Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 1 of 19
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`EARTH ISLAND INSTITUTE, et al.,
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`Plaintiffs,
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`v.
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`MICHAEL S. REGAN, et al.,
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`Defendants.
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`Case No. 20-cv-00670-WHO
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`ORDER GRANTING EARTH
`ISLAND’S MOTION FOR SUMMARY
`JUDGMENT
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`Re: Dkt. No. 63
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`Plaintiffs (collectively, “Earth Island”) seek a declaratory judgment that defendants
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`Michael S. Regan as Administrator1 and the U.S. Environmental Protection Agency (collectively,
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`“EPA”) failed to perform a nondiscretionary duty to issue a final rule to update Subpart J of the
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`National Contingency Plan (“NCP”) as required by the Clean Water Act (“CWA”) regarding,
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`among other things, the removal of oil and hazardous substances after oil spills, and violated the
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`Administrative Procedure Act (“APA”) because of its unreasonable delay. Earth Island seeks
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`injunctive relief to require the EPA to remediate these failures expeditiously.
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`In cross-motions for summary judgment, the parties contest whether the EPA violated the
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`CWA and the APA. I previously denied the EPA’s motion to dismiss premised on the lack of a
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`nondiscretionary duty under the CWA. Order Re: Motion To Dismiss (“Order”), Dkt. No. 42.
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`Now, for the reasons explained below, I find that the EPA breached its nondiscretionary duty to
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`issue the final rule, delayed unreasonably in the process, and will be required to take final action
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`on the listing and authorization of use provisions by May 31, 2023. I GRANT Earth Island’s
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`motion for summary judgment and DENY the EPA’s cross-motion for summary judgment.
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`1 Mr. Regan is substituted for Andrew R. Wheeler in his official capacity as Administrator.
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`Northern District of California
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 2 of 19
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`I.
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`LEGAL AND FACTUAL BACKGROUND
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`BACKGROUND
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`Under the CWA, Congress directed the EPA to “prepare and publish a National
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`Contingency Plan (NCP) for removal of oil and hazardous substances pursuant to this section.” 33
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`U.S.C. § 1321(d)(1). The EPA has discharged that duty. Order at 7. The purpose of the NCP is
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`to “provide for efficient, coordinated, and effective action to minimize damage from oil and
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`hazardous substance discharges, including containment, dispersal, and removal of oil and
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`hazardous substances.” 33 U.S.C. § 1321(d)(2). It has been revised multiple times. Dkt. No. 64
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`(“EPA Opp.”) at 3.
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`Earth Island’s complaint focuses on Subpart J, which sets forth “[p]rocedures and
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`techniques to be employed in identifying, containing, dispersing, and removing oil and hazardous
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`substances” and a schedule for identifying and evaluating “dispersants, other chemicals, and other
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`spill mitigating devices and substances” which may be used in response to oil discharges. 33
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`U.S.C. § 1321(d)(2)(F), (G). To add a product to the schedule, the manufacturer of the product
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`must submit technical product data specified in 40 C.F.R. § 300.915 to the EPA. 40 C.F.R.
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`§ 300.920. “Among other things, Subpart J set a threshold for effectiveness that must be met for a
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`dispersant to be included on the NCP Product Schedule and requires the manufacturer to provide
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`the results of effectiveness and toxicity testing using defined procedures, as well as other specific
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`information.” EPA Opp. at 4 (citing 40 C.F.R. § 300.915). The EPA has not updated Subpart J,
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`the portion of the NCP at issue, since 1994. Id.
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`After the BP Deepwater Horizon Oil Spill in 2010, the EPA began reevaluating the role of
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`dispersants in oil spill response to mitigate the environmental impacts of oil discharges. In 2011,
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`the EPA’s Office of the Inspector General (“OIG”) issued a report about the NCP’s approach to
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`efficacy and toxicity review of dispersants. Dkt. No. 68 at 97–138 (“2011 EPA-OIG Report”).
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`The report specifically found that the “EPA has not updated the NCP since 1994 to include the
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`most appropriate efficacy testing protocol,” and noted that if the NCP had reflected up-to-date
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`testing procedures for dispersant efficacy, “more reliable efficacy data” would have been available
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`at the time of the BP Deepwater Horizon Oil Spill. Id. at 8.
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 3 of 19
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`In November 2012, several of the plaintiffs submitted a petition requesting that the EPA
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`exercise its authority under the CWA and amend the NCP. Compl. ¶ 113; see also Dkt. No. 68 at
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`41–96 (“EII 2012 Petition”). In January 2013, EPA responded, informing the petitioners that it
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`was already working on a proposed rule and encouraged the petitioners to participate in the public
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`comment process. See Dkt. No. 64-2 (“EPA Letter, Jan. 3, 2013”). In June 2014, plaintiff
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`ALERT filed a supplemental petition and sought a “complete overhaul of the NCP.” Compl.
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`¶ 115; see also Dkt. No. 68 at 4–40 (“EII 2014 Petition”). EPA informed ALERT of the status of
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`the proposed rule and sought copies of the 2012 petition and 2014 supplemental petition for use in
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`the rulemaking docket. See Dkt. No. 64-3 (“EPA Letter, July 23, 2014”).
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`In 2015, the EPA proposed amendments to Subpart J (the “Proposed Rule”). Dkt. No. 68
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`at 765–832 (“80 Fed. Reg. 3380 (Jan. 22, 2015)”). The EPA’s Proposed Rule was “anticipated to
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`encourage the development of safer and more effective spill mitigating products, and would better
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`target the use of these products to reduce the risks to human health and the environment.” Id. at
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`3380. The Proposed Rule addressed three primary components: (1) establishing new monitoring
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`requirements for certain atypical dispersant use situations; (2) revising the data and information
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`requirements for chemical agent products to be listed on the Subpart J Product Schedule, and (3)
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`revising the authorization of use of procedures for chemical agents in response to an oil discharge
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`to waters of the United States. Id. Comments to the Proposed Rule closed on April 22, 2015. Id.
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`at 3381. The EPA received 81,973 comments on the Proposed Rule during the public comment
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`period.
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`On July 6, 2021, the EPA submitted a portion of the final rule to the Federal Register on
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`the first component: monitoring requirements for dispersant use in atypical situations. See Dkt.
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`No. 70. To this date, nearly six years since the public comment period on the Proposed Rule
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`closed, the EPA has not issued a final rule on the other two components of the Proposed Rule.
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`II.
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`PROCEDURAL BACKGROUND
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`Earth Island filed this action on January 30, 2020, alleging two causes of action under the
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`CWA and the APA. Dkt. No. 1 (“Compl.”). Under its first cause of action, Earth Island alleged that
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`the EPA failed to update the NCP since 1994 and thereby failed to incorporate scientific and
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 4 of 19
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`technological developments to assure that the NCP is “effective” and can “minimize damage” as
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`required by the CWA. Compl. ¶¶ 126–32. Under the second cause of action, Earth Island alleged
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`that the EPA violated Section 555(b) of the APA because it failed to conclude the rulemaking
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`process more than four (now more than five) years since the comment period on the Proposed
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`Rule closed, more than five (now six) years since it accepted ALERT’s supplemental petition for
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`rulemaking, and more than seven (now eight) years since ALERT’s and other plaintiffs’ initial
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`petition for rulemaking. Compl. ¶¶ 133–36.
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`In April 2021, Earth Island filed the present motion for summary judgment. In May 2021,
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`the EPA filed its opposition and cross-motion for summary judgment. Dkt. Nos. 63 (“EII Mot.”);
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`EPA Opp.
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`LEGAL STANDARD
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`A party is entitled to summary judgment where it “shows that there is no genuine dispute
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`as to any material fact and [it] is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A
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`dispute is genuine if it could reasonably be resolved in favor of the nonmoving party. Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material where it could affect the
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`outcome of the case. Id.
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`The moving party has the initial burden of informing the court of the basis for its motion
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`and identifying those portions of the record that demonstrate the absence of a genuine dispute of
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`material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Once the movant has
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`made this showing, the burden shifts to the nonmoving party to identify specific evidence showing
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`that a material factual issue remains for trial. Id. The nonmoving party may not rest on mere
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`allegations or denials from its pleadings but must “cit[e] to particular parts of materials in the
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`record” demonstrating the presence of a material factual dispute. FED. R. CIV. P. 56(c)(1)(A); see
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`also Liberty Lobby, 477 U.S. at 248. The nonmoving party need not show that the issue will be
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`conclusively resolved in its favor. Id. at 248–49. All that is required is the identification of
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`sufficient evidence to create a genuine dispute of material fact, thereby “requir[ing] a jury or judge
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`to resolve the parties' differing versions of the truth at trial.” Id. (internal quotation marks
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`omitted). If the nonmoving party cannot produce such evidence, the movant “is entitled
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 5 of 19
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`to . . . judgment as a matter of law because the nonmoving party has failed to make a sufficient
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`showing on an essential element of her case.” Celotex, 477 U.S. at 323.
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`On summary judgment, the court draws all reasonable factual inferences in favor of the
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`nonmoving party. Liberty Lobby, 477 U.S. at 255. “Credibility determinations, the weighing of
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`the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
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`of a judge.” Id. However, conclusory and speculative testimony does not raise a genuine factual
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`dispute and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE
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`Corp., 594 F.2d 730, 738–39 (9th Cir. 1979).
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`DISCUSSION
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`I.
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` WHETHER THE EPA VIOLATED THE CLEAN WATER ACT
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`The parties dispute (1) whether the NCP is ineffective or inefficient, thereby triggering the
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`EPA’s nondiscretionary duty to revise and amend the NCP; and (2) if so, whether the EPA
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`fulfilled its nondiscretionary duty. EII Reply at 2; EPA Reply at 2. In my prior Order, I found
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`that the EPA’s duty in this case “is quite clear: to revise or amend the NCP in light of new
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`information.”2 Order at 10. The EPA contends that if “new information” is “intended to be
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`interpreted in the broadest possible way (e.g., any new information), then EPA’s liability cannot
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`be in dispute, as new information has been received.” EPA Reply at 9 (emphasis in original).
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`This is a poor argument. I explained that the EPA has a nondiscretionary obligation to
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`revise or amend the NCP “in order to achieve the purpose of the CWA and the purpose of the
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`NCP.” Order at 9. I relied on In re A Community Voice, 878 F.3d 779, 785 (9th Cir. 2017), where
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`the Ninth Circuit held that the EPA must “amend initial rules and standards in light of new
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`information,” and explained that the “new information” was clear in the record: “the current
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`standards for [hazardous substances were] insufficient to accomplish Congress’ goal, thereby
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`2 Earth Island asserts that a recent Supreme Court case, decided after the EPA’s prior motion to
`dismiss was briefed, “confirms the correctness” of my conclusion in the prior Order. EII Mot. at
`12 (discussing County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462 (2020)). The EPA
`contends that County of Maui is distinguishable and that Earth Island’s attempt to revisit the basis
`for my prior earlier ruling is wholly improper, especially in light of my rejection of EPA’s request
`to seek reconsideration of this issue. EPA Opp. at 11–12; see Dkt. No. 53. I do not find it
`necessary to reconsider whether the Administrator has a nondiscretionary duty to update the NCP
`under the CWA.
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 6 of 19
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`creating an ‘obvious need, apparent to [the EPA].” If the EPA were allowed “to fail to review,
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`update, or amend the NCP for decades despite scientific advances, the occurrence of incidences
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`involving discharge of oil and hazardous substances, and an internal report concluding that the
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`NCP was outdated and inadequate” for example, “such inaction would frustrate the purpose of the
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`NCP to achieve an effective and efficient response to pollution.” Order at 8. If “new information”
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`meant “any new information” then the EPA would always have a duty to amend or revise the NCP
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`because the EPA “will always become aware of new information that may relate to the wide
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`variety of actions EPA takes under the NCP.” EPA Reply at 9. My ruling was different; I held
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`that the EPA has a nondiscretionary duty to revise or amend the NCP when there is new
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`information that shows that the current standards for efficient, coordinated, and effective action to
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`minimize damage from oil and hazardous substance pollution are insufficient to safely provide for
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`mitigation of any pollution. See Order at 8; see 33 U.S.C. § 1321(d)(2).
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`A. Whether the NCP Is Ineffective or Inefficient
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`Under this framework, Earth Island asserts that the EPA violated the CWA because it
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`failed to perform its nondiscretionary duty to revise or amend the NCP in light of new
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`information.3 EII Reply at 2. The EPA contends that Earth Island has failed to show that the
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`EPA’s nondiscretionary duty was triggered because there is no evidence that the NCP is
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`ineffective or inefficient. EPA Reply at 2. It is wrong.
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`1.
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`EPA Office of Inspector General Reports
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`Earth Island relies on the EPA’s OIG Report after the 2010 Deepwater Horizon Oil Spill to
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`prove that the NCP is inadequate. EII Mot. at 13; EII Reply at 2. EPA contends that the OIG
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`reports do not make any finding that the NCP is ineffective or inefficient. EPA Reply at 3.
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`Instead, according to the EPA, the report only focused on the Deepwater Horizon Oil Spill and
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`made recommendations that, in part, helped form the basis of EPA’s 2015 Proposed Rule. Id. at
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`3–4. The EPA argues that the 2011 EPA-OIG Report “lauded EPA’s efforts and responses and
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`3 In its motion, Earth Island mistakenly asserted that I had “already determined that the EPA has
`violated the Clean Water Act” in my prior Order but in its reply, Earth Island clarified that it
`should have stated that I “necessarily implied” rather than “determined” the agency’s liability. EII
`Reply at 3 n.2.
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 7 of 19
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`therefore demonstrated that EPA’s action under the NCP is ‘efficient, coordinated, and effective.’”
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`Id. at 5. For example, the Inspector General (“IG”) revised the report to clarify that the IG did not
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`intend to imply that EPA’s actions, such as its support to the U.S. Coast Guard, were inadequate or
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`inappropriate. 2011 EPA-OIG Report at 21. The EPA adds that the OIG Report recognized that
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`even if the NCP had been amended to include a different efficacy testing procedure of dispersants,
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`the dispersant used in the Deepwater Horizon Oil Spill would likely not have changed. EPA
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`Reply at 6; see 2011 EPA-OIG Report at 10.
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`Contrary to the EPA’s implication that the NCP is effective, the Report explained that,
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`“While this may have been the case, we maintain that more reliable data may have been available
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`had OSWER [now the EPA’s Office of Land and Emergency Management] proceeded with its
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`plan to update Subpart J prior to the spill.” 2011 EPA-OIG Report at 11. Moreover, the EPA
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`“agreed with recommendations from its OIG that were intended to remedy inadequacies in NCP
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`dispersant review protocols.” EII Mot. at 13.
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`After the 2010 Deepwater Horizon response, the OIG initiated its 2011 audit of “EPA’s
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`contingency planning for emergency response to determine whether the contingency planning
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`structure for responding to oil spills and hazardous substance releases is effective, and whether
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`plans are updated to reflect lessons learned from recent major events and new developments or
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`industry trends.” EPA Could Improve Contingency Planning for Oil and Hazardous Substance
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`Response (Feb. 15, 2013) (“2013 EPA-OIG Report”). After its investigation, the OIG provided
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`seven recommendations, all of which the EPA agreed to execute by mid-to-late 2012. 2011
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`EPA-OIG Report at 20. In particular, the EPA agreed to adopt “[r]egulatory revisions to the
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`NCP’s Subpart J testing requirements” to “incorporate the most appropriate efficacy testing
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`protocol,” to “address chemical agent tests (such as dispersants) using crude oil, subsurface use of
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`dispersants, and quantity, location, and duration of chemical agent use criteria,” and to “address
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`the need to capture and maintain dispersant and manufacturer production capacities, equipment
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`requirements, and other necessary information to better prepare for future oil spills.”
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`Memorandum from Asst. Administrator to Inspector General re: Response to Final OIG
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`Evaluation Report “Revisions Needed to National Contingency Plan Based on Deepwater Horizon
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 8 of 19
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`Oil Spill” (Nov. 11, 2011) at 1–3 (discussing OIG’s recommendations 1, 3, and 7). The OIG
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`accepted all of the EPA’s corrective plans, including the revisions to the NCP Subpart J.
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`Memorandum from Inspector General to Asst. Administrator re: Response to Corrective Action
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`Plan for OIG Report No. 11-P-1534 (Feb. 7, 2012).
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`The EPA now contends that the OIG’s actions are unpersuasive because the Administrator
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`has not delegated his authority to the OIG and that none of the reports constitute “a determination
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`by the Administrator as to when it is advisable to promulgate revisions or amendments to the
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`NCP.” EPA Opp. at 14 (citing 40 C.F.R. § 131.22(b)(1)). But the 2011 EPA-OIG Report
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`explicitly acknowledged that “the EPA Administrator testified that changes are needed to the
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`NCP’s Subpart J, including dispersant registration and a more complete range of tests to address
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`human and environmental health.” 2011 EPA-OIG Report at 10. The EPA’s counsel argued
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`during the July 7, 2021, hearing that the Administrator’s statement was not an admission that the
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`NCP is inefficient or ineffective but that the NCP can be improved. For the reasons below, this
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`argument fails.
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`2.
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`EPA’s 2015 Proposed Rule
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`The issuance of a proposed regulation through the Federal Register requires Administrator
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`approval. As a result, the “EPA’s commencement of rulemaking to update the NCP negates any
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`EPA argument that its ‘Administrator’ never determined the existing NCP to be inadequate, as is
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`necessary to trigger a CWA duty.” EII Reply at 4 n.4.
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`Earth Island points to the preamble to the EPA’s 2015 Proposed Rule and argues that it is
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`an “unambiguous Administrator affirmation that the existing plan is not adequate.” EII Reply at 4.
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`The preamble expressed the EPA’s intention to revise the NCP to “address[] the efficacy, toxicity,
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`environmental monitoring of dispersants, and other chemical and biological agents, as well as
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`public, state, local, and federal officials’ concerns regarding their use.” 80 Fed. Reg. 3380 (Jan.
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`25, 2015). The proposed revisions to Subpart J of the NCP were “anticipated to encourage the
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`development of safer and more effective spill mitigating products, and would better target the use
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`of these products to reduce the risks to human health and the environment.” Id. The changes were
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`a result of “research [by the EPA’s Office of Research and Development], the Deepwater Horizon
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 9 of 19
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`event, the new protocols in the proposed revisions, in addition to increasing the overall scientific
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`soundness of the data, to take into consideration not only the efficacy but also the toxicity,
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`long-term environmental impacts, endangered species protection, and human health concerns
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`raised during responses to oil discharges, including the Deepwater Horizon blowout.” Id. at 3381.
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`The EPA contends that the proposed revisions to make the NPC more effective or more
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`efficient “are not a de facto demonstration that the NCP is ineffective or inefficient.” EPA Reply
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`at 6. According to the EPA, the Proposed Rule was merely a way for the EPA to gather public
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`comments on how to “improve what is and continues to be a functioning NCP.” Id. It claims that
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`if I were to adopt Earth Island’s “flawed logic,” then any time the EPA publishes a proposed rule
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`to amend the NCP, a person can file a citizen suit alleging that the proposed rule constitutes an
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`admission that the Administrator has failed to perform a nondiscretionary duty to amend the NCP.
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`Id. Although I agree that any proposed rulemaking is not necessarily a determination by the
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`Administrator that the NCP is inadequate, a proposed rule can be such a determination. In this
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`case, the OIG reports and the language of the subsequent Proposed Rule support the conclusion
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`that the NCP is ineffective and inefficient.
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`3.
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`Earth Island’s Petitions and Declarations
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`Earth Island also asserts that its “petitions, opening summary judgment brief, and
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`declarations as well as public comments on EPA’s proposed rule further particularize aspects of
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`the NCP’s inadequacy.” EII Reply at 4. The EPA responds that the purpose of Earth Island’s
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`petitions and declarations is not to provide for the “efficient, coordinated, and effective action to
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`minimize damage from oil and hazardous substance discharges” but rather the “prohibition of the
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`use of dispersants.” EPA Reply at 7. It also argues that by using Earth Island’s own petitions and
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`declarations as a basis for finding the NCP inadequate, Earth Island is asking me to stand in the
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`shoes of the EPA and grant their petitions.4 EPA Reply at 7. Of course, I lack authority to grant
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`Earth Island’s petitions. That said, I conclude that EPA’s own documents, such as the OIG
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`Reports and the resulting Proposed Rule, show that the NCP is ineffective and inefficient and
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`4 The parties dispute whether the EPA granted Earth Island’s petitions. I conclude that the EPA
`did not grant nor deny Earth Island’s petitions. See supra Part II(B)(1).
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`therefore that EPA’s nondiscretionary duty to revise or amend the NCP is triggered.
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`B. Whether the EPA Fulfilled Its Nondiscretionary Duty
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`The EPA contends that even if I find that the NCP is ineffective or inefficient, it has
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`fulfilled any nondiscretionary duty to revise or amend the NCP because it has amended the NCP
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`multiple times. EPA Reply at 2. But the amendments do not address chemical dispersants and oil
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`spill response and are therefore unresponsive to the “new information” that triggers the EPA’s
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`duty to update the NCP. EII Reply at 3. Among other things, the amendments concern technical
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`changes, the involuntary acquisition of property by the government, and the designation of federal
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`trustees. See EPA Opp. at 10 n.3. The EPA says that these amendments are relevant because they
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`counter Earth Island’s allegations. EPA Reply at 2. For example, according to the EPA, the
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`amendments show that the NCP has been updated since 1994, that the use of chemical dispersants
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`is not prioritized over mechanical cleanup methods, and that the EPA has incorporated scientific
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`and technological developments to minimize damage. Id.
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`But the EPA does not argue that these amendments address the new information relevant
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`to dispersant efficacy, toxicity, and terms of authorization. EII Reply at 4. As Earth Island
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`asserts, the 2015 Proposed Rule at issue here “was not a global overhaul of the NCP, but rather, a
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`surgical intervention that specifically addressed Subpart J.” EII Reply at 3. It is undisputed that
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`before the EPA’s final action on the monitoring provisions portion of the Proposed Rule on July 6,
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`2021, the EPA had not amended the relevant portion of the NCP, Subpart J since 1994. See EPA
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`Opp. at 1. In addition, the EPA has failed to finalize all components of the 2015 Proposed Rule to
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`amend Subpart J of the NCP. See id. at 20. Accordingly, Earth Island has provided sufficient
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`facts to show that EPA has failed to fulfill its nondiscretionary duty to revise or amend the NCP.
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`II. WHETHER EPA’S DELAY IN ISSUING A FINAL RULE IS UNREASONABLE
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`Earth Island also asserts that the EPA violated the APA when it failed to conclude the
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`rulemaking process for the 2015 Proposed Rule. Compl. ¶ 133–36. The EPA contends that the
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`APA claim is precluded because Earth Island has an alternative adequate remedy under the CWA.
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`EPA Reply at 10–12. But Earth Island’s APA and CWA claims are distinct and because the EPA
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`failed to issue a final rule for more than six years, its delay is unreasonable under the APA.
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`Case 3:20-cv-00670-WHO Document 73 Filed 08/09/21 Page 11 of 19
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`A. Whether Earth Island’s CWA Claim Precludes Its APA Claim
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`The EPA contends that if Earth Island has “a cognizable claim against EPA under the
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`CWA citizen suit provision for the failure to update Subpart J of the NCP, that precludes an
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`additional claim under the APA that seeks similar relief.” EPA Opp. at 15. Section 706(1) of the
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`APA allows a reviewing court to “compel agency action unlawfully withheld or unreasonably
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`delayed.” 5 U.S.C. § 706(1). But Section 704 states, “Agency action made reviewable by statute
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`and final agency action for which there is no other adequate remedy in a court are subject to
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`judicial review.” 5 U.S.C. § 704. An alternative remedy is adequate if it would remedy the injury
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`about which the plaintiff complains. See Coker v. Sullivan, 902 F.2d 84, 90 n.5 (D.C. Cir. 1990).
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`“[T]he alternative remedy need not provide relief identical to relief under the APA, so long as it
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`offers relief of the ‘same genre.’” Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009).
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`Earth Island does not dispute that legal standard but argues that its statutory CWA claim
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`and APA claim are “distinct and nonduplicative, because they involve two separate EPA
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`violations.” EII Reply at 5. Earth Island asserts that relief under the CWA is not an adequate
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`alternative remedy because the “APA claim arises not from the substantive illegality of EPA’s
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`conduct under the CWA, but rather, from EPA’s violation of the APA’s own procedural guarantee
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`of timely action on petitions.” Id. (emphasis in original). In other words, the question of whether
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`the EPA violated the CWA because of its failure to maintain an up-to-date NCP is distinct from
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`whether the EPA also violated the APA because it unreasonably delayed taking final action on
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`Earth Island’s petitions and the EPA’s Proposed Rule. Id. at 8.
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`In Sierra Club v. Johnson, No. 08-CV-01409-WHA, 2008 WL 3820385, at *2 (N.D. Cal.
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`Aug. 8, 2008), the Hon. William H. Alsup dismissed the plaintiff’s “unlawfully withheld” APA
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`claim because it was based on the same allegation under the Comprehensive Environmental
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`Response, Compensation, and Liability Act (“CERCLA”)—that the defendants failed to discharge
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`a mandatory duty—but allowed plaintiffs’ “unreasonable delay” APA claim because it was not
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`duplicative. The “unreasonable delay” claim did not ask “whether defendants violated a
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`nondiscretionary duty but whether twenty years constitutes an unreasonable delay.”5 Id.
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`5 The Sierra Club court dismissed the “unreasonable delay” claim without prejudice because under
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`Likewise, in this case, the “unreasonable delay” claim does not ask whether the EPA violated a
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`nondiscretionary duty but whether its years-long delay constitutes an unreasonable delay.
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`Earth Island also relies on Community Voice, where the Ninth Circuit concluded that the
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`EPA had a duty to update its lead-based paint and dust-lead hazard standards under the TSCA and
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`the Paint Hazard Act, as well as a duty under the APA to fully respond to plaintiffs’ petitions.
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`Community Voice, 878 F.3d at 786. Earth Island argues that the Ninth Circuit held that the EPA
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`violated both duties, “notwithstanding that they converged in the same remedy: the grant of a writ
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`of mandamus and an order to EPA to issue proposed and final rules by specified deadlines.” EII
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`Reply at 6. The EPA contends that Community Voice is distinguishable because unlike in
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`Community Voice, the EPA has not granted Earth Island’s petitions in this case. EPA Reply at
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`10– 11. But this is immaterial because Earth Island points out that the EPA’s failure to finalize its
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`Proposed Rule for six years constitutes unreasonable delay under the APA. 6 EII Reply at 8. Earth
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`Island’s CWA claim does not preclude its “unreasonable delay” APA claim.7
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`B. Whether the EPA’s Delay Is Unreasonable
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`Earth Island asserts that the EPA’s delay six-plus years on its rulemaking to update the
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`NCP and for more than eight years on taking final action on Earth Island’s original petitions are
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`unreasonable under the APA. EII Mot. at 15. “Agency action” includes “an agency rule, order,
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`license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
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`An administrative agency must conclude matters presented to it “within a reasonable time,” 5
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`CERCLA, the D.C. Circuit has exclusive jurisdiction over unreasonable delay cases. Sierra Club,
`2008 WL 3820385, at *2. That is not the case here under the CWA. See EII Reply at 8 n.7.
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` 6
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` The cases that the EPA rely on are distinguishable. See, e.g., Coos County Board of
`Commissioners v. Kempthorne, 531 F.3d 792 (9th Cir. 2008) (finding that the two causes of action
`were identical because plaintiffs alleged that the defendant had failed to perform an discrete
`agency action under both the Endangered Species Act (“ESA”) and the APA); Garcia v.
`McCarthy, No. 13-CV-03939-WHO, 2014