                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


SIERRA CLUB,

               Plaintiff,
       v.
                                                      Civil Action No. 16-2461 (TJK)
ANDREW WHEELER,

               Defendant.


                                  MEMORANDUM OPINION

       The Clean Air Act requires the Environmental Protection Agency (“EPA” or the

“agency”) to develop guidelines to regulate solid waste incinerators. It also provides a private

right of action to sue EPA to enforce the law’s statutory duties that are nondiscretionary. 42

U.S.C. § 7604(a)(2). Plaintiff Sierra Club brings this lawsuit to compel EPA to comply with

three duties related to these guidelines that it asserts are nondiscretionary. Before the Court are

the parties’ cross-motions for summary judgment. ECF No. 12; ECF No. 13. 1 For the reasons

explained below, the Court concludes that two of the duties at issue are not nondiscretionary.

Therefore, they may not be enforced through the private right of action invoked by Sierra Club,

and claims related to them must be dismissed for lack of subject matter jurisdiction. With

respect to the third duty, which the parties agree is nondiscretionary, the Court will order a

schedule that establishes deadlines for EPA’s compliance that fall between those proposed by the

parties. Thus, the Court will grant in part and deny in part Sierra Club’s Motion for Summary



1
  In evaluating these motions, the Court considered all relevant filings including, but not limited
to, the following: ECF No. 1 (“Compl.”); ECF No. 10 (“Ans.”); ECF No. 12 at 4-7 (“Pl.’s
SoMF”); id. at 8-46 (“Pl.’s MSJ Br.”); ECF No. 13-3 (“Def.’s SoMF”); ECF No. 13-4 (“Def.’s
MSJ Br.”); ECF No. 15 at 1-5 (“Pl.’s Resp. SoMF”); id. at 6-37 (“Pl.’s Opp.”); ECF No. 17
(“Def.’s Reply”); ECF No. 17-1 (“Def.’s Am. SoMF”); ECF No. 18-2; ECF Nos. 19-23.
Judgment (ECF No. 12), and grant in part and deny in part Defendant’s Cross-Motion for

Summary Judgment (ECF No. 13). The Court will also deny Sierra Club’s Motion for Leave to

File a Surreply (ECF No. 18).

          Background

          A.     Statutory Background

          In 1963, Congress enacted the Clean Air Act (“CAA”), 42 U.S.C. § 7401, et seq., “to

protect and enhance the quality of the Nation’s air resources so as to promote the public health

and welfare and the productive capacity of its population.” Id. § 7401(b)(1). Recognizing that

the law was “work[ing] poorly,” S. Rep. No. 101-228, at 128 (1989), Congress passed the Clean

Air Act Amendments of 1990, creating an “aggressive regime of new control requirements” to

address air pollution problems. Blue Ridge Envtl. Def. League v. Pruitt, 261 F. Supp. 3d 53, 56

(D.D.C. 2017) (quoting Cal. Cmtys. Against Toxics v. Pruitt, 241 F. Supp. 3d 199, 200 (D.D.C.

2017)).

          The 1990 amendments added Section 129 to the CAA. Nat. Res. Def. Council

(“NRDC”) v. EPA, 489 F.3d 1250, 1255 (D.C. Cir. 2007). Section 129 provides that the

Administrator of EPA (the “Administrator”) “shall establish performance standards and other

requirements . . . for solid waste incineration units.” 42 U.S.C. § 7429(a)(1)(A). A “solid waste

incineration unit” is defined, with qualifications not relevant here, as “a distinct operating unit of

any facility which combusts any solid waste material from commercial or industrial

establishments or the general public.” Id. § 7429(g)(1).

          Section 129 requires the Administrator to establish performance standards and other

requirements applicable to both (1) “commercial or industrial” solid waste incineration units

(“CISWI” units) and (2) “other categories” of solid waste incineration units (“OSWI” units). Id.

§ 7429(a)(1)(D)-(E). These standards and other requirements include “guidelines . . . and other


                                                  2
requirements applicable to existing units” of both types of incinerators. Id. § 7429(a)(1)(A); see

also id. § 7429(b)(1). Once the Administrator promulgates guidelines for existing units, the law

requires that a plan be developed and implemented to enforce them. Reflecting the CAA’s

“‘core principle’ of cooperative federalism,” Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d

138, 156 (D.C. Cir. 2015) (quoting EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584,

1602 n.14 (2014)), Section 129 establishes a framework that gives each state the opportunity to

create a state implementation plan (“SIP” or “state plan”) and, for those states that fail to do so,

requires the federal government to create a federal implementation plan (“FIP” or “federal

plan”). The relevant portion of the statute provides in full:

               (2) State plans

               Not later than 1 year after the Administrator promulgates
               guidelines for a category of solid waste incineration units, each
               State in which units in the category are operating shall submit to
               the Administrator a plan to implement and enforce the guidelines
               with respect to such units. The State plan shall be at least as
               protective as the guidelines promulgated by the Administrator and
               shall provide that each unit subject to the guidelines shall be in
               compliance with all requirements of this section not later than 3
               years after the State plan is approved by the Administrator but not
               later than 5 years after the guidelines were promulgated. The
               Administrator shall approve or disapprove any State plan within
               180 days of the submission, and if a plan is disapproved, the
               Administrator shall state the reasons for disapproval in writing.
               Any State may modify and resubmit a plan which has been
               disapproved by the Administrator.

               (3) Federal plan

               The Administrator shall develop, implement and enforce a plan for
               existing solid waste incineration units within any category located
               in any State which has not submitted an approvable plan under this
               subsection with respect to units in such category within 2 years
               after the date on which the Administrator promulgated the relevant
               guidelines. Such plan shall assure that each unit subject to the plan
               is in compliance with all provisions of the guidelines not later than
               5 years after the date the relevant guidelines are promulgated.



                                                  3
42 U.S.C. § 7429(b)(2)-(3). If a state does not have any existing CISWI or OSWI units in its

state, it must submit a “negative declaration” saying so to EPA. See 40 C.F.R. § 60.2510

(CISWI); id. § 60.2982 (OSWI).

       In addition, EPA must review and revise the performance standards and other

requirements it promulgates under Section 129 every five years. Specifically, Section 129 states

that “[n]ot later than 5 years following the initial promulgation of any performance standards and

other requirements . . . applicable to a category of solid waste incineration units, and at 5 year

intervals thereafter, the Administrator shall review, and in accordance with [§§ 7429 and 7411],

. . . revise such standards and requirements.” 42 U.S.C. § 7429(a)(5).

       Finally, the CAA includes a “citizen suit” provision, which authorizes any person to file

suit “against the Administrator where there is alleged a failure of the Administrator to perform

any act or duty under this chapter which is not discretionary with the Administrator.” Id.

§ 7604(a)(2). The district court is authorized “to order the Administrator to perform such act or

duty.” Id. § 7604(a).

       B.      Factual Background

       The parties generally agree on the facts relevant to their dispute. In short, EPA has

promulgated guidelines for existing CISWI and OWSI units pursuant to Section 129; many states

have failed to submit implementation plans or negative declarations to EPA; and EPA has not

finalized corresponding federal implementation plans. See Pl.’s SoMF; Def.’s SoMF; Pl.’s Resp.

SoMF; Def.’s Am. SoMF. Moreover, the parties agree that EPA has not reviewed and revised

the 2005 OSWI Standards every five years, as required by law. See Pl.’s MSJ Br. at 12; Def.’s

MSJ Br. at 6, 9, 17; 42 U.S.C. § 7429(a)(5).




                                                  4
               1.     CISWI Standards

       On February 7, 2013, EPA promulgated final amended emission standards for CISWI

units (the “2013 CISWI Standards”). Commercial and Industrial Solid Waste Incineration Units:

Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid

Waste, 78 Fed. Reg. 9112 (Feb. 7, 2013); see also Pl.’s SoMF ¶ 4; Def.’s Am. SoMF ¶¶ 25-26.

       In response to these standards, many states have failed to submit either an approvable SIP

or a negative declaration to EPA. Pl.’s SoMF ¶ 5; Pl.’s MSJ Br. at 8 & n.2; Def.’s SoMF at 1.

On January 11, 2017, the Administrator published for comment a proposed federal

implementation plan for the 2013 CISWI Standards. Federal Plan Requirements for Commercial

and Industrial Solid Waste Incineration Units, 82 Fed. Reg. 3554 (Jan. 11, 2017); Pl.’s SoMF

¶ 6. That FIP has not been finalized. See Compl. ¶ 46(c); Ans. ¶ 46(c). EPA asserts that it has

been “forced to suspend its work on the proposed plan until March 2020 at the earliest” because

it must comply with other court-ordered deadlines. Def.’s MSJ Br. at 5.

               2.     OSWI Standards

       In 2005, EPA promulgated OSWI standards (the “2005 OSWI Standards”). Standards of

Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other

Solid Waste Incineration Units, 70 Fed. Reg. 74,870 (Dec. 16, 2005); Pl.’s SoMF ¶ 9. Similarly,

some states have failed to submit either an approvable SIP or a negative declaration for these

standards. Pl.’s SoMF ¶ 10; Pl.’s MSJ Br. at 11 & n.4; Def.’s SoMF at 1. In December 2006,

EPA released for comment a FIP for these standards. Federal Plan Requirements for Other Solid

Waste Incineration Units Constructed on or Before December 9, 2004, 71 Fed. Reg. 75,816

(Dec. 18, 2006). Again, however, EPA has not finalized that plan, which is now more than a

decade old. Pl.’s MSJ Br. at 11-12; Def.’s MSJ Br. at 6. In addition, EPA has not reviewed and




                                                5
revised the 2005 OSWI Standards every five years, as required by law. See Pl.’s MSJ Br. at 12;

Def.’s MSJ Br. at 6, 9, 17; 42 U.S.C. § 7429(a)(5).

       C.      Procedural Background

       On December 16, 2016, Sierra Club filed the instant lawsuit under the CAA’s “citizen

suit” provision, which authorizes the district court to compel the Administrator to perform

certain nondiscretionary acts or duties that he has failed to perform. See 42 U.S.C. § 7604(a).2

The complaint alleges that EPA has failed to comply with three nondiscretionary duties under

Section 129: to (1) develop, implement and enforce a federal implementation plan for the 2013

CISWI Standards; (2) develop, implement and enforce a federal implementation plan for the

2005 OSWI Standards; and (3) review and revise the 2005 OSWI Standards. See Compl. ¶ 1

(citing 42 U.S.C. § 7429(a)(5), (b)(3)). The complaint requests that the Court declare each of

these failures a failure to perform a nondiscretionary act or duty within the meaning of

§ 7604(a)(2), and order EPA to comply with the law in accordance with “expeditious deadline[s]

specified by this Court.” Id. ¶ 69.

       In September 2017, Sierra Club moved for summary judgment. ECF No. 12. In short, it

argues that because the duties (and corresponding deadlines) it identified are “not discretionary,”

42 U.S.C. § 7604(a)(2), the Court should order EPA to perform them. See Pl.’s MSJ Br. at 1, 31.

Sierra Club proposes the following timeframes for compliance:




2
 The CAA also provides a private right of action to enforce “agency action unreasonably
delayed.” 42 U.S.C. § 7604(a). Sierra Club does not assert an “unreasonably delayed” claim
here.


                                                 6
             Action            Deadline for Proposed Action        Deadline for Final Action

      Create FIP for 2013                    N/A                      Promulgate final rule
       CISWI Standards                                                 within six months
      Create FIP for 2005            Issue new proposal               Promulgate final rule
       OSWI Standards                 within six months                 within 12 months
      Review and Revise          Publish notice of proposed           Promulgate final rule
         2005 OSWI              rulemaking within 18 months             within 24 months
          Standards

See id. at 28 tbl.A.

        EPA then cross-moved for summary judgment. ECF No. 13. It advances two primary

arguments. First, it argues that Section 129(b)(3) does not impose a nondiscretionary duty on

EPA to finalize federal implementation plans for the 2013 CISWI Standards and the 2005 OSWI

Standards. Def.’s MSJ Br. at 11-12. As such, it argues that this Court does not have subject

matter jurisdiction over the two FIP claims because the United States has not waived its

sovereign immunity from suit. Id. at 9-13. (As already noted, the agency does not dispute that it

has a nondiscretionary duty to review and revise the 2005 OSWI Standards. Id. at 9.)

        Second, EPA argues that for any deadlines the Court concludes are nondiscretionary, the

agency cannot begin working to meet them until at least March 2020 because its efforts to meet

other court-ordered deadlines have deprived it of sufficient resources. Id. at 13-16. Specifically,

EPA points out that its Sector Policies and Programs Division (“SPPD”), which is responsible

for these projects, is already working on 33 overdue “residual risk and technology rulemakings”

(“RTRs”). Id. at 14-15 (citing ECF No. 13-4 at Ex. A (“Tsirigotis Aff.”) ¶¶ 2, 4, 7, 12-13). The

bulk of the deadlines for these projects “fall between March 2020 and June 2020,” and SPPD has

purportedly had to “shift all available personnel over to those projects to ensure that th[ose]

deadlines can be met.” Id. Moreover, since summary judgment briefing concluded in this case,

Judge Kentaji Brown Jackson has ordered EPA to complete another nine RTRs in the next few




                                                   7
years. See Cmty. In-Power & Dev. Ass’n, Inc. v. Pruitt, 304 F. Supp. 3d 212, 225 (D.D.C. 2018).

In addition to these RTRs, EPA asserts that SPPD is also responsible for meeting a number of

other deadlines for projects mandated by the CAA or court order. Def.’s MSJ Br. at 15. In light

of these other deadlines, EPA proposes that, if the Court agrees with Sierra Club that all the

duties at issue under Section 129 are nondiscretionary, it should compel performance by the

following dates:

           Action             Deadline for Proposed Action         Deadline for Final Action

    Create FIP for 2013                     N/A                      Promulgate final rule by
     CISWI Standards                                                   September 16, 2020
    Create FIP for 2005            Issue new proposal by             Promulgate final rule by
     OSWI Standards                   March 16, 2021                    January 11, 2022
    Review and Revise                 Publish notice of              Promulgate final rule by
   2005 OSWI Standards            proposed rulemaking by               September 15, 2022
                                    September 16, 2021

See Def.’s MSJ Br. at 16-17; Tsirigotis Aff. ¶ 8.

       After the cross-motions for summary judgment were fully briefed, Sierra Club filed two

documents styled as “Notice[s] of Additional Evidence,” claiming that EPA as a whole and

SPPD in particular are undertaking a number of nondiscretionary activities that belie EPA’s

claims that it does not have sufficient resources available to meet Sierra Club’s proposed

deadlines. See ECF Nos. 21, 23.

       On July 17, 2018, the Court held oral argument on parties’ dispositive motions.

       Legal Standard

        “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994). The law presumes that “a cause lies outside [the Court’s]

limited jurisdiction” unless the party asserting jurisdiction establishes otherwise. Id. “[C]ourts




                                                    8
. . . have an independent obligation to determine whether subject-matter jurisdiction exists . . . .”

Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006).

       Under Rule 56, a court must grant summary judgment “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriately granted when, viewing the

evidence in the light most favorable to the non-movants and drawing all reasonable inferences

accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-

Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). Courts “are not to

make credibility determinations or weigh the evidence.” Id. (quoting Holcomb v. Powell, 433

F.3d 889, 895 (D.C. Cir. 2006)). “[T]he mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Id. (alteration in original)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). “The movant bears the

initial burden of demonstrating that there is no genuine issue of material fact.” Montgomery v.

Risen, 875 F.3d 709, 713 (D.C. Cir. 2017). “In response, the non-movant must identify specific

facts in the record to demonstrate the existence of a genuine issue.” Id.

       Analysis

       This case requires the Court to: (1) decide whether Section 129(b)(3) of the CAA

imposes nondiscretionary duties on the Administrator to finalize federal implementation plans

for the 2013 CISWI Standards and the 2005 OSWI Standards, such that the Court has subject

matter jurisdiction; and (2) establish appropriate deadlines for EPA’s compliance with any duties

imposed by Section 129 that the Court determines are nondiscretionary, and for which the

CAA’s deadlines have passed. The Court concludes that the two duties referenced above are not

nondiscretionary, and Sierra Club’s claims based on those duties must be dismissed for lack of


                                                  9
subject matter jurisdiction. The Court will also establish a schedule for compliance with the

EPA’s duty to review and revise the 2005 OSWI Standards, which the parties agree is

nondiscretionary, as set forth below.

       A.      Whether Section 129(b)(3) Imposes a Nondiscretionary Two-Year Deadline
               for EPA’s Federal Implementation Plans, Thereby Providing this Court
               Subject Matter Jurisdiction

       “It is axiomatic that the United States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,

212 (1983). Here, Sierra Club relies on the “citizen suit provision of the Clean Air Act as the

waiver of sovereign immunity and the source of this Court’s jurisdiction.” Friends of the Earth

v. EPA, 934 F. Supp. 2d 40, 46 (D.D.C. 2013) (citation omitted). This provision authorizes

private plaintiffs to sue the Administrator for “failure . . . to perform any act or duty under this

chapter which is not discretionary with the Administrator.” 42 U.S.C. § 7604(a)(2). “The court

has jurisdiction only if the EPA has failed to fulfill a nondiscretionary duty.” Defs. of Wildlife v.

Jackson, 284 F.R.D. 1, 4 (D.D.C. 2012) (citing Sierra Club v. EPA, 475 F. Supp. 2d 29, 31

(D.D.C. 2007)), aff’d in part, appeal dismissed in part, 714 F.3d 1317 (D.C. Cir. 2013).3

       The D.C. Circuit has held that “[i]n order to impose a clear-cut nondiscretionary duty, . . .

a duty of timeliness must ‘categorically mandat[e]’ that all specified action be taken by a date-

certain deadline.” Thomas, 828 F.2d at 791 (second alteration in original). The CAA “imposes


3
  As EPA notes, waivers of sovereign immunity must be construed narrowly. See, e.g., Lane v.
Pena, 518 U.S. 187, 192, 195 (1996). In this case, “the Court must construe the waiver provision
in [42 U.S.C. § 7604(a)] narrowly, but not the substantive provision in the Clean Air Act that
outlines the agency’s duties.” Friends of the Earth, 934 F. Supp. 2d at 47 n.1. D.C. Circuit
precedent already effectively incorporates this axiom by requiring that a nondiscretionary duty
under this waiver provision be “clear-cut” and “categorically mandate” that “all specified action”
be taken by a “date-certain” deadline. Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir.
1987), superseded by statute on other grounds as recognized in Mexichem Specialty Resins, Inc.
v. EPA, 787 F.3d 544, 553 n.6 (D.C. Cir. 2015). Otherwise, it has little bearing on the Court’s
analysis.


                                                  10
‘a nondiscretionary duty . . . only when [its] provision[s] set[] bright-line, date-specific

deadlines for specified action.’” Defs. of Wildlife, 284 F.R.D. at 4 (alterations in original)

(quoting Raymond Proffitt Found. v. EPA, 930 F. Supp. 1088, 1098 (E.D. Pa. 1996)). “A

nondiscretionary duty must be ‘clear-cut’ in addition to being mandatory.” City of Dover v.

EPA, 956 F. Supp. 2d 272, 282 (D.D.C.) (citing Thomas, 828 F.2d at 791), reconsidered in part

on other grounds, 40 F. Supp. 3d 1 (D.D.C. 2013). And “it is highly improbable that a deadline

will ever be nondiscretionary, i.e. clear-cut, if it exists only by reason of an inference drawn from

the overall statutory framework.” Thomas, 828 F.2d at 791.

       Here, the parties differ about whether the following language in the CAA—which

governs the federal implementation plans for CISWI and OSWI standards—creates a clear-cut,

nondiscretionary duty for EPA to finalize such a plan:

               The Administrator shall develop, implement and enforce a plan for
               existing solid waste incineration units within any category located
               in any State which has not submitted an approvable plan under this
               subsection with respect to units in such category within 2 years
               after the date on which the Administrator promulgated the relevant
               guidelines. Such plan shall assure that each unit subject to the plan
               is in compliance with all provisions of the guidelines not later than
               5 years after the date the relevant guidelines are promulgated.

42 U.S.C. § 7429(b)(3) (emphasis added).
       In Sierra Club’s view, the statute requires the Administrator to “develop, implement and

enforce” a federal implementation plan “within 2 years” after EPA promulgates the relevant

guidelines. See Pl.’s MSJ Br. at 20-22; Pl.’s Opp. at 4-11. Thus, under its reading, the statute

imposes a nondiscretionary, date-certain deadline for the FIP.

       EPA interprets the statute differently. In its view, the phrase “within 2 years after the

date on which the Administrator promulgated the relevant guidelines” modifies the phrase that

directly precedes it: “within any category located in any State which has not submitted an



                                                 11
approvable plan under this subsection with respect to units in such category.” See Def.’s MSJ

Br. at 11-13. In other words, the statute requires that the Administrator “shall develop” a federal

plan, and that plan must cover all units in those states that have not submitted an “approvable

plan” within two years of EPA’s promulgation of the relevant guidelines. See id. Under this

reading, the statute does not establish a date-certain, nondiscretionary deadline to create a federal

implementation plan because the statute simply says that the Administrator “shall develop” a

plan—it does not say precisely when. Nonetheless, although the statute does not contain a date-

certain deadline for developing the FIP, it does require that it “shall assure that each unit subject

to the plan is in compliance with all provisions of the guidelines not later than 5 years after the

date the relevant guidelines are promulgated.” 42 U.S.C. § 7429(b)(3).

       In the Court’s judgment, EPA has the better of the argument. “As in all statutory

construction cases, [the Court] begin[s] with the language of the statute.” Barnhart v. Sigmon

Coal Co., 534 U.S. 438, 450 (2002). An important tool of statutory construction, the rule of last

antecedent, helps tips the scale in EPA’s favor. This rule is “one of the simplest canons of

statutory construction.” United States v. Pritchett, 470 F.2d 455, 459 n.9 (D.C. Cir. 1972)

(quoting United States ex rel. Santarelli v. Hughes, 116 F.2d 613, 616 (3d Cir. 1940)). It

provides that “a limiting clause or phrase . . . . should ordinarily be read as modifying only the

noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003).

Under this rule, the phrase “within 2 years after the date on which the Administrator promulgated

the relevant guidelines” modifies the phrase that immediately precedes it. Thus, Section

129(b)(3) provides that the Administrator “shall develop, implement and enforce” a plan only for

those incinerators located in states that do not submit an “approvable plan” within two years.




                                                 12
Read this way, the statute does not impose a “clear-cut,” “categorical[],” “date-certain” deadline

to develop a federal plan. Thomas, 828 F.2d at 791.

       To be sure, the rule of last antecedent “is not an absolute and can assuredly be overcome

by other indicia of meaning.” Hays v. Sebelius, 589 F.3d 1279, 1281 (D.C. Cir. 2009) (quoting

Barnhart, 540 U.S. at 26). But other provisions of the statute—in particular, the timing of the

process by which states may resubmit revised state implementation plans to EPA—support

EPA’s reading, as opposed to Sierra Club’s. Section 129 provides that after a state submits its

implementation plan—which each state must do not later than one year after EPA promulgates

the relevant guidelines—the Administrator must provide a written decision on that plan within

180 days; then, the state is permitted to “modify and resubmit a plan which has been

disapproved.” 42 U.S.C. § 7429(b)(2). Thus, the statute allows for the possibility that two years

after the promulgation date, a state may have only recently resubmitted a modified plan for

EPA’s approval. In light of that possibility, it would be surprising for Section 129 to mandate

that the Administrator “develop, implement and enforce” a federal implementation plan, all

within two years of the date the guidelines were promulgated. Id. § 7429(b)(3) (emphasis

added). That would hardly provide the states sufficient opportunity to develop their own plans,

as the statute allows. And at that point, under the process set forth in the statute, EPA might well

not even know the set of states that would need to be covered by the federal plan. In contrast,

even assuming the Administrator did not make a decision on each revised state plan that had

been resubmitted until sometime after the two-year mark, he would be able to retroactively

determine which states had submitted “approvable” plans by then, as EPA’s reading would

require.




                                                13
        Sierra Club nonetheless argues that the purpose and overall structure of the statute

suggest that it imposes a nondiscretionary two-year deadline on the agency to finalize a federal

implementation plan. But none of its arguments carry the day.

        First, Sierra Club argues that Section 129’s general purpose of reducing pollution from

incinerators is better served by reading the statute to require EPA to create a “backstop” within

two years of the promulgation of the relevant guidelines for states that do not create an

implementation plan. Pl.’s Opp. at 5. But “[t]he task of statutory interpretation cannot be

reduced to a mechanical choice in which the interpretation that would advance the statute’s

general purposes to a greater extent must always prevail . . . .” United States ex rel. Totten v.

Bombardier Corp., 380 F.3d 488, 495 (D.C. Cir. 2004). And in any event, as EPA

acknowledged at oral argument, even under its reading, the agency is required to produce a

federal implementation plan that would assure every incineration unit subject to it is in

compliance within five years after it promulgated the relevant guidelines. See 42 U.S.C.

§ 7429(b)(3). Therefore, the ultimate deadline for pollution reduction under the law would be

the same under either party’s interpretation.

        Next, Sierra Club argues that, because Section 129(b)(2) provides that incinerators

subject to state implementation plans have three years to come into compliance, its interpretation

makes sense insofar as it would give incinerators subject to the federal implementation plan the

same three years to do so. Pl.’s Opp. at 5. But Sierra Club mischaracterizes the statute’s

requirements for state plans. Section 129(b)(2) provides that a state plan “shall provide that each

unit subject to the guidelines shall be in compliance . . . not later than 3 years after the State plan

is approved by the Administrator but not later than 5 years after the guidelines were

promulgated.” 42 U.S.C. § 7429(b)(2) (emphasis added). Therefore, the statute contemplates




                                                  14
that incinerators subject to a state plan may have to achieve compliance in less than three years.

For instance, if a state implementation plan were approved three years after the guidelines were

promulgated, incinerators subject to that plan would have only two years to do so. Thus, EPA’s

interpretation of the statute, which could require incinerators subject to a federal implementation

plan to come into compliance in less than three years, is entirely consistent with the state

implementation plan regime. Moreover, that this provision implicitly anticipates that EPA may

approve state implementation plans more than two years after it promulgates the relevant

guidelines further undermines Sierra Club’s argument that the statute requires the Administrator

to completely “develop, implement and enforce” a federal implementation plan by that same

date.

        Sierra Club also argues that EPA’s interpretation of the statute would lead to “absurd

results” because EPA could promulgate a federal plan one day before the five-year deadline,

making it impossible for incinerators subject to that plan to be compliance in a timely manner.

Pl.’s Opp. at 7-8. But EPA’s reading would not result in an absurdity, when the relevant

provisions are considered together in their entirety. As already explained, even under EPA’s

interpretation, a federal implementation plan must still “assure that each unit subject to the plan

is in compliance with all provisions of the guidelines not later than 5 years after the date the

relevant guidelines are promulgated.” 42 U.S.C. § 7429(b)(3). If, as in Sierra Club’s

hypothetical, EPA released a federal plan the day before the five-year deadline, that would

hardly seem to fulfill that statutory mandate.

        Next, Sierra Club argues that EPA previously endorsed its preferred reading of the

statute. Specifically, it points to a number of instances where EPA has, in a rulemaking,

described Section 129 as requiring it to finalize a FIP within two years. Pl.’s Opp. at 9-10 (citing




                                                 15
68 Fed. Reg. 57,518, 57,518 (Oct. 3, 2003); 81 Fed. Reg. 26,040, 26,041 (Apr. 29, 2016); 82

Fed. Reg. 3554, 3556-57 (Jan. 11, 2017)). Sierra Club then attempts to leverage the language in

these rulemakings in two different ways. At times, it argues that that these prior statements mean

that EPA should not receive Chevron deference for the interpretation of the statute it advances in

its motion papers. See, e.g., Pl.’s Opp. at 9-10. But EPA admits that it “has neither presented

nor sought deference for an [a]gency construction of CAA section 7429(b)(3).” Def.’s Reply at

8. Because EPA has not argued that its current interpretation receives Chevron deference, the

Court need not consider such an argument.

        At other times, Sierra Club argues that EPA’s prior statements in the Federal Register

should themselves be entitled to Chevron deference. Pl.’s Opp. at 9 (“The only interpretation of

§ 7429(b) that deserves deference is the one EPA has advanced in its past rulemakings, which is

the one Sierra Club now seeks to enforce.”). But on the record here, EPA’s statements in the

Federal Register are not entitled to such deference. “For Chevron to govern, the agency must

have ‘acted pursuant to congressionally delegated authority to make law and with the intent to

act with the force of law.’” Amgen Inc. v. Hargan, 285 F. Supp. 3d 351, 365 (D.D.C. 2018)

(emphasis added) (quoting Safari Club Int’l v. Zinke, 878 F.3d 316, 326 (D.C. Cir. 2017)).

“[P]ublication in the federal register is not in itself sufficient to constitute an agency’s intent that

its pronouncement have the force of law . . . .” Citizens Exposing Truth About Casinos v.

Kempthorne, 492 F.3d 460, 467 (D.C. Cir. 2007). Only when that publication “reflects a

deliberating agency’s self-binding choice, as well as a declaration of policy,” is it “evidence of a

Chevron-worthy interpretation.” Id. Here, the agency statements that Sierra Club cites were

merely made in passing. See 68 Fed. Reg. at 57,518, 57,522; 81 Fed. Reg. at 26,041, 26,044; 82




                                                   16
Fed. Reg. at 3556-57. These brief, informal statements hardly reflect a “self-binding choice” by

the agency or a “declaration of policy.” Kempthorne, 492 F.3d at 467.4

       Finally, even if these statements did have the force of law, Sierra Club has still failed to

demonstrate that they would be entitled to Chevron deference. “If a court, employing traditional

tools of statutory construction, ascertains that Congress had an intention on the precise question

at issue, that intention is the law and must be given effect.” Chevron, 467 U.S. at 843 n.9. Here,

the last antecedent rule, a “grammatical rule that has also become a [canon] of statutory

construction,” Bellino v. JPMorgan Chase Bank, N.A., No. 14-cv-3139, 2015 WL 4006242, at *4

(S.D.N.Y. June 29, 2015), was “more than up to the job of solving today’s interpretive puzzle,”

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018). And, as discussed, the conclusion to

which it points is consistent with other provisions of the statute that establish a timeline for states

to resubmit their state implementation plans to EPA for approval, 42 U.S.C. § 7429(b)(2).




4
  Sierra Club also argues 40 C.F.R. § 60.27(c)-(d) supports its reading of Section 129. Pl.’s Opp.
at 10-11. But as Sierra Club acknowledges, 40 C.F.R. § 60.27 was promulgated to implement a
different section of the Clean Air Act. See 40 Fed. Reg. 53,339, 53,340 (Nov. 17, 1975)
(implementing CAA Section 111). That is clear from the text of the regulation, which includes a
number of deadlines inconsistent with Section 129(b). For instance, 40 C.F.R. § 60.27(b) says
the Administrator will approve or disapprove a state plan within four months. By contrast,
Section 129(b)(2) gives the Administrator six months to respond to initial plans submitted by the
states. See 42 U.S.C. § 7429(b)(2). Thus, this regulation has no bearing on the proper
interpretation of Section 129. Sierra Club also suggests that, regardless of the text of the
regulation, EPA has adopted the position that it sheds light on the meaning of Section 129. Pl.’s
Opp. at 11 (citing 81 Fed. Reg. at 26,041; 82 Fed. Reg. at 3556-57). This argument fails for two
reasons. First, the reference to 40 C.F.R. § 60.27(c)-(d) in these Federal Register notices is best
understood as referencing the section it pertains to, Section 111, not Section 129. Second, as
explained below, the meaning of Section 129 can be determined using “traditional tools of
statutory construction,” Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984), so there is
no need to resort to whether EPA has purportedly interpreted Section 129 through a regulation
implementing a different section of the CAA.



                                                  17
       In sum, when analyzed using traditional tools of statutory interpretation, the statute does

not establish a two-year deadline for EPA to “develop, implement and enforce” FIPs, let alone

one that is “clear-cut.” Therefore, Sierra Club has not shown that the statute creates a

nondiscretionary duty as required by the citizen suit provision, 42 U.S.C. § 7604(a), and the

Court must dismiss these claims for lack of subject matter jurisdiction. Defs. of Wildlife, 284

F.R.D. at 4.5

       B.       EPA’s Compliance Deadline for Reviewing and Revising its 2005 OSWI
                Standards

       Having determined that Section 129(b) does not create a nondiscretionary duty on EPA to

create federal implementation plans for the 2013 CISWI or 2005 OSWI Standards, the Court

turns to Section 129’s requirement to review and revise the 2005 OSWI Standards. The parties

agree that 42 U.S.C. § 7429(a)(5) creates a date-certain, nondiscretionary duty that, every 5

years, “the Administrator shall review[] and . . . revise such standards and requirements.” The


5
  Sierra Club argues that even if the CAA does not provide this Court subject matter jurisdiction,
the Administrative Procedure Act provides an alternative basis for jurisdiction. See Pl.’s Opp. at
3-4 & n.2. As an initial matter, because Sierra Club raised this argument in its opposition to
EPA’s motion for summary judgment, id., the Court will deny Sierra Club’s motion for leave to
file a surreply, ECF No. 18. A “surreply is not a vehicle for rehashing arguments that have
already been raised and briefed by the parties.” Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d
46, 63 (D.D.C. 2011), aff’d, No. 11-5231, 2012 WL 556317 (D.C. Cir. Feb. 6, 2012). Turning to
the argument itself, there is no doubt that “[t]he APA’s waiver of sovereign immunity applies to
any suit whether under the APA or not.” Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322,
1328 (D.C. Cir. 1996). But the waiver provision in the APA is explicitly limited. It does not
“affect[] other limitations on judicial review or the power or duty of the court to dismiss any
action or deny relief on any other appropriate legal or equitable ground.” 5 U.S.C. § 702. Nor
does it “confer[] authority to grant relief if any other statute that grants consent to suit expressly
or impliedly forbids the relief which is sought.” Id. Thus, the APA’s waiver provision “does not
provide a back door for plaintiffs to raise claims pursuant to other statutes . . . which disallow
such claims.” All. to Save Mattaponi v. U.S. Army Corps of Eng’rs, 515 F. Supp. 2d 1, 6 n.3
(D.D.C. 2007). Because the Court concludes that Section 129(b)(3) of the CAA does not create
a nondiscretionary duty on EPA to implement a FIP, and therefore, the CAA does not provide
subject matter jurisdiction for this Court to hear claims based on this alleged duty, Sierra Club
cannot rely on the APA as an alternative vehicle to provide subject matter jurisdiction in this
case. Friends of the Earth, 934 F. Supp. 2d at 46-47.


                                                 18
parties also agree that EPA has failed to comply with that duty for the 2005 OSWI Standards.

Pl.’s MSJ Br. at 12; Def.’s MSJ at 6, 9, 17. Thus, the Court must establish the appropriate

deadline for compliance.

       The CAA “empowers district courts to ‘order [the EPA] to perform’ a mandated act or

duty and to ‘compel [non-discretionary] agency action unreasonably delayed[.]’” Cmty. In-

Power & Dev. Ass’n, Inc. v. Pruitt, 304 F. Supp. 3d 212, 219 (D.D.C. 2018) (alterations in

original) (quoting 42 U.S.C. § 7604(a)). “The D.C. Circuit has held that this provision permits

district courts to exercise their equity powers ‘to set enforceable deadlines both of an ultimate

and an intermediate nature.’” Blue Ridge Envtl. Def. League v. Pruitt, 261 F. Supp. 3d 53, 59

(D.D.C. 2017) (quoting NRDC v. Train, 510 F.2d 692, 705 (D.C. Cir. 1974)). “While district

courts have broad discretion to set deadlines for compliance, ‘[t]he sound discretion of an equity

court does not embrace enforcement through contempt of a party’s duty to comply with an order

that calls him to do an impossibility.’” Id. (quoting Train, 510 F.2d at 713). “But an agency has

a ‘heavy burden to demonstrate’ that the ordered requirements are impossible to meet, or that it

is unable to comply with a particular remedial timeline.” Cmty. In-Power, 304 F. Supp. 3d at

219 (quoting Ala. Power Co. v. Costle, 636 F.2d 323, 359 (D.C. Cir. 1979)). “That burden is

especially heavy where ‘the agency has failed to demonstrate any diligence whatever in

discharging its statutory duty to promulgate regulations and has in fact ignored that duty for

several years.’” Sierra Club v. Johnson, 444 F. Supp. 2d 46, 53 (D.D.C. 2006) (quoting Sierra

Club v. Thomas, 658 F. Supp. 165, 172 (N.D. Cal. 1987)). Indeed, “the district court must

scrutinize carefully claims of impossibility, and ‘separate justifications grounded in the purposes

of the Act from the footdragging efforts of a delinquent agency.’” Id. (quoting Train, 510 F.2d

at 713).




                                                 19
       On the other hand, “[n]otwithstanding the heavy burden that an agency bears to prove its

inability to comply with deadlines imposed by a statute that mandates certain agency obligations,

. . . a court must be mindful of the ‘budgetary commitments and manpower demands [that are]

required[,]’ and thus avoid imposing deadlines that ‘are beyond the agency’s capacity or would

unduly jeopardize the implementation of other essential programs.’” Cmty. In-Power, 304 F.

Supp. 3d at 220 (alterations, except first, in original) (quoting Train, 510 F.2d at 712).

       Here, the Court must determine the timeline on which it will order EPA to review and

revise the 2005 OSWI Standards. The parties have similar views on how long that process

should take, once it is begun. Both agree a timeframe of 18 months is appropriate to publish a

proposed notice of rulemaking. See Pl.’s MSJ Br. at 28 tbl.A; Def.’s MSJ Br. at 16-17;

Tsirigotis Aff. ¶ 8. And while Sierra Club argues a final rule can be implemented six months

after the proposed rule (for a total of 24 months), EPA argues it will need 12 months (for a total

of 30 months). Pl.’s MSJ Br. at 28 tbl.A; Def.’s MSJ Br. at 16-17; Tsirigotis Aff. ¶ 8. Of the

extra six months that EPA estimates that it will need to finalize the rule, three are devoted to

OMB review. Pl.’s Opp. at 20 (citing Tsirigotis Aff. ¶ 21(f)). But as discussed at oral argument,

the parties agree that OMB review is not legally required to review and revise the 2005 OWSI

Standards.

       The primary disagreement between the parties, then, is not the time it will take to

complete the required rulemaking, but when work on that rulemaking should begin. Sierra Club

argues it should begin as of the date of this Opinion, whereas EPA argues that it cannot begin to

work on it until March 2020. See Pl.’s MSJ Br. at 28 tbl.A; Def.’s MSJ Br. at 16-17.

       The Court concludes that EPA has failed to demonstrate that it would be “impossible” to

begin working on this project until March 2020. The Court is well aware that EPA, and in




                                                 20
particular SPPD, is currently obligated to comply with a number of court-ordered deadlines,

most notably the outstanding RTRs. See, e.g., Cmty. In-Power, 304 F. Supp. 3d at 225; Blue

Ridge Envtl., 261 F. Supp. 3d 53 at 62; Cal. Cmtys., 241 F. Supp. 3d at 207. But the Court

nevertheless rejects its claim that it cannot begin work until March 2020 for a number of reasons.

First, by the agency’s own admission, there are some SPPD resources currently committed to

tasks such as responding to FOIA requests and “stakeholder outreach” that, in the Court’s view,

could be deployed to assist with reviewing and revising the 2005 OSWI Standards. See

Tsirigotis Aff. ¶ 15. Second, Sierra Club has presented significant evidence that EPA, including

SPPD, is engaging in a number of other discretionary activities. See Pl.’s Opp. at 13-16; ECF

No. 21; ECF No. 23. Again, resources being allocated to these efforts could be devoted to

reviewing and revising the 2005 OSWI Standards. Third, the Court agrees with Sierra Club that

EPA could detail employees from other divisions to SPPD (or potentially hire contractors) to

help meet these deadlines. See Pl.’s Opp. at 16-18. “[S]hifting resources in response to statutory

requirements and court orders is commonplace for EPA.” Sierra Club, 444 F. Supp. 2d at 54

(citation omitted). And while employees new to SPPD may not have as much expertise or

experience as permanent SPPD staff, their assistance could nevertheless help.

       At the same time, although “this Court will not accede to the agency’s proposed timeline,

. . . it will also reject the impossibly compressed deadlines that Plaintiff[] suggest[s].” Cmty. In-

Power, 304 F. Supp. 3d at 225. “[C]ourts should not demand a deadline for agency compliance

that is impossible or infeasible.” Sierra Club v. McCarthy, No. 15-cv-1165, 2016 WL 1055120,

at *3 (N.D. Cal. Mar. 15, 2016). In light of all of the ongoing court-ordered deadlines that SPPD

is responsible for meeting between now and 2020, the Court concludes that it would be




                                                 21
impossible for EPA to review and revise the 2005 OSWI Standards beginning immediately, on

the timeframe Sierra Club requested.

       Instead, the Court will order EPA to begin work on the proposed rulemaking for

reviewing and revising the 2005 OSWI Standards on March 1, 2019. As in Community In-

Power, where Judge Jackson did not order the agency to begin the overdue rulemaking

immediately, 304 F. Supp. 3d at 225, this window will give the agency time to properly plan the

execution of this project. The Court will also require EPA to publish a notice of a proposed

rulemaking by August 31, 2020, 18 months from the start of the project. And last, the Court will

order EPA to promulgate a final rule by May 31, 2021, 27 months from the start of the project.

Although the “Court defers to the agency’s assessment of the technical nuances involved in

promulgating these . . . rules,” Blue Ridge Envtl., 261 F. Supp. 3d at 60, it concludes that the

three months EPA has budgeted for OMB review should be excluded from the time allotted to

complete the final rule. OMB reviews are “completely discretionary,” Cmty. In-Power, 304 F.

Supp. 3d at 223, notwithstanding the fact that they may well be good policy in circumstances

when EPA is not so far behind schedule in meeting its obligations under the law.

       Conclusion

       For all of the above reasons, the Court will, in a separate Order, dismiss for lack of

subject matter jurisdiction Sierra Club’s claims that 42 U.S.C. § 7429(b)(3) imposes

nondiscretionary duties on EPA to “develop, implement and enforce” federal implementation

plans for the 2013 CISWI Standards and the 2005 OSWI Standards; and will otherwise,

consistent with this Opinion, grant in part and deny in part Plaintiff’s Motion for Summary




                                                 22
Judgment, ECF No. 12; grant in part and deny in part Defendant’s Motion for Summary

Judgment, ECF No. 13; and deny Plaintiff’s Motion for Leave to File a Surreply, ECF No. 18.


                                                          /s/ Timothy J. Kelly
                                                          TIMOTHY J. KELLY
                                                          United States District Judge

Date: September 14, 2018




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