A federal court in the District of Columbia has dismissed a lawsuit initiated by several environmental groups seeking to compel the U.S. Environmental Protection Agency (EPA) to develop standards for the use of oil dispersants under the National Contingency Plan (NCP). Alaska Comty. Action on Toxics v. EPA, No. 12-1299, (D.D.C. 5/7/13).
Plaintiffs claimed that when EPA issued its list of approved dispersants and other products for oil discharges (the NCP Product Schedule), it failed to “specify the waters or quantities in which listed products may [safely] be used” as required by law. EPA issued the NCP Product Schedule in 1984 and last revised it in 1994. EPA stated in the Federal Register NCP Product Schedule preambles that it was not promulgating lists of waters or quantities for the products because complex factors require flexibility in their use. EPA has republished the list and added products to it from time to time without re-stating its determination not to include designations of waters and quantities. Plaintiffs sued in 2012, asserting that EPA had a statutory duty to specify waters and quantities for chemicals on the NCP Product Schedule.
According to the court, “[t]he decision being challenged here is EPA’s deliberate decision, as spelled out in the 1984 rule, not to pre-specify waters and quantities for use for each product listed on the NCP Product Schedule. Nothing about that decision has changed in the nearly thirty years since it was made.” It held that subsequent republication of the list and the addition of new chemicals did not constitute reconsideration of that decision. Applying the Administrative Procedure Act’s six-year statute of limitations, the court held that the challenge was time-barred.