” Am. Rivers, 372 F.3d at 419 (citation omitted) (internal quotation marks omitted), and certainly not decades, MCI Telecomms., 627 F.2d at 340. EPA’s delay in this case extends far beyond any rule of reason. President Nixon delegated to the EPA Administrator the authority and responsibility to issue hazardous-substance spill regulations under section 311(j)(1)(C) over forty-two years ago. See supra at 2–3. But EPA has never issued any hazardous-substance spill regulations under section 311(j)(1)(C). See supra at 7–8. This decades-long dereliction of a statutory duty has no basis in a rule of reason. See In re Pesticide Action Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (delay of nearly a decade in considering petition for rulemaking “stretched the ‘rule of reason’ beyond its limits”); NRDC v. FDA, 884 F. Supp. 2d 108, 119 (S.D.N.Y. 2012) (finding “no difficulty concluding that thirtyplus years is an unreasonable delay.”), underlying decision rev’d on other grounds, 760 F.3d 151 (2d Cir. 2014); see also Core Commc’ns, 531 F.3d at 861 (finding FCC’s six-year delay in issuing legal authority for interim rules unreasonable); Am. Rivers, 372 F.3d at 419 (“FERC’s six-year-plus delay [responding to a petition] is nothing less than egregious.”); In re Int’l Chem. § 1365(a)(2), provides the proper cause of action to compel EPA to perform its non-discretionary duty under section 311(j)(1). See ECF No. 27 at 4–12. However, because the standard under which the Court will adjudicate both claims is identical, the Court need not determine which statute provides the cause of action. See id. at 12–13. 14 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 23 of 33 Workers Union, 958 F.2d 1144, 1150 (D.C. Cir. 1992) (finding OSHA’s six-year delay in issuing cadmium rules unreasonable); Nader v. FCC, 520 F.2d 182, 206 (D.C. Cir. 1975) (“Although the issues are complicated, we can find no justification for a delay of ten years.”). B. EPA’s delay contravenes purposes of the Clean Water Act When Congress establishes “a timetable or other indication of the speed with which it expects the agency to proceed,” the statute helps supply the “rule of reason” governing the pace of agency decisionmaking. TRAC, 750 F.2d at 80; accord In re Monroe Commc’ns Corp., 840 F.2d 942, 945 (D.C. Cir. 1988) (“Delay is measured by a ‘rule of reason,’ informed whenever possible by discernible congressional expectations, respecting the pace at which proceedings should advance.”). In ascertaining the reasonableness of EPA’s delay, the Court must also consider “the extent to which delay may be undermining the statutory scheme, [including] by frustrating the statutory goal.” Cutler, 818 F.2d at 897–98; cf. Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1158 n.30 (D.C. Cir. 1983) (hereinafter Auchter) (“The reasonableness of the delay must be judged in the context of the statute which authorizes the agency’s action.” (internal quotation marks omitted)). Both section 311(j)(1) and the Clean Water Act more broadly signal a congressional intent that EPA would issue hazardous-substance spill regulations swiftly to protect human health and the environment. Section 311(j)(1) required EPA to issue hazardous-substance spill regulations both “as soon as practicable after October 18, 1972, and from time to time thereafter.” 33 U.S.C. § 1321(j)(1) (emphasis added). Thus, Congress intended that EPA both would issue hazardous-substance spill regulations quickly, cf. Ctr. for Biological Diversity v. EPA, 794 F. Supp. 2d 151, 161 (D.D.C. 2011) (citing “as soon as practicable” language in legislative history as evidence that Congress expected EPA to prescribe emissions standards 15 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 24 of 33 promptly), and then would update those regulations with some frequency, cf. Am. Lung Ass’n, 962 F.2d at 263. EPA has done neither and instead has defied Congress’s urgency with forty-two years of inaction. EPA’s delay in issuing hazardous-substance spill regulations also frustrates the Clean Water Act’s broader goals. The overriding policy of the Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). When Congress passed section 311 in the 1972 Amendments, it singled out hazardous substances as a source of water pollution the Act was intended to eliminate. Pub. L. No. 92-500, § 311(b)(1), 86 Stat. at 863 (“[I]t is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States . . . .” (emphasis added) (codified at 33 U.S.C. § 1321(b)(1))). Congress also made clear its intent that action be taken quickly, by stating its goal that “the discharge of pollutants into the navigable waters be eliminated by 1985.” Id. § 101(a)(1), 86 Stat. at 816 (codified at 33 U.S.C. § 1251(a)(1)) (emphasis added). EPA’s decades-long delay thwarts these goals by leaving a class of facilities that discharge hazardous substances into navigable waters free from federal spill-prevention regulation, contrary to Congress’ explicit mandate. See Cutler, 818 F.2d at 897–98. Given the Clean Water Act’s purpose and scheme, EPA’s delay is unreasonable as a matter of law. C. EPA’s delay threatens human health Agency delay is least tolerable “when human health and welfare are at stake.” TRAC, 750 F.2d at 80. “This is particularly true when the very purpose of the governing Act is to protect those lives.” Auchter, 702 F.2d at 1157–58. EPA’s delay jeopardizes human health and welfare by leaving countless facilities that store and use hazardous substances free from federal spill-prevention regulations. See supra at 4– 16 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 25 of 33 6. As noted above, hazardous-substance spills from these facilities are not speculative: thousands are reported each year, with many reaching waters of the United States. See supra at 4. And these chemicals pose enormous threats to human health and the environment. By definition, EPA has concluded that every chemical listed as a hazardous substance for purposes of section 311 “present[s] an imminent and substantial danger to the public health or welfare” when “discharged in any quantity into or upon the navigable waters of the United States.” 33 U.S.C. § 1321(b)(2)(A). Both acute and chronic exposure to these chemicals can cause severe health problems. See supra at 5–6; see also Pullen Decl. ¶¶ 11–20 (describing the effects of acute and chronic exposure to the ten most commonly spilled hazardous substances); id. ¶ 21 (describing the known hazard traits of hazardous substances reported spilled between 2004 and 2015). People and communities downstream from these facilities, and the waters they drink, recreate in, or otherwise enjoy, are at risk because of EPA’s failure to issue adequate, nationally applicable hazardous-substance spill regulations. With human health and welfare at stake, EPA’s forty-plus-year delay is unreasonable. Cf. Pub. Citizen Health Research Grp. v. Brock, 823 F.2d 626, 628 (D.C. Cir. 1987) (“With lives hanging in the balance, six years is a very long time.”); Auchter, 702 F.2d at 1157 (“Three years from announced intent to regulate to final rule is simply too long given the significant risk of grave danger EtO poses to the lives of current workers and the lives and well-being of their offspring.”). D. Regulatory complexity and agency priorities are unpersuasive in light of a forty-two year delay Agency justifications for delay based on the “difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources . . . become less persuasive as delay progresses, and must always be balanced against the potential for harm.” Cutler, 818 F.2d at 898. 17 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 26 of 33 As the D.C. Circuit recognized in United Mine Workers, “[h]owever many priorities the agency may have, and however modest its personnel and budgetary resources may be, there is a limit to how long it may use these justifications to excuse inaction in the face of the congressional command to act.” 190 F.3d at 554 (finding the agency unreasonably delayed issuance of final regulations governing coal miner exposure to diesel engine emissions); see also Cobell v. Norton, 240 F.3d 1081, 1097 (D.C. Cir. 2001) (“neither a lack of sufficient funds nor administrative complexity, in and of themselves, justify extensive delay, nor can the government claim that it has become subject to unreasonable expectations” when it has been on notice of its duty for years). EPA’s decades-long delay in this case cannot be justified by complexity or competing priorities, particularly in light of the significant risk to public health and the environment posed by hazardous-substance spills. Cf. Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 632 (D.C. Cir.) (recognizing agency’s limited resources and competing priorities, but finding a fourteen-year delay in setting fieldworker sanitation standards unreasonable), vacated as moot 817 F.2d 890 (D.C. Cir. 1987) (vacating prior order following issuance of regulations). E. The harm caused by EPA’s delay is widespread, continuous, and most severe in communities of color The “nature and extent of the interests prejudiced by delay” further supports a finding of unreasonable delay in this case. Core Commc’ns, 531 F.3d at 855 (internal quotation marks omitted). Until EPA issues hazardous-substance spill regulations, communities around the country are left exposed to the risk of hazardous-substance spills from unregulated facilities. See supra at 4–6; see also Nixon Decl. ¶¶ 15–17. Hundreds of hazardous-substance spills from nontransportation-related onshore facilities occur each month, all across the country. See Yiliqi Decl. ¶ 9 & tbl.1; id. ¶ 19; id. Ex. 2; supra at 4. And spill occurrence is positively and statistically 18 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 27 of 33 significantly correlated with communities with larger non-white racial and ethnic composition. See Pullen Decl. ¶¶ 25, 27; supra at 6. EPA’s failure to regulate as Congress commanded thus exacerbates an environmental injustice suffered disproportionately by communities of color. Further, the affected communities currently have little to no information about the types and quantities of hazardous substances stored near their homes, places of work and recreation, and drinking water supplies. Decl. of Stephanie Hysmith ¶ 5; Nixon Decl. ¶ 18. EPA’s failure to issue hazardous-substance spill regulations that Congress required over four decades ago therefore leaves the public without information necessary to make informed choices about the health and safety of their communities. Cf. Nixon Decl. ¶ 18. The only thing the public knows for certain is that, whatever the types and amounts of hazardous substances stored nearby, there is no federal regulation in place under section 311(j)(1) to prevent harmful spills. *** Over forty-two years have passed since EPA was charged with issuing hazardoussubstance spill regulations. Whatever the reason EPA gives for its inaction, “there is a limit to how long it may use these justifications to excuse inaction in the face of the congressional command to act.” United Mine Workers, 190 F.3d at 554. The agency’s forty-two year delay in this case far surpasses that limit. IV. Plaintiffs have standing to challenge EPA’s unreasonable delay To establish Article III standing, a plaintiff must demonstrate an (1) “injury in fact” that is (2) “fairly traceable to the challenged action of the defendant” and (3) likely to be “redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). Because plaintiffs challenge EPA’s failure to act, the redressability requirement in this case is relaxed: the question is only whether the injuries in fact could be 19 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 28 of 33 relieved if the agency fulfilled its statutory duty. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992); cf. Bennett v. Donovan, 703 F.3d 582, 590 (D.C. Cir. 2013) (“HUD is the government actor alleged to have caused appellants’ injury, and HUD is the actor that can provide relief—that arrangement is sufficient to establish that relief is likely.”). An organization can establish standing in two ways. “It may sue on behalf of its members, in which case it must show, inter alia, that some particular member of the organization would have had standing to bring the suit individually. In addition, an organization can ‘have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.’” N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012) (citations omitted) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). Although only one plaintiff must demonstrate standing for this case to proceed, see Massachusetts v. EPA, 549 U.S. 497, 518 (2007), all three have done so here: NRDC and EJHA have standing on behalf of their members; PCACS has standing on its own behalf. A. NRDC has standing on behalf of its members NRDC’s members would have standing to challenge EPA’s delay because they suffer concrete, particularized, and imminent “injuries in fact” that are fairly traceable to EPA’s failure to issue hazardous-substance spill regulations, and their injuries are likely to be redressed by a favorable decision in this case. Laidlaw, 528 U.S. at 180–81. NRDC’s members live, work, or recreate near or downstream of facilities that store and use hazardous substances. Hysmith Decl. ¶¶ 5–6; Decl. of Dr. Deborah Klimek ¶¶ 5, 10; see Decl. of Laurie Bilger ¶¶ 2, 4–5; Yiliqi Decl. ¶¶ 21–22, 25–28. These members worry about exposure to hazardous substances from both reported and unreported spills. Klimek Decl. ¶¶ 10–11; Hysmith Decl. ¶¶ 9–10, 12–13; Bilger 20 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 29 of 33 Decl. ¶¶ 6–8, 10. As a result, they have taken measures to avoid exposure to waters they fear may be contaminated by hazardous-substance spills. See Klimek Decl. ¶ 5 (refusing to swim, boat, or fish in waters surrounding Charleston); Hysmith Decl. ¶ 9 (refusing to drink or cook with water directly from tap); Bilger Decl. ¶¶ 6–7 (refusing to drink or bathe with unfiltered water). These reasonable fears and uncertainties, and the measures NRDC’s members take to avoid exposure, are concrete injuries in fact. See Laidlaw, 528 U.S. at 184–85 (citizens’ fear over contamination of river, which caused them to curtail recreational activities, was an injury-infact); N.Y. Pub. Interest Research Grp. v. Whitman, 321 F.3d 316, 325 (2d Cir. 2003) (plaintiffs’ concerns about air pollution and uncertainty as to whether EPA’s actions were protective satisfied injury-in-fact requirement). NRDC’s members’ injuries are directly traceable to EPA’s delay in enacting hazardoussubstance spill regulations. EPA has the authority and mandate to issue nationally applicable regulations that are protective and will prevent future spills. See supra at 13. But for EPA’s delay in doing so, NRDC’s members would have the comfort of knowing that non-transportationrelated onshore facilities in their communities were subject to nationally applicable spillprevention and -containment regulations. See Klimek Decl. ¶ 11; Hysmith Decl. ¶ 13; Bilger Decl. ¶ 12. A ruling in plaintiffs’ favor therefore is likely to redress the injuries to NRDC’s members by requiring EPA to issue hazardous-substance spill regulations.7 NRDC accordingly has standing on behalf of its members. 7 NRDC also meets the two additional requirements for associational standing. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). This suit is germane to NRDC’s institutional interests. See Pullen Decl. ¶¶ 5, 7 (“NRDC’s mission includes the prevention and mitigation of . . . water pollution, harm to fish and wildlife, and health threats posed by toxic chemicals in order to protect and maintain NRDC members’ health and use and enjoyment of natural resources.”). Further, because plaintiffs seek only declaratory relief and the imposition of deadlines for rulemaking, participation of NRDC’s members is not required. See Bldg. & Const. 21 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 30 of 33 B. PCACS has standing on its own behalf PCACS “is dedicated to the protection of the health and safety of all who reside, work, and study in the vicinity of local chemical plants” in West Virginia’s Kanawha Valley, and “promotes environmental justice and chemical safety through community organizing, education, and outreach.” Nixon Decl. ¶ 4. PCACS need only face a “perceptible impairment” of its activities due to EPA’s inaction “for there to be an ‘injury in fact.’” Nnebe v. Daus, 644 F.3d 147, 157 (2d Cir. 2011) (quoting Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993)). PCACS has experienced two types of “perceptible impairment” of its activities on account of EPA’s failure to issue hazardous-substance spill regulations. First, EPA’s failure has forced PCACS to divert scarce resources away from institutional priorities to address the regulatory vacuum in chemical spill-prevention regulations for above-ground storage tanks. Nixon Decl. ¶¶ 8–14, 16. Second, EPA’s failure to issue hazardous-substance spill regulations— which could require public disclosure of spill-prevention planning—has kept PCACS in the dark about the kinds of chemicals stored—and how they are stored—in the communities it serves. This has limited PCACS’s ability to educate and empower residents in the Kanawha Valley. Id. ¶ 17–18. Both the diversion of resources and limitation of public data caused by EPA’s delay constitute cognizable injuries in fact to PCACS’s organizational goals. See Nnebe, 644 F.3d at 157 (even a “few” additional cases of counseling constitutes an injury in fact when there is “some perceptible opportunity cost”); Brooklyn Ctr. for Independence of the Disabled v. Bloomberg, 290 F.R.D. 409, 417 (S.D.N.Y. 2012) (organizations that “expended considerable Trades Council of Buffalo, N.Y. & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 150 (2d Cir. 2006). 22 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 31 of 33 resources counseling constituents, gathering and coordinating information, and documenting problems with the City’s plan” demonstrated an injury in fact); see also, e.g., People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1095 (D.C. Cir. 2015) (agency’s “denial of access to bird-related . . . information” are concrete injuries to plaintiffs’ organizational purposes). Because EPA’s issuance of long-overdue hazardous-substance spill regulations would remedy these injuries, see Nixon Decl. ¶¶ 15–18, PCACS has organizational standing. C. EJHA has standing on behalf of its members EJHA meets all three requirements for associational standing. See Hunt, 432 U.S. at 343. EJHA’s members include PCACS, see Nixon Decl. ¶ 4; Decl. of Michele Roberts ¶ 3, which has standing to bring this suit on its own behalf, see supra at 22–23. This suit is also germane to EJHA’s interests in chemical policy reform to prevent “chemical disasters and the egregious impacts associated with them.” Roberts Decl. ¶¶ 5–6. Finally, although one of EJHA’s members is participating in this suit, the participation of EJHA’s members is not necessary for the relief requested. See supra note 7. EJHA accordingly has standing on behalf of its members. CONCLUSION For the foregoing reasons, plaintiffs request that this Court grant plaintiffs’ motion for summary judgment, issue declaratory judgment that defendants have unreasonably delayed issuing regulations to prevent and contain discharges of hazardous substances from nontransportation-related onshore facilities under section 311(j)(1)(C) of the Clean Water Act, and order defendants to propose those regulations within 16 months of the Court’s entry of judgment, and to finalize those regulations within 22 months of the Court’s entry of judgment. // 23 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 32 of 33 Dated: December 11, 2015 Respectfully submitted, ___________________ Jared E. Knicley* Natural Resources Defense Council 1152 15th Street NW, Suite 300 Washington, DC 20005 T: (202) 513-6242 F: (202) 289-1060 jknicley@nrdc.org * Pro Hac Vice motion pending Mitchell S. Bernard (MB 5823) Natural Resources Defense Council 40 West 20th Street New York, NY 10011 T: (212) 727-4469 F: (212) 727-1773 mbernard@nrdc.org Counsel for Plaintiffs 24 Case 1:15-cv-05705-SAS Document 35 Filed 12/11/15 Page 33 of 33 CERTIFICATE OF SERVICE I certify that on December 11, 2015, I caused a copy of the foregoing Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Summary Judgment and all associated documents cited therein to be filed using the Court’s ECF system, which will serve the documents electronically on all counsel of record. ___________________ Jared E. Knicley Counsel for Plaintiffs 25