Alaska Community Action on Toxics v. U.S. Environmental Protection Agency
943 F. Supp. 2d 96
D.D.C.2013Background
- Plaintiffs allege EPA failed to identify waters and safe quantities for dispersants on the NCP Product Schedule under the Clean Water Act and related APA challenges.
- NCP Product Schedule lists dispersants but does not specify waters or quantities; Subpart J governs listing and data requirements.
- EPA historically declined to pre-specify waters/quantities, authorizing case-by-case determinations by On-Scene Coordinators (OSCs).
- In 1984 EPA rule explained no fixed waters/quantities, giving OSCs flexibility; 1994 revision preserved that approach; NCP not revised since 1994.
- The 2010 Deepwater Horizon response involved large use of listed dispersants; plaintiffs contend it showed the problem of missing waters/quantities.
- Court holds plaintiffs’ claims are time-barred under 28 U.S.C. § 2401(a) and that continuing-violation theory cannot toll the period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2401(a) bars suit as time-barred | Plaintiffs argue EPA's failure to act was ongoing and timely. | EPA/API assert accrual in 1984 and six-year limit; actions since are time-barred. | Yes, time-barred; § 2401(a) is jurisdictional and accrued in 1984. |
| Whether EPA's inaction claims are timely | Inaction challenges arise under CWA and APA for failure to act. | Inaction claims are barred by § 2401(a) and not timely. | No timely inaction claims; dismissed as time-barred. |
| Whether listing/relisting actions restart the limitations period | Each listing is a new final agency action that could toll the period. | Listing actions implement Subpart J; do not restart accrual for the underlying policy decision. | No restart; six-year clock did not reset; claims time-barred. |
| Whether continuing violation doctrine tolls § 2401(a) | Persistent nonfeasance could toll limitations. | § 2401(a) is jurisdictional and not tolled by continuing violations. | Not tolled; continuing violation doctrine does not apply. |
| Whether the policy decision not to specify waters/quantities is subject to review | Challenging EPA's decades-old policy under CWA citizen suit. | Policy decision made in 1984/1994; challenges barred by time limits. | Barred; claims dismissed for lack of timely jurisdiction. |
Key Cases Cited
- Harris v. FAA, 353 F.3d 1006 (D.C. Cir. 2004) (applies § 2401(a) to review of final agency action under APA)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (final agency action and rights/obligations; accrual concepts)
- Spannaus v. U.S. Dep't of Justice, 824 F.2d 52 (D.C. Cir. 1987) (accrual and jurisdictional aspects of statutory limitations)
- P & V Enters. v. U.S. Army Corps of Eng'rs, 516 F.3d 1021 (D.C. Cir. 2008) (statute of limitations as jurisdictional; accrual analysis)
- West Virginia Highlands Conservancy v. Johnson, 540 F. Supp. 2d 125 (D.D.C. 2008) (continuing violations doctrine and § 2401(a) interplay)
- Wilderness Society v. Norton, 434 F.3d 584 (D.C. Cir. 2006) (continuing violations discussion in tolling debates)
- AKM LLC v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012) (commentary on continuing violations in context of jurisdiction)
- John R. Sand & Gravel Co v. United States, 552 U.S. 130 (U.S. 2008) (tolling and accrual principles for timing in agency actions)
- Sierra Club v. Jackson, 724 F. Supp. 2d 33 (D.D.C. 2010) (statutory duty and timeliness in environmental agency actions)