Last week, in Alaska Cmty. Action on Toxics, et al. v. EPA, Civ. A. No. 12-1299 (D.D.C., May 7, 2013), the U.S. District Court for the District of Columbia dismissed claims by environmental groups challenging EPA’s failure to identify the waters in which certain dispersants may be used, as well as the quantities of such dispersants that may be used in those waters, in responses to oil spills. The groups blamed these omissions for the release, in response to the 2010 Deepwater Horizon oil disaster, of about 1.84 million gallons of dispersants into the Gulf of Mexico, alleged to pose insufficiently characterized risks to human health and the environment.
Section 311 of the Clean Water Act, as amended by the Oil Pollution Act of 1990 (enacted in response to the 1989 Exxon Valdez oil disaster), directs the preparation and response to oil spills. Section 311(d) requires the President to prepare and publish a National Contingency Plan (NCP) for removal of oil and hazardous substances, authority that has since been delegated to EPA. Section 311(d)(2)(G) requires that the NCP include a schedule — commonly referred to as the NCP Product Schedule — identifying dispersants that may be used in carrying out the NCP, the waters in which those dispersants may be used, and the quantities of those dispersants that may be used safely in those waters.
Although EPA promulgated the NCP and the NCP Product Schedule and has listed numerous dispersants on that schedule, the agency has never identified the waters or quantities in which those dispersants may be used. EPA formalized its decision not to provide this information in a 1984 final rule, which stated:
“The wide variability in waters, weather conditions, organisms living in the waters, and types of oil that might be discharged requires a flexible approach. Thus, the waters and quantities in which a dispersant or chemical agent may safely be used are to be determined in each case by the [On-Scene Coordinator] on the basis of all relevant circumstances.”
Although the NCP has been revised a couple of times since 1984, the decision not to identify waters or quantities has never changed. And while dispersants are frequently added to the NCP Product Schedule, the NCP itself has not been revised since 1994, nearly twenty years prior to the initiation of the Alaska Community Action case. Why is that significant? Because federal law imposes a six-year statute of limitations on claims against the federal government. 28 U.S.C. § 2401(a) provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”
To their credit, the plaintiffs in the Alaska Community Action case came up with a number of creative ways to style their claims to try to evade this statute of limitations problem. They challenged each and every listing or relisting of a product on the NCP Product Schedule that occurred in the past six years in an attempt to argue that EPA took a final agency action subject to judicial review each time EPA published the NCP Product Schedule or listed a new product. They also alleged that EPA has failed to perform nondiscretionary duties under the CWA and has unreasonably delayed taking action required by the CWA in violation of the Administrative Procedure Act.
Ultimately, the Court could not be deterred from its view that the right of action here “first accrue[d]” in 1984 when EPA made its “deliberate decision . . . not to pre-specify waters and quantities . . . for each product listed on the NCP Product Schedule” (or, at the absolute latest, in 1994 when EPA last revised the NCP and “implicitly made this same decision”). The Court found that “EPA’s actions in the past six years have ‘simply implemented’ the decision made and spelled out long ago regarding the pre-specification of waters and quantities.” As such, “the Court conclude[d] that the time for bringing suit has long since passed” and dismissed all of the plaintiffs’ claims.
As an aside, if the goal of the environmental groups was to require EPA to identify all of the waters in which certain dispersants may be used and the quantities of such dispersants that may be used in those waters, it is not entirely clear to me that this lawsuit, even if it had been successful, would have achieved that goal. Section 1321(d)(2)(G) of the CWA requires the NCP Product Schedule to provide that “in the case of any dispersant . . . or waters not specifically identified in [the NCP Product Schedule]” “the President, or his delegate, may, on a case-by-case basis, identify the dispersants . . . which may be used, the waters in which they may be used, and the quantities which can be used safely in such waters.” Therefore, it would seem to me that EPA could technically comply with Section 1321(d)(2)(G) simply by listing one water and one corresponding quantity for each dispersant that it adds to the NCP Product Schedule and reserve “case-by-case” flexibility with respect to all other waters.