Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 1 of 22
ADRMOP,CLOSED,REFDIS,REFSET−LB
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:15−cv−03292−SBA

Californians For Renewable Energy et al v. United States Environmental Protection Agency et al Assigned to: Hon. Saundra Brown Armstrong Referred to: Magistrate Judge Elizabeth D. Laporte
Magistrate Judge Laurel Beeler (Settlement) Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 07/15/2015 Date Terminated: 06/13/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Californians For Renewable Energy

represented by Heather Mudford Lewis Earthjustice 50 California St. Ste. 500 San Francisco, CA 94111 4152172097 Email: hlewis@earthjustice.org TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED

Jonathan James Smith Earthjustice 48 Wall Street 19th Fl New York, NY 10005 United Sta 212−845−7376 Email: jjsmith@earthjustice.org ATTORNEY TO BE NOTICED

Marianne Leslie Engelman Lado Environmental Justice Clinic 164 Chelsea Street P.O.Box 96 South Royalton, VT 05068 917 608−2053 Email: mengelmanlado@vermontlaw.edu ATTORNEY TO BE NOTICED

Suzanne Novak Earthjustice 48 Wall St. 19th Floor New York, NY 10005 212−845−4981 Fax: 212−918−1556 Email: snovak@earthjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED

Irene V. Gutierrez Earthjustice 50 California Street Suite 500 San Francisco, CA 94111 415−217−2000 Fax: 415−217−2040 Email: igutierrez@earthjustice.org ATTORNEY TO BE NOTICED

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 2 of 22

Plaintiff Ashurst Bar/Smith Community Organization
Plaintiff Citizens for Alternatives to Radioactive Dumping
Plaintiff Maurice and Jane Sugar Law Center for Economic and Social Justice TERMINATED: 01/07/2016

represented by Heather Mudford Lewis (See above for address) TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED
Jonathan James Smith (See above for address) ATTORNEY TO BE NOTICED
Marianne Leslie Engelman Lado (See above for address) ATTORNEY TO BE NOTICED
Suzanne Novak (See above for address) TERMINATED: 07/08/2019 PRO HAC VICE
Irene V. Gutierrez (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Mudford Lewis (See above for address) TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED
Jonathan James Smith (See above for address) ATTORNEY TO BE NOTICED
Marianne Leslie Engelman Lado (See above for address) ATTORNEY TO BE NOTICED
Suzanne Novak (See above for address) TERMINATED: 07/08/2019 PRO HAC VICE
Irene V. Gutierrez (See above for address) ATTORNEY TO BE NOTICED
represented by Heather Mudford Lewis (See above for address) TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED
Jonathan James Smith (See above for address) ATTORNEY TO BE NOTICED
Marianne Leslie Engelman Lado (See above for address) ATTORNEY TO BE NOTICED
Irene V. Gutierrez (See above for address)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 3 of 22

ATTORNEY TO BE NOTICED

Plaintiff Sierra Club

represented by Heather Mudford Lewis (See above for address) TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED

Jonathan James Smith (See above for address) ATTORNEY TO BE NOTICED

Marianne Leslie Engelman Lado (See above for address) ATTORNEY TO BE NOTICED

Suzanne Novak (See above for address) TERMINATED: 07/08/2019 PRO HAC VICE

Irene V. Gutierrez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Boyd

represented by Heather Mudford Lewis (See above for address) TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED

Jonathan James Smith (See above for address) ATTORNEY TO BE NOTICED

Marianne Leslie Engelman Lado (See above for address) ATTORNEY TO BE NOTICED

Suzanne Novak (See above for address) TERMINATED: 07/08/2019 PRO HAC VICE

Irene V. Gutierrez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Saint Francis Prayer Center

represented by Heather Mudford Lewis (See above for address) TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED

Jonathan James Smith (See above for address) ATTORNEY TO BE NOTICED

Marianne Leslie Engelman Lado (See above for address) ATTORNEY TO BE NOTICED

Suzanne Novak

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 4 of 22
(See above for address) TERMINATED: 07/08/2019 PRO HAC VICE

V. Defendant United States Environmental Protection Agency
Defendant Gina McCarthy in her official capacity as Administrator of the Enviromental Protection Agency

represented by Michael Andrew Zee United States Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Avenue, Room 7−5395 San Francisco, CA 94102 415−436−6646 Fax: 415−436−6632 Email: m.andrew.zee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Lawrence United States Department of Justice Federal Programs Branch, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20001 202−616−8105 Fax: 202−616−8202 Email: matthew.lawrence@usdoj.gov ATTORNEY TO BE NOTICED
Stuart Justin Robinson U.S. Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Ave. Room 7−5354 San Francisco, CA 94102 415−436−6635 Email: stuart.j.robinson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael Andrew Zee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Justin Robinson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/15/2015

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971−9679469.). Filed byMichael E Boyd, Maurice and Jane Sugar Law Center for Economic and Social Justice, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Sierra Club. (Attachments: # 1 Exhibit Ex. 1 − Sugar Law Center Complaint, # 2 Exhibit Ex. 2 − 2013−05 EPA Title VI Complaint Listing, # 3 Exhibit Ex. 3 − 1999 Sugar Law Center Letter to EPA, # 4 Exhibit Ex. 4 − 2000 Sugar Law Center Letter to EPA, # 5 Exhibit Ex. 5 − CARE Complaint, # 6 Exhibit Ex. 6 − CARE Amended Complaint, # 7 Exhibit Ex. 7 − CARE DOJ Complaint, # 8 Exhibit Ex. 8 − Los Medanos ECHO Facility Report, # 9 Exhibit Ex. 9 − Sierra Club Complaint, # 10 Exhibit Ex. 10 − EPA Acceptance of Sierra Club Complaint, # 11 Exhibit Ex. 11 − EPA ExxonMobil Refinery Settlement, # 12 Exhibit Ex. 12 −

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 5 of 22

07/15/2015 07/15/2015
07/15/2015 07/15/2015
07/15/2015 07/15/2015 07/15/2015 07/15/2015

Beaumont Refinery ECHO Facility Report, # 13 Exhibit Ex. 13 − CARD Complaint, # 14 Exhibit Ex. 14 − EPA Acceptance of CARD Complaint, # 15 Exhibit Ex. 15 − CARD Amended Complaint, # 16 Exhibit Ex. 16 − EPA Letter to CARD, # 17 Exhibit Ex. 17 − Letter from Unnamed Individual, # 18 Exhibit Ex. 18 − Ashurst/Bar Smith Complaint, # 19 Exhibit Ex. 19 − ADEM Letter to EPA, # 20 Exhibit Ex. 20 − EPA Acceptance of Ashurst/Bar Smith Complaint, # 21 Exhibit Ex. 21 − ADEM Response to EPA Acceptance, # 22 Exhibit Ex. 22 − ADEM Response to EPA Request for Information, # 23 Exhibit Ex. 23 − EPA Partial Dismissal, # 24 Civil Cover Sheet)(Gutierrez, Irene) (Filed on 7/15/2015) (Entered: 07/15/2015)
2 Certificate of Interested Entities by Ashurst Bar/Smith Community Organization, Michael E Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club. (Gutierrez, Irene) (Filed on 7/15/2015) Modified on 7/16/2015 (cjlS, COURT STAFF). (Entered: 07/15/2015)
3 MOTION for leave to appear in Pro Hac Vice Re: Jonathan J. Smith (Filing fee $305, receipt number 0971−9679663) filed by Ashurst Bar/Smith Community Organization, Michael E Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club. (Attachments: # 1 Exhibit Pro Hac Vice Oath − Jonathan J. Smith, # 2 Exhibit Certificate of Good Standing − Jonathan J. Smith)(Smith, Jonathan) (Filed on 7/15/2015) Modified on 7/15/2015 (cjlS, COURT STAFF). (Entered: 07/15/2015)
4 Proposed Summons. (Gutierrez, Irene) (Filed on 7/15/2015) (Entered: 07/15/2015)
5 Case assigned to Magistrate Judge Kandis A. Westmore.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (cjlS, COURT STAFF) (Filed on 7/15/2015) (Entered: 07/15/2015)
6 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/6/2015. Case Management Conference set for 10/13/2015 01:30 PM in Courtroom 4, 3rd Floor, Oakland. (cjlS, COURT STAFF) (Filed on 7/15/2015) (Entered: 07/15/2015)
7 Summons Issued as to Gina McCarthy, United States Environmental Protection Agency. (cjlS, COURT STAFF) (Filed on 7/15/2015) (Entered: 07/15/2015)
Electronic filing error. Names of Interested Parties were not entered. Please re−file in its entirety Re: 2 Certificate of Interested Entities filed by Ashurst Bar/Smith Community Organization, Citizens for Alternatives to Radioactive Dumping, Sierra Club, Michael E Boyd, Maurice and Jane Sugar Law Center for Economic and Social Justice, Californians For Renewable Energy. (cjlS, COURT STAFF) (Filed on 7/15/2015) (Entered: 07/15/2015)
8 Certificate of Interested Entities by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club identifying Other Affiliate Center on Race, Poverty & the Environment, Other Affiliate American Lung Association of Michigan, Other Affiliate Conservative Use of Resources and the Environment, Other Affiliate Joe Hawkins, Other Affiliate Magil Duran, Other Affiliate Michigan Environmental Council, Other Affiliate National Association for the Advancement of Colored People Flint Branch, Other Affiliate National Lawyers Guild Toxics Committee, Other Affiliate Noel Marquez, Other Affiliate United for Action, Other Affiliate Water Information Network for Maurice and Jane Sugar Law Center for Economic and Social Justice; Other Affiliate Center on Race, Poverty & the Environment, Other Affiliate American

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 6 of 22

07/16/2015 07/16/2015 07/20/2015 07/23/2015
07/23/2015 07/23/2015 07/27/2015
07/27/2015

Lung Association of Michigan, Other Affiliate Conservative Use of Resources and the Environment, Other Affiliate Joe Hawkins, Other Affiliate Magil Duran, Other Affiliate Noel Marquez, Other Affiliate Water Information Network, Other Affiliate Alabama Department of Environmental Management for Ashurst Bar/Smith Community Organization; Other Affiliate Bay Area Air Quality Management District, Other Affiliate Center on Race, Poverty & the Environment, Other Affiliate American Lung Association of Michigan, Other Affiliate Conservative Use of Resources and the Environment, Other Affiliate Joe Hawkins, Other Affiliate Magil Duran, Other Affiliate Noel Marquez, Other Affiliate Water Information Network, Other Affiliate California Air Resources Board, Other Affiliate Pittsburg Unified School District for Californians For Renewable Energy; Other Affiliate Center on Race, Poverty & the Environment, Other Affiliate American Lung Association of Michigan, Other Affiliate Conservative Use of Resources and the Environment, Other Affiliate Joe Hawkins, Other Affiliate Magil Duran, Other Affiliate Noel Marquez, Other Affiliate Water Information Network, Other Affiliate New Mexico Environment Department for Citizens for Alternatives to Radioactive Dumping; Other Affiliate Center on Race, Poverty & the Environment, Other Affiliate American Lung Association of Michigan, Other Affiliate Conservative Use of Resources and the Environment, Other Affiliate Joe Hawkins, Other Affiliate Magil Duran, Other Affiliate Noel Marquez, Other Affiliate People Against Contaminated Environments, Other Affiliate Water Information Network, Other Affiliate Texas Commission on Environmental Quality for Sierra Club; Other Affiliate Bay Area Air Quality Management District, Other Affiliate Center on Race, Poverty & the Environment, Other Affiliate American Lung Association of Michigan, Other Affiliate Conservative Use of Resources and the Environment, Other Affiliate Joe Hawkins, Other Affiliate Magil Duran, Other Affiliate Noel Marquez, Other Affiliate Water Information Network, Other Affiliate California Air Resources Board for Michael Boyd. re 1 Complaint,,,,,, Certificate of Interested Parties (Gutierrez, Irene) (Filed on 7/15/2015) (Entered: 07/15/2015)
9 NOTICE of Appearance by Irene V. Gutierrez (Gutierrez, Irene) (Filed on 7/16/2015) (Entered: 07/16/2015)
10 NOTICE of Appearance by Jonathan James Smith (Smith, Jonathan) (Filed on 7/16/2015) (Entered: 07/16/2015)
11 Order by Magistrate Judge Kandis A. Westmore denying 3 Motion for Pro Hac Vice.(kawlc2S, COURT STAFF) (Filed on 7/20/2015) (Entered: 07/20/2015)
12 MOTION for leave to appear in Pro Hac Vice Re: Marianne L. Engelman Lado (Filing fee $305, receipt number 0971−9700893) filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club. (Attachments: # 1 Exhibit Oath, # 2 Exhibit Certificate of Good Standing)(Engelman Lado, Marianne) (Filed on 7/23/2015) Modified on 7/24/2015 (cjlS, COURT STAFF). (Entered: 07/23/2015)
13 Order by Magistrate Judge Kandis A. Westmore granting 12 Motion for Pro Hac Vice.(kawlc2S, COURT STAFF) (Filed on 7/23/2015) (Entered: 07/23/2015)
14 NOTICE of Appearance by Marianne Leslie Engelman Lado (Engelman Lado, Marianne) (Filed on 7/23/2015) (Entered: 07/23/2015)
15 SUMMONS Returned Executed by Michael Boyd, Maurice and Jane Sugar Law Center for Economic and Social Justice, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Sierra Club. Gina McCarthy served on 7/27/2015, answer due 9/25/2015. Served Summons upon Gina McCarthy by Federal Express with Proof of Delivery (Engelman Lado, Marianne) (Filed on 7/27/2015) Modified on 8/18/2015 (cjlS, COURT STAFF). (Entered: 07/27/2015)
16 SUMMONS Returned Executed by Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Sierra Club. Served Summons Upon Attorney General Loretta Lynch by Federal Express with Proof of Delivery (Engelman Lado, Marianne) (Filed on 7/27/2015) (Entered: 07/27/2015)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 7 of 22

07/27/2015
07/29/2015
07/29/2015 08/21/2015 09/02/2015 09/03/2015

17 SUMMONS Returned Executed by Michael Boyd, Maurice and Jane Sugar Law Center for Economic and Social Justice, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Sierra Club. Served Summons upon Civil Process Clerk at US Attorney's Office by Federal Express with Proof of Delivery (Engelman Lado, Marianne) (Filed on 7/27/2015) (Entered: 07/27/2015)
18 SUMMONS Returned Executed by Michael Boyd, Maurice and Jane Sugar Law Center for Economic and Social Justice, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Sierra Club. United States Environmental Protection Agency served on 7/29/2015, answer due 9/28/2015. Served Summons upon U.S. EPA by Federal Express with Proof of Delivery (Engelman Lado, Marianne) (Filed on 7/29/2015) Modified on 8/18/2015 (cjlS, COURT STAFF). (Entered: 07/29/2015)
19 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club.. (Gutierrez, Irene) (Filed on 7/29/2015) (Entered: 07/29/2015)
20 NOTICE of Appearance by Michael Andrew Zee (Zee, Michael) (Filed on 8/21/2015) (Entered: 08/21/2015)
21 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Gina McCarthy, United States Environmental Protection Agency.. (Zee, Michael) (Filed on 9/2/2015) (Entered: 09/02/2015)
22 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.

ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.

09/03/2015 09/04/2015 09/15/2015
09/15/2015

This is a text only docket entry; there is no document associated with this notice. (sisS, COURT STAFF) (Filed on 9/3/2015) (Entered: 09/03/2015)
23 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Saundra Brown Armstrong for all further proceedings. Magistrate Judge Kandis A. Westmore no longer assigned to the case. Signed by the Executive Committee on September 3, 2015. (cjlS, COURT STAFF) (Filed on 9/3/2015) (Entered: 09/03/2015)
24 CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASES; Joint Case Management Statement due by 10/8/2015. Telephonic Case Management Conference set for 10/15/2015 03:00 PM. (jebS, COURT STAFF) (Filed on 9/4/2015) Modified on 9/4/2015 (jebS, COURT STAFF). Modified on 9/8/2015 (jlmS, COURT STAFF). (Entered: 09/04/2015)
25 STIPULATION WITH PROPOSED ORDER TO STAY PROCEEDINGS PENDING SETTLEMENT NEGOTIATIONS, filed by Gina McCarthy, United States Environmental Protection Agency, Ashurst Bar/Smith Community Organiation, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club. (Zee, Michael) (Filed on 9/15/2015) Modified on 9/16/2015 (jlmS, COURT STAFF). (Entered: 09/15/2015)
26 Order by Hon. Saundra Brown Armstrong granting 25 Stipulation to Stay Proceedings Pending Settlement Negotiations.(jebS, COURT STAFF) (Filed on 9/15/2015) (Entered: 09/15/2015)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 8 of 22

09/15/2015
11/09/2015 11/09/2015 11/09/2015

27 CLERK'S NOTICE. Notice is hereby given that the Initial Case Management Conference, previously set for Thursday, October 15, 2015, at 3:00 p.m. is continued to Thursday, December 10, 2015, at 2:30 p.m. by telephonic appearance. The parties shall meet and confer prior to the conference and shall prepare a Joint Case Management Conference Statement which shall be filed no later than seven (7) days prior to the Case Management Conference that complies with the Standing Order For All Judges Of The Northern District Of California and the Standing Order of this Court. Plaintiffs shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call (510) 879−3550 at the above indicated date and time. (This is a text−only entry generated by the court. There is no document associated with this entry.) Joint Case Management Statement due by 12/3/2015. Telephonic Case Management Conference set for 12/10/2015 02:30 PM. (jebS, COURT STAFF) (Filed on 9/15/2015) (Entered: 09/15/2015)
28 JOINT STATUS REPORT and Stipulated Request to Extend Stay 30 Days, filed by Gina McCarthy, United States Environmental Protection Agency, Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club. (Zee, Michael) (Filed on 11/9/2015) Modified on 11/10/2015 (jlmS, COURT STAFF). (Entered: 11/09/2015)
29 ORDER Granting Stipulated Request to Extend Stay Pending Settlement Negotiations. Signed by Judge Saundra Brown Armstrong on 11/09/2015. (tmiS, COURT STAFF) (Filed on 11/9/2015) (Entered: 11/09/2015)
30 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Telephonic Case Management Conference, previously set for Thursday, 12/10/2015, is continued to Thursday, 1/28/2016, at 2:30 PM. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than seven (7) days prior to the Case Management Conference that complies with the Standing Order For All Judges Of The Northern District Of California and the Standing Order of this Court. Plaintiffs shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call (510) 879−3550 at the above indicated date and time.

12/09/2015 12/16/2015 12/16/2015 01/07/2016

(This is a text−only entry generated by the court. There is no document associated with this entry.) (tmiS, COURT STAFF) (Filed on 11/9/2015) (Entered: 11/09/2015)
31 STATUS REPORT and Stipulated Request to Set Deadline to File Amended Complaint, filed by Gina McCarthy, United States Environmental Protection Agency, Ashurst Bar/Smith Community Organization, Michael Boyd, Californian For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Ecomonic and Social Justice, Sierra Club. (Zee, Michael) (Filed on 12/9/2015) Modified on 12/10/2015 (jlmS, COURT STAFF). (Entered: 12/09/2015)
32 JOINT STATUS REPORT AND STIPULATION WITH PROPOSED ORDER to Set Deadline to File Amended Complaint, filed by Gina McCarthy, United States Environmental Protection Agency, Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club. (Zee, Michael) (Filed on 12/16/2015) Modified on 12/17/2015 (jlmS, COURT STAFF). (Entered: 12/16/2015)
33 Order by Hon. Saundra Brown Armstrong granting 32 Stipulation to Set Deadline to File Amended Complaint.(tmiS, COURT STAFF) (Filed on 12/16/2015) (Entered: 12/16/2015)
34 AMENDED COMPLAINT for Declaratory and Injunctive Relief against All Defendants. Filed byMichael Boyd, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Californians For Renewable Energy, Sierra Club, Saint Francis Prayer Center. (Attachments: # 1 Exhibit Ex. 1 − Prayer Center Complaint, # 2 Exhibit Ex. 2 − EPA Acceptance of Prayer Center Complaint, # 3 Exhibit Ex. 3 − Genesee Sugar Law Letter Aug. 1995, # 4 Exhibit Ex. 4 − Genesee Sugar Law Letter June 2000, # 5 Exhibit Ex. 5 − CARE Complaint, # 6 Exhibit Ex. 6 − Complaints Filed With EPA Under Title VI, # 7 Exhibit Ex. 7 − CARE Am.

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01/20/2016 01/21/2016 01/21/2016 01/21/2016 01/22/2016 01/25/2016
01/26/2016 01/27/2016 01/28/2016

Complaint, # 8 Exhibit Ex. 8 − Boyd Whistleblower Complaint, # 9 Exhibit Ex. 9 − ECHO Detailed Facility Report − Los Medanos Energy Center, # 10 Exhibit Ex. 10 − Sierra Club Complaint, # 11 Exhibit Ex. 11 − EPA Partial Acceptance − Sierra Club Complaint, # 12 Exhibit Ex. 12 − EPA − ExxonMobil Refinery Settlement, # 13 Exhibit Ex. 13 − ECHO Detailed Facility Report − ExxonMobil Beaumont Refinery, # 14 Exhibit Ex. 14 − CARD Complaint, # 15 Exhibit Ex. 15 − EPA OCR Acceptance of CARD Complaint, # 16 Exhibit Ex. 16 − CARD Am. Complaint, # 17 Exhibit Ex. 17 − EPA OCR Req. for More Information to CARD, # 18 Exhibit Ex. 18 − Ashurst/Bar Smith Complaint (Redacted), # 19 Exhibit Ex. 19 − Ashurst/Bar Smith Am. Complaint (Redacted), # 20 Exhibit Ex. 20 − ADEM Response to EPA Notice, # 21 Exhibit Ex. 21 − EPA Acceptance of Ashurst/Bar Smith Complaint (Redacted), # 22 Exhibit Ex. 22 − EPA Info Request to ADEM, # 23 Exhibit Ex. 23 − ADEM Respone to EPA Info Request, # 24 Exhibit Ex. 24 − EPA Partial Dismissal Tallassee (Redacted), # 25 Exhibit Ex. 25 − Deloitte Report re EPA OCR, # 26 Exhibit Ex. 26 − CPI, "Environmental Racism Persists, and the EPA is One Reason Why", # 27 Exhibit Ex. 27 − CPI, "Decades of Inaction")(Engelman Lado, Marianne) (Filed on 1/7/2016) (Entered: 01/07/2016)
35 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Gina McCarthy, United States Environmental Protection Agency (Zee, Michael) (Filed on 1/20/2016) Modified on 1/21/2016 (jlmS, COURT STAFF). (Entered: 01/20/2016)
36 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians for Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club (Engelman Lado, Marianne) (Filed on 1/21/2016) Modified on 1/22/2016 (jlmS, COURT STAFF). (Entered: 01/21/2016)
37 JOINT CASE MANAGEMENT STATEMENT filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club, Gina McCarthy, United States Environmental Protection Agency. (Engelman Lado, Marianne) (Filed on 1/21/2016) Modified on 1/22/2016 (jlmS, COURT STAFF). (Entered: 01/21/2016)
38 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d), filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club, Gina McCarthy, United States Environmental Protection Agency (Engelman Lado, Marianne) (Filed on 1/21/2016) Modified on 1/22/2016 (jlmS, COURT STAFF). (Entered: 01/21/2016)
39 ADR Clerk's Notice Setting ADR Phone Conference on January 27, 2016 at 1:30 PM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 1/22/2016) (Entered: 01/22/2016)
40 STIPULATION WITH PROPOSED ORDER to Extend Response Deadline and Set Briefing Schedule for Cross−Motions, filed by Gina McCarthy, United States Environmental Protection Agency, Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration of M. Andrew Zee)(Zee, Michael) (Filed on 1/25/2016) Modified on 1/26/2016 (jlmS, COURT STAFF). (Entered: 01/25/2016)
41 STIPULATION AND ORDER TO EXTEND RESPONSE DEADLINE TO PLAINTIFFS AMENDED COMPLAINT AND TO SET BRIEFING SCHEDULE FOR CROSS−MOTIONS by Hon. Saundra Brown Armstrong granting 40 Stipulation. EPAs deadline to respond to the Amended Complaint and file motion for dispositive relief: January 29, 2016. (jebS, COURT STAFF) (Filed on 1/26/2016) (Entered: 01/26/2016)
ADR Remark: ADR Phone Conference held on 1/27/2016 with Tamara Lange. (cmf, COURT STAFF) (Filed on 1/27/2016) (Entered: 01/27/2016)
42 Minute Entry for proceedings held before Hon. Saundra Brown Armstrong: Initial Case Management Conference held on 1/28/2016. Total Time in Court 20

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01/28/2016 02/19/2016 02/19/2016 02/22/2016 02/25/2016 03/09/2016 03/14/2016 03/22/2016
03/23/2016

Minutes. Not Reported or Recorded. (jebS, COURT STAFF) (Date Filed: 1/28/2016) (Entered: 01/29/2016)
43 Amended Minute Entry for proceedings held before Hon. Saundra Brown Armstrong: Further Case Management Conference held on 1/28/2016. Total Time in Court 20 Minutes. Not Reported or Recorded. (jebS, COURT STAFF) (Date Filed: 1/28/2016) (Entered: 01/29/2016)
44 ORDER OF REFERENCE FOR MANDATORY SETTLEMENT CONFERENCE. Signed by Judge Saundra Brown Armstrong on 2/18/16. (jebS, COURT STAFF) (Filed on 2/19/2016) Modified on 2/22/2016 (jlmS, COURT STAFF). (Entered: 02/19/2016)
CASE REFERRED to Magistrate Judge Laurel Beeler for Settlement (ahm, COURT STAFF) (Filed on 2/19/2016) (Entered: 02/19/2016)
45 NOTICE AND ORDER REGARDING SETTLEMENT CONFERENCE before Magistrate Judge Laurel Beeler. Settlement Conference set for 4/1/2016 at 10:00 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 2/22/2016. (lsS, COURT STAFF) (Filed on 2/22/2016) (Entered: 02/22/2016)
46 CLERK'S NOTICE: After consultation with counsel, the court resets the Settlement Conference to 3/23/2016 at 9:00 AM in Courtroom C, 15th Floor, San Francisco. Settlement Conference Statements due 7 days prior to the conference. The Settlement Order issued on February 22, 2016, ECF No. 45 remains in affect. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 2/25/2016) (Entered: 02/25/2016)
47 MOTION to Appear by Telephone at Settlement Conference, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Engelman Lado, Marianne) (Filed on 3/9/2016) Modified on 3/10/2016 (jlmS, COURT STAFF). (Entered: 03/09/2016)
48 ORDER GRANTING REQUEST FOR TELEPHONIC APPEARANCE AT SETTLEMENT CONFERENCE by Magistrate Judge Laurel Beeler: Granting 47 Motion to Appear by Telephone.(lsS, COURT STAFF) (Filed on 3/14/2016) (Entered: 03/14/2016)
49 ORDER RE SETTLEMENT CONFERENCE ATTENDANCE. The court just now received the plaintiffs' addendum dated March 21, 2016, about who should attend the settlement conference from the EPA. The court is not a fan of telephone participation and thinks (from prior and extensive settlement negotiations with the government) that in−person attendance is the key to negotiating injunctive relief. That said, the court trusts that all parties will ensure that all persons necessary for an effective settlement conference will attend the conference (even if by telephone or Skype) as opposed to being merely available by telephone. To facilitate participation, the parties should have separate conference call numbers available (and the court appreciates that at least some clients are attending via CourtCall). The court also reminds the parties that it has a previously scheduled matter from (likely) 11:15 a.m. to 1:45 p.m. Given that this is a negotiation, the parties should expect to continue their negotiation in the court's absence. (Beeler, Laurel) (Filed on 3/22/2016) (Entered: 03/22/2016)
50 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 3/23/2016. Total Time in Court 9:20 a.m.−7:20 p.m. (10 hours). Not Reported. Plaintiff Attorney Marianne Lado; Jonathan Smith with Phyllis Gosa; Micheal Boyd; and Debra Reed. Neil Carmen; Phil Schmitter; and Ron Smith appeared via CourtCall Defendant Attorney Michael Zee with Mary O'lone. The Court sets a further counsel−only settlement conference for Thursday, March 31, 2016, at 1 p.m. PST. Counsel to call into chambers on one line at 415−522−4660. If this time is inconvenient, counsel may reset the time by calling courtroom deputy Lashanda Scott at 415−522−3140 or by emailing lbpo@cand.uscourts.gov. The Court might be able to accommodate an earlier time (such as noon) but will not know until Friday, March 25.This is a text only Minute Entry (ndrS, COURT STAFF) (Date Filed: 3/23/2016) (Entered:

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 11 of 22

03/31/2016
03/31/2016 04/21/2016 04/27/2016 06/07/2016 06/08/2016

03/24/2016)
51 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Court held a further settlement conference. The parties agreed to the following process. The plaintiffs will provide a response to the government's March 30 letter no later than April 7. The government also will let the plaintiffs know by March 7 whether it is willing to give insight into the investigative status of the current complaints, not as part of a settlement agreement but for case−management and insight purposes. The parties could agree that the government could provide that information under a mediation/settlement−conference privilege. The government also will respond to the plaintiffs' April 7 letter no later than April 14, 2016. The parties then will confer by telephone before April 21, 2016 to discuss their respective perspectives. The court sets a further telephone call for April 21, 2016, at 1 p.m. Parties to call into chambers at 415−522−4660. The parties also may cc the court on their April 7 and April 14 letters by email to lbpo@cand.uscourts.gov. Finally, the parties may provide a brief update by email by 2 p.m. on April 20 (after their meet−and−confer) by email to the orders box. (Total Time: 1 hour and 20 Minutes) (Not Reported)
Plaintiff Attorney: Marianne Lado and Jonathan Smith.
Defendant Attorney: Andrew Zee.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 3/31/2016) (Entered: 03/31/2016)
Set/Reset Hearing re 51 Settlement Conference: Telephonic Settlement Conference set for 4/21/2016 at 1:00 P.M. (lsS, COURT STAFF) (Filed on 3/31/2016) (Entered: 03/31/2016)
52 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement conference call held. Parties to exchange proposals by next Tuesday and then confer on the proposals. The latest draft must be sent to the court by 10:00 a.m. on Wednesday, April 27, 2016. The court sets a further call for April 27, 2016 at 11:00 a.m. Parties to call into chambers on one line. (Total Time: 1 Hour and 30 Minutes) (Not Reported)
Plaintiff Attorney: Marion Engelman−Lado and Jonathan Smith.
Defendant Attorney: Andrew Zee.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 4/21/2016) (Entered: 04/21/2016)
53 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 4/27/2016. Counsel to confer and update the court within two business days regarding next steps. (Total Time: 50 Minutes) (Not Reported)
Plaintiff Attorney: Marion Engelman−Lado and Jonathan Smith.
Defendant Attorney: Andrew Zee.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 4/27/2016) (Entered: 04/28/2016)
54 CLERK'S NOTICE: Telephonic Settlement Conference set for 6/7/2016 at 2:00 P.M. (Pacific Time). Counsel to set up a conference call line and phone in to chambers with all parties on one line (415−522−4660). (This is a text−only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 6/7/2016) (Entered: 06/07/2016)
55 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference call held on 6/8/2016. The case has not settled. The court remains available to help the parties should their positions change. The next step is a case−management conference. The court directed the parties to confer after

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 12 of 22

06/08/2016 06/09/2016 06/10/2016 06/15/2016
06/22/2016 07/07/2016 07/08/2016 07/08/2016 07/11/2016 07/12/2016 07/12/2016
07/20/2016

today's call about the contents of their CMC statement and any disputes that they need to raise before the trial judge. (Total Time: 45 Minutes) (Not Reported)
Plaintiff Attorney: Marianne Engelman Lado and Jonathan Smith.
Defendant Attorney: Michael Andrew Zee.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 6/8/2016) (Entered: 06/08/2016)
56 ORDER SETTING FURTHER CASE MANAGEMENT CONFERENCE. Joint Case Management Statement due by 6/15/2016. Further Case Management Conference set for 6/22/2016 02:30 PM. Signed by Judge Saundra Brown Armstrong on 6/8/16. (jjoS, COURT STAFF) (Filed on 6/8/2016) (Entered: 06/08/2016)
57 NOTICE of Appearance of Matthew Lawrence as Counsel, filed by United States Environmental Protection Agency (Lawrence, Matthew) (Filed on 6/9/2016) Modified on 6/10/2016 (jlm, COURT STAFF). (Entered: 06/09/2016)
Electronic filing error − Cases assigned to Judge Saundra Brown Armstrong should bear the initials "SBA" after the case number Re: 57 Notice of Appearance, filed by United States Environmental Protection Agency. Counsel need not re−file document, but should reference "SBA" after the case number in future filings. (jlm, COURT STAFF) (Filed on 6/10/2016) (Entered: 06/10/2016)
58 UPDATED JOINT CASE MANAGEMENT STATEMENT filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club, United States Environmental Protection Agency, Gina McCarthy. (Engelman Lado, Marianne) (Filed on 6/15/2016) Modified on 6/16/2016 (kcS, COURT STAFF). (Entered: 06/15/2016)
59 CLERK'S NOTICE CONTINUING FURTHER CASE MANAGEMENT CONFERENCE Further Case Management Conference set for 7/7/2016 02:30 PM. (jjoS, COURT STAFF) (Filed on 6/22/2016) (Entered: 06/22/2016)
61 Minute Entry for proceedings held before Hon. Saundra Brown Armstrong: Further Case Management Conference held on 7/7/2016. Total Time in Court 15 minutes. Court Reporter Name Unreported. (jjoS, COURT STAFF) (Date Filed: 7/7/2016) Modified on 7/12/2016 (jlmS, COURT STAFF). (Entered: 07/11/2016)
60 SECOND ORDER OF REFERENCE FOR MANDATORY SETTLEMENT CONFERENCE. Signed by Judge Saundra Brown Armstrong on 7/7/16. (jjoS, COURT STAFF) (Filed on 7/8/2016) (Entered: 07/08/2016)
Set/Reset Hearing Further Telephonic Case Management Conference set for 11/2/2016 at 02:30 PM, per 60 Order. (jlmS, COURT STAFF) (Filed on 7/8/2016) (Entered: 07/11/2016)
62 STIPULATION AND PROPOSED ORDER for Clarification of Second Order of Reference, filed by Gina McCarthy, United States Environmental Protection Agency, Californians for Renewable Energy. Responses due by 7/15/2016. (Zee, Michael) (Filed on 7/11/2016) Modified on 7/12/2016 (jlmS, COURT STAFF). (Entered: 07/11/2016)
63 ORDER by Judge Saundra Brown Armstrong granting 62 Administrative Motion to suspend deadlines. (sisS, COURT STAFF) (Filed on 7/12/2016) (Entered: 07/12/2016)
64 CLERK'S NOTICE: Further Settlement Conference set for 8/12/2016 at 10:00 AM in Courtroom C, 15th Floor, San Francisco. Updated Settlement Conference Statements due August 5, 2016. The Settlement Order issued on February 22, 2016, ECF No. 45 remains in affect. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 7/12/2016) (Entered: 07/12/2016)
65 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE: Settlement Conference reset for 8/15/2016 11:00 AM in Courtroom C, 15th Floor, San Francisco.

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 13 of 22

08/03/2016 08/04/2016 08/15/2016
08/30/2016
08/30/2016 09/09/2016 09/21/2016 09/28/2016

(This is a text−only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 7/20/2016) (Entered: 07/20/2016)
66 Consent MOTION to Appear by Telephone at Settlement Conference filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Engelman Lado, Marianne) (Filed on 8/3/2016) (Entered: 08/03/2016)
67 ORDER GRANTING REQUEST FOR TELEPHONIC APPEARANCE AT SETTLEMENT CONFERENCE by Magistrate Judge Laurel Beeler: Granting 66 Motion to Appear by Telephone. (ls, COURT STAFF) (Filed on 8/4/2016) (Entered: 08/04/2016)
68 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 8/15/2016. The government will circulate a revised proposal as soon as is practicable and in any event, within 21 days. (Not Reported)
Plaintiff Attorney: John Pilo (video conference), Jonathan J. Smith and Marianne Engelman Lado.
Defendant Attorney: Andrew Zee and Mary O'Lone.
Clients: Kurt Tempel, Michael Boyd, Deborah Read; Video Conference Appearances − Neil Carmen, Philip Schmitr, Phyllis Gosa and Ronald Smith.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 8/15/2016) (Entered: 08/16/2016)
69 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: The court had further settlement conferences with the parties, who were unable to settle the case. The court suggests that the parties confer by September 9 to come up with a case−management schedule and submit it to Judge Armstrong. The court remains available to help if circumstances change. (Not Reported)
Plaintiff Attorney: Marianne Engelman Lado and Jonathan Smith.
Defendant Attorney: Michael Andrew Zee.
This is a text only Minute Entry. (lsS, COURT STAFF) (Date Filed: 8/30/2016) (Entered: 08/30/2016)
70 ORDER SETTING CASE MANAGEMENT CONFERENCE Joint Case Management Statement due by 9/9/2016. Further Case Management Conference set for 9/21/2016 02:30 PM. Signed by Judge Saundra Brown Armstrong on 8/30/16. (dtmS, COURT STAFF) (Filed on 8/30/2016) Modified on 8/31/2016 (dtmS, COURT STAFF). (Entered: 08/30/2016)
71 JOINT CASE MANAGEMENT STATEMENT Updated Joint Case Management Statement filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Engelman Lado, Marianne) (Filed on 9/9/2016) (Entered: 09/09/2016)
72 Minute Entry for proceedings held before Hon. Saundra Brown Armstrong: Further Case Management Conference held on 9/21/2016. Parties shall meet and confer by 9/26/16, regarding consenting to the jurisdiction of a magistrate judge. Further Telephonic Case Management Conference set for 9/28/2016 02:45 PM.Total Time in Court 11 minutes. Court Reporter Name Not reported. (sisS, COURT STAFF) (Date Filed: 9/21/2016) (Entered: 09/21/2016)
73 Minute Entry for proceedings held before Hon. Saundra Brown Armstrong: Court to issue Pretrial Scheduling Order and briefing schedule. Further Case Management Conference held on 9/28/2016. Total Time in Court 30 minutes. Court Reporter Name Not reported. (sisS, COURT STAFF) (Date Filed: 9/28/2016) Modified on 9/30/2016 (jlmS, COURT STAFF). (Entered: 09/29/2016)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 14 of 22

09/28/2016
10/05/2016 10/11/2016
10/12/2016 10/14/2016
10/14/2016 10/28/2016 11/04/2016
11/10/2016 11/14/2016 11/15/2016 11/28/2016 01/17/2017

74 ORDER SETTING BRIEFING SCHEDULE: Defendant's dispositive motion to be filed by 10/19/16. Opposition and cross−motion due by 11/9/2016. Reply and opposition to cross−motion due by 12/1/2016. Plaintiff's reply in support of cross−motion due by 12/15/16. Motion Hearing set for 1/11/2017 01:00 PM before Hon. Saundra Brown Armstrong. Signed by Judge Saundra Brown Armstrong on 9/28/16. (sisS, COURT STAFF) (Filed on 9/28/2016) (Entered: 09/29/2016)
75 SCHEDULING ORDER: Deadline to amend the pleadings is 10/12/2016. Discovery cut−off by 3/31/2017. All dispositive motions shall be heard on or before 6/14/2017 at 01:00 PM. Signed by Judge Saundra Brown Armstrong on 10/5/2016. (ig, COURT STAFF) (Filed on 10/5/2016) (Entered: 10/05/2016)
76 STIPULATION WITH PROPOSED ORDER to Extend the Deadline to File Amended Complaint and to Modify Briefing Schedule and Scheduling Order re 75 Order, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration Declaration of Marianne Engelman Lado in Support of Stipulation)(Engelman Lado, Marianne) (Filed on 10/11/2016) Modified on 10/12/2016 (jlmS, COURT STAFF). (Entered: 10/11/2016)
77 STIPULATION AND ORDER TO EXTEND THE DEADLINE TO FILE AMENDED COMPLAINT AND TO MODIFY BRIEFING SCHEDULE AND SCHEDULING ORDER by Hon. Saundra Brown Armstrong.(dtmS, COURT STAFF) (Filed on 10/12/2016) (Entered: 10/12/2016)
78 MOTION for Leave to File Second Amended Complaint filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Exhibit Exhibit 1 to Motion, # 2 Exhibit Exhibit 2 to Motion, # 3 Exhibit 3 to Motion (Amended Complaint + 34 exhibits))(Engelman Lado, Marianne) (Filed on 10/14/2016) (Entered: 10/14/2016)
Set/Reset Deadlines as to 78 MOTION for Leave to File Second Amended Complaint. Responses due by 10/28/2016. Replies due by 11/4/2016. Motion Hearing set for 12/14/2016 01:00 PM in Courtroom 210, 2nd Floor, Bankruptcy Court, Oakland before Hon. Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 10/14/2016) (Entered: 10/14/2016)
79 RESPONSE (re 78 MOTION for Leave to File Second Amended Complaint ) filed byGina McCarthy, United States Environmental Protection Agency. (Zee, Michael) (Filed on 10/28/2016) (Entered: 10/28/2016)
80 REPLY (re 78 MOTION for Leave to File Second Amended Complaint), filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration Ex. 1 − Declaration of Michael E. Boyd)(Engelman Lado, Marianne) (Filed on 11/4/2016) Modified on 11/7/2016 (jlmS, COURT STAFF). (Entered: 11/04/2016)
81 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Saundra B Armstrong on 11/10/16. (dtmS, COURT STAFF) (Filed on 11/10/2016) (Entered: 11/10/2016)
CASE REFERRED to Magistrate Judge Elizabeth D. Laporte for Discovery (ahm, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/14/2016)
82 ORDER Re Discovery Procedures by Magistrate Judge Elizabeth D. Laporte. (shyS, COURT STAFF) (Filed on 11/15/2016) (Entered: 11/15/2016)
83 CLERK'S NOTICE. You are hereby notified that the 12/14/16 hearing re 78 Motion for Leave to File is vacated. The motion will be decided on the pleadings. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
84 NOTICE of Change In Counsel as to Heather Mudford Lewis, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 15 of 22

01/17/2017 01/17/2017 01/19/2017 01/19/2017 01/19/2017 01/19/2017
01/19/2017

Law Center for Economic and Social Justice, Saint Francis Prayer Center, Sierra Club (Lewis, Heather) (Filed on 1/17/2017) Modified on 1/18/2017 (jlmS, COURT STAFF). (Entered: 01/17/2017)
85 NOTICE of Change of Address as to Marianne Leslie Engelman Lado, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club (Engelman Lado, Marianne) (Filed on 1/17/2017) Modified on 1/18/2017 (jlmS, COURT STAFF). (Entered: 01/17/2017)
86 Order by Hon. Saundra Brown Armstrong granting in part and denying in part 78 Motion for Leave to File Second Amended Complaint. Amended Pleadings due by 1/19/2017.(dtmS, COURT STAFF) (Filed on 1/17/2017) (Entered: 01/17/2017)
87 MOTION for leave to appear in Pro Hac Vice for Suzanne Novak (Filing fee $ 310, receipt number 0971−11085344.) Filing fee previously paid on 01/19/2017 filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Affidavit Oath per L.R. 11−3(a) in Support of Application for Admission Pro Hac Vice, # 2 Exhibit Certificate of Good Standing, # 3 Certificate/Proof of Service Certificate of Service)(Novak, Suzanne) (Filed on 1/19/2017) Modified on 1/20/2017 (jlmS, COURT STAFF). (Entered: 01/19/2017)
88 Order by Hon. Saundra Brown Armstrong granting 87 Motion for Pro Hac Vice by Suzanne Novak.(dtmS, COURT STAFF) (Filed on 1/19/2017) (Entered: 01/19/2017)
89 NOTICE of Appearance of Suzanne Novak as Counsel, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club (Novak, Suzanne) (Filed on 1/19/2017) Modified on 1/20/2017 (jlmS, COURT STAFF). (Entered: 01/19/2017)
90 SECOND AMENDED COMPLAINT against Gina McCarthy, United States Environmental Protection Agency. Filed by Michael Boyd, Saint Francis Prayer Center, Citizens for Alternatives to Radioactive Dumping, Ashurst Bar/Smith Community Organization, Californians For Renewable Energy, Sierra Club. (Attachments: # 1 Exhibit Ex. 1 − Prayer Center Complaint w/ Attachments, # 2 Exhibit Ex. 2 − EPA Acceptance of Prayer Center Complaint, # 3 Exhibit Ex. 3 − Sugar Law Center Letter, # 4 Exhibit Ex. 4 − 2000 Sugar Law Center Letter to EPA, # 5 Exhibit Ex. 5 − CARE Complaint (Original), # 6 Exhibit Ex. 6 − Mar. 2016 List of EPA OCR Complaints, # 7 Exhibit Ex. 7 − CARE Amended Complaint, # 8 Exhibit Ex. 8 − Boyd Whistleblower Complaint, # 9 Exhibit Ex. 9 − ECHO Report, Los Medanos Energy Center, # 10 Exhibit Ex. 10 − Sierra Club Complaint, # 11 Exhibit Ex. 11 − EPA Partial Acceptance of Sierra Club Complaint, # 12 Exhibit Ex. 12 − ExxonMobil Refinery Settlement Info, # 13 Exhibit Ex. 13 − ECHO Report, Beaumont Refinery, # 14 Exhibit Ex. 14 − CARD Complaint, # 15 Exhibit Ex. 15 − EPA Acceptance of CARD Complaint, # 16 Exhibit Ex. 16 − CARD Amended Complaint, # 17 Exhibit Ex. 17 − EPA OCR Letter to CARD for More Information, # 18 Exhibit Ex. 18 − Ashurst Bar/Smith Complaint (Redacted), # 19 Exhibit Ex. 19 − Ashurst Bar/Smith Amended Complaint (Redacted), # 20 Exhibit Ex. 20 − ADEM Response to EPA Notice, # 21 Exhibit Ex. 21 − EPA Acceptance of Ashurst Bar/Smith Complaint, # 22 Exhibit Ex. 22 − EPA Info Request to ADEM, # 23 Exhibit Ex. 23 − ADEM Response to EPA Info Request, # 24 Exhibit Ex. 24 − EPA Partial Dismissal Tallassee (Redacted), # 25 Exhibit Ex. 25 − Deloitte EPA OCR Report, # 26 Exhibit Ex. 26 − CPI Article, Environmental Racism Persists and the EPA is eOne Reason Why, # 27 Exhibit Ex. 27 − CPI, "Decades of Inaction")(Novak, Suzanne) (Filed on 1/19/2017) Modified on 1/20/2017 (jlmS, COURT STAFF). (Entered: 01/19/2017)
91 ***ERRONEOUS ENTRY, PLEASE REFER TO DOCUMENT NO. 92 ***
NOTICE Regarding Filing of Plaintiffs' Second Amended Complaint re 90 Second Amended Complaint, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club (Novak, Suzanne) (Filed on

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 16 of 22

01/19/2017 01/26/2017 02/10/2017 02/13/2017 02/14/2017 02/14/2017 03/13/2017
03/13/2017 04/17/2017 04/27/2017

1/19/2017) Modified on 1/19/2017 (jlmS, COURT STAFF). (Entered: 01/19/2017)
92 NOTICE Regarding Filing of Plaintiffs' Second Amended Complaint re 90 Second Amended Complaint, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club (Novak, Suzanne) (Filed on 1/19/2017) Modified on 1/19/2017 (jlmS, COURT STAFF). (Entered: 01/19/2017)
93 MOTION to Dismiss and, In the Alternative, Motion for Summary Judgment filed by Gina McCarthy, United States Environmental Protection Agency. Motion Hearing set for 5/10/2017 01:00 PM before Hon. Saundra Brown Armstrong. Responses due by 2/16/2017. Replies due by 3/12/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Zee, Michael) (Filed on 1/26/2017) (Entered: 01/26/2017)
94 MOTION for Extension of Time to File and Page Limits, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration Declaration in Support of Motion for Enlargement of Time and Page Limits)(Novak, Suzanne) (Filed on 2/10/2017) Modified on 2/13/2017 (jlmS, COURT STAFF). (Entered: 02/10/2017)
95 STIPULATION WITH PROPOSED ORDER FOR STAY OF DISCOVERY, filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club, Gina McCarthy, United States Environmental Protection Agency. (Novak, Suzanne) (Filed on 2/13/2017) Modified on 2/14/2017 (jlmS, COURT STAFF). (Entered: 02/13/2017)
96 Order by Hon. Saundra Brown Armstrong granting 95 Stipulation for Stay of Discovery.(dtmS, COURT STAFF) (Filed on 2/14/2017) (Entered: 02/14/2017)
97 Order by Hon. Saundra Brown Armstrong granting 94 Motion for Enlargement of Time and Page Limits.(dtmS, COURT STAFF) (Filed on 2/14/2017) (Entered: 02/14/2017)
98 MOTION for Summary Judgment and Opposition to Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. Motion Hearing set for 6/14/2017 01:00 PM in Courtroom 210, 2nd Floor, Bankruptcy Court, Oakland before Hon. Saundra Brown Armstrong. Responses due by 4/17/2017. Replies due by 5/5/2017. (Attachments: # 1 Declaration of Michael E. Boyd (with Exs. 1−5), # 2 Declaration of Neil Carman (with Exs. 1−2), # 3 Declaration of Leslie Fields, # 4 Declaration of Mrs. Phyllis D. Gosa (with Exs. 1−3), # 5 Declaration of Aaron Isherwood (with Ex. 1), # 6 Declaration of Suzanne Novak (with Exs. 1−7), # 7 Declaration of Deborah W. Reade (with Exs. 1−4), # 8 Declaration of Father Philip Schmitter (with Exs. 1−4), # 9 Declaration of Mr. Ronald C. Smith, # 10 Proposed Order Granting Plaintiffs' Motion for Summary Judgment and Denying Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment)(Novak, Suzanne) (Filed on 3/13/2017) (Entered: 03/13/2017)
99 Request for Judicial Notice re 98 MOTION for Summary Judgment and Opposition to Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment , Declaration of Suzanne Novak filed byAshurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Related document(s) 98 ) (Novak, Suzanne) (Filed on 3/13/2017) (Entered: 03/13/2017)
100 REPLY (re 93 MOTION to Dismiss and, In the Alternative, Motion for Summary Judgment ) and Opposition to Plaintiffs' Motion for Summary Judgment filed byGina McCarthy, United States Environmental Protection Agency. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Zee, Michael) (Filed on 4/17/2017) (Entered: 04/17/2017)
Set/Reset Deadlines as to 93 MOTION to Dismiss and, In the Alternative, Motion for Summary Judgment. Motion Hearing set for 6/14/2017 01:00 PM before Hon. Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 4/27/2017) (Entered:

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 17 of 22

05/01/2017 05/05/2017
05/19/2017 05/19/2017 05/22/2017
05/24/2017 05/24/2017 05/24/2017 05/26/2017
06/09/2017 06/30/2017

04/27/2017)
101 NOTICE by Gina McCarthy, United States Environmental Protection Agency of Resolution of Title VI Complaint Submitted By Ashurst Bar/Smith Community Organization (Attachments: # 1 Exhibit A)(Zee, Michael) (Filed on 5/1/2017) (Entered: 05/01/2017)
102 REPLY (re 98 MOTION for Summary Judgment and Opposition to Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment ) filed byAshurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration Declaration of Marianne Engelman Lado with Exhibits 1−4)(Novak, Suzanne) (Filed on 5/5/2017) (Entered: 05/05/2017)
103 CLERK'S NOTICE Continuing Motion Hearing. The hearing set for 6/14/17 re 93 Motion to Dismiss and 98 Motion for Summary Judgment is continued to 8/9/17 at 1:00 pm. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 5/19/2017) (Entered: 05/19/2017)
Set/Reset Deadlines as to 98 MOTION for Summary Judgment, 93 MOTION to Dismiss. Motion Hearing set for 8/9/2017 01:00 PM before Hon. Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 5/19/2017) (Entered: 05/19/2017)
104 Request for Judicial Notice re 98 MOTION for Summary Judgment and Opposition to Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment filed byAshurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration of Marianne L. Engelman Lado)(Related document(s) 98 ) (Novak, Suzanne) (Filed on 5/22/2017) (Entered: 05/22/2017)
105 NOTICE of Appearance by Stuart Justin Robinson (Robinson, Stuart) (Filed on 5/24/2017) (Entered: 05/24/2017)
106 NOTICE by Gina McCarthy, United States Environmental Protection Agency of Resolution of Title VI Complaint Submitted by Sierra Club Lone Star Chapter (Robinson, Stuart) (Filed on 5/24/2017) (Entered: 05/24/2017)
107 Request for Judicial Notice re 98 MOTION for Summary Judgment and Opposition to Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment filed byAshurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Declaration of Jonathan Smith)(Related document(s) 98 ) (Novak, Suzanne) (Filed on 5/24/2017) (Entered: 05/24/2017)
108 MOTION to Strike 106 Notice (Other) Plaintiffs' Motion to Strike Defendants' Unauthorized Notice filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. Motion Hearing set for 8/9/2017 01:00 PM in Courtroom 210, 2nd Floor, Bankruptcy Court, Oakland before Hon. Saundra Brown Armstrong. Responses due by 6/9/2017. Replies due by 6/16/2017. (Attachments: # 1 Declaration Declaration of Suzanne Novak in Support of Motion to Strike Defendants' Unauthorized Notice)(Novak, Suzanne) (Filed on 5/26/2017) (Entered: 05/26/2017)
109 OPPOSITION/RESPONSE (re 108 MOTION to Strike) filed by Gina McCarthy, United States Environmental Protection Agency. (Zee, Michael) (Filed on 6/9/2017) Modified on 6/12/2017 (cjlS, COURT STAFF). (Entered: 06/09/2017)
110 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d in Support of Pls.' Mot. for Summary Judgment & in Opposition to Defs.' Mots. (1) to Dismiss and, in the Alternative, (2) for Summary Judgment filed byAshurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Exhibit Ex. A − Trinity Lutheran Church of Columbia, Inc. v.

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 18 of 22

07/28/2017 07/28/2017 08/30/2017 02/26/2018
03/30/2018 04/13/2018
06/13/2018 07/11/2018 07/11/2018 07/17/2018 07/17/2018

Comer, −−− S. Ct. −− (2017))(Related document(s) 93 , 98 , 102 ) (Novak, Suzanne) (Filed on 6/30/2017) (Entered: 06/30/2017)
111 CLERK'S NOTICE Continuing Motion Hearing from 8/9/2017 to 9/13/2017 at 1:00 pm re 93 Motion to Dismiss, 98 Motion for Summary Judgment and 108 Motion to Strike. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 7/28/2017) (Entered: 07/28/2017)
Set/Reset Deadlines as to 98 MOTION for Summary Judgment,[ 93] MOTION to Dismiss, 108 MOTION to Strike. Motion Hearing set for 9/13/2017 01:00 PM before Hon. Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 7/28/2017) (Entered: 07/28/2017)
112 CLERK'S NOTICE. You are hereby notified that the hearing on 9/13/2017 re 93 Motion to Dismiss, 98 Motion for Summary Judgment and 108 Motion to Strike is VACATED. The motions will be decided on the papers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 8/30/2017) (Entered: 08/30/2017)
113 Statement of Recent Decision re 93 MOTION to Dismiss and, In the Alternative, Motion for Summary Judgment, 102 Reply to Opposition/Response, 98 MOTION for Summary Judgment and Opposition to Defendants' Motions (1) to Dismiss and, in the Alternative, (2) for Summary Judgment by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club. (Attachments: # 1 Exhibit Ex. A − Cent. Sierra Envtl. Res. Ctr. v. Stanislaus Nat'l Forest (E.D. Cal. Feb. 7, 2018), # 2 Exhibit Ex. B − McFalls v. Purdue (D. Or. Feb. 8, 2018))(Novak, Suzanne) (Filed on 2/26/2018) Modified on 2/27/2018 (cpS, COURT STAFF). (Entered: 02/26/2018)
114 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR SUMMARY JUDGMENT; AND DENYING DEFENDANTS RULE 12 MOTION TO DISMISS AND GRANTING ALTERNATIVE MOTION FOR SUMMARY JUDGMENT AS TO THE SIXTH CLAIM FOR RELIEF by Judge Saundra Brown Armstrong. (dtmS, COURT STAFF) (Filed on 3/30/2018) Modified on 4/2/2018 (dtmS, COURT STAFF). (Entered: 04/02/2018)
115 NOTICE of Filing of Proposed Judgment and Joint Letter Brief by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club re 114 Order on Motion to Dismiss,, Order on Motion for Summary Judgment,, Order on Motion to Strike, (Attachments: # 1 Exhibit Ex. 1 − Proposed Judgment, # 2 Exhibit Ex. 2 − Joint Letter Brief re Proposed Judgment)(Novak, Suzanne) (Filed on 4/13/2018) Modified on 4/16/2018 (jmlS, COURT STAFF). (Entered: 04/13/2018)
116 JUDGMENT. Signed by Judge Saundra Brown Armstrong on 6/13/18. (dtmS, COURT STAFF) (Filed on 6/13/2018) (Entered: 06/14/2018)
117 MOTION to Alter Judgment filed by Gina McCarthy, United States Environmental Protection Agency. Motion Hearing set for 9/12/2018 01:00 PM before Judge Saundra Brown Armstrong. Responses due by 7/25/2018. Replies due by 8/1/2018. (Attachments: # 1 Proposed Order)(Zee, Michael) (Filed on 7/11/2018) (Entered: 07/11/2018)
118 ORDER REFERRING ACTION FOR FURTHER SETTLEMENT CONFERENCE. Signed by Judge Saundra Brown Armstrong on 7/11/18. (dtmS, COURT STAFF) (Filed on 7/11/2018) (Entered: 07/11/2018)
119 CLERK'S NOTICE SETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Settlement Conference call set for 8/2/2018 at 01:15 PM. The court will email a call−in number separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 7/17/2018) (Entered: 07/17/2018)
120 Order Setting Settlement Conference Call for 8/2/2018 10:30 AM in San Francisco, Courtroom C, 15th Floor.

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 19 of 22

At counsel's request, the court resets the settlement−conference scheduling call from 1:15 p.m. to 10:30 a.m. on 8/2/2018.

08/02/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 7/17/2018) (Entered: 07/17/2018)
121 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference call held on 8/2/2018. The court held a settlement call and sets the in−person settlement conference for Friday, October 12, 2018, at 10:00 a.m. The parties must email the statements to lbpo@cand.uscourts.gov by October 5, 2018.

Total Time in Court: 30 minutes. Not Reported.

08/02/2018 09/17/2018 09/17/2018 09/19/2018 10/02/2018

Plaintiffs' Attorneys: Heather Lewis and Suzanne Novak. Also appearing by phone: Yumehiko Hoshijima. Defendants' Attorney: Michael Zee. Also appearing by phone: Kurt Temple and Betsy Biffl. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 8/2/2018) (Entered: 08/02/2018)
Set/Reset Hearing re 121 Settlement Conference. Settlement Conference set for 10/12/2018 at 10:00 AM in San Francisco, Courtroom C, 15th Floor. (ejkS, COURT STAFF) (Filed on 8/2/2018) (Entered: 08/02/2018)
122 CLERK'S NOTICE VACATING SETTLEMENT CONFERENCE: As the court informed the parties previously, it had a scheduling conflict with the existing settlement dates and sets a call with the parties to find a date for Thursday, 11/1/2018 at 1:15 PM. The court will circulate a call−in number separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 9/17/2018) (Entered: 09/17/2018)
123 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Please disregard the previous setting of 11/1/2018. The scheduling call is reset to 10/1/2018 at 9:45 AM. The updated call−in information will be sent separately by email. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 9/17/2018) (Entered: 09/17/2018)
124 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE SCHEDULING CALL: Pursuant to the parties stipulation, the settlement conference scheduling call previously set for 10/1/2018 is reset to 10/2/2018 at 9:30 AM. The court will email a call−in number separately. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 9/19/2018) (Entered: 09/19/2018)
125 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference Call held on 10/2/2018. The court sets a further in−person settlement conference for Monday, 12/3/2018 at 2:30 p.m. and allots four hours to the settlement conference.

Settlement Conference set for 12/3/2018 at 2:30 PM in San Francisco, Courtroom B, 15th Floor.

Total Time in Court: 15 minutes. Not Reported.

Plaintiffs' Attorneys: Jonathan Smith, Suzanne Novak and Marianne Lado. Also appearing by phone: Rebecca Casper−Johnson. Defendants' Attorney: Andrew Zee. Also appearing by phone: Betsy Biffl and Mary O'Lone (EPA General Counsel's Office) and Kurt Temple (EPA External Civil Rights Compliance Office). (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 10/2/2018) (Entered: 10/02/2018)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 20 of 22

11/20/2018 126 CLERK'S NOTICE RESETTING SETTLEMENT CONFERENCE: After conferring with the parties, the court sets the next in−person settlement conference for Thursday, January 10, 2019 at 11:00 a.m. and allots four hours to the conference.

12/19/2018 12/26/2018 12/26/2018
01/04/2019

Settlement Conference previously set for 12/3/2018 is reset to 1/10/2019 at 11:00 AM in San Francisco, Courtroom B, 15th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)
127 NOTICE of Change of Address by Heather Mudford Lewis on Behalf of Marianne Engelman Lado (Lewis, Heather) (Filed on 12/19/2018) (Entered: 12/19/2018)
128 Consent ADMINISTRATIVE MOTION to Stay in Light of Lapse of Appropriations filed by Gina McCarthy, United States Environmental Protection Agency. Responses due by 12/31/2018. (Attachments: # 1 Proposed Order)(Zee, Michael) (Filed on 12/26/2018) (Entered: 12/26/2018)
129 Order by Magistrate Judge Laurel Beeler granting 128 Administrative Motion For a Stay of Settlement Conference Deadlines in Light of Lapse of Appropriations. The court is keeping the case on calendar for now. The parties must decide one way or another, before January 10, whether they are able to go forward. (ejkS, COURT STAFF) (Filed on 12/26/2018) (Entered: 12/26/2018)
130 ORDER. Given the ongoing budget landscape, the parties have not been able to update the court yet about going with the January 10, 2019 settlement conference. The court directs the parties to file a status update regarding the settlement conference by no later than noon on Monday January 7, 2019 and cc lbpo@cand.uscourts.gov. If the parties cannot confirm the settlement conference by then, the court will vacate it. In this event, the parties must confer within seven days of the restoration of appropriations and submit a proposed schedule to the court or propose a scheduling call to be added to the Thursday telephonic scheduling calendar.

Signed by Judge Laurel Beeler on January 4, 2019.

01/07/2019 01/08/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc3S, COURT STAFF) (Filed on 1/4/2019) (Entered: 01/04/2019)
131 STATUS REPORT Regarding Settlement Conference by Gina McCarthy, United States Environmental Protection Agency, Californians for Renewable Energy, Ashurst Bar/Smith Community Organization, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club and Michael Boyd. (Zee, Michael) (Filed on 1/7/2019) Modified on 1/7/2019 (jmlS, COURT STAFF). (Entered: 01/07/2019)
132 CLERK'S NOTICE. The court thanks the parties for their update and vacates the settlement conference scheduled for Thursday, January 10, 2019. The court directs the parties to confer within seven days after the restoration of appropriations to the Department of Justice and the Environmental Protection Agency and submit a proposed schedule. If they cannot work out a date, the parties may arrange a settlement conference scheduling call by contacting CRD Elaine Kabiling.

01/29/2019 02/01/2019

(This is a text−only entry generated by the court. There is no document associated with this entry.) (lblc3S, COURT STAFF) (Filed on 1/8/2019) (Entered: 01/08/2019)
133 NOTICE of Restoration of Appropriations by Gina McCarthy, United States Environmental Protection Agency (Zee, Michael) (Filed on 1/29/2019) Modified on 1/29/2019 (jmlS, COURT STAFF). (Entered: 01/29/2019)
134 NOTICE of Proposed Dates for Settlement Conference by Gina McCarthy, United States Environmental Protection Agency, Californians for Renewable Energy, Ashurst Bar/Smith Community Organization, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club and Michael Boyd (Zee, Michael) (Filed on 2/1/2019) Modified on 2/1/2019 (jmlS, COURT STAFF). (Entered: 02/01/2019)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 21 of 22

02/01/2019 04/09/2019

135 Order Setting Settlement Conference before Magistrate Judge Settlement Conference set for 4/9/2019 10:00 AM in San Francisco, Courtroom B, 15th Floor. The court sets the in−person settlement conference for Tuesday, 4/9/2019 at 10:00 a.m. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Beeler, Laurel) (Filed on 2/1/2019) (Entered: 02/01/2019)
136 Minute Entry for proceedings held before Magistrate Judge Laurel Beeler: Settlement Conference held on 4/9/2019. The court held an in−person settlement conference and follow−up settlement communications. The parties will update the court as soon as is practicable and in any event by 4/30/2019 by email to lbsettlement@cand.uscourts.gov. The court will adjust the timelines to allow the full vetting of the final proposals.

Total Time in Court: 8 hours. Not Reported.

05/17/2019
07/02/2019
07/02/2019 07/08/2019 07/08/2019
07/08/2019 07/31/2019

Plaintiffs' Attorneys: Suzanne Novak, Jonathan Smith, Heather Lewis, and Marianne Lado. Also appearing: Louisa Eberle and Neil Carmen, Fr. Phil Schmitter and Ron Smith by phone. Defendants' Attorney: Andrew Zee. Also appearing: Mary O'Lone and Kurt Temple. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Date Filed: 4/9/2019) (Entered: 04/10/2019)
137 CLERK'S NOTICE: Since the in−person settlement conference, the court had ongoing communications with the parties, who were unable to resolve their case. The court invites the parties to contact the court if a further settlement conference would be productive. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ejkS, COURT STAFF) (Filed on 5/17/2019) (Entered: 05/17/2019)
138 ORDER SETTING BRIEFING SCHEDULE re 117 Motion to Alter Judgment: Plaintiffs shall file their opposition to Defendants' Rule 59(e) motion by no later than 7/16/2019. Defendants shall file their reply in response to Plaintiffs' opposition by no later than 7/23/2019. The Court willtake the motion under submission without oral argument as of the date the reply is due. Signed by Judge Saundra Brown Armstrong on 7/2/19. (ig, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)
Set/Reset Deadlines as to 117 Motion to Alter Judgment . Opposition due by 7/16/2019. Reply due by 7/23/2019. (ig, COURT STAFF) (Filed on 7/2/2019) (Entered: 07/02/2019)
139 NOTICE of Change In Counsel by Suzanne Novak (Novak, Suzanne) (Filed on 7/8/2019) (Entered: 07/08/2019)
140 STIPULATION WITH PROPOSED ORDER for Enlargement of Time filed by Ashurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club and United States Environmental Protection Agency and Gina McCarthy. (Attachments: # 1 Declaration of Suzanne Novak in Support of Stipulation)(Novak, Suzanne) (Filed on 7/8/2019) Modified on 7/9/2019 (ajsS, COURT STAFF). (Entered: 07/08/2019)
141 ORDER by Judge Saundra Brown Armstrong granting 140 Stipulation for Enlargement of Time.Responses due by 7/31/2019. Replies due by 8/14/2019. (jjoS, COURT STAFF) (Filed on 7/8/2019) (Entered: 07/08/2019)
142 OPPOSITION/RESPONSE (re 117 MOTION to Alter Judgment ) filed byAshurst Bar/Smith Community Organization, Michael Boyd, Californians For Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Saint Francis Prayer Center, Sierra Club. (Novak, Suzanne) (Filed on 7/31/2019) (Entered: 07/31/2019)

Case: 4:15-cv-3292 As of: 10/26/2019 09:12 AM PDT 22 of 22
08/14/2019 143 REPLY (re 117 MOTION to Alter Judgment ) filed byGina McCarthy, United States Environmental Protection Agency. (Zee, Michael) (Filed on 8/14/2019) (Entered: 08/14/2019)

 
 Case3:15-cv-03292 Document1 Filed07/15/15 Page1 of 25

1 IRENE V. GUTIERREZ, State Bar No. 252927 Earthjustice
2 50 California Street San Francisco, CA 94111
3 igutierrez@earthjustice.org Tel: 415-217-2000/Fax: 415-217-2040
4 MARIANNE L. ENGELMAN LADO,* New York Registration No. 2212579
5 JONATHAN SMITH,* California State Bar No. 286941
Earthjustice 6 48 Wall Street, 19th Floor
7 New York, NY 10005 mengelmanlado@earthjustice.org
8 jjsmith@earthjustice.org
Tel: 212-845-7376/Fax: 212-918-1556 9 * Pro Hac Vice Applicant, Not Admitted in Northern District of California

10 Counsel for Plaintiffs CAlifornians for Renewable Energy, Ashurst/Bar Smith Community
11 Organization, Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club, and Michael Boyd
12

13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO/OAKLAND DIVISION

15 CALIFORNIANS FOR RENEWABLE

)

ENERGY, ASHURST BAR/SMITH 16 COMMUNITY ORGANIZATION,
CITIZENS FOR ALTERNATIVES TO 17 RADIOACTIVE DUMPING, MAURICE
AND JANE SUGAR LAW CENTER FOR 18 ECONOMIC AND SOCIAL JUSTICE,
SIERRA CLUB, and MICHAEL BOYD, 19

20

Plaintiffs,

) Case No: _____________ ) ) ) COMPLAINT FOR DECLARATORY ) AND INJUNCTIVE RELIEF ) ) (Administrative Procedure Act Case) ) )

)

21

v.

)

)

22 UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY and GINA

)

23 MCCARTHY, in her official capacity as

)

24

Administrator of the Environmental Protection )

Agency,

)

25

Defendants.

) )

26

)

27

28

COMPLAINT

1

Case3:15-cv-03292 Document1 Filed07/15/15 Page2 of 25

1

STATEMENT OF THE CASE

2

1. CAlifornians for Renewable Energy, Ashurst/Bar Smith Community Organization,

3 Citizens for Alternatives to Radioactive Dumping, Maurice and Jane Sugar Law Center for

4 Economic and Social Justice, Sierra Club, and Michael Boyd (collectively, “Plaintiffs”) bring this

5 civil action for declaratory and injunctive relief to challenge the unreasonable delay of Defendants

6 United States Environmental Protection Agency and Gina McCarthy, Administrator of the United

7 States Environmental Protection Agency (collectively, “EPA”) to enforce Title VI of the Civil

8 Rights Act of 1964, 42 U.S.C. § 2000d, et seq. (“Title VI”) and EPA’s Title VI implementing

9 regulations, 40 C.F.R. §§ 7.10 et seq.

10

2. Plaintiffs filed administrative complaints alleging violations of Title VI (“Title VI

11 Complaints” or “the Complaints”) with EPA between 1994 and 2003, all more than a decade ago,

12 and EPA accepted these complaints for investigation between 1995 and 2005, the most recent

13 approximately a decade ago. Despite a regulatory mandate that EPA issue preliminary findings

14 and any recommendations for achieving compliance within 180 days of accepting a Title VI

15 complaint for investigation, EPA has utterly failed to meet this deadline in each case.

16

3. Resolution of Plaintiffs’ Title VI Complaints is long overdue. Accordingly, Plaintiffs

17 ask the Court to compel agency action unlawfully withheld and unreasonably delayed pursuant to

18 the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”).

19

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT

20

4. This action is brought under the Administrative Procedure Act, 5 U.S.C. § 701, et seq.

21

5. This Court has subject-matter jurisdiction over the claims set forth in this complaint

22 under 28 U.S.C. §§ 1331 and 1346(a)(2) because this is a civil action against the United States that

23 arises under a law of the United States. The relief requested is authorized pursuant to 5 U.S.C. §

24 706(1) and 28 U.S.C. §§ 2201-2202. See also 42 U.S.C. § 2000d-2 (“Any department or agency

25 action taken pursuant to section 2000d-1 of [Title VI] shall be subject to such judicial review as

26 may otherwise be provided by law for similar action taken by such department or agency on other

27 grounds.”).

28

COMPLAINT

2

Case3:15-cv-03292 Document1 Filed07/15/15 Page3 of 25

1

6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because a substantial

2 part of the events or omissions giving rise to the claims herein occurred in Contra Costa County,

3 California, Plaintiff Sierra Club resides in the City and County of San Francisco, California, and

4 Plaintiffs Michael Boyd and CAlifornians for Renewable Energy reside in Santa Cruz County,

5 California in the Northern District of California.

6

7. Similarly, intradistrict assignment to the San Francisco Division or the Oakland

7 Division of this Court is proper under Civil Local Rule 3-2(c) and (d) because a substantial part of

8 the events or omissions giving rise to the claims herein occurred in Contra Costa County,

9 California and Plaintiff Sierra Club resides in the City and County of San Francisco, California.

10

PARTIES

11

8. Plaintiff CAlifornians for Renewable Energy (“CARE”) is a 501(c)(3) nonprofit

12 corporation incorporated in California in September 1999. CARE is headquartered at 5439 Soquel

13 Drive, Soquel, California and has approximately four hundred and twenty members nationwide,

14 with roughly 95% of these members residing in California. CARE’s purposes include researching

15 and disseminating information about legal rights in a healthy environment by giving legal advice,

16 appearing before administrative bodies, enforcing environmental laws through court actions, and

17 providing professional legal assistance to planning, conservation, and neighborhood groups with

18 regard to new energy projects in the state of California. CARE is an advocate for new renewable

19 energy supplies as the environmentally preferred alternative for the people of the state of

20 California.

21

9. Plaintiff Michael Boyd is the President of CARE and provides overall supervision

22 and management of CARE’s activities. Michael Boyd resides in Soquel, California.

23

10. CARE and Michael Boyd filed a Title VI Complaint to EPA on or about April 17,

24 2000, alleging that the permitting process and ultimate decision to permit two gas-fired power

25 plants in the predominantly non-white and low-income community of Pittsburg, California by

26 California regional and state agencies violated Title VI. EPA accepted this complaint for

27 investigation on or about December 2001 but has yet to issue recommendations or preliminary

28 findings from its investigation.

COMPLAINT

3

Case3:15-cv-03292 Document1 Filed07/15/15 Page4 of 25

1

11. Plaintiff Ashurst Bar/Smith Community Organization is headquartered at 436

2 Gleeden Drive, Tallassee, Alabama. The organization strives for positive change and a better

3 quality of life for residents of the Ashurst Bar/Smith Community, an unincorporated area located

4 in the southernmost tip of Tallapoosa County, Alabama. At the time of the filing of its Title VI

5 complaint, the community was comprised of approximately 175 residents and was approximately

6 98% African American. The organization formed to protest the Tallassee Waste Disposal Center,

7 now known as the Stone’s Throw Landfill, and the adverse impacts associated with it, educate the

8 community, protect the heritage of the land, and seek an inclusive role in decision-making

9 processes that affect the health, social, and economic status of the community.

10

12. On or about December 15, 2003, an individual on behalf of Plaintiff Ashurst

11 Bar/Smith Community Organization submitted a Title VI Complaint to EPA alleging, among other

12 allegations, that the failure of the Alabama Department of Environmental Management to require

13 the proper use of siting factors violated Title VI. This individual was and is a member of the

14 Ashurst Bar/Smith Community Organization. EPA accepted this complaint for investigation on or

15 about September 7, 2005 but has yet to issue recommendations or preliminary findings from its

16 investigation of this allegation.

17

13. EPA’s public documents refer to this individual as an unnamed individual, and this

18 Complaint will continue to refer to this individual as an unnamed individual.

19

14. Plaintiff Citizens for Alternatives to Radioactive Dumping (“CARD”) is a non-profit

20 organization founded in 1978 in New Mexico. CARD is headquartered at 202 Harvard Avenue

21 Southeast, Albuquerque, New Mexico, and is sponsored by a 501(c)(3) Albuquerque organization,

22 Trinity House Catholic Worker, Inc. CARD has approximately ninety active members and

23 concentrates on local, New Mexican problems. Most members live in New Mexico though at any

24 one time a few members may be living outside of the state. Nearly all those who actively

25 participate in CARD activities, including almost all Steering Committee members, are volunteers.

26 CARD works in partnership with a number of other environmental and environmental justice

27 groups and with Native communities and reservations in New Mexico, especially in southeastern

28 New Mexico and Albuquerque. CARD was first formed by Chicano organizations in the

COMPLAINT

4

Case3:15-cv-03292 Document1 Filed07/15/15 Page5 of 25

1 southeastern portion of the state that were concerned about the impacts of the nuclear industry on

2 their communities. CARD’s original focus was the Waste Isolation Pilot Plant (“WIPP”) in Eddy

3 County, New Mexico, but the threats and injustices in the southeastern part of New Mexico have

4 only continued to increase since the early days of WIPP. Accordingly, in the 1980’s CARD

5 expanded its mission to address environmental injustices negatively affecting low-income or

6 underserved communities of color in New Mexico and organize resistance to other radioactive,

7 toxic, and hazardous threats throughout New Mexico.

8

15. On or about September 12, 2002, CARD submitted a Title VI complaint to EPA

9 concerning the permitting process and ultimate decision to permit the Triassic Park hazardous

10 waste facility in Chaves County in southeastern New Mexico, an area with a high percentage of

11 people living in poverty and Hispanic residents. EPA accepted this complaint for investigation on

12 or about June 27, 2005, but has yet to issue recommendations or preliminary findings from its

13 investigation.

14

16. Plaintiff Maurice and Jane Sugar Law Center for Economic and Social Justice

15 (“Sugar Law Center”) is a 501(c)(3) national nonprofit, public-interest law center headquartered in

16 Detroit, Michigan. Its offices are located at 4605 Cass Avenue, Detroit, Michigan. Sugar Law

17 Center provides legal advocacy, representation, education, and technical support to empower

18 community groups, workers’ rights groups, and individuals seeking systemic change toward

19 economic and social justice. Throughout its history, Sugar Law Center has highlighted the

20 interdependence of civil and economic rights, pursuing economic justice by supporting grassroots

21 campaigns for a living wage, representing communities of color in challenging environmental

22 racism, and pressing for corporate and government accountability. Sugar Law Center is dedicated

23 to helping individuals and community organizations, among others, who are working for social

24 justice. The Center provides direct legal representation or assistance in grassroots efforts, offering

25 expert advice or referrals to private attorneys skilled in specific fields and engaging in public

26 education around important issues of economic justice.

27

17. On or about July 6, 1994, Sugar Law Center submitted a Title VI complaint to EPA

28 concerning the permitting process and ultimate decision to permit a wood-incinerator power

COMPLAINT

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1 station located in a predominantly African American and low-income community in Flint,

2 Michigan. EPA accepted this complaint for investigation on or about January 1995, but has yet to

3 issue recommendations or preliminary findings from its investigation.

4

18. Plaintiff Sierra Club is a 501(c)(4) organization founded in 1892 and headquartered at

5 85 Second Street, 2nd Floor, San Francisco, California. Sierra Club’s mission is to explore, enjoy

6 and protect the wild places of the Earth; to practice and promote the responsible use of the Earth’s

7 resources and ecosystems; to educate and enlist humanity to protect and restore the quality of the

8 natural and human environment; and to use all lawful means to carry out these objectives. Sierra

9 Club’s mission includes protecting and restoring the quality of wild places, such as national parks,

10 forests, and wilderness areas, enjoyed by its members for their scenic views and vistas. Sierra

11 Club’s members regularly enjoy recreational activities on the Texas Gulf Coast and other

12 waterways.

13

19. Sierra Club Lone Star Chapter is the Texas chapter of Sierra Club. Its offices are

14 located at 1202 San Antonio Street, Austin, Texas. The chapter has 22,000 members statewide and

15 is dedicated to protecting Texas’s air, land, water, and remaining wild places. Sierra Club Lone

16 Star Chapter works to protect the health and well-being of the diverse communities in Texas and

17 up and down the Texas Gulf Coast. Several dozen environmental justice communities in Texas are

18 heavily impacted by large oil refineries, chemical and petrochemical plants, and other industrial

19 sources; indeed, Texas has the largest concentration of industrial plants (approximately 2,000) in

20 the nation, making industrial air pollution a top issue for the Sierra Club Lone Star Chapter.

21

20. On or about April 13, 2000, Sierra Club Lone Star Chapter filed a complaint with

22 EPA alleging, among other allegations, that the permitting process and ultimate decision to permit

23 an oil-refinery expansion in a low-income and African American community in Beaumont, Texas

24 violated Title VI. On or about June 2003, EPA accepted for investigation two allegations asserted

25 in this complaint but has yet to issue recommendations or preliminary findings from its

26 investigation.

27

28

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1

21. Plaintiffs have a concrete interest in an efficient resolution of their Title VI

2 Complaints and in resolution of the discriminatory practices and policies complained of in those

3 Complaints.

4

22. As organizations that work on behalf of communities of color that are

5 disproportionately burdened by sources of pollution, Plaintiffs have ongoing interests in protection

6 against discrimination by the recipients named in their Title VI Complaints and in remedying

7 EPA’s pattern and practice of failing to enforce Title VI and EPA’s implementing regulations

8 within mandated time periods.

9

23. Defendant United States Environmental Protection Agency is a federal agency with

10 its principal offices located at 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460. EPA

11 distributes federal financial assistance and, like other federal agencies that distribute federal

12 financial assistance, is charged with issuing and implementing regulations to ensure that no person

13 in the United States is excluded from participation in, denied the benefits of, or subjected to

14 discrimination on the ground of race, color, or national origin under any program or activity that

15 receives financial assistance from EPA. 42 U.S.C. §§ 2000d, 2000d-1.

16

24. Defendant Gina McCarthy is the Administrator of the United States Environmental

17 Protection Agency and, in that capacity, provides overall supervision of the Agency and has final

18 responsibility for actions taken by EPA, including EPA’s enforcement of Title VI of the Civil

19 Rights Act and the agency’s regulations implementing Title VI. Administrator McCarthy’s

20 principal place of business is located in Washington, D.C. Administrator McCarthy is sued in her

21 official capacity.

22

LEGAL BACKGROUND

23

25. Title VI of the Civil Rights Act of 1964 provides that no person shall, “on the ground

24 of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be

25 subjected to discrimination under any program or activity” covered by Title VI. 42 U.S.C. §

26 2000d. Title VI authorizes and directs all federal agencies that provide federal financial assistance

27 to issue regulations to effectuate the provisions of Title VI. Id. § 2000d-1

28

COMPLAINT

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1

26. EPA regulations promulgated to implement Title VI, 40 C.F.R. §§ 7.10 et seq., set

2 forth mandatory procedures and timelines for investigations of complaints filed pursuant to the

3 regulations. 40 C.F.R. §§ 7.115-7.135.

4

27. The regulations provide a process by which persons may file Title VI complaints with

5 EPA’s Office of Civil Rights (“OCR”). Any “person who believes that he or she or a specific class

6 of persons has been discriminated against” in violation of Title VI, or his or her representative,

7 may file a complaint with OCR within 180 days of the alleged discriminatory act. Id. § 7.120(a),

8 (b)(2).

9

28. The regulations require that “OCR shall promptly investigate all [such] complaints . .

10 . unless the complainant and the party complained against agree to a delay pending settlement

11 negotiations.” 40 C.F.R. § 7.120 (emphasis added).

12

29. The regulations require OCR to notify the complainant and the recipient of federal

13 funds of OCR’s receipt of the complaint within five days of receipt, after which “OCR will

14 immediately initiate complaint processing procedures.” Id. § 7.120(c), (d) (emphasis added).

15

30. Within twenty calendar days of the acknowledgement of the receipt of the complaint,

16 OCR must determine whether to accept the complaint for investigation, reject the complaint (e.g.,

17 for lack of jurisdiction or timeliness), or refer the complaint to the appropriate federal agency. Id.

18 § 7.120(d)(1)(i).

19

31. If a complaint is accepted for investigation, OCR must issue within 180 days of that

20 acceptance (1) preliminary findings; (2) recommendations, if any, for the funding recipient to

21 achieve voluntary compliance; and (3) a notification to the recipient of its right to engage in

22 voluntary compliance negotiations where appropriate. Id. § 7.115(c).

23

32. OCR’s notice of preliminary findings triggers an opportunity for recipients to respond

24 to OCR’s preliminary findings. Id. § 7.115(d). OCR’s issuance of preliminary findings is also a

25 prerequisite to further action by OCR under Title VI including a formal written determination of

26 noncompliance and the denial, annulment, suspension, or termination of federal assistance, as

27 permitted under Title VI. Id. §§ 7.115(d)-(e), 7.130(b); see also 42 U.S.C. § 2000d-1.

28

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1

33. Specifically, within fifty calendar days of receipt of a preliminary finding of

2 noncompliance, the funding recipient may agree to OCR’s recommendations or, in the alternative,

3 provide a written response explaining why the preliminary findings are incorrect or how

4 compliance may be achieved through means other than those recommended by OCR. 40 C.F.R. §

5 7.115(d). If the recipient does not take either action within fifty calendar days, OCR shall within

6 an additional fourteen calendar days send a formal written determination of noncompliance to the

7 recipient, with copies to the EPA Award Official and the United States Attorney General. Id. If

8 the recipient does not come into compliance within ten calendar days of receipt of the formal

9 determination of noncompliance, OCR must issue a finding of noncompliance and begin

10 procedures to deny, annul, suspend, or terminate EPA assistance. Id. §§ 7.115(e), 7.130(b).

11

FACTUAL BACKGROUND

12

34. Between 1994 and 2003, Plaintiffs filed timely complaints to EPA’s OCR alleging

13 violations of Title VI of the Civil Rights Act of 1964 and its implementing regulations by regional

14 and state agencies, and EPA accepted each of these Complaints for investigation between 1995 and

15 2005.

16

35. EPA has failed to meet its duty to issue preliminary findings within 180 days of

17 acceptance of each of the Complaints.

18

36. Indeed, EPA’s failure to comply with the regulatory timeline has extended the 180-

19 day timeframe to issue preliminary findings into periods ranging from approximately ten to twenty

20 years, with no clear end in sight.

21

37. The injuries complained of in Plaintiffs’ Title VI Complaints are exacerbated by

22 EPA’s failure to comply with its mandatory duties to properly investigate and resolve these

23 Complaints.

24

38. On or about July 6, 1994, Plaintiff Maurice and Jane Sugar Law Center for Economic

25 and Social Justice and other signatories submitted a Title VI complaint (“Sugar Law Center

26 Complaint”) to OCR alleging that actions of the Michigan Department of Natural Resources

27 (“MDNR”), a recipient of federal funding, discriminated against residents of the City of Flint,

28 Genesee County, Michigan, on the basis of race, color, and national origin in violation of Title VI.

COMPLAINT

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1 See Letter from Kary L. Moss, Exec. Dir., Sugar Law Center, to Valdas Adamkus, Reg’l Adm’r,

2 EPA Region 5 (July 6, 1994) (attached hereto as Exhibit 1).

3

39. The Sugar Law Center Complaint alleges that during the permitting process for the

4 Genesee Power Station in Flint, Michigan, MDNR failed to consider the facility’s impacts on the

5 surrounding community, which is predominantly African American and low income. Ex. 1, at 4-5.

6 The Complaint notes that while 61% of residents living in the neighborhood surrounding the

7 facility were African American and 27% lived below the poverty level, the county-wide population

8 was only 20% African American, with 14% below the poverty level. Id. at 12-13. As alleged in

9 the Complaint, the Genesee Power Station is fueled by wood waste including demolition wood,

10 which frequently contains lead-based paint and other chemicals that can be released into the air

11 when burned. Id. at 3. The Sugar Law Center Complaint alleges that MDNR’s permitting of the

12 Genesee Power Station reflects MDNR’s pattern or practice of permitting incinerators and other

13 hazardous sites in nonwhite communities, and that studies show that race is the dominant factor in

14 determining where MDNR will issue a siting permit. Id. at 11-15.

15

40. On or about January 1995, EPA accepted the Sugar Law Center Complaint for

16 investigation as Case No. 01R-94-R5. See EPA, Title VI Complaint Listing at 2 (May 2013)

17 (attached hereto as Exhibit 2). Accordingly, EPA’s regulations require OCR to have issued

18 preliminary findings and recommendations by July 1995.

19

41. On or about April 27, 1999 Sugar Law Center sent a letter to EPA urging EPA to

20 conclude its investigation into the Sugar Law Center Complaint, noting, “It is our sincere wish that

21 this investigation be brought to a close after seven years of waiting and five years of active

22 investigation.” Letter from Julie H. Hurwitz, Exec. Dir., Sugar Law Center, to Carleton

23 Waterhouse, EPA Region 4, at 1 (Apr. 27, 1999) (attached hereto as Exhibit 3).

24

42. On or about June 20, 2000, Sugar Law Center sent another letter to EPA “to formally

25 inquire about the status of the [Sugar Law Center Complaint] and to convey our ongoing serious

26 concern regarding the delay in resolving this matter, now pending for nearly eight (8) years.”

27 Letter from Julie H. Hurwitz, Exec. Dir., Sugar Law Center, to Ann E. Goode, Dir., EPA OCR, at

28 1 (June 20, 2000) (attached hereto as Exhibit 4). The letter noted that, as far back as 1996, Sugar

COMPLAINT

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1 Law Center had “been told repeatedly, for years, that a decision in this in this matter was

2 imminent.” Id.

3

43. Upon information and belief, as of the date of the filing of this complaint,

4 approximately twenty years after EPA accepted the Sugar Law Center Complaint for investigation,

5 EPA has yet to issue preliminary findings of its investigation into the Sugar Law Center

6 Complaint.

7

44. EPA’s investigation into the Sugar Law Center Complaint has grossly exceeded 180

8 days as well as any reasonable period of time to conclude an investigation.

9

45. As a result of the permitting actions complained of in the Sugar Law Center

10 Complaint, the Genesee Power Station was built and began commercial operation in 1995. See Ex.

11 4 at 1. EPA has classified the Genesee Power Station as a Significant Violator, and the Michigan

12 Department of Environmental Quality has similarly cited the facility. Id. at 1.

13

46. At the time of the filing of this complaint, the Genesee Power Station continues to be

14 in operation, and Sugar Law Center members continue to have reasonable concerns that the facility

15 is adversely affecting the surrounding community.

16

47. On or about April 17, 2000, Plaintiffs Michael Boyd, CAlifornians for Renewable

17 Energy, and other signatories submitted a Title VI complaint (“CARE Complaint”) to OCR

18 alleging that the Bay Area Air Quality Management District (“BAAQMD”), California Air

19 Resources Board (“CARB”) – both recipients of federal funding – and the California Energy

20 Commission (“CEC”) discriminated against residents of the City of Pittsburg, California, on the

21 basis of race, color, and national origin in violation of Title VI. See Letter from Michael E. Boyd,

22 CARE, to Carol M. Browner, EPA (Apr. 17, 2000) (attached hereto as Exhibit 5).

23

48. The CARE Complaint alleges that these California regional and state agencies

24 granted permits for the construction of the Los Medanos Energy Center and Delta Energy Center

25 power plants in Pittsburg, California but unlawfully failed to consider the additional environmental

26 burdens caused by the two plants on residents who already suffer from the cumulative impacts of

27 multiple sources of pollutants in the area. Ex. 5, at 4-6. The complaint alleges that the two

28 facilities were sited in communities that are composed primarily of nonwhite and low-income

COMPLAINT

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1 residents who already suffer from elevated levels of asthma, breast cancer, and human mortality

2 related to particulate matter exposure. Id. at 3, 6-12.

3

49. The Los Medanos Energy Center was initially known as the Pittsburg District Energy

4 Facility, and the CARE Complaint uses this previous name to refer to the Los Medanos Energy

5 Center.

6

50. On or about December 2001, OCR accepted the allegations in the CARE Complaint

7 against BAAQMD and CARB for investigation as Case No. 02R-00-R9. See Ex. 2 at 2.

8 Accordingly, EPA’s regulations require OCR to have issued preliminary findings and

9 recommendations by June 2002.

10

51. On or about March 16, 2006, CARE sent a letter to EPA to add a claim of retaliation

11 to the CARE Complaint and other Title VI complaints before the agency. See Letter from Lynne

12 Brown, Vice President, CARE, to Karen D. Higginbotham, Dir., EPA OCR (Mar. 16, 2006)

13 (attached hereto as Exhibit 6).

14

52. On or about April 20, 2009, CARE sent a complaint to the Civil Rights Division of

15 the United States Department of Justice (“DOJ”) alerting DOJ to the “pattern of US EPA delaying

16 and sitting on Title VI complaints, missing their statutory deadlines for accepting and investigating

17 these administrative complaints” filed by CARE, including the April 17, 2000 CARE Complaint.

18 See Letter from Michael Boyd, President, CARE, to Civil Rights Div., DOJ, at 1 (Apr. 20, 2009)

19 (attached hereto as Exhibit 7). CARE also forwarded a copy of this April 20, 2009 complaint to

20 EPA. Id.

21

53. Upon information and belief, as of the date of the filing of this complaint,

22 approximately fourteen years after EPA accepted the complaint for investigation, EPA has yet to

23 issue preliminary findings of its investigation into the CARE Complaint.

24

54. EPA’s investigation into the CARE Complaint has grossly exceeded 180 days as well

25 as any reasonable period of time to conclude an investigation.

26

55. As a result of the permitting actions complained of in the CARE Complaint, the Los

27 Medanos Energy Center was built and went online on or about July 2001, and the Delta Energy

28 Center was built and went online on or about June 2002. EPA classified the Los Medanos Energy

COMPLAINT

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1 Center as in “Significant Violation” of the Clean Air Act, 42 U.S.C. §§ 7401-7671q, on or about

2 May 5, 2010, and that classification continues to the date of the filing of this complaint. See EPA

3 Enforcement and Compliance History Online (“ECHO”), Detailed Facility Report, Los Medanos

4 Energy Center (accessed June 19, 2015) (attached hereto as Ex. 8). Over the last five years, the

5 Los Medanos Energy Center has been subject to at least $3,000 in penalties from a formal

6 enforcement action for violations of the Clean Air Act. Id.

7

56. At the time of the filing of this complaint, both facilities continue to be in operation,

8 and CARE members continue to have reasonable concerns that the facilities are adversely affecting

9 the surrounding community of Pittsburg, California.

10

57. On or about April 13, 2000, Sierra Club Lone Star Chapter, a local chapter of Plaintiff

11 Sierra Club, and other signatories submitted a Title VI complaint (“Sierra Club Complaint”) to

12 OCR alleging that actions of the Texas Commission on Environmental Quality (“TCEQ”), a

13 recipient of federal funding, discriminated against residents of the City of Beaumont, Texas on the

14 basis of race and color in violation of Title VI. See Letter from Rev. Roy Malveaux, Exec. Dir.,

15 People Against Contaminated Env’ts et al., to Ann E. Goode, Dir., EPA OCR (Apr. 13, 2000)

16 (attached hereto as Exhibit 9).

17

58. At the time of the Sierra Club Complaint, TCEQ was known as the Texas Natural

18 Resources Conservation Commission, and the Sierra Club Complaint uses this previous name to

19 refer to TCEQ.

20

59. Among other allegations, the Sierra Club Complaint alleges that TCEQ issued a

21 permit amendment to ExxonMobil (previously, Mobil Oil) that allowed its refinery operations in

22 Beaumont, Texas to increase several categories of emissions, including hydrogen sulfide, and that

23 TCEQ did so without allowing the public to participate in a contested case hearing on the matter.

24 Ex. 9, at 1. The complaint notes that 95% of the population living in the census block groups most

25 impacted by the Beaumont refinery was African American and that over half of this “maximum

26 impact” population lived in poverty. Id. at 7. Both of these values were more than twice the city-,

27 county-, and state-wide averages, showing a disproportionate impact on African Americans and

28 persons living in poverty. Id. The complaint alleges that TCEQ’s actions with regard to the

COMPLAINT

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1 Beaumont refinery reflect the state agency’s faulty method of administering its policies and

2 procedures, which has created and perpetuated a system of discriminatory facility siting and

3 expansion throughout the State of Texas. Id. at 1.

4

60. On or about June 2003, EPA notified Sierra Club Lone Star Chapter that it had

5 accepted for investigation two allegations asserted in the Sierra Club Complaint concerning the

6 permitting of the Beaumont refinery as Case No. 01R-00-R6. See Letter from Karen D.

7 Higginbotham, Acting Dir., EPA OCR, to Rev. Roy Malveaux, Exec. Dir., People Against

8 Contaminated Env’ts et al. (June 2003) (attached hereto as Exhibit 10). Accordingly, EPA’s

9 regulations require OCR to have issued preliminary findings and recommendations regarding these

10 two allegations by December 2003.

11

61. Specifically, EPA accepted for investigation two allegations from the Sierra Club

12 Complaint: the allegation that TCEQ “denied the affected community, which is predominantly

13 African American, the opportunity to participate in a contested hearing” on the permit amendment

14 and the allegation that the permit amendment “will lead to increases in hydrogen sulfide and other

15 emissions which will have an adverse health impact on the African American residents of the

16 community surrounding the refinery.” Id. at 2-3 (internal quotation marks omitted).

17

62. Upon information and belief, as of the date of the filing of this complaint,

18 approximately twelve years after EPA accepted allegations raised in the complaint for

19 investigation, EPA has yet to issue preliminary findings of its investigation into the Sierra Club

20 Complaint.

21

63. EPA’s investigation into the Sierra Club Complaint has grossly exceeded 180 days as

22 well as any reasonable period of time to conclude an investigation.

23

64. As a result of the permitting actions complained of in the Sierra Club Complaint, the

24 Beaumont refinery expanded its refining operations and increased its emissions of hydrogen

25 sulfide and other air pollutants. On or about October 2005, EPA levied a $8.7 million penalty on

26 ExxonMobil for Clean Air Act violations at the Beaumont refinery and other refineries. See EPA,

27 ExxonMobil Refinery Settlement (last updated Dec. 9, 2014) (attached hereto as Exhibit 11). On

28 or about December 2008, EPA again levied a $122,500 penalty on ExxonMobil for failure to

COMPLAINT

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1 monitor the sulfur content of gases burned in furnaces at the Beaumont refinery. Id. EPA first

2 classified the Beaumont refinery as in “Significant Violation” of the Clean Air Act on or about

3 December 19, 2000, and that classification continues to the date of the filing of this complaint. See

4 EPA ECHO, Detailed Facility Report, ExxonMobil Beaumont Refinery (accessed June 19, 2015)

5 (attached hereto as Ex. 12). Over the last five years, the Beaumont refinery has been subject to

6 $638,103 in penalties from fourteen formal enforcement actions for violations of the Clean Air

7 Act, in addition to nine informal enforcement actions. Id. The Beaumont facility remains one of

8 the largest refinery and chemical complexes in the United States.

9

65. At the time of the filing of this complaint, the Beaumont refinery continues to be in

10 operation, and Sierra Club Lone Star Chapter members continue to have reasonable concerns that

11 the facility is adversely affecting the surrounding community of Beaumont, Texas.

12

66. On or about September 12, 2002, Plaintiff Citizens for Alternatives to Radioactive

13 Dumping and other signatories submitted a Title VI complaint (“CARD Complaint”) to OCR

14 alleging that actions of the New Mexico Environment Department (“NMED”), a recipient of

15 federal funding, discriminated against residents of Chaves County, New Mexico on the basis of

16 race, color, and national origin in violation of Title VI. See CARD et al., Complaint under Title VI

17 of the Civil Rights Act (Sept. 12, 2002) (attached hereto as Exhibit 13).

18

67. The CARD Complaint alleges that NMED discriminated on the basis of race and

19 national origin by permitting the Triassic Park hazardous waste treatment, storage, and disposal

20 facility in Chaves County, New Mexico, without examining possible disparate impacts on the basis

21 of race and ethnicity and by conducting the permitting process in a manner hostile to Spanish-

22 speaking residents. Ex. 13, at 6-8, 18-24. As alleged in the complaint, Chaves County has a high

23 percentage of people of color – mostly Hispanic New Mexicans and New Mexicans of Mexican

24 origin – and a high percentage of people living in poverty, and already suffers worse air quality

25 and higher rates of infant mortality, congenital abnormalities, and hospitalization for respiratory

26 illnesses than other New Mexico counties. Id. at 2-4. The complaint also alleges that NMED

27 obstructed and excluded members of the public – particularly the Spanish-speaking public – from

28

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1 the permitting process by denying access to relevant documents, failing to provide information in

2 Spanish, and harassing and intimidating the public. Id. at 20-24.

3

68. In addition, the complaint alleges that NMED engaged in a pattern or practice of

4 discriminatory permitting and permitting processes, specifically through limited consideration of

5 impacts on Hispanic New Mexicans and New Mexicans of Mexican origin, including cumulative

6 impacts, and bias, hostility, and intimidation on the basis of race or national origin. Id. at 8-17, 24-

7 25.

8

69. On or about June 27, 2005, EPA notified NMED that it had accepted the CARD

9 Complaint for investigation as Case No. 09R-02-R6. See Letter from Karen D. Higginbotham,

10 Dir., EPA OCR, to Ron Curry, Sec’y, NMED (June 27, 2005) (attached hereto as Exhibit 14).

11 Accordingly, EPA’s regulations require OCR to have issued preliminary findings and

12 recommendations by December 24, 2005.

13

70. Specifically, EPA accepted for investigation the CARD Complaint’s allegations that

14 NMED discriminated against Spanish-speaking residents of the affected community by “(1)

15 permitting [the facility] without ever having required or performed a scientific investigation into

16 possible disparate impacts on the nearby residents who are already overburdened with effects from

17 facilities, and (2) conducting the entire permitting process in a manner hostile to Spanish-speaking

18 residents so as to discourage and effectively prevent the participation of Spanish-speaking

19 residents in the permitting process.” Id. at 1. In addition, EPA accepted for investigation the

20 allegation that NMED engaged in a “statewide pattern and practice of similar discriminatory

21 permitting and public participation in the permitting process.” Id.

22

71. NMED responded to this notification on or about August 11, 2005, and CARD

23 promptly sent a letter to OCR addressing the issues raised in the NMED response on or about

24 November 8, 2005.

25

72. On or about November 20, 2007, CARD notified OCR that it was amending the

26 CARD Complaint to include newly discovered information concerning NMED’s removal from

27 both the administrative record and the permit record of an agency memo concerning a possible

28 permit amendment to allow the Triassic Park facility to accept low-level nuclear waste – despite

COMPLAINT

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1 the hearing officer’s instructions that the memo should be kept in the record. See Letter from

2 Deborah Reade, CARD, to Karen D. Higginbotham, Dir., EPA OCR (Nov. 20, 2007) (attached

3 hereto as Exhibit 15).

4

73. On or about June 26, 2014 – nearly a decade after acceptance of the CARD

5 Complaint for investigation – EPA sent a letter to CARD requesting further information “[t]o

6 facilitate the EPA’s investigation.” See Letter from Helena Wooden-Aguilar, Acting Deputy Dir.,

7 EPA OCR, to Deborah Reade, CARD at2 (June 26, 2014) (attached hereto as Exhibit 16). CARD

8 responded to this request for information on or about September 2014.

9

74. Upon information and belief, as of the date of the filing of this complaint, ten years

10 after EPA accepted the CARD complaint for investigation, EPA has yet to issue preliminary

11 findings of its investigation into the CARD Complaint.

12

75. EPA’s investigation into the CARD Complaint has grossly exceeded 180 days as well

13 as any reasonable period of time to conclude an investigation.

14

76. Though the Triassic Park hazardous waste facility was not constructed during the first

15 term of the Hazardous Waste Facility Permit complained of in the CARD Complaint, the

16 permittee, Gandy Marley, Inc., applied to NMED to renew the Hazardous Waste Facility Permit on

17 or about October 17, 2011, and submitted revised permit applications on or about April 30, 2012

18 and July 5, 2013. Upon information and belief, the permit renewal application remains pending

19 before NMED. CARD members continue to have reasonable concerns that the permitting of the

20 Triassic Park hazardous waste facility may lead to adverse impacts to communities in Chaves

21 County, New Mexico.

22

77. On or about September 11, 2003, EPA received a letter from an unnamed individual

23 on behalf of Plaintiff Ashurst Bar/Smith Community Organization that attached comments that the

24 individual had sent to the Alabama Department of Environmental Management (“ADEM”), a

25 recipient of federal funding, during ADEM’s permitting process for the Stone’s Throw Landfill in

26 the unincorporated community of Tallassee, Tallapoosa County, Alabama. Letter from unnamed

27 individual to redacted recipient (Sept. 3, 2003) (attached hereto as Exhibit 17). Among other

28

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1 comments, the letter noted the community’s concern that ADEM’s pattern and practice of

2 permitting landfills in majority African American communities violates Title VI. See id. at 4-5.

3

78. On or about December 8, 2003, after receiving notification that EPA was reviewing

4 these comments for acceptance as an administrative complaint, the unnamed individual submitted

5 a more formal Title VI complaint to OCR on behalf of the Ashurst Bar/Smith Community

6 Organization (“Ashurst Bar/Smith Complaint”) alleging that actions of ADEM discriminated

7 against residents of Tallassee on the basis of race, color, and national origin in violation of Title

8 VI. See Letter from unnamed individual, to Karen D. Higginbotham, Dir., EPA OCR (Dec. 8,

9 2003) (attached hereto as Exhibit 18).

10

79. Among other allegations, the Ashurst Bar/Smith Complaint alleges that ADEM’s

11 failure to require the Tallapoosa County Commission to properly use the siting factors listed in a

12 prior EPA Title VI investigation constitutes discrimination on the basis of race. Id. at 2.

13

80. At the time of the filing of the Ashurst Bar/Smith Complaint, the Stone’s Throw

14 Landfill was known as the Tallassee Waste Disposal Center, and the Ashurst Bar/Smith Complaint

15 and related documents use this previous name to refer to the Stone’s Throw Landfill.

16

81. EPA notified ADEM of its receipt of the Ashurst Bar/Smith Complaint on March 29,

17 2005, and ADEM responded to this notice on April 13, 2005. See Letter from Onis “Trey” Glenn,

18 III, Dir., ADEM, to Karen D. Higginbotham, Dir., EPA OCR (Apr. 13, 2005) (attached hereto as

19 Exhibit 19).

20

82. On or about September 7, 2005, EPA accepted the Ashurst Bar/Smith Complaint for

21 investigation as Case No. 06R-03-R4. Letter from Karen D. Higginbotham, Dir., EPA OCR, to

22 unnamed individual (Sept. 7, 2005) (attached hereto as Exhibit 20). Accordingly, EPA’s

23 regulations require OCR to have issued preliminary findings and recommendations by March 26,

24 2006.

25

83. Specifically, EPA accepted for investigation two allegations, including the allegation

26 that “ADEM’s failure to require the Tallapoosa County Commission to properly use the siting

27 factors listed in the EPA June 2003 Title VI Investigative Report has created a discriminatory

28

COMPLAINT

18

Case3:15-cv-03292 Document1 Filed07/15/15 Page19 of 25

1 effect for the African American citizens since most of Tallapoosa County’s municipal solid waste

2 landfills are located in their communities.” Id.

3

84. ADEM responded to EPA’s notification of acceptance of the Complaint on or about

4 October 7, 2005. See Letter from Karen D. Higginbotham, Dir., EPA OCR, to Onis “Trey” Glenn,

5 III, Dir., ADEM (Jan. 22, 2007) (attached hereto as Exhibit 21).

6

85. On or about January 22, 2007, EPA requested certain documents from ADEM to

7 facilitate the investigation of the Ashurst Bar/Smith Complaint. Id. ADEM responded to this

8 request on February 26, 2007. See Letter from Onis “Trey” Glenn, III, Dir., ADEM, to Karen D.

9 Higginbotham, Dir., EPA OCR (Feb. 26, 2007) (attached hereto as Exhibit 22).

10

86. On or about January 25, 2013, EPA sent a letter to ADEM, with a copy to the

11 unnamed individual, explaining that EPA had bifurcated the investigation into two allegations

12 raised in the Ashurst Bar/Smith Complaint and was dismissing the Complaint’s first allegation.

13 Letter from Rafael DeLeon, Dir., EPA OCR, to Lance R. LeFleur, Dir., ADEM (Jan. 25, 2013)

14 (attached hereto as Exhibit 23). The letter stated that the allegation that ADEM failed to require

15 the use of EPA’s siting factors “will be addressed in subsequent correspondence.” Id. at 13.

16

87. Upon information and belief, as of the date of the filing of this complaint, EPA has

17 yet to issue preliminary findings of its investigation into the remaining allegation asserted in the

18 Ashurst Bar/Smith Complaint.

19

88. EPA’s investigation into the Ashurst Bar/Smith Complaint has grossly exceeded 180

20 days as well as any reasonable period of time to conclude an investigation.

21

89. As a result of the permitting actions complained of in the Ashurst Bar/Smith

22 Complaint, the Stone’s Throw Landfill was reopened in the spring of 2002 and remains in

23 operation. Ashurst Bar/Smith Community members have suffered from the adverse effects of the

24 landfill, including the large amount of truck traffic to and from the landfill on residential roads,

25 putrid smells that on some days can travel up to three miles from the landfill, and vultures and

26 other pests that are attracted to the landfill. At the time of the filing of this complaint, the Stone’s

27 Throw Landfill continues to be in operation, and Ashurst Bar/Smith Community members

28

COMPLAINT

19

Case3:15-cv-03292 Document1 Filed07/15/15 Page20 of 25

1 continue to have reasonable concerns that the facility is adversely affecting their community in

2 Tallassee, Alabama.

3

90. In all of the above instances, EPA has failed to issue preliminary findings within 180

4 days of accepting the Title VI Complaint for investigation, as required by law.

5

91. Plaintiffs’ experiences with EPA’s lax enforcement of its statutory duty to investigate

6 these Title VI Complaints are “sadly and unfortunately, typical of those who appeal to OCR to

7 remedy civil rights violations,” in which OCR often “fail[s] to process a single complaint . . . in

8 accordance with its regulatory deadlines.” Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot.

9 Agency, 581 F.3d 1169, 1175 (9th Cir. 2009) (emphasis in original).

10

92. EPA has demonstrated a pattern and practice of unreasonable delay in investigating

11 Title VI complaints and issuing preliminary findings and recommendations within the mandated

12 time period.

13

FIRST CLAIM FOR RELIEF

14

Violation of the Administrative Procedure Act

15

(Failure to Issue Preliminary Findings; Sugar Law Center Complaint)

16

17

93. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

18 paragraphs.

19

94. EPA has a mandatory duty to issue preliminary findings and recommendations for

20 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

21 investigation. 40 C.F.R. § 7.115(c).

22

95. EPA has failed to issue preliminary findings in response to the Sugar Law Center

23 Complaint within 180 days of the EPA’s initiation of investigation.

24

96. EPA has failed to issue recommendations for voluntary compliance in response to the

25 Sugar Law Center Complaint within 180 days of the EPA’s initiation of investigation.

26

97. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

27 delayed contrary to and in violation of the Administrative Procedure Act. See 5 U.S.C. § 706(1).

28

COMPLAINT

20

Case3:15-cv-03292 Document1 Filed07/15/15 Page21 of 25

1

98. EPA’s violation is continuous and ongoing. EPA will continue to violate the

2 Administrative Procedure Act until it complies with its duty to issue preliminary findings and

3 recommendations for voluntary compliance in response to the Sugar Law Center Complaint.

4

SECOND CLAIM FOR RELIEF

5

Violation of the Administrative Procedure Act

6

(Failure to Issue Preliminary Findings; CARE Complaint)

7

8

99. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

9 paragraphs.

10

100. EPA has a mandatory duty to issue preliminary findings and recommendations for

11 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

12 investigation. 40 C.F.R. § 7.115(c).

13

101. EPA has failed to issue preliminary findings in response to the CARE Complaint

14 within 180 days of EPA’s initiation of investigation.

15

102. EPA has failed to issue recommendations for voluntary compliance in response to the

16 CARE Complaint within 180 days of EPA’s initiation of investigation.

17

103. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

18 delayed contrary to and in violation of the Administrative Procedure Act. See 5 U.S.C. § 706(1).

19

104. EPA’s violation is continuous and ongoing. EPA will continue to violate the

20 Administrative Procedure Act until it complies with its duty to issue preliminary findings and

21 recommendations for voluntary compliance in response to the CARE Complaint.

22

THIRD CLAIM FOR RELIEF

23

Violation of the Administrative Procedure Act

24

(Failure to Issue Preliminary Findings; Sierra Club Complaint)

25

26

105. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

27 paragraphs.

28

COMPLAINT

21

Case3:15-cv-03292 Document1 Filed07/15/15 Page22 of 25

1

106. EPA has a mandatory duty to issue preliminary findings and recommendations for

2 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

3 investigation. 40 C.F.R. § 7.115(c).

4

107. EPA has failed to issue preliminary findings in response to the Sierra Club Complaint

5 within 180 days of EPA’s initiation of investigation.

6

108. EPA has failed to issue recommendations for voluntary compliance in response to the

7 Sierra Club Complaint within 180 days of EPA’s initiation of investigation.

8

109. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

9 delayed contrary to and in violation of the Administrative Procedure Act. See 5 U.S.C. § 706(1).

10

110. EPA’s violation is continuous and ongoing. EPA will continue to violate the

11 Administrative Procedure Act until it complies with its duty to issue preliminary findings and

12 recommendations for voluntary compliance in response to the Sierra Club Complaint.

13

FOURTH CLAIM FOR RELIEF

14

Violation of the Administrative Procedure Act

15

(Failure to Issue Preliminary Findings; CARD Complaint)

16

17

111. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

18 paragraphs.

19

112. EPA has a mandatory duty to issue preliminary findings and recommendations for

20 voluntary compliance within 180 days of acceptance of a Title VI complaint for investigation. 40

21 C.F.R. § 7.115(c).

22

113. EPA has failed to issue preliminary findings in response to the CARD Complaint

23 within 180 days of EPA’s initiation of investigation.

24

114. EPA has failed to issue recommendations for voluntary compliance in response to the

25 CARD Complaint within 180 days of EPA’s initiation of investigation.

26

115. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

27 delayed contrary to and in violation of the Administrative Procedure Act. See 5 U.S.C. § 706(1).

28

COMPLAINT

22

Case3:15-cv-03292 Document1 Filed07/15/15 Page23 of 25

1

116. EPA’s violation is continuous and ongoing. EPA will continue to violate the

2 Administrative Procedure Act until it complies with its duty to issue preliminary findings and

3 recommendations for voluntary compliance in response to the CARD Complaint.

4

FIFTH CLAIM FOR RELIEF

5

Violation of the Administrative Procedure Act

6

(Failure to Issue Preliminary Findings; Ashurst Bar/Smith Complaint)

7

8

117. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

9 paragraphs.

10

118. EPA has a mandatory duty to issue preliminary findings and recommendations for

11 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

12 investigation. 40 C.F.R. § 7.115(c).

13

119. EPA has failed to issue preliminary findings in response to the remaining allegations

14 asserted in the Ashurst Bar/Smith Complaint within 180 days of EPA’s initiation of investigation.

15

120. EPA has failed to issue recommendations for voluntary compliance in response to the

16 remaining allegations asserted in the Ashurst Bar/Smith Complaint within 180 days of EPA’s

17 initiation of investigation.

18

121. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

19 delayed contrary to and in violation of the Administrative Procedure Act. See 5 U.S.C. § 706(1).

20

122. EPA’s violation is continuous and ongoing. EPA will continue to violate the

21 Administrative Procedure Act until it complies with its duty to issue preliminary findings and

22 recommendations for voluntary compliance in response to the Ashurst Bar/Smith Complaint.

23

SIXTH CLAIM FOR RELIEF

24

Violation of the Administrative Procedure Act

25

(Pattern and Practice of Failing to Issue Preliminary Findings)

26

27

123. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

28 paragraphs.

COMPLAINT

23

Case3:15-cv-03292 Document1 Filed07/15/15 Page24 of 25

1

124. EPA has a mandatory duty to issue preliminary findings and recommendations for

2 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

3 investigation. 40 C.F.R. § 7.115(c).

4

125. EPA has failed to issue preliminary findings in response to allegations asserted in the

5 Title VI Complaints filed by Sugar Law Center, CARE, Sierra Club, CARD, and the Ashurst

6 Bar/Smith Community Organization within 180 days of EPA’s initiation of investigation.

7

126. EPA has failed to issue recommendations for voluntary compliance in response to

8 Title VI Complaints filed by Sugar Law Center, CARE, Sierra Club, CARD, and the Ashurst

9 Bar/Smith Community Organization within 180 days of EPA’s initiation of investigation.

10

127. EPA’s failure to investigate Title VI complaints and issue preliminary findings and

11 recommendations within the mandated time period constitutes a pattern and practice of agency

12 action unlawfully withheld and unreasonably delayed contrary to and in violation of the

13 Administrative Procedure Act. See 5 U.S.C. § 706(1).

14

PRAYER FOR RELIEF

15

128. WHEREFORE, Plaintiffs respectfully request that this Court:

16

(a) Declare that EPA’s failure to meet its mandatory duty and comply with the deadline

17 set forth in 40 C.F.R. § 7.115, requiring the EPA to issue preliminary findings and recommendations

18 for voluntary compliance within 180 days of initiating its investigation into a Title VI complaint,

19 constitutes agency action unlawfully withheld and unreasonably delayed under the APA;

20

(b) Issue an injunction compelling EPA to issue preliminary findings and

21 recommendations for voluntary compliance for the investigations into each of Plaintiffs’ Title VI

22 Complaints within ninety (90) days of this Court’s order, and compel EPA to complete the complaint

23 investigation procedures set forth in 40 C.F.R. part 7 in response to each of Plaintiffs’ Title VI

24 Complaints in compliance with the timelines set forth in those regulations;

25

(c) Award Plaintiffs their costs of litigation, including reasonable attorney and expert

26 witness fees, pursuant to 28 U.S.C. § 2412(b); and

27

(d) Grant Plaintiffs such further and additional relief as the Court may deem just, proper,

28 and equitable.

COMPLAINT

24

Case3:15-cv-03292 Document1 Filed07/15/15 Page25 of 25

1 2 DATED: July 15, 2015 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT

Respectfully submitted, /s/ Irene V. Gutierrez________________ IRENE V. GUTIERREZ State Bar No. 252927 Earthjustice 50 California Street San Francisco, CA 94111 igutierrez@earthjustice.org Tel: 415-217-2000/Fax: 415-217-2040 MARIANNE L. ENGELMAN LADO* New York Registration No. 2212579 JONATHAN SMITH* California State Bar No. 286941 Earthjustice 48 Wall Street, 19th Floor New York, NY 10005 mengelmanlado@earthjustice.org jjsmith@earthjustice.org Tel: 212-845-7376/Fax: 212-918-1556 * Pro Hac Vice Applicant, Not Admitted in Northern District of California Counsel for CAlifornians for Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst/Bar Smith Community Organization, Maurice and Jane Sugar Law Center for Economic and Social Justice, Sierra Club, and Michael Boyd
25

 
 Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 1 of 28

1 SUZANNE NOVAK,* New York Registration No. 292574 JONATHAN SMITH, California State Bar No. 286941
2 Earthjustice 48 Wall Street, 19th Floor
3 New York, NY 10005 snovak@earthjustice.org
4 jjsmith@earthjustice.org Tel: 212-845-4981/Fax: 212-918-1556
5 MARIANNE L. ENGELMAN LADO,* New York Registration No. 2212579
6 Yale Law School 127 Wall Street
7 New Haven, CT 06511 marianne.engelman-lado@ylsclinics.org
8 Tel: (203) 432-2184

9 HEATHER M. LEWIS, State Bar No. 291933 Earthjustice
10 50 California Street San Francisco, CA 94111
11 hlewis@earthjustice.org Tel: 415-217-2000/Fax: 415-217-2040
12
* Admitted pro hac vice 13
14 Counsel for Plaintiffs CAlifornians for Renewable Energy, Ashurst/Bar Smith Community Organization, Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra
15 Club, and Michael Boyd

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

18

CALIFORNIANS FOR RENEWABLE

)

19 ENERGY, ASHURST BAR/SMITH COMMUNITY ORGANIZATION,
20 CITIZENS FOR ALTERNATIVES TO RADIOACTIVE DUMPING, SAINT
21 FRANCIS PRAYER CENTER, SIERRA CLUB, and MICHAEL BOYD,
22
Plaintiffs, 23

) Case No. 4:15-cv-03292-SBA ) ) ) SECOND AMENDED COMPLAINT ) FOR DECLARATORY AND ) INJUNCTIVE RELIEF ) ) (Administrative Procedure Act Case) )

24

v.

)

)

25 UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY and GINA

)

26 MCCARTHY, in her official capacity as

)

Administrator of the Environmental Protection )

27 Agency,

)

)

28

Defendants.

)

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 2 of 28

1

STATEMENT OF THE CASE

2

1. CAlifornians for Renewable Energy, Ashurst/Bar Smith Community Organization,

3 Citizens for Alternatives to Radioactive Dumping, Saint Francis Prayer Center, Sierra Club, and

4 Michael Boyd (collectively, “Plaintiffs”) bring this civil action for declaratory and injunctive relief

5 to challenge the unreasonable delay of Defendants United States Environmental Protection Agency

6 and Gina McCarthy, Administrator of the United States Environmental Protection Agency

7 (collectively, “EPA”) to enforce Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.

8 (1964) (“Title VI”), and EPA’s Title VI implementing regulations, 40 C.F.R. §§ 7.10 et seq.(1973).

9

2. Plaintiffs filed administrative complaints alleging violations of Title VI (“Title VI

10 Complaints” or “the Complaints”) with EPA between 1992 and 2003, all more than a decade ago,

11 and EPA accepted these complaints for investigation between 1995 and 2005, the most recent also

12 more than a decade ago. Despite a regulatory mandate that EPA issue preliminary findings and any

13 recommendations for achieving compliance within 180 days of accepting a Title VI complaint for

14 investigation, EPA has utterly failed to meet this deadline in each case and has engaged in a pattern

15 and practice of unlawfully withholding and unreasonably delaying action on administrative

16 complaints filed pursuant to Title VI.

17

3. Resolution of Plaintiffs’ Title VI Complaints and reform of EPA’s practice is long

18 overdue. Accordingly, Plaintiffs ask the Court to compel agency action unlawfully withheld and

19 unreasonably delayed pursuant to the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (1946)

20 (“APA”).

21

JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT

22

4. This action is brought under the APA.

23

5. This Court has subject-matter jurisdiction over the claims set forth in this complaint

24 under 28 U.S.C. §§ 1331 and 1346(a)(2) because this is a civil action against the United States that

25 arises under a law of the United States. The relief requested is authorized pursuant to 5 U.S.C. §

26 706(1) and 28 U.S.C. §§ 2201-2202. See also 42 U.S.C. § 2000d-2 (“Any department or agency

27 action taken pursuant to section 2000d-1 of [Title VI] shall be subject to such judicial review as may

28

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 3 of 28

1 otherwise be provided by law for similar action taken by such department or agency on other

2 grounds.”).

3

6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because a substantial

4 part of the events or omissions giving rise to the claims herein occurred in Contra Costa County,

5 California, Plaintiff Sierra Club resides in Alameda County, California, and Plaintiffs Michael Boyd

6 and CAlifornians for Renewable Energy reside in Santa Cruz County, California in the Northern

7 District of California.

8

7. Similarly, intradistrict assignment to the San Francisco Division or the Oakland

9 Division of this Court is proper under Civil Local Rule 3-2(c) and (d) because a substantial part of

10 the events or omissions giving rise to the claims herein occurred in Contra Costa County, California

11 and Plaintiff Sierra Club resides in Alameda County, California. After Plaintiffs filed their original

12 Complaint, the Clerk of this Court assigned this matter to the Oakland Division of this Court.

13

PARTIES

14

8. Plaintiff CAlifornians for Renewable Energy (“CARE”) is a 501(c)(3) nonprofit

15 corporation incorporated in California in September 1999. CARE is headquartered at 5439 Soquel

16 Drive, Soquel, California and has approximately 420 members nationwide, with roughly 95% of

17 these members residing in California. CARE’s purposes include researching and disseminating

18 information about legal rights in a healthy environment by giving legal advice, appearing before

19 administrative bodies, enforcing environmental laws through court actions, and providing

20 professional legal assistance to planning, conservation, and neighborhood groups with regard to new

21 energy projects in the state of California. CARE is an advocate for new renewable energy supplies

22 as the environmentally preferred alternative for the people of the state of California.

23

9. Plaintiff Michael Boyd is the President of CARE and provides overall supervision

24 and management of CARE’s activities. Michael Boyd resides in Soquel, California.

25

10. CARE and Michael Boyd filed a Title VI Complaint to EPA on or about April 17,

26 2000, alleging that the permitting process and ultimate decision to permit two gas-fired power plants

27 in the predominantly non-white and low-income community of Pittsburg, California by California

28 regional and state agencies violated Title VI. EPA accepted this complaint for investigation on or

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 4 of 28

1 about December 2001 but has yet to issue recommendations or preliminary findings from its

2 investigation.

3

11. One or more CARE members live in proximity to these two gas-fired power plants

4 and have aesthetic, recreational, economic, health, or other interests in the permitting and operation

5 of these facilities.

6

12. Plaintiff Ashurst Bar/Smith Community Organization is headquartered at 436

7 Gleeden Drive, Tallassee, Alabama. The organization strives for positive change and a better quality

8 of life for residents of the Ashurst Bar/Smith Community, an unincorporated area located in the

9 southernmost tip of Tallapoosa County, Alabama. At the time of the filing of its Title VI complaint,

10 the community was comprised of approximately 175 residents and was approximately 98% African

11 American. The organization formed to protest the Tallassee Waste Disposal Center, now known as

12 the Stone’s Throw Landfill, and the adverse impacts associated with it, educate the community,

13 protect the heritage of the land, and seek an inclusive role in decision-making processes that affect

14 the health, social, and economic status of the community.

15

13. On or about December 15, 2003, an individual on behalf of Plaintiff Ashurst

16 Bar/Smith Community Organization submitted a Title VI Complaint to EPA alleging, among other

17 allegations, that the failure of the Alabama Department of Environmental Management to require the

18 proper use of siting factors violated Title VI. This individual was and is a member of the Ashurst

19 Bar/Smith Community Organization. EPA accepted this complaint for investigation on or about

20 September 7, 2005 but has yet to issue recommendations or preliminary findings from its

21 investigation of this allegation.

22

14. EPA’s public documents refer to this individual as an unnamed individual, and this

23 Complaint will continue to refer to this individual as an unnamed individual.

24

15. This individual and other members of the Ashurst Bar/Smith Community

25 Organization are affected by the landfill and have aesthetic, recreational, economic, health, or other

26 interests in the permitting and operation of the landfill.

27

16. Plaintiff Citizens for Alternatives to Radioactive Dumping (“CARD”) is a nonprofit

28 organization founded in 1978 in New Mexico. CARD is headquartered at 202 Harvard Avenue

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 5 of 28

1 Southeast, Albuquerque, New Mexico, and is sponsored by a 501(c)(3) Albuquerque organization,

2 Trinity House Catholic Worker, Inc. CARD has approximately ninety active members and

3 concentrates on local, New Mexican problems. Most members live in New Mexico though at any

4 one time a few members may be living outside of the state. Nearly all members who actively

5 participate in CARD activities, including almost all Steering Committee members, are volunteers.

6 CARD works in partnership with a number of other environmental and environmental justice groups

7 and with Native communities and reservations in New Mexico, especially in southeastern New

8 Mexico and Albuquerque. CARD was first formed by Chicano organizations in the southeastern

9 portion of the state that were concerned about the impacts of the nuclear industry on their

10 communities. CARD’s original focus was the Waste Isolation Pilot Plant (“WIPP”) in Eddy County,

11 New Mexico, but the threats and injustices in the southeastern part of New Mexico have only

12 continued to increase since the early days of WIPP. Accordingly, in the 1980’s CARD expanded its

13 mission to address environmental injustices negatively affecting low-income or underserved

14 communities of color in New Mexico and organize resistance to other radioactive, toxic, and

15 hazardous threats throughout New Mexico.

16

17. On or about September 12, 2002, CARD submitted a Title VI complaint to EPA

17 concerning the permitting process and ultimate decision to permit the Triassic Park hazardous waste

18 facility in Chaves County in southeastern New Mexico, an area with a high percentage of people

19 living in poverty and Hispanic residents. EPA accepted this complaint for investigation on or about

20 June 27, 2005, but has yet to issue recommendations or preliminary findings from its investigation.

21

18. One or more CARD members live in proximity to the Triassic Park site and have

22 aesthetic, recreational, economic, health, or other interests in the permitting of the facility.

23

19. Plaintiff Saint Francis Prayer Center (“Prayer Center”) is a 501(c)(3) nonprofit

24 organization incorporated in 1979 in Michigan. The Prayer Center is headquartered and operates a

25 public facility at G-2381 East Carpenter Road, Flint, Michigan. Animated by the spirit of its patron,

26 St. Francis of Assisi, the Prayer Center serves as a crossroads where people of all ethnic, racial,

27 economic, and denominational backgrounds may enrich each other through their encounter and

28 promotes justice by affirming the self-worth of disadvantaged communities and establishing

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 6 of 28

1 channels where their basic needs can be met, whether it be in a role of advocacy, referral, or

2 initiation.

3

20. On or about December 15, 1992, the Prayer Center submitted a complaint to EPA

4 alleging that the siting decision, permitting process, and ultimate decision to permit a wood-

5 incinerator power station located adjacent to a predominantly African American and low-income

6 community in Flint, Michigan constituted civil rights violations. EPA accepted this complaint for

7 investigation under Title VI on or about January 31, 1995, but has yet to issue recommendations or

8 preliminary findings from its investigation.

9

21. The Prayer Center is itself located in proximity to the wood-incinerator power station

10 and has aesthetic, recreational, economic, health, or other interests in the permitting and operation of

11 the facility. One or more Prayer Center members also live in proximity to the facility and have

12 aesthetic, recreational, economic, health, or other interests in the permitting of the facility.

13

22. Plaintiff Sierra Club is a 501(c)(4) organization founded in 1892 and headquartered at

14 2101 Webster Street, Suite 1300, Oakland, California. Sierra Club is incorporated in the State of

15 California as a nonprofit public benefit corporation and is, according to Sierra Club bylaws, the only

16 legally recognized corporate entity of Sierra Club in the United States. Sierra Club’s mission is to

17 explore, enjoy, and protect the wild places of the Earth; to practice and promote the responsible use

18 of the Earth’s resources and ecosystems; to educate and enlist humanity to protect and restore the

19 quality of the natural and human environment; and to use all lawful means to carry out these

20 objectives. Sierra Club’s mission includes protecting and restoring the quality of wild places, such

21 as national parks, forests, and wilderness areas, enjoyed by its members for their scenic views and

22 vistas. Sierra Club’s members regularly enjoy recreational activities on the Texas Gulf Coast and

23 other waterways.

24

23. Sierra Club Lone Star Chapter is the Texas chapter of Sierra Club. Like all Sierra

25 Club chapters, the Lone Star Chapter is a subunit of Sierra Club, and is not separately incorporated.

26 Its offices are located at 1202 San Antonio Street, Austin, Texas. The chapter has 22,000 members

27 statewide and is dedicated to protecting Texas’s air, land, water, and remaining wild places. Sierra

28 Club Lone Star Chapter works to protect the health and well-being of the diverse communities in

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

SECOND AMENDED COMPLAINT

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 7 of 28

1 Texas and up and down the Texas Gulf Coast. Several dozen environmental justice communities in

2 Texas are heavily impacted by large oil refineries, chemical and petrochemical plants, and other

3 industrial sources; indeed, Texas has the largest concentration of industrial plants (approximately

4 2,000) in the nation, making industrial air pollution a top issue for the Sierra Club Lone Star

5 Chapter.

6

24. On or about April 13, 2000, Sierra Club, through Sierra Club Lone Star Chapter, filed

7 a complaint with EPA alleging, among other allegations, that the permitting process and ultimate

8 decision to permit an oil-refinery expansion in a low-income and African American community in

9 Beaumont, Texas violated Title VI. On or about June 2003, EPA accepted for investigation two

10 allegations asserted in this complaint but has yet to issue recommendations or preliminary findings

11 from its investigation.

12

25. One or more Sierra Club members live proximity to the Beaumont oil refinery and

13 have aesthetic, recreational, economic, health, or other interests in the permitting and operation of

14 the facility.

15

26. Plaintiffs have a concrete interest in an efficient resolution of their Title VI

16 Complaints and in resolution of the discriminatory practices and policies complained of in those

17 Complaints.

18

27. As organizations that work on behalf of communities of color that are

19 disproportionately burdened by sources of pollution, Plaintiffs and their members have ongoing

20 interests in protection against discrimination by the recipients named in their Title VI Complaints

21 and in remedying EPA’s pattern and practice of failing to enforce Title VI and EPA’s implementing

22 regulations within mandated time periods.

23

28. Defendant United States Environmental Protection Agency is a federal agency with

24 its principal offices located at 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460. EPA

25 distributes federal financial assistance and, like other federal agencies that distribute federal financial

26 assistance, is charged with issuing and implementing regulations to ensure that no person in the

27 United States is excluded from participation in, denied the benefits of, or subjected to discrimination

28

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

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1 on the ground of race, color, or national origin under any program or activity that receives financial

2 assistance from EPA. 42 U.S.C. §§ 2000d, 2000d-1.

3

29. Defendant Gina McCarthy is the Administrator of the United States Environmental

4 Protection Agency and, in that capacity, provides overall supervision of the Agency and has final

5 responsibility for actions taken by EPA, including EPA’s enforcement of Title VI of the Civil Rights

6 Act and the agency’s regulations implementing Title VI. Administrator McCarthy’s principal place

7 of business is located in Washington, D.C. Administrator McCarthy is sued in her official capacity.

8

LEGAL BACKGROUND

9

30. Title VI of the Civil Rights Act of 1964 provides that no person shall, “on the ground

10 of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be

11 subjected to discrimination under any program or activity” covered by Title VI. 42 U.S.C. § 2000d.

12 Title VI authorizes and directs all federal agencies that provide federal financial assistance to issue

13 regulations to effectuate the provisions of Title VI. Id. § 2000d-1

14

31. EPA regulations promulgated to implement Title VI, 40 C.F.R. §§ 7.10 et seq., set

15 forth mandatory procedures and timelines for investigations of complaints filed pursuant to the

16 regulations. 40 C.F.R. §§ 7.115-7.135.

17

32. The regulations provide a process by which persons may file Title VI complaints with

18 EPA’s Office of Civil Rights (“OCR”). Any “person who believes that he or she or a specific class

19 of persons has been discriminated against” in violation of Title VI, or his or her representative, may

20 file a complaint with OCR within 180 days of the alleged discriminatory act. Id. § 7.120(a), (b)(2).

21

33. The regulations require that “OCR shall promptly investigate all [such] complaints . .

22 . unless the complainant and the party complained against agree to a delay pending settlement

23 negotiations.” 40 C.F.R. § 7.120 (emphasis added).

24

34. The regulations require OCR to notify the complainant and the recipient of federal

25 funds of OCR’s receipt of the complaint within five days of receipt, after which “OCR will

26 immediately initiate complaint processing procedures.” Id. § 7.120(c), (d) (emphasis added).

27

35. Within twenty calendar days of the acknowledgement of the receipt of the complaint,

28 OCR must determine whether to accept the complaint for investigation, reject the complaint (e.g., for

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1 lack of jurisdiction or timeliness), or refer the complaint to the appropriate federal agency. Id. §

2 7.120(d)(1)(i).

3

36. If a complaint is accepted for investigation, OCR must issue within 180 days of that

4 acceptance (1) preliminary findings; (2) recommendations, if any, for the funding recipient to

5 achieve voluntary compliance; and (3) a notification to the recipient of its right to engage in

6 voluntary compliance negotiations where appropriate. Id. § 7.115(c).

7

37. OCR’s notice of preliminary findings triggers an opportunity for recipients to respond

8 to OCR’s preliminary findings. Id. § 7.115(d). OCR’s issuance of preliminary findings is also a

9 prerequisite to further action by OCR under Title VI including a formal written determination of

10 noncompliance and the denial, annulment, suspension, or termination of federal assistance, as

11 permitted under Title VI. Id. §§ 7.115(d)-(e), 7.130(b); see also 42 U.S.C. § 2000d-1.

12

38. Specifically, within fifty calendar days of receipt of a preliminary finding of

13 noncompliance, the funding recipient may agree to OCR’s recommendations or, in the alternative,

14 provide a written response explaining why the preliminary findings are incorrect or how compliance

15 may be achieved through means other than those recommended by OCR. 40 C.F.R. § 7.115(d). If

16 the recipient does not take either action within fifty calendar days, OCR shall within an additional

17 fourteen calendar days send a formal written determination of noncompliance to the recipient, with

18 copies to the EPA Award Official and the United States Attorney General. Id. If the recipient does

19 not come into compliance within ten calendar days of receipt of the formal determination of

20 noncompliance, OCR must issue a finding of noncompliance and begin procedures to deny, annul,

21 suspend, or terminate EPA assistance. Id. §§ 7.115(e), 7.130(b).

22

FACTUAL BACKGROUND

23

39. Between 1992 and 2003, Plaintiffs filed timely Complaints to EPA alleging violations

24 of Title VI of the Civil Rights Act of 1964 and its implementing regulations by regional and state

25 agencies, and EPA accepted each of these Complaints for investigation between 1995 and 2005.

26

40. EPA has failed to meet its duty to issue preliminary findings within 180 days of

27 acceptance of each of the Complaints.

28

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1

41. Indeed, EPA’s failure to comply with the regulatory timeline has extended the 180-

2 day deadline to issue preliminary findings into periods ranging from approximately ten to twenty

3 years, with no clear end in sight.

4

42. The injuries complained of in Plaintiffs’ Title VI Complaints are exacerbated by

5 EPA’s failure to comply with its mandatory duties to properly investigate and resolve these

6 Complaints.

7 I. Prayer Center Complaint

8

43. On or about December 15, 1992, Plaintiff Saint Francis Prayer Center submitted a

9 letter to Valdas Adamkus, Regional Administrator of EPA Region 5, enclosing two Prayer Center

10 letters to William Rosenburg and Herb Tate at EPA Headquarters (collectively, “Prayer Center

11 Complaint”) alleging that actions of the Michigan Department of Natural Resources (“MDNR”), a

12 recipient of federal funding, discriminated against residents of the City of Flint, Genesee County,

13 Michigan, on the basis of race and color in violation of Title VI. See Letter from Fr. Phil Schmitter

14 & Sr. Joanne Chiaverini, Saint Francis Prayer Center, to Valdas Adamkus, Reg’l Adm’r, EPA

15 Region 5 and attachments thereto (Dec. 15, 1992) (attached hereto as Exhibit 1).

16

44. The Prayer Center Complaint alleges that during the permitting process for the

17 Genesee Power Station in Genesee Township, Michigan – near the border with Flint, Michigan –

18 MDNR failed to consider the facility’s impacts on the surrounding community, which is

19 predominantly African American and low-income. Id. att. 1, at 1-2; id. att. 2, at 1-2. Specifically,

20 the Complaint alleges that MDNR’s permit is defective for failing to require established emission

21 control technology to prevent excessive emission of lead, mercury, arsenic, and other pollutants from

22 the burning of demolition waste and other waste; failing to require an ambient air quality study or

23 noise study of the area surrounding the plant; requiring only self-monitoring by the plant instead of

24 consistent monitoring by MDNR; and allowing the plant to be sited adjacent to – and cause an

25 increase of truck traffic in – a highly residential area of Flint predominantly comprised of low-

26 income residents and people of color. Id. att. 1, at 1-2; id. att. 2, at 1. In addition, the Complaint

27 alleges MDNR violated the civil rights of these residents during the permitting process by

28 conducting a permit hearing 65 miles away from the site, frustrating the attendance of low-income

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1 residents and people of color; responding to residents’ concerns in a condescending manner;

2 declining consideration of a residential speaker but allowing project proponents opportunities to

3 speak, including those not recognized by the chair; and conducting the hearing from 7:40 pm to 1:00

4 am instead of postponing the hearing to a later date so as not to delay the grant of the permit. Id. att.

5 1, at 2; id. att. 2, at 1-2. The Complaint also alleges that the only public information session held in

6 Genesee Township was located 5.5 miles away from the site in an all-white neighborhood with no

7 bus access, despite the availability of adequate facilities that were near the site and easily accessible

8 by the affected residents. Id. att. 2, at 2. Finally, the Complaint suggests that MDNR overlooked a

9 potential conflict of interest by readily permitting a project despite the fact that the project’s chief

10 engineer had held a leadership position at MDNR shortly beforehand. Id. att. 1, at 2.

11

45. On or about January 31, 1995, EPA accepted the Prayer Center Complaint for

12 investigation as Case No. 01R-94-R5. See Letter from Dan J. Rondeau, Dir., EPA OCR, to Kary L.

13 Moss, Exec. Dir., National Law Guild/Sugar Law Center for Economic and Social Justice (“Sugar

14 Law Center”), at 2-3 (Jan. 31, 1995) (attached hereto as Exhibit 2). Accordingly, EPA’s regulations

15 require OCR to have issued preliminary findings and recommendations by July 30, 1995.

16

46. On or about June 29, 1995, MDNR responded to the Prayer Center Complaint. See

17 Letter from Kary L. Moss, Exec. Dir. & Lamont Satchel, Litigation & Program Coord., Sugar Law

18 Center, to Mike Mattheisen, EPA OCR, at 1 (Aug. 4, 1995) (attached hereto as Exhibit 3). Upon

19 information and belief, EPA had notified MDNR of the Prayer Center Complaint prior to this date.

20

47. On or about June 20, 2000, the Sugar Law Center, then counsel for the Prayer Center,

21 sent a letter to EPA “to formally inquire about the status of the [Prayer Center Complaint] and to

22 convey our ongoing serious concern regarding the delay in resolving this matter, now pending for

23 nearly eight (8) years.” Letter from Julie H. Hurwitz, Exec. Dir. & E. Quita Sullivan, Envtl. Justice

24 Staff Att’y Sugar Law Center, to Ann E. Goode, Dir., EPA OCR, at 1 (June 20, 2000) (attached

25 hereto as Exhibit 4). The letter noted that, as far back as 1996, the Prayer Center had “been told

26 repeatedly, for years, that a decision in this matter was imminent.” Id. The letter expressed concern

27 that EPA OCR’s investigation into this Complaint and others would “continue with no results,”

28 noting that, at the time, at least 49 outstanding Title VI administrative claims remained

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1 “languishing” before EPA. Id. at 2. This June 20, 2000 letter is one of several communications that

2 counsel for the Prayer Center sent to EPA since the filing of their Complaint raising concerns about

3 EPA’s delay and imploring EPA to finalize its investigation into the Prayer Center Complaint.

4

48. Upon information and belief, as of the date of the filing of this Complaint,

5 approximately twenty years after EPA accepted the Prayer Center Complaint for investigation, EPA

6 has yet to issue preliminary findings of its investigation into the Prayer Center Complaint.

7

49. EPA’s investigation into the Prayer Center Complaint has grossly exceeded 180 days

8 as well as any reasonable period of time to conclude an investigation.

9

50. As a result of the permitting actions complained of in the Prayer Center Complaint,

10 the Genesee Power Station was built and began commercial operation in 1995. See id. at 1. EPA

11 has classified the Genesee Power Station as a Significant Violator, and the Michigan Department of

12 Environmental Quality has similarly cited the facility. Id. at 1.

13

51. At the time of the filing of this Complaint, the Genesee Power Station continues to be

14 in operation, and Prayer Center members continue to have reasonable concerns that the facility is

15 adversely affecting the surrounding community.

16 II. CARE Complaint

17

52. On or about April 17, 2000, Plaintiffs Michael Boyd, CAlifornians for Renewable

18 Energy, and other signatories submitted a Title VI complaint (“CARE Complaint”) to OCR alleging

19 that the Bay Area Air Quality Management District (“BAAQMD”), California Air Resources Board

20 (“CARB”) – both recipients of federal funding – and the California Energy Commission (“CEC”)

21 discriminated against residents of the City of Pittsburg, California, on the basis of race, color, and

22 national origin in violation of Title VI. See Letter from Michael E. Boyd, CARE, to Carol M.

23 Browner, EPA (Apr. 17, 2000) (attached hereto as Exhibit 5).

24

53. The CARE Complaint alleges that these California regional and state agencies

25 granted permits for the construction of the Los Medanos Energy Center and Delta Energy Center

26 power plants in Pittsburg, California but unlawfully failed to consider the additional environmental

27 burdens caused by the two plants on residents who already suffer from the cumulative impacts of

28 multiple sources of pollutants in the area. Id. at 4-6. The complaint alleges that the two facilities

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1 were sited in communities that are composed primarily of nonwhite and low-income residents who

2 already suffer from elevated levels of asthma, breast cancer, and human mortality related to

3 particulate matter exposure. Id. at 3, 6-12.

4

54. The Los Medanos Energy Center was initially known as the Pittsburg District Energy

5 Facility, and the CARE Complaint uses this previous name to refer to the Los Medanos Energy

6 Center.

7

55. On or about December 2001, OCR accepted the allegations in the CARE Complaint

8 against BAAQMD and CARB for investigation as Case No. 02R-00-R9. See EPA, Complaints Filed

9 with EPA under Title VI of the Civil Rights Act of 1964, at 14, http://www.epa.gov/ocr/complaints-

10 filed-epa-under-title-vi-civil-rights-act-1964 (last updated Mar. 3, 2015) (attached hereto as Exhibit

11 6). Accordingly, EPA’s regulations require OCR to have issued preliminary findings and

12 recommendations by June 2002.

13

56. On or about March 16, 2006, CARE sent a letter to EPA to add a claim of retaliation

14 to the CARE Complaint and other Title VI complaints before the agency. See Letter from Lynne

15 Brown, Vice President, CARE, to Karen D. Higginbotham, Dir., EPA OCR (Mar. 16, 2006)

16 (attached hereto as Exhibit 7).

17

57. On or about April 20, 2009, CARE sent a complaint to the Civil Rights Division of

18 the United States Department of Justice (“DOJ”) alerting DOJ to the “pattern of US EPA delaying

19 and sitting on Title VI complaints, missing their statutory deadlines for accepting and investigating

20 these administrative complaints” filed by CARE, including the April 17, 2000 CARE Complaint.

21 See Letter from Michael Boyd, President, CARE, to Civil Rights Div., DOJ, at 1 (Apr. 20, 2009)

22 (attached hereto as Exhibit 8). CARE also forwarded a copy of this April 20, 2009 complaint to

23 EPA. Id.

24

58. Upon information and belief, as of the date of the filing of this Complaint,

25 approximately fourteen years after EPA accepted the CARE Complaint for investigation, EPA has

26 yet to issue preliminary findings of its investigation into the CARE Complaint.

27

59. EPA’s investigation into the CARE Complaint has grossly exceeded 180 days as well

28 as any reasonable period of time to conclude an investigation.

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1

60. As a result of the permitting actions complained of in the CARE Complaint, the Los

2 Medanos Energy Center was built and went online on or about July 2001, and the Delta Energy

3 Center was built and went online on or about June 2002. EPA classified the Los Medanos Energy

4 Center as in “Significant Violation” of the Clean Air Act, 42 U.S.C. §§ 7401-7671q, on or about

5 May 5, 2010, and that classification continues to the date of the filing of this complaint. See EPA

6 Enforcement and Compliance History Online (“ECHO”), Detailed Facility Report, Los Medanos

7 Energy Center (accessed June 19, 2015) (attached hereto as Exhibit 9). Over the last five years, the

8 Los Medanos Energy Center has been subject to at least $3,000 in penalties from a formal

9 enforcement action for violations of the Clean Air Act. Id.

10

61. At the time of the filing of this complaint, both facilities continue to be in operation,

11 and CARE members continue to have reasonable concerns that the facilities are adversely affecting

12 the surrounding community of Pittsburg, California.

13 III. Sierra Club Complaint

14

62. On or about April 13, 2000, Sierra Club Lone Star Chapter, a local chapter of Plaintiff

15 Sierra Club, and other signatories submitted a Title VI complaint (“Sierra Club Complaint”) to OCR

16 alleging that actions of the Texas Commission on Environmental Quality (“TCEQ”), a recipient of

17 federal funding, discriminated against residents of the City of Beaumont, Texas on the basis of race

18 and color in violation of Title VI. See Letter from Rev. Roy Malveaux, Exec. Dir., People Against

19 Contaminated Env’ts et al., to Ann E. Goode, Dir., EPA OCR (Apr. 13, 2000) (attached hereto as

20 Exhibit 10).

21

63. At the time of the Sierra Club Complaint, TCEQ was known as the Texas Natural

22 Resources Conservation Commission, and the Sierra Club Complaint uses this previous name to

23 refer to TCEQ.

24

64. Among other allegations, the Sierra Club Complaint alleges that TCEQ issued a

25 permit amendment to ExxonMobil (previously, Mobil Oil) that allowed its refinery operations in

26 Beaumont, Texas to increase several categories of emissions, including hydrogen sulfide, and that

27 TCEQ did so without allowing the public to participate in a contested case hearing on the matter. Id.

28 at 1. The complaint notes that 95% of the population living in the census block groups most

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1 impacted by the Beaumont refinery was African American and that over half of this “maximum

2 impact” population lived in poverty. Id. at 7. Both of these values were more than twice the city-,

3 county-, and state-wide averages, showing a disproportionate impact on African Americans and

4 persons living in poverty. Id. The complaint alleges that TCEQ’s actions with regard to the

5 Beaumont refinery reflect the state agency’s faulty method of administering its policies and

6 procedures, which has created and perpetuated a system of discriminatory facility siting and

7 expansion throughout the State of Texas. Id. at 1.

8

65. On or about June 2003, EPA notified Sierra Club Lone Star Chapter that it had

9 accepted for investigation two allegations asserted in the Sierra Club Complaint concerning the

10 permitting of the Beaumont refinery as Case No. 01R-00-R6. See Letter from Karen D.

11 Higginbotham, Acting Dir., EPA OCR, to Rev. Roy Malveaux, Exec. Dir., People Against

12 Contaminated Env’ts et al. (June 2003) (attached hereto as Exhibit 11). Accordingly, EPA’s

13 regulations require OCR to have issued preliminary findings and recommendations regarding these

14 two allegations by December 2003.

15

66. Specifically, EPA accepted for investigation two allegations from the Sierra Club

16 Complaint: the allegation that TCEQ “denied the affected community, which is predominantly

17 African American, the opportunity to participate in a contested hearing” on the permit amendment

18 and the allegation that the permit amendment “will lead to increases in hydrogen sulfide and other

19 emissions which will have an adverse health impact on the African American residents of the

20 community surrounding the refinery.” Id. at 2-3 (internal quotation marks omitted).

21

67. Upon information and belief, as of the date of the filing of this Complaint,

22 approximately twelve years after EPA accepted allegations raised in the Sierra Club Complaint for

23 investigation, EPA has yet to issue preliminary findings of its investigation into the Sierra Club

24 Complaint.

25

68. EPA’s investigation into the Sierra Club Complaint has grossly exceeded 180 days as

26 well as any reasonable period of time to conclude an investigation.

27

69. As a result of the permitting actions complained of in the Sierra Club Complaint, the

28 Beaumont refinery expanded its refining operations and increased its emissions of hydrogen sulfide

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1 and other air pollutants. On or about October 2005, EPA levied an $8.7 million penalty on

2 ExxonMobil for Clean Air Act violations at the Beaumont refinery and other refineries. See EPA,

3 ExxonMobil Refinery Settlement (last updated Dec. 9, 2014) (attached hereto as Exhibit 12). On or

4 about December 2008, EPA again levied a $122,500 penalty on ExxonMobil for failure to monitor

5 the sulfur content of gases burned in furnaces at the Beaumont refinery. Id. EPA first classified the

6 Beaumont refinery as in “Significant Violation” of the Clean Air Act on or about December 19,

7 2000, and that classification continues to the date of the filing of this complaint. See EPA ECHO,

8 Detailed Facility Report, ExxonMobil Beaumont Refinery (accessed June 19, 2015) (attached hereto

9 as Exhibit 13). Over the last five years, the Beaumont refinery has been subject to $638,103 in

10 penalties from fourteen formal enforcement actions for violations of the Clean Air Act, in addition to

11 nine informal enforcement actions. Id. The Beaumont facility remains one of the largest refinery

12 and chemical complexes in the United States.

13

70. At the time of the filing of this complaint, the Beaumont refinery continues to be in

14 operation, and Sierra Club Lone Star Chapter members continue to have reasonable concerns that the

15 facility is adversely affecting the surrounding community of Beaumont, Texas.

16 IV. CARD Complaint

17

71. On or about September 12, 2002, Plaintiff Citizens for Alternatives to Radioactive

18 Dumping and other signatories submitted a Title VI complaint (“CARD Complaint”) to OCR

19 alleging that actions of the New Mexico Environment Department (“NMED”), a recipient of federal

20 funding, discriminated against residents of Chaves County, New Mexico on the basis of race, color,

21 and national origin in violation of Title VI. See CARD et al., Complaint under Title VI of the Civil

22 Rights Act (Sept. 12, 2002) (attached hereto as Exhibit 14).

23

72. The CARD Complaint alleges that NMED discriminated on the basis of race and

24 national origin by permitting the Triassic Park hazardous waste treatment, storage, and disposal

25 facility in Chaves County, New Mexico, without examining possible disparate impacts on the basis

26 of race and ethnicity and by conducting the permitting process in a manner hostile to Spanish-

27 speaking residents. Id. at 6-8, 18-24. As alleged in the complaint, Chaves County has a high

28 percentage of people of color – mostly Hispanic New Mexicans and New Mexicans of Mexican

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1 origin – and a high percentage of people living in poverty, and already suffers worse air quality and

2 higher rates of infant mortality, congenital abnormalities, and hospitalization for respiratory illnesses

3 than other New Mexico counties. Id. at 2-4. The complaint also alleges that NMED obstructed and

4 excluded members of the public – particularly the Spanish-speaking public – from the permitting

5 process by denying access to relevant documents, failing to provide information in Spanish, and

6 harassing and intimidating the public. Id. at 20-24.

7

73. In addition, the complaint alleges that NMED engaged in a pattern or practice of

8 discriminatory permitting and permitting processes, specifically through limited consideration of

9 impacts on Hispanic New Mexicans and New Mexicans of Mexican origin, including cumulative

10 impacts, and bias, hostility, and intimidation on the basis of race or national origin. Id. at 8-17, 24-

11 25.

12

74. On or about June 27, 2005, EPA notified NMED that it had accepted the CARD

13 Complaint for investigation as Case No. 09R-02-R6. See Letter from Karen D. Higginbotham, Dir.,

14 EPA OCR, to Ron Curry, Sec’y, NMED (June 27, 2005) (attached hereto as Exhibit 15).

15 Accordingly, EPA’s regulations require OCR to have issued preliminary findings and

16 recommendations by December 24, 2005.

17

75. Specifically, EPA accepted for investigation the CARD Complaint’s allegations that

18 NMED discriminated against Spanish-speaking residents of the affected community by “(1)

19 permitting [the facility] without ever having required or performed a scientific investigation into

20 possible disparate impacts on the nearby residents who are already overburdened with effects from

21 facilities, and (2) conducting the entire permitting process in a manner hostile to Spanish-speaking

22 residents so as to discourage and effectively prevent the participation of Spanish-speaking residents

23 in the permitting process.” Id. at 1. In addition, EPA accepted for investigation the allegation that

24 NMED engaged in a “statewide pattern and practice of similar discriminatory permitting and public

25 participation in the permitting process.” Id.

26

76. NMED responded to this notification on or about August 11, 2005, and CARD

27 promptly sent a letter to OCR addressing the issues raised in the NMED response on or about

28 November 8, 2005.

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1

77. On or about November 20, 2007, CARD notified OCR that it was amending the

2 CARD Complaint to include newly discovered information concerning NMED’s removal from both

3 the administrative record and the permit record of an agency memo concerning a possible permit

4 amendment to allow the Triassic Park facility to accept low-level nuclear waste – despite the hearing

5 officer’s instructions that the memo should be kept in the record. See Letter from Deborah Reade,

6 CARD, to Karen D. Higginbotham, Dir., EPA OCR (Nov. 20, 2007) (attached hereto as Exhibit 16).

7

78. On or about June 26, 2014 – nearly a decade after acceptance of the CARD

8 Complaint for investigation – EPA sent a letter to CARD requesting further information “[t]o

9 facilitate the EPA’s investigation.” See Letter from Helena Wooden-Aguilar, Acting Deputy Dir.,

10 EPA OCR, to Deborah Reade, CARD, at 2 (June 26, 2014) (attached hereto as Exhibit 17). CARD

11 responded to this request for information on or about September 2014.

12

79. Upon information and belief, as of the date of the filing of this Complaint, ten years

13 after EPA accepted the CARD Complaint for investigation, EPA has yet to issue preliminary

14 findings of its investigation into the CARD Complaint.

15

80. EPA’s investigation into the CARD Complaint has grossly exceeded 180 days as well

16 as any reasonable period of time to conclude an investigation.

17

81. Though the Triassic Park hazardous waste facility was not constructed during the first

18 term of the Hazardous Waste Facility Permit complained of in the CARD Complaint, the permittee,

19 Gandy Marley, Inc., applied to NMED to renew the Hazardous Waste Facility Permit on or about

20 October 17, 2011, and submitted revised permit applications on or about April 30, 2012 and July 5,

21 2013. Upon information and belief, the permit renewal application remains pending before NMED.

22 CARD members continue to have reasonable concerns that the permitting of the Triassic Park

23 hazardous waste facility may lead to adverse impacts to communities in proximity to the Triassic

24 Park hazardous waste facility.

25 V. Ashurst Bar/Smith Complaint

26

82. On or about September 11, 2003, EPA received a letter from an unnamed individual

27 on behalf of Plaintiff Ashurst Bar/Smith Community Organization that attached comments that the

28 individual had sent to the Alabama Department of Environmental Management (“ADEM”), a

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1 recipient of federal funding, during ADEM’s permitting process for the Stone’s Throw Landfill in

2 the unincorporated community of Tallassee, Tallapoosa County, Alabama. Letter from unnamed

3 individual to redacted recipient (Sept. 3, 2003) (attached hereto as Exhibit 18). Among other

4 comments, the letter noted the community’s concern that ADEM’s pattern and practice of permitting

5 landfills in majority African American communities violates Title VI. See id. at 4-5.

6

83. On or about December 8, 2003, after receiving notification that EPA was reviewing

7 these comments for acceptance as an administrative complaint, the unnamed individual submitted a

8 more formal Title VI complaint to OCR on behalf of the Ashurst Bar/Smith Community

9 Organization (“Ashurst Bar/Smith Complaint”) alleging that actions of ADEM discriminated against

10 residents of Tallassee on the basis of race, color, and national origin in violation of Title VI. See

11 Letter from unnamed individual, to Karen D. Higginbotham, Dir., EPA OCR (Dec. 8, 2003)

12 (attached hereto as Exhibit 19).

13

84. Among other allegations, the Ashurst Bar/Smith Complaint alleges that ADEM’s

14 failure to require the Tallapoosa County Commission to properly use the siting factors listed in a

15 prior EPA Title VI investigation constitutes discrimination on the basis of race. Id. at 2.

16

85. At the time of the filing of the Ashurst Bar/Smith Complaint, the Stone’s Throw

17 Landfill was known as the Tallassee Waste Disposal Center, and the Ashurst Bar/Smith Complaint

18 and related documents use this previous name to refer to the Stone’s Throw Landfill.

19

86. EPA notified ADEM of its receipt of the Ashurst Bar/Smith Complaint on March 29,

20 2005, and ADEM responded to this notice on April 13, 2005. See Letter from Onis “Trey” Glenn,

21 III, Dir., ADEM, to Karen D. Higginbotham, Dir., EPA OCR (Apr. 13, 2005) (attached hereto as

22 Exhibit 20).

23

87. On or about September 7, 2005, EPA accepted the Ashurst Bar/Smith Complaint for

24 investigation as Case No. 06R-03-R4. Letter from Karen D. Higginbotham, Dir., EPA OCR, to

25 unnamed individual (Sept. 7, 2005) (attached hereto as Exhibit 21). Accordingly, EPA’s regulations

26 require OCR to have issued preliminary findings and recommendations by March 26, 2006.

27

88. Specifically, EPA accepted for investigation two allegations, including the allegation

28 that “ADEM’s failure to require the Tallapoosa County Commission to properly use the siting

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1 factors listed in the EPA June 2003 Title VI Investigative Report has created a discriminatory effect

2 for the African American citizens since most of Tallapoosa County’s municipal solid waste landfills

3 are located in their communities.” Id.

4

89. ADEM responded to EPA’s notification of acceptance of the Complaint on or about

5 October 7, 2005. See Letter from Karen D. Higginbotham, Dir., EPA OCR, to Onis “Trey” Glenn,

6 III, Dir., ADEM (Jan. 22, 2007) (attached hereto as Exhibit 22).

7

90. On or about January 22, 2007, EPA requested certain documents from ADEM to

8 facilitate the investigation of the Ashurst Bar/Smith Complaint. Id. ADEM responded to this

9 request on February 26, 2007. See Letter from Onis “Trey” Glenn, III, Dir., ADEM, to Karen D.

10 Higginbotham, Dir., EPA OCR (Feb. 26, 2007) (attached hereto as Exhibit 23).

11

91. On or about January 25, 2013, EPA sent a letter to ADEM, with a copy to the

12 unnamed individual, explaining that EPA had bifurcated the investigation into two allegations raised

13 in the Ashurst Bar/Smith Complaint and was dismissing the Complaint’s first allegation. Letter

14 from Rafael DeLeon, Dir., EPA OCR, to Lance R. LeFleur, Dir., ADEM (Jan. 25, 2013) (attached

15 hereto as Exhibit 24). The letter stated that the allegation that ADEM failed to require the use of

16 EPA’s siting factors “will be addressed in subsequent correspondence.” Id. at 13.

17

92. Upon information and belief, as of the date of the filing of this Complaint, ten years

18 after EPA accepted the Ashurst Bar/Smith Complaint for investigation, EPA has yet to issue

19 preliminary findings of its investigation into the remaining allegation asserted in the Ashurst

20 Bar/Smith Complaint.

21

93. EPA’s investigation into the Ashurst Bar/Smith Complaint has grossly exceeded 180

22 days as well as any reasonable period of time to conclude an investigation.

23

94. As a result of the permitting actions complained of in the Ashurst Bar/Smith

24 Complaint, the Stone’s Throw Landfill was reopened in the spring of 2002 and remains in operation.

25 Ashurst Bar/Smith Community members have suffered from the adverse effects of the landfill,

26 including the large amount of truck traffic to and from the landfill on residential roads, putrid smells

27 that on some days can travel up to three miles from the landfill, and vultures and other pests that are

28 attracted to the landfill. At the time of the filing of this Complaint, the Stone’s Throw Landfill

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

SECOND AMENDED COMPLAINT

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 21 of 28

1 continues to be in operation, and Ashurst Bar/Smith Community members continue to have

2 reasonable concerns that the facility is adversely affecting their community in Tallassee, Alabama.

3

* * *

4

95. In all of the above instances, EPA has failed to issue preliminary findings within 180

5 days of accepting the Title VI Complaint for investigation, as required by law.

6

96. Plaintiffs’ experiences with EPA’s lax enforcement of its statutory duty to investigate

7 these Title VI Complaints are “sadly and unfortunately, typical of those who appeal to OCR to

8 remedy civil rights violations,” in which OCR often “fail[s] to process a single complaint . . . in

9 accordance with its regulatory deadlines.” Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot.

10 Agency, 581 F.3d 1169, 1175 (9th Cir. 2009) (emphasis in original); see also Padres Hacia Una

11 Vida Mejor v. McCarthy, 614 F. App’x 895, 897 (9th Cir. 2015) (echoing the District Judge’s

12 finding that the EPA’s seventeen-year delay in processing a Title VI complaint was “simply

13 deplorable”).

14

97. In addition to the Plaintiffs’ five Title VI Complaints, OCR’s online docket indicates

15 that another twelve Title VI complaints were accepted or partially accepted between 1994 and 2014

16 but investigations into these complaints have not been completed. See Ex. 6.

17

98. OCR’s lax enforcement of Title VI extends to all facets of the Title VI process.

18 Indeed, on or about March 21, 2011, Deloitte Consulting LLP released a report that found that only

19 six percent of Title VI complaints filed between 1993 and 2010 were accepted or rejected in

20 accordance with EPA’s regulatory deadline of twenty days, see 40 C.F.R. § 7.120(d)(1)(i), and half

21 of these complaints took over one year to reach this stage. Deloitte Consulting LLP, Evaluation of

22 the EPA Office of Civil Rights 25 (2011) (attached hereto as Exhibit 25).

23

99. More recently, a report issued by the Center for Public Integrity, based on its review

24 of all Title VI complaints filed with EPA from 1996 to mid-2013, found that the agency’s delays in

25 processing and prosecuting complaints affected the disposition of claims and, particularly, that EPA

26 ultimately found allegations “‘moot’ precisely because of its own inaction.” Kristen Lombardi et al.,

27 Environmental Racism Persists, and the EPA is One Reason Why, Center For Public Integrity, Sept.

28 4, 2015, http://www.publicintegrity.org/2015/08/03/17668/environmental-racism-persists-and-epa-

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 22 of 28

1 one-reason-why (attached hereto as Exhibit 26); Yue Qiu & Talia Buford, Decades of Inaction,

2 Center For Public Integrity, Aug. 3, 2015,

3 http://www.publicintegrity.org/2015/08/03/17726/decades-inaction (attached hereto as Exhibit 27).

4

100. EPA has demonstrated a pattern and practice of unreasonable delay in investigating

5 Title VI complaints and issuing preliminary findings and recommendations within the mandated

6 time period.

7

FIRST CLAIM FOR RELIEF

8

Violation of the Administrative Procedure Act

9

(Failure to Issue Preliminary Findings; Prayer Center Complaint)

10

101. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

11 paragraphs.

12

102. EPA has a mandatory duty to issue preliminary findings and recommendations for

13 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

14 investigation. 40 C.F.R. § 7.115(c).

15

103. EPA has failed to issue preliminary findings in response to the Prayer Center

16 Complaint within 180 days of the EPA’s initiation of investigation.

17

104. EPA has failed to issue recommendations for voluntary compliance in response to the

18 Prayer Center Complaint within 180 days of the EPA’s initiation of investigation.

19

105. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

20 delayed contrary to and in violation of the APA. See 5 U.S.C. § 706(1).

21

106. EPA’s violation is continuous and ongoing. EPA will continue to violate the APA

22 until it complies with its duty to issue preliminary findings and recommendations for voluntary

23 compliance in response to the Prayer Center Complaint.

24

SECOND CLAIM FOR RELIEF

25

Violation of the Administrative Procedure Act

26

(Failure to Issue Preliminary Findings; CARE Complaint)

27

107. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

28 paragraphs.

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 23 of 28

1

108. EPA has a mandatory duty to issue preliminary findings and recommendations for

2 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

3 investigation. 40 C.F.R. § 7.115(c).

4

109. EPA has failed to issue preliminary findings in response to the CARE Complaint

5 within 180 days of EPA’s initiation of investigation.

6

110. EPA has failed to issue recommendations for voluntary compliance in response to the

7 CARE Complaint within 180 days of EPA’s initiation of investigation.

8

111. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

9 delayed contrary to and in violation of the APA. See 5 U.S.C. § 706(1).

10

112. EPA’s violation is continuous and ongoing. EPA will continue to violate the APA

11 until it complies with its duty to issue preliminary findings and recommendations for voluntary

12 compliance in response to the CARE Complaint.

13

THIRD CLAIM FOR RELIEF

14

Violation of the Administrative Procedure Act

15

(Failure to Issue Preliminary Findings; Sierra Club Complaint)

16

113. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

17 paragraphs.

18

114. EPA has a mandatory duty to issue preliminary findings and recommendations for

19 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

20 investigation. 40 C.F.R. § 7.115(c).

21

115. EPA has failed to issue preliminary findings in response to the Sierra Club Complaint

22 within 180 days of EPA’s initiation of investigation.

23

116. EPA has failed to issue recommendations for voluntary compliance in response to the

24 Sierra Club Complaint within 180 days of EPA’s initiation of investigation.

25

117. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

26 delayed contrary to and in violation of the APA. See 5 U.S.C. § 706(1).

27

28

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SECOND AMENDED COMPLAINT

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 24 of 28

1

118. EPA’s violation is continuous and ongoing. EPA will continue to violate the APA

2 until it complies with its duty to issue preliminary findings and recommendations for voluntary

3 compliance in response to the Sierra Club Complaint.

4

FOURTH CLAIM FOR RELIEF

5

Violation of the Administrative Procedure Act

6

(Failure to Issue Preliminary Findings; CARD Complaint)

7

119. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

8 paragraphs.

9

120. EPA has a mandatory duty to issue preliminary findings and recommendations for

10 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

11 investigation. 40 C.F.R. § 7.115(c).

12

121. EPA has failed to issue preliminary findings in response to the CARD Complaint

13 within 180 days of EPA’s initiation of investigation.

14

122. EPA has failed to issue recommendations for voluntary compliance in response to the

15 CARD Complaint within 180 days of EPA’s initiation of investigation.

16

123. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

17 delayed contrary to and in violation of the APA. See 5 U.S.C. § 706(1).

18

124. EPA’s violation is continuous and ongoing. EPA will continue to violate the APA

19 until it complies with its duty to issue preliminary findings and recommendations for voluntary

20 compliance in response to the CARD Complaint.

21

FIFTH CLAIM FOR RELIEF

22

Violation of the Administrative Procedure Act

23

(Failure to Issue Preliminary Findings; Ashurst Bar/Smith Complaint)

24

125. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

25 paragraphs.

26

126. EPA has a mandatory duty to issue preliminary findings and recommendations for

27 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

28 investigation. 40 C.F.R. § 7.115(c).

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 25 of 28

1

127. EPA has failed to issue preliminary findings in response to the remaining allegations

2 asserted in the Ashurst Bar/Smith Complaint within 180 days of EPA’s initiation of investigation.

3

128. EPA has failed to issue recommendations for voluntary compliance in response to the

4 remaining allegations asserted in the Ashurst Bar/Smith Complaint within 180 days of EPA’s

5 initiation of investigation.

6

129. EPA’s failure constitutes an agency action unlawfully withheld and unreasonably

7 delayed contrary to and in violation of the APA. See 5 U.S.C. § 706(1).

8

130. EPA’s violation is continuous and ongoing. EPA will continue to violate the APA

9 until it complies with its duty to issue preliminary findings and recommendations for voluntary

10 compliance in response to the Ashurst Bar/Smith Complaint.

11

SIXTH CLAIM FOR RELIEF

12

Violation of the Administrative Procedure Act

13

(Pattern and Practice of Failing to Issue Preliminary Findings)

14

131. Plaintiffs hereby reallege and incorporate by reference all allegations in the preceding

15 paragraphs.

16

132. EPA has a mandatory duty to issue preliminary findings and recommendations for

17 voluntary compliance, if any, within 180 days of acceptance of a Title VI complaint for

18 investigation. 40 C.F.R. § 7.115(c).

19

133. EPA has failed to issue preliminary findings in response to allegations asserted in the

20 Title VI Complaints filed by the Prayer Center, CARE, Sierra Club, CARD, the Ashurst Bar/Smith

21 Community Organization, and other complainants within 180 days of EPA’s initiation of

22 investigation.

23

134. EPA has failed to issue recommendations for voluntary compliance in response to

24 Title VI Complaints filed by the Prayer Center, CARE, Sierra Club, CARD, the Ashurst Bar/Smith

25 Community Organization, and other complainants within 180 days of EPA’s initiation of

26 investigation.

27

135. EPA’s failure to investigate Title VI complaints and issue preliminary findings and

28 recommendations within the mandated time period constitutes a pattern and practice of agency

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

SECOND AMENDED COMPLAINT

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 26 of 28

1 action unlawfully withheld and unreasonably delayed contrary to and in violation of the APA. See 5

2 U.S.C. § 706(1).

3

PRAYER FOR RELIEF

4

WHEREFORE, Plaintiffs respectfully request that this Court:

5

(a) Declare that EPA’s failure to meet its mandatory duty and comply with the deadline

6 set forth in 40 C.F.R. § 7.115, requiring the EPA to issue preliminary findings and recommendations

7 for voluntary compliance within 180 days of initiating its investigation into a Title VI complaint,

8 constitutes agency action unlawfully withheld and unreasonably delayed under the APA with respect

9 to each of Plaintiffs’ Title VI Complaints;

10

(b) Declare that EPA’s failure to meet its mandatory duty and comply with the deadline

11 set forth in 40 C.F.R. § 7.115, requiring the EPA to issue preliminary findings and recommendations

12 for voluntary compliance within 180 days of initiating its investigation into a Title VI complaint,

13 constitutes a pattern or practice of agency action unlawfully withheld and unreasonably delayed

14 under the APA;

15

(c) Issue an injunction compelling EPA to issue preliminary findings and

16 recommendations for voluntary compliance for the investigations into each of Plaintiffs’ Title VI

17 Complaints within ninety (90) days of this Court’s order, compelling EPA to complete the complaint

18 investigation procedures set forth in 40 C.F.R. part 7 in response to each of Plaintiffs’ Title VI

19 Complaints in compliance with the timelines set forth in those regulations and provide reports on the

20 status of the investigations to the Court every thirty (30) days after the Court’s order;

21

(d) Award Plaintiffs their costs of litigation, including reasonable attorney and expert

22 witness fees, pursuant to 28 U.S.C. § 2412(b); and

23

(e) Grant Plaintiffs such further and additional relief as the Court may deem just, proper,

24 and equitable.

25

26

27

28

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

SECOND AMENDED COMPLAINT

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 27 of 28

1 DATED: January 19, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
/s/ Suzanne Novak
SUZANNE NOVAK* New York Registration No. 292574 JONATHAN SMITH California State Bar No. 286941 Earthjustice 48 Wall Street, 19th Floor New York, NY 10005 snovak@earthjustice.org jjsmith@earthjustice.org Tel: 212-845-4981/Fax: 212-918-1556
MARIANNE L. ENGELMAN LADO* New York Registration No. 2212579 Yale Law School 127 Wall Street New Haven, CT 06511 marianne.engelman-lado@ylsclinics.org Tel: (203) 432-2184
HEATHER M. LEWIS State Bar No. 291933 Earthjustice 50 California Street San Francisco, CA 94111 hlewis@earthjustice.org Tel: 415-217-2000/Fax: 415-217-2040
* Admitted pro hac vice
Counsel for CAlifornians for Renewable Energy, Citizens for Alternatives to Radioactive Dumping, Ashurst/Bar Smith Community Organization, Saint Francis Prayer Center, Sierra Club, and Michael Boyd

CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA

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Case 4:15-cv-03292-SBA Document 90 Filed 01/19/17 Page 28 of 28

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 19th day of January, 2017, I electronically transmitted the

3 foregoing Second Amended Complaint with exhibits to the Clerk of Court using the ECF system for

4 filing, which will send notification of such filing to all listed counsel of record.

5

6

/s/ Suzanne Novak

SUZANNE NOVAK

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CAlifornians for Renewable Energy et al. v. EPA et al., No. 4:15-cv-03292-SBA SECOND AMENDED COMPLAINT

 
 Case 4:15-cv-03292-SBA Document 114 Filed 03/30/18 Page 1 of 40

1

2
UNITED STATES DISTRICT COURT
3
FOR THE NORTHERN DISTRICT OF CALIFORNIA
4
OAKLAND DIVISION
5

6 CALIFORNIANS FOR RENEWABLE ENERGY, ASHURST BAR/SMITH
7 COMMUNITY ORGANIZATION, CITIZENS FOR ALTERNATIVES TO
8 RADIOACTIVE DUMPING, SAINT FRANCIS PRAYER CENTER, SIERRA
9 CLUB, and MICHAEL BOYD,

10

Plaintiffs,

11

vs.

Case No: C 15-3292 SBA
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; AND DENYING DEFENDANTS’ RULE 12 MOTION TO DISMISS AND GRANTING ALTERNATIVE MOTION FOR SUMMARY JUDGMENT AS TO THE SIXTH CLAIM FOR RELIEF

12 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and SCOTT
13 PRUITT, Administrator of the U.S. Environmental Protection Agency, in his
14 official capacity,

Dkt. 93, 98, 108

15

Defendants.

16

17

Plaintiffs CAlifornians for Renewable Energy (“CARE”), Ashurst/Bar Smith

18 Community Organization (“ABSCO”), Citizens for Alternatives to Radioactive Dumping

19 (“CARD”), Saint Francis Prayer Center (“Prayer Center”) and Sierra Club are public

20 interest organizations located throughout the country that represent the interests of their

21 members and constituents, who reside in predominately non-white communities. Plaintiff

22 Michael Boyd (“Boyd”) is the President of CARE.

23

Between 1992 and 2003, the aforementioned organizations, including Boyd,

24 separately filed a total of five administrative complaints with the Environmental Protection

25 Agency (“EPA”), pursuant to Title VI of the Civil Rights Act of 1964 (“Title VI”). Those

26 complaints alleged that decisions by state and local agencies to grant permits approving the

27 operation of environmentally hazardous facilities (i.e., power plants, a refinery, a hazardous

28 waste facility and a landfill) in minority communities violate Title VI’s prohibition against

Case 4:15-cv-03292-SBA Document 114 Filed 03/30/18 Page 2 of 40

1 discrimination by recipients of public funds.

2

The EPA accepted each of the five complaints submitted by Plaintiffs for

3 investigation, the earliest case accepted in 1995 and the most recent being accepted in 2005.

4 Under governing regulations, the EPA had 180 days from accepting each complaint to issue

5 preliminary findings and any recommendations, if appropriate. Yet, as of the filing of this

6 action, the EPA had not issued preliminary findings or otherwise resolved any of Plaintiffs’

7 complaints. As a result of the EPA’s failure to act, Plaintiffs filed the instant action against

8 the EPA and its Administrator, Scott Pruitt (collectively “the EPA”), pursuant to the

9 Administrative Procedures Act (“APA”), 5 U.S.C. § 701, et seq. The Second Amended

10 Complaint (“SAC”), the operative pleading before the Court, avers that the EPA violated its

11 mandatory duty under 40 C.F.R. § 7.115 to issue preliminary findings and any

12 recommendations for achieving compliance within 180 days of accepting a Title VI

13 administrative complaint for investigation. Plaintiffs seek an order to “compel agency

14 action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1).

15

The parties are presently before the Court on (1) the EPA’s Motion to Dismiss and,

16 in the Alternative, Rule 56 Motion for Summary Judgment on All Claims, and

17 (2) Plaintiffs’ Motion for Summary Judgment. Dkt. 93, 98. Having read and considered

18 the papers filed in connection with this matter and being fully informed, the Court hereby:

19 DENIES the EPA’s motion to dismiss; GRANTS the EPA’s motion for summary judgment

20 as to Claim Six of the SAC; GRANTS Plaintiffs’ motion for summary judgment as to

21 Claims One through Five of the SAC; and DENIES Plaintiffs’ motion as to Claim Six.1

22 I. BACKGROUND

23

A. LEGAL OVERVIEW

24

Title VI prohibits a recipient of federal funds from discriminating based on race,

25 color, or national origin. 42 U.S.C. § 2000d. To implement Title VI, Congress directed

26 each federal agency to adopt regulations to effectuate Title VI. 42 U.S.C. § 2000d-1. In

27
1 The Court, in its discretion, finds this matter suitable for resolution without oral
28 argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

- 2 -

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1 the case of the EPA, its regulations specify that any “person who believes that he or she or

2 a specific class of persons has been discriminated against in violation of this part may file a

3 complaint” with the EPA’s Office of Civil Rights (“OCR”).2 40 C.F.R. § 7.120(a). Title

4 VI regulations may be enforced by the agency only, as they do not create a private right of

5 action. Alexander v. Choate, 469 U.S. 287, 293 (1985).

6

Section 7.120, which is entitled “Complaint Investigations,” provides that “[t]he

7 OCR shall promptly investigate all complaints filed under this section unless the

8 complainant and the party complained against agree to a delay pending settlement

9 negotiations.” Within twenty days of receiving the complaint, “the OCR will review the

10 complaint for acceptance, rejection, or referral to the appropriate Federal agency.” Id.

11 § 7.120(d)(1)(i). If the complaint is accepted, OCR must notify the complainant and the

12 accused party. Id. § 7.120(d)(1)(ii). The recipient thereafter has thirty days to respond to

13 the complaint. Id. § 7.120(d)(1)(iii). “OCR shall attempt to resolve complaints informally

14 whenever possible. When a complaint cannot be resolved informally, OCR shall follow the

15 procedures established by paragraphs (c) through (e) of § 7.115.” Id. § 7.120(d)(2)(i).

16

Section 7.115(c) specifies that within 180 days of the start of the investigation, “the

17 OCR will notify the recipient ... of: (i) Preliminary findings; (ii) Recommendations, if any,

18 for achieving voluntary compliance; and (iii) Recipient’s right to engage in voluntary

19 compliance negotiations where appropriate.” Id. § 7.115(c). If the investigation reveals no

20 violation, the OCR “will dismiss the complaint and notify the complainant and recipient.”

21 Id. § 7.120(g).

22

In cases where there is a preliminary finding of non-compliance, the recipient may

23 either (1) agree with the OCR’s recommendations or (2) submit a written response

24 disputing the correctness of the preliminary findings or that compliance may be achieved

25 through steps other than those recommended by the OCR. Id. § 7.115(d). If the recipient

26 does not pursue one of these actions within fifty days of receiving the preliminary findings,

27
2 As of December 2016, the OCR is now known as the External Civil Rights
28 Compliance Office.

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Case 4:15-cv-03292-SBA Document 114 Filed 03/30/18 Page 4 of 40

1 the OCR must issue a formal written determination of noncompliance to the recipient and

2 notify the Assistant Attorney General for the United States Department of Justice’s Civil

3 Rights Division within fourteen days thereafter. Id. §§ 7.115(d), 7.25.

4

“The recipient will have ten (10) calendar days from receipt of the formal

5 determination of noncompliance in which to come into voluntary compliance. Id.

6 § 7.115(e). If the recipient fails to meet this deadline, the OCR must start proceedings

7 under paragraph (b) of § 7.130,” id. § 7.115(e), to “deny, annul, suspend or terminate EPA

8 assistance,” id. § 7.130(b). Upon notice of a formal determination of noncompliance, the

9 recipient has ten calendar days to achieve voluntary compliance. Id. § 7.115(e).

10

B. THE PARTIES AND THEIR RESPECTIVE ADMINISTRATIVE COMPLAINTS

11

1. CARE and Boyd

12

Plaintiff CARE is a California non-profit corporation formed in 1999 which

13 disseminates information and takes legal action to promote renewable energy sources,

14 among other activities. SAC ¶ 8, Dkt. 90. Plaintiff Boyd is the President of CARE. Id.

15 ¶ 9.

16

On or about April 17, 2000, Boyd filed an administrative complaint with the EPA to

17 challenge the permitting process and ultimate permitting decisions by the Bay Area Air

18 Quality Management District (“BAAQMD”), the California Air Resources Board

19 (“CARB”), and the California Energy Commission (“CEC”), relating to two gas-fired

20 power plants (i.e., the Los Medanos Energy Center and Delta Energy Center). Id. ¶¶ 10,

21 52. The complaint alleges that those decisions violate Title VI because both plants are

22 located in the predominantly non-white and low-income community of Pittsburg,

23 California. Id. ¶¶ 10, 53. The EPA accepted the complaint for investigation in December

24 2001 as to BAAQMD and CARB. Id. ¶ 55.

25

2. Sierra Club

26

Plaintiff Sierra Club is a California nonprofit public benefit corporation whose

27 mission is to promote environmental concerns. Id. ¶ 22. The Sierra Club Lone Star

28 Chapter is the Texas Chapter of the Sierra Club and is not separately incorporated. Id. ¶ 23.

- 4 -

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1 The chapter has 22,000 members and is dedicated to protecting Texas’ various natural

2 resources. Id.

3

On or about April 13, 2000, the Sierra Club Lone Star Chapter filed an

4 administrative complaint with the EPA, which accepted the complaint for investigation in

5 June 2003. Id. ¶¶ 24, 62-65 & Ex. 10. The complaint alleges discrimination on the basis of

6 race and color in connection with a permit amendment issued by the Texas Commission on

7 Environmental Quality (“TCEQ”) to an ExxonMobil refinery operation in Beaumont,

8 Texas. Id. ¶¶ 62-64.

9

3. Citizens for Alternatives to Radioactive Dumping

10

Plaintiff Citizens for Alternatives to Radioactive Dumping (“CARD”) is a nonprofit

11 organization founded in 1978 and based in Albuquerque, New Mexico. Id. ¶ 16. CARD’s

12 mission is to address environmental injustices negatively affecting low-income and

13 underserved communities of color in New Mexico. Id.

14

On or about September 12, 2002, CARD filed an administrative complaint with the

15 EPA concerning the permitting process and ultimate decision by the New Mexico

16 Environment Department (“NMED”) to permit the Triassic Park hazardous waste facility in

17 Chaves County in southeastern New Mexico, an area with a high percentage of people

18 living in poverty and Hispanic residents. Id. ¶ 71. EPA accepted the complaint against

19 NMED for investigation on or about June 27, 2005. Id. ¶ 74.

20

4. Ashurst Bar/Smith Community Organization

21

Plaintiff Ashurst Bar/Smith Community Organization (“ABSCO”) is headquartered

22 in Tallassee, Alabama. Id. ¶ 12. ABSCO strives for positive change and a better quality of

23 life for residents of the Ashurst Bar/Smith Community, an unincorporated area located in

24 the southernmost tip of Tallapoosa County, Alabama. Id.

25

On or about December 15, 2003, an individual on behalf of ABSCO filed an

26 administrative complaint with the EPA to challenge the Alabama Department of

27 Environmental Management’s (“ADEM”) decision to permit the Stone’s Throw Landfill in

28

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1 Tallapoosa County, Alabama. Id. ¶¶ 12, 82-85. The EPA accepted the complaint for

2 investigation in September 2005. Id. ¶¶ 82, 87.

3

5. Prayer Center

4

The Prayer Center is a Michigan nonprofit organization that serves people of all

5 backgrounds and helps to meet the needs of disadvantaged communities. Id. ¶ 19. On or

6 about December 15, 1992, the Prayer Center filed an administrative complaint with the

7 EPA. The complaint challenges the siting decision, permitting process, and ultimate

8 decision to permit a wood-incinerator power station in a location adjacent to a

9 predominantly African American and low-income community in Flint, Michigan. The EPA

10 accepted the complaint for investigation on or about January 31, 1995. Id. ¶¶ 20, 43, 45.

11

C. PROCEDURAL HISTORY

12

1. Pleadings

13

On July 15, 2015, Plaintiffs filed a Complaint in this Court asserting six claims for

14 relief against Defendants under the APA. Dkt. 1. The First through Fifth Claims sought

15 relief based on the EPA’s failure to comply with § 7.115(c)’s directive to issue preliminary

16 findings in response to Plaintiffs’ respective complaints within 180 days of accepting each

17 complaint for investigation.3 The Sixth Claim alleged that EPA has engaged in a “pattern

18 and practice” of withholding and unreasonably delaying agency action. Upon stipulation of

19 the parties, Plaintiffs filed a First Amended Complaint on January 7, 2016, which alleged

20 the same claims. Dkt. 34. The parties engaged in extensive settlement discussions, which

21 were ultimately unsuccessful.

22

In October 2016, Plaintiffs filed a Motion for Leave to File Second Amended

23 Complaint. Dkt. 78. Plaintiffs proposed adding a Seventh Claim based on the EPA’s

24 dismissal of the CARE Complaint on June 6, 2016 (see discussion infra), which they

25
3 Claim One is based on the Prayer Center complaint; Claim Two is based on the 26 CARE complaint; Claim Three is based on the Sierra Club complaint; Claim Four is based
on the CARD complaint; and Claim Five is based on the ABSCO complaint. Claim Six 27 alleges that the EPA’s pattern and practice of failing to act in accordance with § 7.115 is
illustrated by its failure to timely issue preliminary findings on the foregoing administrative 28 complaints.

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1 alleged “was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

2 with law.” Proposed SAC ¶ 162, Dkt. 78-3. The Court denied the request on futility

3 grounds, finding that Plaintiffs were improperly attempting to challenge both the scope of

4 the OCR’s investigation as well its disposition of CARE’s complaints, which are not

5 reviewable. Dkt. 86 at 9. The Court also sua sponte declined to allow Plaintiffs to include

6 an additional request in the prayer for relief to “[i]ssue an injunction against the EPA to

7 comply with the timelines set forth in 40 C.F.R. part 7 for all future Title VI complaints

8 filed by the named Plaintiffs.” Proposed SAC, Prayer, ¶ (d). The Court reasoned that

9 Plaintiffs had failed to demonstrate standing to seek such relief. Nonetheless, the Court

10 permitted Plaintiffs to file a SAC to add allegations clarifying the corporate form of

11 Plaintiff Sierra Club. Dkt. 86 at 11. Plaintiffs timely filed a SAC on January 19, 2017.

12 Dkt. 90.

13

2. Post-Lawsuit Resolution of Plaintiffs’ EPA Complaints

14

At the commencement of this lawsuit on July 15, 2015, none of the Plaintiffs’ five

15 Title VI complaints has been resolved by the OCR. All complaints were resolved during

16 the pendency of this lawsuit, however.

17

On June 6, 2016, the EPA separately notified BAAQMD as well as CARE and Boyd

18 that it was closing the CARE/Boyd complaint, having had found “insufficient evidence of

19 current non-compliance with Title VI or [the] EPA’s Title VI regulation.” Defs.’ Mot. Ex.

20 A at 1, Dkt. 93-1; id. Ex. B, Dkt. 93-2. The eight-page letter includes findings that there is

21 no evidence of current non-compliance in light of various changes and commitments made

22 by BAAQMD and CARB regarding their programs and activities over the course of the last

23 several years. Id. at 1-6.

24

On January 19, 2017, the EPA resolved the complaint filed by CARD by entering

25 into an Informal Resolution Agreement with NMED. Id. Ex. C.

26

On January 19, 2017, the EPA resolved and closed the complaint filed by Prayer

27 Center. Id. Ex. D, Dkt. 93-4. In its thirty-five-page letter addressed to the Michigan

28

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1 Department of Environmental Quality, the EPA made “findings with respect to the original

2 issues raised in [the Prayer Center] complaint.” Id. at 3.

3

On May 23, 2017, the EPA resolved the Sierra Club Lone Star Chapter’s complaint

4 by entering into an Informal Resolution Agreement with the TCEQ. Defs.’ Not. of

5 Resolution of Title VI Compl., Dkt. 106; Smith Decl. Ex. A at 1, Dkt. 107-1.4

6

On April 28, 2017, the EPA resolved and closed the ABSCO complaint upon finding

7 insufficient evidence to conclude that ADEM violated Title VI and EPA’s

8 nondiscrimination regulationS in regard to the permit modification at issue. See Defs.’ Not.

9 of Resolution of Title VI Compl. at 1 & Ex. A, Dkt. 101, 101-1. The sixteen-page letter

10 addressed to ADEM made specific findings based on the allegation in the ABSCO

11 complaint. Id.

12

3. Pending Motions

13

The EPA styles its motion as a Motion to Dismiss and, in the Alternative, Rule 56

14 Motion for Summary Judgment on All Claims. Dkt. 93. The EPA seeks to dismiss

15 Plaintiff claims based on mootness, lack of venue and lack of Article III standing. The

16 EPA also seeks partial summary judgment as to Plaintiffs’ sixth “pattern and practice”

17 claim on the ground that it is not legally cognizable and is duplicative of the other claims.

18 Plaintiffs dispute these contentions and separately moves for summary judgment on all of

19 their claims.

20 II. THE EPA’S MOTION TO DISMISS

21

The EPA’s motion to dismiss raises issues of venue, constitutional standing and

22 mootness. Venue and standing are threshold issues which the Court will address first. See

23 Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007). For

24

25
4 Plaintiffs move to strike the EPA’s Request for Judicial Notice, including the 26 attached copy of the Informal Resolution Agreement, on the ground that the EPA failed to
seek prior leave to file the request, as required by Local Rule 7-3(d). However, Plaintiffs 27 themselves submitted the same document and information. Dkt. 107. In addition, Plaintiffs
did not meet and confer with the EPA prior to filing their motion to strike. Therefore, 28 Plaintiffs’ motion to strike is denied.

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1 organizational clarity, the question of whether Plaintiffs’ claims are moot will be addressed

2 in the section of this Order addressing the parties’ summary judgment motions.

3

A. VENUE

4

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss a

5 case for improper venue. Once venue is challenged, the plaintiff bears the burden of

6 demonstrating that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598

7 F.2d 491, 496 (9th Cir. 1979). In assessing a Rule 12(b)(3) motion, a court may consider

8 facts outside of the pleadings, but must draw all reasonable inferences and resolve all

9 factual conflicts in favor of the non-moving party. Murphy v. Schneider Nat’l, Inc., 362

10 F.3d 1133, 1138 (9th Cir. 2004).

11

The question of “whether venue is ‘wrong’ or ‘improper’—is generally governed by

12 28 U.S.C. § 1391.” Atlantic Marine Constr. Co., Inc. v. United States Dist. Ct. for the W.

13 Dist. of Tex., 134 S. Ct. 568, 577 (2013). In cases brought against agencies, officers, or

14 employees, of the United States, venue is proper “in any judicial district in which (A) a

15 defendant in the action resides, (B) a substantial part of the events or omissions giving rise

16 to the claim occurred, or a substantial part of property that is the subject of the action is

17 situated, or (C) the plaintiff resides if no real property is involved in the action.” 28 U.S.C.

18 § 1391(e)(1). If the case falls within one of these three categories, venue is proper. See

19 Atlantic Marine Constr., 134 S. Ct. at 577. “[I]f it does not, venue is improper, and the case

20 must be dismissed or transferred under § 1406(a).” Id.; King v. Russell, 963 F.2d 1301,

21 1304 (9th Cir. 1992).

22

The EPA concedes that venue is proper as to the claims of CARE, Boyd and the

23 Sierra Club, as they reside in this District. As for the remaining Plaintiffs, the EPA

24 contends that their claims should be dismissed for lack of venue. Defs.’ Mot. at 6. The

25 Court disagrees. For purposes of § 1391(e)(1)(C), the clear weight of federal authority

26 holds that venue is proper in a multi-plaintiff case if any plaintiff resides in the District.

27 In Exxon Corp. v. Fed. Trade Commission, 588 F.2d 895 (3rd Cir. 1978), the Third Circuit

28

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1 concluded that the reference to “the plaintiff” in § 1391(e)(1)(C) means “any plaintiff,” as

2 opposed to “all plaintiffs.” Id. at 898-99. In reaching its decision, the court explained:

3

[R]equiring every plaintiff in an action against the federal

government or an agent thereof to independently meet section

4

1391(e)’s standards would result in an unnecessary multiplicity

of litigation. The language of the statute itself mandates no

5

such narrow construction. There is no requirement that all

plaintiffs reside in the forum district.

6

7 Id. Citing Exxon, the Sixth Circuit reached the same conclusion. Sidney Coal Co., Inc. v.

8 Soc. Sec. Admin., 427 F.3d 336, 343-46 (6th Cir. 2005). The Sidney court added that

9 requiring each plaintiff to reside in the district for venue purposes would undermine the

10 intent underlying § 1391(e), which is to ease the burden on plaintiffs attempting to bring

11 suit against the federal government. Id. at 344-45. Notably, the court pointed out that such

12 an interpretation of the venue statute “is the only view adopted by the federal courts since

13 1971.” Id. at 345.

14

The Ninth Circuit has not directly addressed the issue of whether venue in a multi-

15 plaintiff case brought against the government may be predicated on the residence of any

16 one of the plaintiffs. See F.L.B. v. Lynch, 180 F. Supp. 3d 811, 815 (W.D. Wash. 2016).

17 This Circuit, however, has cited Exxon with approval and assumed without deciding that

18 the venue may be established based solely on the residence of any plaintiff. Railway Labor

19 Executives’ Ass’n v. I.C.C., 958 F.2d 252, 256 (9th Cir. 1991) (referencing a previous

20 codification of 28 U.S.C. § 1391(e)(3)). District courts within this Circuit, however, have

21 expressly followed Exxon. F.L.B., 180 F. Supp. 3d at 815 (finding that venue was proper

22 where the plaintiff resided within the district, and that the joinder of additional plaintiffs

23 who resided outside the forum would not destroy venue); Matsuo v. United States, 416 F.

24 Supp. 2d 982, 997 (D. Haw. 2006) (“With respect to the third prong, in a multi-plaintiff

25 suit, only one plaintiff must reside in the district for venue to be proper as to all

26 plaintiffs.”).

27

For its part, the EPA neither addresses the foregoing authority in any meaningful

28 manner nor cites any cases to support its erroneous assertion that all plaintiffs must reside

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1 in the forum district in order to establish venue. Instead, the EPA emphasizes that

2 “[l]itigants with unrelated claims should not be permitted to dispense with venue

3 requirements simply by joining a lawsuit brought against a single, common defendant.”

4 Defs.’ Reply at 16. The flaw in the EPA’s argument is that it ignores the plain language of

5 the venue statute. Section 1391(e) specifies three distinct grounds for establishing venue,

6 one of which being the residence of any plaintiff. See Atlantic Marine, 134 S.Ct. at 577.

7 Thus, the fact that three of the Plaintiffs reside in this District is, standing alone, sufficient

8 to establish that venue is proper—irrespective of whether their claims and claims of the

9 remaining Plaintiffs are related.5 The Court therefore denies the EPA’s motion to dismiss

10 for lack of venue.

11

B. STANDING

12

1. Overview

13

The EPA next argues that all of Plaintiffs’ claims must be dismissed for lack of

14 Article III standing. Defs.’ Mot. at 12. “Standing to sue is a doctrine rooted in the

15 traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct.

16 1540, 1547 (2016); Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009).

17 Because standing is a necessary component to the Court’s subject matter jurisdiction, a

18 standing challenge is “properly raised in a motion to dismiss under Federal Rule of Civil

19 Procedure 12(b)(1).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Rule 12(b)(1)

20 jurisdictional attacks can be either facial or factual.” Id. In a facial attack, such as the one

21 presented by the EPA, “both the trial and reviewing courts must accept as true all material

22 allegations of the complaint and must construe the complaint in favor of the complaining

23 party.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Warth v.

24
5 To the extent that the EPA took issue with the joinder of Plaintiffs’ claims, it could 25 have moved to sever the claims pursuant to Federal Rule of Civil Procedure 20, see
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296 (9th Cir. 2000), and sought their transfer 26 to another district in the “interests of justice” under 28 U.S.C. § 1404, see Ctr. for Envtl.
Law & Policy v. United States Bureau of Reclamation, No. C08-1730RAJ, 2009 WL 27 10668581, at *5 (W.D. Wash. May 12, 2009) (noting that “[i]t is not uncommon to transfer
environmental cases to the district where the events giving rise to the action took place, 28 given the localized interest in the subject matter.”). The EPA did not seek such relief.

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1 Seldin, 422 U.S. 490, 501 (1975)). In addition, “[g]eneral allegations” of injury may

2 suffice. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “Standing is

3 determined as of the commencement of litigation.” Biodiversity Legal Found. v. Badgley,

4 309 F.3d 1166, 1170 (9th Cir. 2002).

5

When presented with a jurisdictional attack, the plaintiff has the burden of

6 establishing subject matter jurisdiction. See In re Wilshire Courtyard, 729 F.3d 1279, 1284

7 (9th Cir. 2013). Plaintiffs must satisfy three elements to show Article III standing:

8 (1) “injury in fact—an invasion of a legally protected interest which is (a) concrete and

9 particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) causation—

10 “there must be a causal connection between the injury and the conduct complained of—the

11 injury has to be fairly traceable to the challenged action of the defendant, and not the result

12 of the independent action of some third party not before the court”; and (3) redressability—

13 “it must be likely, as opposed to merely speculative, that the injury will be redressed by a

14 favorable decision.” Lujan, 504 U.S. at 560-61 (internal quotation marks, alterations, and

15 citations omitted). “Standing is determined as of the commencement of litigation.”

16 Badgley, 309 F.3d at 1170.

17

2. Contentions

18

The EPA first challenges Plaintiffs’ ability to demonstrate causation, arguing that

19 “[their] alleged injuries [are caused] by state and local agencies and facility operators who

20 are not before the Court.” Defs.’ Mot. at 13. This argument appears to be grounded on

21 Lujan’s requirement that the alleged injury must be “‘fairly traceable’” to the defendant,

22 and not the result of the “‘independent action of some third party not before the court.’”

23 504 U.S. at 560-61 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42

24 (1976)). The EPA further argues that compelling the agency to make preliminary findings

25 in accordance with § 7.115 would not necessarily redress the impacts of those third-party

26 activities because the EPA may, in fact, find no violation of Title VI. Defs.’ Mot. at 14-15.

27 Plaintiffs counter that the EPA’s focus on third parties is a red herring because this lawsuit

28 does not directly challenge any third party activities. Pls.’ Mot. at 28. Rather, according to

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1 Plaintiffs, “the EPA’s inaction … has caused each of them a procedural injury.” Id.

2 (emphasis added).

3

The first prong of Lujan’s test for standing—injury in fact—may be alleged as a

4 “procedural” injury or a “substantive” injury. See City of Sausalito v. O’Neill, 386 F.3d

5 1186, 1197 (9th Cir. 2004). Procedural injury results from the violation of a statute or

6 regulation that guarantees a particular procedure. West v. Sec’y of Dep’t of Transp., 206

7 F.3d 920, 930 n.14 (9th Cir. 2000). In contrast, a substantive injury results from the

8 violation of a statute or regulation that guarantees a particular result. Id. The type of injury

9 alleged is significant because “[a] showing of procedural injury lessens a plaintiff’s burden

10 on the last two prongs of the Article III standing inquiry, causation and redressability.”

11 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir. 2008).

12 “To establish a procedural ‘injury in fact, [a plaintiff] must allege ... that (1) the [agency]

13 violated certain procedural rules; (2) these rules protect [a plaintiff’s] concrete interests;

14 and (3) it is reasonably probable that the challenged action will threaten their concrete

15 interests.’” San Luis & Delta-Mendota Water Auth. v. Haugrud (“Haugrud”), 848 F.3d

16 1216, 1232 (9th Cir. 2017) (alterations in original, citations omitted).

17

In its reply, the EPA attacks Plaintiffs’ claim of procedural injury principally on two

18 grounds, neither of which is compelling. First, the EPA accuses Plaintiffs of improperly

19 attempting to amend the pleadings by recasting their injury as a procedural one. Defs.’

20 Reply at 2-3.6 In support of their assertion that the pleadings only allege a substantive

21 injury, the EPA cites snippets of the SAC which allege that Plaintiffs are suffering adverse

22 consequences “caused by the facilities at issue to their ‘aesthetic, recreational, economic,

23 health, or other interests.’” Defs.’ Reply at 3 (quoting SAC ¶¶ 11, 15, 18, 21, 25, 51, 61,

24

25

6 Even if Plaintiffs were seeking alter their theory of injury, which they are not, the

Court may deem the pleadings to be amended accordingly. See Apache Survival Coalition

26 v. United States, 21 F.3d 895, 910 (9th Cir. 1994) (“[W]hen issues are raised in opposition

to a motion for summary judgment that are outside the scope of the complaint, the district

27 court should … construe[] the matter raised as a request pursuant to rule 15(b) of the

Federal Rules of Civil Procedure to amend the pleadings out of time.”) (internal brackets

28 and quotation marks omitted).

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1 70, 81, 94). This argument reflects a misapprehension of procedural injury. As the EPA

2 should be aware, standing is not established merely by asserting that a procedural right has

3 been abridged. See Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly

4 held that an asserted right to have the Government act in accordance with law is not

5 sufficient, standing alone, to confer jurisdiction on a federal court.”), overruled on other

6 grounds in Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014).

7 Rather, plaintiffs must seek “to enforce a procedural requirement the disregard of which

8 could impair a separate concrete interest of theirs….” Lujan, 504 U.S. at 572 & n.7. A

9 concrete interest may be shown by geographical proximity to the area potentially impacted

10 by the agency’s lack of review. City of Davis v. Coleman, 521 F.2d 661, 670-71 (9th Cir.

11 1975) (“The procedural injury implicit in agency failure to prepare an [Environmental

12 Impact Statement]—the creation of a risk that serious environmental impact will be

13 overlooked—is itself a sufficient ‘injury in fact’ to support standing, provided this injury is

14 alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged

15 project.”).

16

In the instant case, the pleadings confirm that Plaintiffs are alleging a procedural

17 injury, and are not, as the EPA claims, inappropriately attempting to “refashion” their

18 injury to avoid dismissal. The gravamen of Plaintiffs’ claims is that the EPA failed to issue

19 mandatory preliminary findings within 180 days of accepting their respective complaints

20 for investigation, as required by 40 C.F.R. § 7.115. E.g., SAC ¶ 2, 40, 41. The pleadings

21 specifically allege that “Plaintiffs have a concrete interest in an efficient resolution of the

22 discriminatory practices and policies complained of in those complaints.” Id. ¶ 26. Since

23 Plaintiffs cannot rely entirely on the EPA’s violation of their procedural obligations to

24 establish procedural injury, the pleadings further aver that Plaintiffs are among those

25 injured by the EPA’s failure to comply with its procedural obligations; to wit, Plaintiffs’

26 members reside in areas impacted by the permitted activities. SAC ¶¶ 11, 15, 18, 21, 25.

27 Thus, it is clear that Plaintiffs are not attempting to transmute a substantive injury into a

28 procedural one. To the contrary, Plaintiffs have alleged facts necessary to establish a

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1 procedural injury. See Lujan, 504 U.S. at 572 & n.7 (noting that “one living adjacent to the

2 site for proposed construction of a federally licensed dam has standing to challenge the

3 licensing agency’s failure to prepare an environmental impact statement, even though he

4 cannot establish with any certainty that the statement will cause the license to be withheld

5 or altered, and even though the dam will not be completed for many years.”).

6

The EPA next argues that, to the extent that Plaintiffs are relying on a procedural

7 injury, there is no guarantee that the outcome of its investigation will result in a favorable

8 finding for Plaintiffs or that the relief afforded will redress their injuries. Mot. at 14; Reply

9 at 3. This contention likewise lacks merit. For purposes of procedural injury, Plaintiffs are

10 not required to demonstrate that the EPA’s procedural compliance would have ultimately

11 afforded them relief on their complaints. Rather, “a litigant need only demonstrate that he

12 has a procedural right that, if exercised, could protect his concrete interests and that those

13 interests fall within the zone of interests protected by the statute at issue.” Cottonwood

14 Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1082-83 (9th Cir. 2015) (quoting

15 Natural Res. Def. Council v. Jewell, 749 F.3d 776, 783 (9th Cir. 2014) (en banc)). To that

16 end, Plaintiffs have alleged that an actual investigation by the EPA into their administrative

17 complaints could result in relief from the underlying permitting decisions, which are

18 alleged to have resulted in deleterious discriminatory and environmental impacts on

19 minority populations. See, e.g., SAC ¶¶ 2, 13, 17, 20, 24, 42. These allegations are

20 sufficient for purposes of demonstrating procedural injury. see, e.g., Salmon Spawning &

21 Recovery All. v. Gutierrez, 545 F.3d 1220, 1229 (9th Cir. 2008) (“[U]ncertain[ty about]

22 whether reinitiation will ultimately benefit the groups (for example, by resulting in a

23 ‘jeopardy’ determination) does not undermine [the plaintiffs’] standing.”); Cottonwood,

24 789 F.3d at 1083 (“Cottonwood need not show that reinitiation of Section 7 consultation

25 would lead to a different result at either the programmatic or project-specific level.”); City

26 of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (“[W]e do not require a

27 plaintiff to demonstrate that a procedurally proper EIS will necessarily protect his or her

28 concrete interest in the park.”); Citizens for Better Forestry v. U.S. Dep’t of Agric., 341

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Case 4:15-cv-03292-SBA Document 114 Filed 03/30/18 Page 16 of 40

1 F.3d 961, 971-72 & n.6 (9th Cir. 2003) (holding that plaintiffs “need not assert any specific

2 injury will occur,” but only that “environmental consequences might be overlooked as a

3 result of deficiencies in the government’s analysis under environmental statutes”) (internal

4 quotation and citation omitted); see also Lujan, 504 U.S. at 572 n.7 (noting that if a federal

5 agency issued a license to authorize construction of a dam without first preparing an

6 environmental impact statement, individuals living adjacent to the dam would have

7 standing to bring suit without showing that the agency would have withheld the license if

8 had it prepared such a statement).

9

Citing Haugrud, the EPA argues that Plaintiffs’ injury is too speculative to

10 demonstrate procedural injury. Defs.’ Reply at 4. Haugrud is distinguishable on its facts.

11 In that case, a water authority and water district (collectively “Water Contractors”) alleged

12 that the Bureau of Reclamation (“BOR”) improperly authorized flow releases of water from

13 the Lewiston Dam without first preparing an environmental impact statement. Plaintiffs

14 asserted that the BOR’s failure to consult with them threatened their concrete economic

15 interest “in ensuring the continued delivery of water to their members.” Haugrud, 848 F.3d

16 at 1233. In particular, the Water Contractors alleged that the flow release would reduce the

17 volume of cold water in the Sacramento River, which, in turn, “may” adversely impact the

18 winter salmon run or reduce spring run salmon egg incubation in 2013. Id. They also

19 suggested that in the event the 2014 winter did not refill the reservoirs, the BOR’s actions

20 could impact salmon in 2014, as incubating salmon eggs if the water temperature exceeded

21 56 degrees. Id. If salmon eggs are harmed and salmon populations were to diminish, third-

22 party agencies could impose more stringent regulations restricting the amount of delivered

23 to the Water Contractors’ members. Id. The anticipated reduction in water deliveries due

24 to those regulations would, in turn, reduce the amount of water available to irrigate farms,

25 employ farm workers, and generally maintain their communities. Id. The court held that

26 the Water Contractors had failed to demonstrate “a reasonably probable threat of injury.”

27 Id. In the court’s view, “[t]he Water Contractors have set forth ‘an attenuated chain of

28 conjecture,’ … that relies on a series of contingencies in weather and water temperature,”

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1 and assumptions about whether “third-party agencies will eventually impose more

2 regulations.” Id. at 1233.

3

In contrast to Haugrud, the concrete injury alleged by Plaintiffs herein is far from

4 attenuated. As discussed, Plaintiffs aver that the EPA failed to review and issue

5 preliminary findings on their complaints, even after accepting each of those complaints for

6 investigation. As a result of such failure, the underlying permits have not properly been

7 evaluated for compliance with Title VI and been allowed to remain in effect, to the

8 detriment of Plaintiffs and their constituents. Although the EPA is correct that Plaintiffs’

9 relief is dependent on the outcome of their respective administrative complaints, the law is

10 clear that, where a procedural injury is concerned, the plaintiff need not demonstrate that

11 the defendant’s compliance with its procedural obligations will necessarily result in a

12 favorable outcome for the plaintiff. E.g., Cottonwood, 789 F.3d at 1083; Salmon

13 Spawning, 545 F.3d at 1229.

14

The Court finds that Plaintiffs have sufficiently alleged Article III standing.

15 Consequently, the EPA’s motion to dismiss for lack of standing is denied. The Court now

16 turns to the parties’ respective motions for summary judgment and the EPA’s related

17 contention that Plaintiffs’ claims are moot.

18 III. CROSS-MOTIONS FOR SUMMARY JUDGMENT

19

Plaintiffs move for summary judgment on all six of their APA claims. Claims One

20 through Five are based on the EPA’s failure to act on each of the Plaintiffs’ respective Title

21 VI complaints, while Claim Six alleges that the EPA engages in a “pattern and practice” of

22 failing to issue preliminary findings in accordance with § 7.115. The EPA opposes

23 Plaintiffs’ motion and cross-moves for summary judgment on their pattern and practice

24 claim. These claims will be discussed seriatim. The EPA’s mootness argument also will

25 be discussed below.

26

A. OVERVIEW

27

“Section 704 of the APA provides for judicial review of ‘[a]gency action made

28 reviewable by statute and final agency action for which there is no other adequate remedy

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Case 4:15-cv-03292-SBA Document 114 Filed 03/30/18 Page 18 of 40

1 in a court.’” Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 861 F.3d 944, 952 (9th Cir.

2 2017) (quoting 5 U.S.C. § 704) (brackets in original). “Agency action” includes the failure

3 to act. 5 U.S.C. § 551(13). Depending on the nature of the case, a reviewing judge is

4 empowered to (1) “compel agency action unlawfully withheld or unreasonably delayed,”

5 5 U.S.C. § 706(1), or (2) set aside agency actions found to be “arbitrary, capricious, an

6 abuse of discretion, or otherwise not in accordance with law,” id. § 706(2)(A); see Int’l

7 Bhd. of Teamsters, 861 F.3d at 952.

8

All six of the claims alleged in the SAC allege that the EPA failed to act on their

9 respective administrative complaints as required by EPA regulations and seek relief under

10 § 706(1). SAC ¶¶ 105, 111, 117, 123, 129, 135. A claim under this provision “can proceed

11 only where a plaintiff asserts that an agency failed to take a discrete agency action that it is

12 required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). To prevail

13 on a failure to act claim, Plaintiffs must demonstrate that: (1) the agency had a

14 nondiscretionary duty to act; and (2) the agency either unreasonably delayed or unlawfully

15 withheld an action on that duty. Timbisha Shoshone Tribe v. Salazar, 697 F. Supp. 2d

16 1181, 1187 (E.D. Cal. 2010) (citing Norton v. Southern Utah Wilderness Alliance

17 (“SUWA”), 542 U.S. 55, 63-64 (2004)). “The prongs of section 706(1)—that is,

18 ‘unreasonably delayed’ and ‘unlawfully withheld’—are mutually exclusive.” San

19 Francisco Baykeeper, Inc. v. Browner, 147 F. Supp. 2d 991, 1005 (N.D. Cal. 2001), aff’d

20 sub nom. San Francisco BayKeeper v. Whitman, 297 F.3d 877 (9th Cir. 2002) (citing

21 Forest Guardians v. Babbitt, 164 F.3d 1261, 1272 (10th Cir. 1998)). An agency action may

22 be deemed “unreasonably delayed” where the governing statute does not require action by a

23 date certain, whereas an action is “unlawfully withheld” if an agency fails to meet a clear

24 deadline prescribed by Congress. Forest Guardians, 164 F.3d at 1272. Plaintiffs’ claims

25 are based on the “unlawfully withheld” theory of liability.7

26
7 “Unreasonably delayed” claims, which are not at issue here, are evaluated pursuant 27 to the test set forth in Telecomm’cn Research & Action Ctr. v. F.C.C., 750 F.2d 70, 80
(D.C. Cir. 1984). See In re Cal. Power Exch. Corp., 245 F.3d 1110, 1124-25 (9th Cir. 28 2001).

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1

APA claims may be resolved via summary judgment, pursuant to the standard set

2 forth in Federal Rule of Civil Procedure 56. See Nw. Motorcycle Ass’n v. United States

3 Dept. Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). “[S]ummary judgment is appropriate

4 where there ‘is no genuine issue as to any material fact” and the moving party is “entitled to

5 a judgment as a matter of law.’” Alabama v. North Carolina, 560 U.S. 330, 344 (2010)

6 (quoting Fed. Rule Civ. Proc. 56(c)) (citing cases). Generally, judicial review in an APA

7 case is based on the administrative record compiled by the agency—not on independent

8 fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). But when

9 adjudicating a § 706(1) claim, “review is not limited to the record as it existed at any single

10 point in time, because there is no final agency action to demarcate the limits of the record.”

11 Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000).

12

B. CLAIMS

13

The parties’ dispute regarding Plaintiffs’ failure to act claims focuses on two main

14 issues. First, the EPA contends that Plaintiffs are barred from judicial review under the

15 APA on the ground that “they possess adequate alternative remedies for harms alleged in

16 their Title VI complaints.” Defs.’ Mot. at 17. Second, the EPA contends that there is no

17 mandatory duty for it to issue preliminary findings in response to a Title VI administrative

18 complaint. Id. at 3; Pls.’ Mot. at 13-14. The Court addresses these issues, in turn.

19

1. Adequate Alternative Remedies

20

Section 704 “makes judicial review available for two categories of agency action:

21 ‘[a]gency action made reviewable by statute’ and ‘final agency action for which there is no

22 other adequate remedy in a court.’” Nebraska Pub. Power Dist. v. United States, 590 F.3d

23 1357, 1371 n.5 (Fed. Cir. 2010) (internal quotations and citation omitted). The EPA

24 contends that Plaintiffs have adequate remedies under federal and state laws to redress their

25 claims of discrimination, and therefore, are foreclosed from seeking relief under the APA.

26 Plaintiffs respond that they are not subject to the other adequate remedy requirement for

27 two reasons: (1) their claims are cognizable under the “action made reviewable by statute”

28 prong of § 704, to which the “no other adequate remedy” limitation is inapplicable; and

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1 (2) the requirement only applies to a “final agency action,” and does not apply to a failure

2 to act case such as the present one because there is no final agency action to review. In the

3 alternative, Plaintiffs argue that there are, in fact, no adequate alternative remedies

4 available.

5

In support of their first contention that their claims are based on actions “made

6 reviewable by statute” within the meaning of § 704, Plaintiffs cite § 603 of Title VI,

7 42 U.S.C. § 2000d-2, which they maintain permits judicial review of any agency action “to

8 effectuate” Title VI. Plaintiffs overstate the reach of § 603. Title VI specifies that federal

9 funding will be terminated in the event an entity receiving assistance fails to comply with

10 its requirements. 42 U.S.C. § 2000d-1. Funding decisions under § 2000d-1 are subject to

11 review under § 2000d-2. Id. § 2000d-2; see Colwell v. Dep’t of Health & Human Servs.,

12 558 F.3d 1112, 1119 (9th Cir. 2009) (“Recipients of HHS funds are entitled to judicial

13 review of a funding termination decision.”) (citing 42 U.S.C. § 2000d-2 and 45 C.F.R.

14 § 80.11). Since Plaintiffs are challenging the EPA’s failure to act on their complaints, as

15 opposed to a funding decision, § 2000d-2 is inapposite. Cf. Marlow v. U.S. Dep’t of Educ.,

16 820 F.2d 581, 582 (2d Cir. 1987) (“This provision [§ 2000d-2] thus enables a recipient of

17 federal funds to obtain judicial review of an agency decision to terminate or refuse to grant

18 funding, but it does not provide for a complainant’s challenge to a determination that a

19 recipient has not violated section 504.”).

20

Plaintiffs’ fallback argument—that the other adequate remedy requirement is

21 inapplicable in a failure to act case—fares no better. It is true that courts have recognized

22 an exception to the final agency action requirement with respect to claims brought under

23 § 706(1) for governmental action “unlawfully withheld or unreasonably delayed.” ONRC

24 Action v. Bureau of Land Mgmt., 150 F.3d 1132, 1137 (9th Cir. 1998) (“A court’s review

25 of an agency’s failure to act [under Section 706(1)] has been referred to as an exception to

26 the final agency action requirement.”). Nonetheless, the existence of that exception does

27 not obviate the other adequate remedy limitation. Congress imposed this requirement to

28 ensure that “the general grant of review in the APA” does not “duplicate existing

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1 procedures for review of agency action” or “provide additional judicial remedies in

2 situations where Congress has provided special and adequate review procedures.” Citizens

3 for Responsibility & Ethics in Wash. v. United States Dep’t of Justice, 846 F.3d 1235, 1244

4 (D.C. Cir. 2017) (citing Bowen v. Massachusetts, 487 U.S. 879, 903 (1988)). Therefore,

5 the other adequate remedy requirement applies equally to a § 706(1) failure to act claim.

6 See Coos Cty. Bd. of Cty. Comm’rs v. Kempthorne, 531 F.3d 792, 810 (9th Cir. 2008)

7 (“[W]e hold that Coos County’s 5 U.S.C. § 706(1) cause of action is precluded because it is

8 identical in all relevant respects to the ESA cause of action, which provides Coos County

9 with an ‘adequate remedy.’”).

10

The above notwithstanding, the Court is unpersuaded by the EPA’s argument that

11 Plaintiffs, in fact, have other adequate remedies available to them. “When considering

12 whether an alternative remedy is ‘adequate’ and therefore preclusive of APA review,

13 [courts] look for ‘clear and convincing evidence’ of ‘legislative intent’ to create a special,

14 alternative remedy and thereby bar APA review.” Citizens for Responsibility & Ethics in

15 Wash., 846 F.3d at 1244. Such intent, or the absence thereof, may be shown through

16 several means, such as whether “Congress has provided ‘an independent cause of action or

17 an alternative review procedure.’” Id. (quoting El Rio Santa Cruz Neighborhood Health

18 Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270 (D.C. Cir. 2005)).

19 Although the relief need not be identical to the APA, id., the alternative remedy will not be

20 adequate under the APA if it offers only “doubtful and limited relief,” Bowen, 487 U.S. at

21 901.

22

The EPA cites various federal and state statutes under which Plaintiffs purportedly

23 could pursue discrimination claims against the funding recipients. For instance, the EPA

24 posits that Plaintiffs can bring their discrimination claims directly under Title VI and as an

25 equal protection challenge under 42 U.S.C. § 1983. Defs.’ Mot. at 18-19. But as Plaintiffs

26 correctly point out, both of those claims only provide relief for intentional discrimination.

27 Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (holding that Title VI creates no private

28 cause of action for disparate impact claims and prohibits only intentional discrimination);

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1 Washington v. Davis, 426 U.S. 229, 239-241 (1976) (holding that, absent discriminatory

2 intent, the equal protection clause does not prohibit disparate impact). Unlike the

3 aforementioned statutory claims, the Title VI regulations relied upon by Plaintiffs in their

4 respective administrative complaints apply to actions that have a discriminatory impact,

5 irrespective of discriminatory intent. See 40 C.F.R. § 7.35; Choate, 469 U.S. at 293

6 (“actions having an unjustifiable disparate impact on minorities [can] be redressed through

7 agency regulations designed to implement the purposes of Title VI”). Title VI regulations

8 may only be enforced by the agency, and not private litigants. See Sandoval, 532 U.S. at

9 293. Plaintiffs thus have no means other than the APA to ensure that the agency is

10 enforcing the regulations appropriately. Accordingly, neither a Title VI nor an equal

11 protection claim constitutes an adequate remedy to an APA claim.

12

The EPA’s contentions regarding the availability of relief under federal

13 environmental statutes also fail. In particular, the EPA alleges that CARE, the Sierra Club

14 and Prayer Center can pursue claims under the Clean Air Act (“CAA”) and that ABSCO

15 can file suit under the Clean Water Act (“CWA”). Congress enacted the CAA and CWA to

16 protect and maintain the Nation’s air resources and waters, respectively. See 42 U.S.C.

17 § 7401(b)(1) (CAA); 33 U.S.C. § 1251(a) (CWA). The administrative complaints filed by

18 these particular Plaintiffs, however, focus on the discriminatory impact of the permitting

19 decisions by various local agencies. In other words, the question of whether or not the

20 individual facility operators are in violation of the CAA or CWA is distinct from whether

21 the permitting agencies’ decision to grant permits to the operators had a discriminatory

22 impact on the affected communities. Moreover, these particular Plaintiffs’ complaints

23 allege discrimination by funding recipients with respect to their permitting procedures,

24 which is not encompassed by either the CAA or CWA.8

25
8 Without citing any supporting legal authority, the EPA argues that the 26 unavailability of alternative causes of action is irrelevant because § 704 “focuses on
remedies.” Defs.’ Reply at 24. However, the “adequate remedy” inquiry necessarily 27 encompasses an analysis of whether the plaintiff would be able to maintain “a private cause
of action against a third party otherwise subject to agency regulation.” El Rio Santa Cruz 28 Neighborhood Health Ctr., 396 F.3d at 1272.

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1

Finally, the EPA contends CARE and CARD have adequate remedies based on

2 California and New Mexico law, respectively. Defs.’ Mot. at 20. However, only federal

3 remedies established by Congress may qualify as an adequate alternative for purposes of

4 section 704. See Bowen, 487 U.S. at 903 (noting that “[section] 704 ‘does not provide

5 additional judicial remedies in situations where the Congress has provided special and

6 adequate review procedures’”) (emphasis added, citation omitted); Citizens for

7 Responsibility & Ethics in Wash., 846 F.3d at 1244-45 (recognizing that “‘[the] legislative

8 intent’ to create a special, alternative remedy and thereby bar APA review” may be

9 established “through several means,” including “where Congress has provided ‘an

10 independent cause of action or an alternative review procedure’”) (emphasis added).9

11

The Court concludes that no clear and convincing evidence of legislative intent to

12 create a special, alternative remedies and thereby bar APA review has been presented in

13 this case. See Citizens for Responsibility & Ethics in Wash., 846 F.3d at 1244.

14

2. Mandatory Duty to Act

15

Having determined that Plaintiffs qualify for judicial review under § 704, the

16 question remains whether Plaintiffs prevail on their “unlawfully withheld” claims under

17 § 706(1). The first element of a § 706(1) claim requires that the agency have a

18 nondiscretionary duty to act. SUWA, 542 U.S. at 63-64. Claims One through Five allege

19 that the EPA violated its “mandatory duty to issue preliminary findings and

20 recommendations for voluntary compliance, if any, within 180 days of acceptance of a Title

21 VI complaint for investigation.” SAC ¶¶ 102, 108, 114, 120, 126. The EPA denies the

22 existence of a mandatory duty. Pls.’ Mot. at 11-12. According to the EPA, upon receipt of

23 an administrative complaint, the applicable regulations afford it “several available

24

25
9 The EPA cites Garcia v. McCarthy, an unpublished district court decision, for the 26 proposition that “adequate remedy,” as used in section 704, is not expressly limited to
remedies provided by Congress. No. 13-CV-03939-WHO, 2014 WL 187386, at *12 (N.D. 27 Cal. Jan. 16, 2014), aff’d on other grounds, 649 F. App’x 589 (9th Cir. 2016). That
conclusion is uncompelling in light of the Supreme Court’s recognition in Bowen that the 28 alternative remedy must be one created by Congress.

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1 pathways” to proceed – and that issuing preliminary findings is merely one option available

2 to it. Defs.’ Mot. at 3; Defs.’ Reply at 14.

3

The starting point for resolving whether a mandatory duty exists is the language of

4 the regulation itself. Wards Cove Packing Corp. v. Nat’l Marine Fisheries Serv., 307 F.3d

5 1214, 1219 (9th Cir. 2002). “Regulations are interpreted according to the same rules as

6 statutes, applying traditional rules of construction. If the meaning of the regulation is clear,

7 the regulation is enforced according to its plain meaning.” Minnick v. C.I.R., 796 F.3d

8 1156, 1159 (9th Cir. 2015). Specific provisions must be construed in the context of the

9 regulation “as a whole,” and “not in isolation.” Charles Schwab & Co. v. Debickero, 593

10 F.3d 916, 921 (9th Cir. 2010). “[D]eference to an agency’s interpretation of its regulation

11 is warranted only when the regulation’s language is ambiguous.” Wards Cove Packing

12 Corp., 307 F.3d at 1219 (citing Christensen v. Harris Cty., 529 U.S. 576, 588 (2000)).10

13

Applying the foregoing principles of regulatory construction, it is clear that § 7.115,

14 in tandem with § 7.120, imposes a mandatory duty upon the EPA to issue preliminary

15 findings within 180 days of accepting a complaint for investigation. The regulations do not

16 specify “available pathways,” as the EPA claims. Rather, they articulate a sequence of

17 events that the OCR must follow once it has accepted a complaint for investigation. The

18 regulations state that upon accepting a complaint for investigation, the OCR affords the

19 target of the complaint (i.e., the funding recipient) an opportunity to respond, and

20 thereafter, must attempt to resolve the complaint informally “whenever possible.”

21 40 C.F.R. § 7.120(d)(1), (2). If the complaint cannot be resolved informally, the OCR

22 “will,” inter alia, issue preliminary findings within 180 days of the commencement of the

23 investigation. Id. §§ 7.120(d)(2), 7.115(c). The Ninth Circuit has characterized the

24 agency’s obligation to issue preliminary findings as mandatory. See Rosemere

25 Neighborhood Ass’n v. U.S. EPA, 581 F.3d 1169, 1171 (9th Cir. 2009) (“If the OCR

26

27

10 The EPA denies that there is any ambiguity in the regulations. Defs.’ Reply at 14.

The Court therefore affords no deference to the EPA’s interpretation of the regulations in

28 dispute.

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1 accepts the complaint, it shall issue preliminary findings within 180 days of the beginning

2 of the complaint investigation.”) (citing 40 C.F.R. § 7.115(c)(1)) (emphasis added); see also

3 Hewitt v. Helms, 459 U.S. 460, 471 (1983) (recognizing that when governmental

4 regulations, statutes or other directives declare “that certain procedures ‘shall,’ ‘will,’ or

5 ‘must’ be employed,” they use “language of an unmistakably mandatory character”).

6

Despite the plain language of the regulations and the Ninth Circuit’s decision in

7 Rosemere, the EPA insists that preliminary findings are not required in response to every

8 complaint, such as where no violation is found. The EPA points to § 7.120(g), which

9 specifies that “[i]f [the] OCR’s investigation reveals no violation of this part, the Director,

10 OCR, will dismiss the complaint and notify the complainant and recipient.” 40 C.F.R.

11 § 7.120(g). According to the EPA, this provision establishes that the OCR’s obligation to

12 issue preliminary findings within 180 days of accepting a complaint for investigation is

13 triggered only when makes affirmative findings of noncompliance. Not so. Section

14 7.115(c)(1)(i) unequivocally provides that preliminary findings are mandatory in any case

15 in which a complaint is not resolved informally. Rosemere confirms this.

16

The Court further notes that no language in either § 7.115 or § 7.120 conditions the

17 OCR’s obligation to comport with § 7.115(c)(1)(i) on a finding of non-compliance. Nor

18 would such a distinction make any logical sense. If the EPA’s interpretation were correct,

19 the OCR would be required to issue a preliminary finding of noncompliance within 180

20 days, but would have an unlimited amount of time under § 7.120(g) to dismiss a complaint

21 based upon a finding of insufficient evidence or compliance.11 Notably, the EPA fails to

22 cite any language in the regulations or case law to support its novel construction. The

23 EPA’s contention also is contradicted by its handling of CARE, Prayer Center and

24 ABSCO’s complaints, which were dismissed by the EPA during the pendency of this

25
11 The EPA claims that “issuing preliminary findings is to be avoided, ‘whenever 26 possible, in favor of “attempt[s] to resolve complaints informally.’” Id. (alterations in
orignal, citations omitted). Nowhere in the regulations is there any language suggesting, let 27 alone stating, that preliminary findings are to be “avoided.” See Defs.’ Reply at 14. To the
contrary, the regulations merely provide that the OCR must first attempt to resolve the 28 complaint informally before issuing findings. See 40 C.F.R. § 7.120(d)(2)(i).

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1 action. In each case, the EPA’s notification that the complaint had been resolved and

2 closed was accompanied by detailed findings in support of its decision. In sum, the Court

3 finds that § 7.115 imposes a mandatory duty upon the EPA to issue preliminary findings

4 within 180 days of accepting a complaint for investigation.

5

Turning to the second element of a § 706(1) claim—whether the EPA failed to

6 comply with a mandatory duty—the Court notes that evidence pertaining to this issue is not

7 in dispute. See Defs.’ Mot. at 5, 10-11. Plaintiffs’ evidence establishes that the EPA failed

8 to issue findings and recommendations within the requisite 180 days of the commencement

9 of the investigation for each of Plaintiffs’ Title VI complaints. See Schmitter Decl. ¶ 16;

10 Boyd Decl. ¶ 17; Carman Decl. ¶ 9; Reade Decl. ¶ 11; Gosa Decl. ¶ 23. As of the

11 commencement of this action, Plaintiffs’ complaints had been pending in some instances

12 for up to 20 years past the 180-day deadline. The Court finds that the EPA’s failure to

13 issue preliminary findings or recommendations and any recommendations for voluntary

14 compliance constitutes agency action unlawfully withheld. See Ctr. for Biological

15 Diversity, 571 F. Supp. 2d at 1131 (“‘[w]hen an agency fails to meet a concrete statutory

16 deadline, it has unlawfully withheld agency action’ under the APA”) (internal quotations

17 and citation omitted). The Court therefore finds that the EPA has a mandatory duty to issue

18 preliminary findings within 180 days after accepting a complaint for investigation, and that

19 the EPA failed to comply with that duty.

20

C. MOOTNESS

21

The EPA contends that Plaintiffs’ claims, even if valid, are moot as a result of the

22 OCR’s resolution of each of the underlying administrative complaints subsequent to the

23 commencement of this action. Plaintiffs respond that their claims are not moot because it

24 remains possible for the Court to grant “effective relief.” In the alternative, Plaintiffs

25

26

27

28

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1 contend that even if their claims are moot, they can avoid dismissal of their claims under

2 the voluntary cessation exception to the mootness doctrine. Pls.’ Opp’n at 28.12

3

1. Overview

4

“[A] case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for

5 purposes of Article III—‘when the issues presented are no longer “live” or the parties lack

6 a legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

7 (2013) (citation omitted). The “central question” in determining mootness is “whether

8 changes in the circumstances that prevailed at the beginning of litigation have forestalled

9 any occasion for meaningful relief.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125,

10 1129 (9th Cir. 2005) (en banc). “If an event occurs that prevents the court from granting

11 effective relief, the claim is moot and must be dismissed.” American Rivers v. National

12 Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997). However, even if a claim is

13 moot, a party can avoid dismissal under one of four mootness exceptions: “(1) collateral

14 legal consequences; (2) wrongs capable of repetition yet evading review; (3) voluntary

15 cessation; and (4) class actions where the named party ceases to represent the class.” In re

16 Burrell, 415 F.3d 994, 998 (9th Cir. 2005).

17

2. Effective Relief

18

The threshold question in determining whether Plaintiffs’ claims are moot is whether

19 there is any effective relief the Court can provide, notwithstanding the EPA’s resolution of

20 their Title VI complaints.

21

In general, when an administrative agency has performed the action sought by a

22 plaintiff in litigation, a federal court “lacks the ability to grant effective relief.” See Pub.

23 Util. Comm’n of State of Cal. v. FERC, 100 F.3d 1451, 1458 (9th Cir. 1996). However, a

24 cause of action is not moot simply because the “primary and principal relief sought” is no

25 longer available. Powell v. McCormack, 395 U.S. 486, 499 (1969) (internal quotation

26

27

12 Because mootness pertains to a federal court’s subject-matter jurisdiction under

Article III, the Court reviews the EPA’s arguments under the standard of review applicable

28 to Rule 12(b)(1) motions. See White, 227 F.3d at 1242.

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1 marks omitted). “‘The question is not whether the precise relief sought at the time the case

2 was filed is still available,’ but ‘whether there can be any effective relief.’” Bayer v.

3 Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017) (citation omitted). A case

4 becomes moot “only when it is impossible for a court to grant any effectual relief whatever

5 to the prevailing party.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013)

6 (emphasis added). “As long as the parties have a concrete interest, however small, in the

7 outcome of the litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. 165, 172

8 (2013).

9

“Because mootness turns on the ability of the district court to award effective relief,

10 [the court] first consider[s] the question of what remedies were available to [Plaintiffs].”

11 Bayer, 861 F.3d at 862. That determination is informed by the claims alleged in the

12 pleadings. Id. Here, Plaintiffs allege five individual claims for relief under the APA

13 seeking judicial review of agency action that allegedly has caused them injury. Courts may

14 take into account equitable considerations in reviewing agency decisions under the APA

15 and crafting a remedy. See Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir.

16 1995). Such remedies include declaratory and injunctive relief, see 5 U.S.C. § 703, both of

17 which are sought by Plaintiffs in this case. Defendants bear a “heavy burden to establish

18 that there is no effective relief remaining for a court to provide.’” In re Palmdale Hills

19 Property, LLC, 654 F.3d 868, 874 (9th Cir. 2011) (citation omitted).

20

a) Declaratory Relief

21

The EPA contends that there no longer is any purpose in issuing a judicial

22 declaration that the EPA has failed to timely issue preliminary findings on those

23 complaints. Defs.’ Reply at 7-8. This contention is unpersuasive. A claim for declaratory

24 relief is not moot if “the conduct complained of in this action presently affects [the

25 plaintiff] or can reasonably be expected to affect him in the future ….” Bayer, 861 F.3d at

26 868. Such a declaration is particularly appropriate in cases where the defendant has “faced

27 numerous lawsuits” involving the same conduct and declaratory relief would be helpful in

28

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1 avoiding future litigation by declaring the rights and obligations of litigants. Badgley, 309

2 F.3d at 1172 (internal quotations omitted).

3

It is well documented that the EPA has been sued repeatedly for failing to

4 investigate Title VI complaints in a timely manner. Rosemere, 581 F.3d at 1175. The EPA

5 often takes years to act on a complaint—and even then, acts only after a lawsuit has been

6 filed. E.g., Padres Hacia Una Vida Mejor v. McCarthy, 614 F. App’x 895, 897 (9th Cir.

7 2015) (noting that the EPA routinely failed to meet the 180 day deadline to address a Title

8 VI complaint and that in the plaintiff’s case the EPA did not resolve its complaint until

9 seventeen years after it was submitted); Rosemere, 581 F.3d at 1175. The Ninth Circuit has

10 strongly criticized the EPA for such delays. Rosemere, 581 F.3d at 1175.

11

Despite the prior litigation involving its failures to resolve Title VI complaints in a

12 timely manner and this Circuit’s criticism of those delays, the EPA has allowed Plaintiffs’

13 complaints to languish for decades. It was only during the pendency of this action that the

14 EPA resolved each of Plaintiffs’ administrative complaints. Moreover, despite Ninth

15 Circuit authority to the contrary, the EPA continues to argue in this action that it has no

16 mandatory duty to act on Title VI complaints. Thus, in view of Plaintiffs’ stated intention

17 to continue filing Title VI complaints to protect their respective interests13 – coupled with

18 the fact that the EPA continues to dispute the nature and extent of its legal obligations with

19 respect to handling Title VI complaints—declaratory relief remains an available, effective

20 remedy. See Badgley, 309 F.3d at 1172 (“The parties were immersed in a substantial

21 controversy regarding the proper interpretation of the ESA’s deadline provisions; they have

22 litigated similar cases before; and there are analogous cases pending in other federal courts.

23 Accordingly, the district court acted within its jurisdictional limits when ruling on

24 [plaintiffs’ request for declaratory relief].”). The Court thus finds that effective relief may

25 be afforded in this case in the form of a declaratory judgment.

26
13 The EPA argues that Plaintiffs’ intention to file additional complaints is 27 speculative because such intent is contingent upon whether the pertinent permitting
authorities actually issue additional permits. As will be discussed infra, the Court finds no 28 merit to the EPA’s contention.

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1

b) Injunctive Relief

2

“A request for injunctive relief remains live only so long as there is some present

3 harm left to enjoin.” Bayer, 861 F.3d at 862 (internal quotations and citation omitted).

4 Here, the SAC seeks an injunction compelling the EPA to: (1) issue preliminary findings

5 and recommendations for voluntary compliance as to each of the Plaintiffs’ administrative

6 complaints; and (2) complete the complaint investigation process specified in 40 C.F.R.

7 part 7. SAC at 26.

8

There is no dispute between the parties that, subsequent to the commencement of

9 this action, the EPA: (1) dismissed the CARE complaint; (2) resolved the CARD

10 complaint by entering into an Informal Resolution Agreement with NMED; (3) resolved

11 and closed the Prayer Center complaint; (4) resolved and closed the ABSCO complaint;

12 and (5) resolved the Sierra Club complaint by entering into an informal resolution

13 agreement with the TCEQ. In light of these developments, Plaintiffs state that they are

14 abandoning their requests for injunctive relief, except as to the CARE complaint.14 Pls.’

15 Opp’n at 18 n.10; Pls.’ Reply at 13 n.21.

16

With respect to the CARE complaint, Plaintiffs contend that they remain entitled to

17 an injunction requiring the EPA to issue “[preliminary] findings regarding the unresolved

18 accepted allegations of the CARE [complaint]….” Id. at 18. Plaintiffs overlook the

19 Court’s ruling on their earlier motion for leave to amend. In that motion, Plaintiffs sought

20 to add a new claim that Defendants violated EPA regulations by dismissing the CARE

21 Complaint without issuing any findings or recommendations in accordance with 40 C.F.R.

22 § 7.115(c). Dkt. 86 at 6. In finding that the proposed claim was futile, the Court found that

23 “[t]he information presented by Plaintiffs demonstrates that the EPA did, in fact, make

24 findings in response to the CARE Complaint.” Id. at 8. Although the EPA did not make

25 any recommendations, the Court noted that none are required in cases where there is no

26 finding of non-compliance. Id. Moreover, the Court found that EPA has no legal

27
14 Although Plaintiffs do not specify whether they still seek injunctive relief as the
28 Sierra Club complaint, it is clear that such request is now moot.

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1 obligation to address each and every claim alleged in a Title VI administrative complaint.

2 Id.

3

In sum, there is no injunctive relief available to Plaintiffs with respect to the

4 underlying Title VI complaints, as the EPA has fully resolved each of them. The Court

5 therefore finds that Plaintiffs’ request for injunctive relief as to these complaints is moot.

6

c) Prospective Injunctive Relief

7

Finally, Plaintiffs argue that their claims are not moot because the Court can provide

8 effective relief in the form of a prospective injunction requiring the EPA “to comply with

9 40 C.F.R. § 7.115’s 180-day deadline for all Plaintiffs’ future Title VI complaints.” Pls.’

10 Opp’n at 19. A federal court has broad authority to grant injunctive relief to prevent future

11 misconduct where the “defendant’s past and present misconduct indicates a strong

12 likelihood of future violations.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 564 (9th

13 Cir. 1990); Long v. U.S. I.R.S., 693 F.2d 907, 909 (9th Cir. 1982). Thus, “where the

14 district court finds a probability that alleged illegal conduct will recur in the future, an

15 injunction may be framed to bar future violations that are likely to occur.” Id.; S.E.C. v.

16 Koracorp Indus., Inc., 575 F.2d 692, 698 (9th Cir. 1978) (“An inference arises from illegal

17 past conduct that future violations may occur. The fact that illegal conduct has ceased does

18 not foreclose injunctive relief.”) (citations omitted).

19

The EPA argues that Plaintiffs are foreclosed from pursuing a claim for future

20 injunctive relief on the ground that the Court previously denied Plaintiffs’ request to amend

21 their prayer to expressly include such relief. It is true that the Court declined Plaintiffs’

22 request on the ground that Plaintiffs had not alleged sufficient facts to establish an intent to

23 file Title VI complaints in the future. See Order Granting in Part and Denying in Part Pls.’

24 Mot. for Leave to File SAC, Dkt. 86 at 9-10 (finding that Plaintiffs’ stated intention to file

25 future complaints was “too conclusory to satisfy the requisite ‘concrete and particularized’

26 injury for Article III standing.”). That ruling, however, is inapposite for purposes of the

27 instant motion. The issue now before the Court is one of mootness—and more specifically,

28 whether there is any effective relief that the Court can grant to Plaintiffs, notwithstanding

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1 the resolution of the underlying Title VI complaints. The availability of effective relief is

2 not dependent upon what Plaintiffs expressly sought in the pleadings.15 Nw. Envtl. Def.

3 Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir. 1988) (“The plaintiffs are not required,

4 however, to have asked for the precise form of relief that the district court may ultimately

5 grant.”). Rather, a general request for a court to grant “such other equitable relief” and the

6 court deems appropriate is sufficient. Id. The SAC expressly requests “such further and

7 additional relief as the Court may deem just, proper, and equitable.” SAC at 26.

8

The concerns articulated by the Court in its earlier ruling—i.e., that Plaintiffs’

9 purported intention to file additional complaints was too conclusory—also have been

10 rectified. Plaintiffs have presented evidence establishing their intention to file additional

11 Title VI complaints and the likely harm they would suffer in the absence of a prospective

12 injunction. The EPA contends that Plaintiffs’ plans to file additional Title VI

13 administrative complaint are speculative ostensibly because they are dependent on the

14 future actions of state and/or local permitting authorities. However, as discussed in more

15 detail below, the actions that the EPA characterizes as speculative have manifested or are

16 likely to materialize in the near future. The Court concludes that the EPA has failed to

17 carry its heavy burden of showing that the Court cannot provide any effective relief.

18

The Court concludes that effective relief may be afforded in the form of a

19 prospective injunction requiring the EPA to timely process Plaintiffs’ future Title VI

20 complaints that are accepted for investigation by the EPA. See Rosemere, 581 F.3d at 1175

21 (holding that, in light of the “pattern of delay as shown by the experiences of other parties

22 before an agency,” the district court erred in dismissing a “claim for injunctive relief to

23

24

25

15 The Court also notes that, in their opposition, Plaintiffs have expressly requested

future injunctive relief. When a party raises a new claim or issue in opposition to a motion

26 for summary judgment, district courts should construe it as a request under Federal Rule of

Civil Procedure 15(a) to amend the pleadings “out of time,” and grant leave to amend “with

27 extreme liberality.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014)

(citations omitted). The EPA fails to acknowledge this rule or otherwise argue that the

28 pleadings should not be so construed.

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1 compel the EPA to process all Rosemere complaints filed in the next five years within the

2 regulatory deadlines” as moot).16

3

3. Voluntary Cessation Exception

4

The voluntary cessation of illegal conduct does not render a challenge to that

5 conduct moot unless “(1) there is no reasonable expectation that the wrong will be repeated,

6 and (2) interim relief or events have completely and irrevocably eradicated the effects of

7 the alleged violation.” Barnes v. Healy, 980 F.2d 572, 580 (9th Cir. 1992) (citation

8 omitted). This doctrine is grounded on the recognition that “[m]ere voluntary cessation of

9 allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to

10 leave the defendant free to return to his old ways.” Jacobus v. Alaska, 338 F.3d 1095, 1102

11 (9th Cir. 2003) (citation omitted). To obtain the dismissal of an action based on mootness,

12 the defendant “bears the formidable burden of showing that it is absolutely clear the

13 allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the

14 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-90 (2000) (internal

15 quotation marks, citations omitted, emphasis added).

16

In Rosemere, the Ninth Circuit addressed the voluntary cessation doctrine in

17 circumstances closely analogous to the present action. In that case, the Rosemere

18 Neighborhood Association (“Rosemere”), a nonprofit community organization, filed an

19 administrative complaint with the EPA’s OCR, alleging that the City of Vancouver (“City”)

20 failed properly to utilize EPA funds to address lingering environmental problems in the

21 City’s low-income and minority communities. Although the OCR accepted the complaint,

22
16 Notably, on remand to the district court, the parties in Rosemere reached a 23 settlement and entered into a stipulated judgment. Rosemere Neighborhood Ass’n v. U.S.
EPA, Case No. C 07-3880 BHS (W.D. Wash.), Dkt. 55, 56. The settlement agreement 24 provides that judgment and declaratory relief shall be entered in favor of Rosemere, along
with a finding that “the OCR’s failure to process Rosemere’s complaint within the timeline 25 set forth in 40 C.F.R. § 7.115(c)(1) constitutes agency action unlawfully withheld pursuant
to [the APA].” Id. Dkt. 55-1 Ex. A ¶ J(1). In addition, the EPA stipulated it “will meet the 26 regulatory deadlines set forth in 40 C.F.R. § 7.115 and 40 C.F.R. § 7.120 with respect to
any Title VI complaint filed with the OCR by [Rosemere] within five years of … the 27 Agreement….” Id. Ex. A ¶ J(2). Notably, that relief is essentially the same relief sought
by Plaintiffs in this action—and which the EPA now asserts that Plaintiffs have no legal 28 basis to obtain.

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1 it did not issue preliminary findings or recommendations within the timeframes prescribed

2 by 40 C.F.R. § 7.115. Rosemere then filed suit against the EPA, seeking a declaratory

3 judgment that the EPA had violated the regulatory deadlines of 40 C.F.R. § 7.115, as well

4 as an injunction compelling the EPA to complete its investigation. During the pendency of

5 the action, the OCR concluded its investigation, found no improprieties by the City, and

6 dismissed the complaint. As a result, Rosemere amended its complaint to add a request for

7 injunctive relief to compel the EPA to process all Rosemere complaints filed within the

8 following five years within the regulatory deadlines.

9

The EPA filed a motion to dismiss Rosemere’s action as moot, which the district

10 court granted. The Ninth Circuit reversed, citing the voluntary cessation exception.

11 Rosemere, 581 F.3d at 1173-75. The court explained that to secure a dismissal based on

12 mootness, the EPA “must show that it is ‘absolutely clear’ that the allegedly wrongful

13 behavior will not recur if the lawsuit is dismissed”—i.e., “that Rosemere will not encounter

14 further regulatory delays in the processing of its complaints.” Id. at 1173. The EPA could

15 satisfy its “heavy burden” by either (1) “showing that it is extremely unlikely that

16 Rosemere will file another complaint (and thus come before the agency again)” or (2) “by

17 showing that, even if Rosemere does file such a complaint, the EPA will meet its regulatory

18 deadlines in resolving it.” Id. The EPA relied on the first option and argued that “because

19 Rosemere has no pending complaints before the agency, the prospect of further delay is

20 merely ‘speculative.’” Id. The EPA further argued that Rosemere “must show to a

21 ‘certainty’ that it will file another complaint.” Id.

22

The Rosemere court rejected the EPA’s arguments for dismissal. Id. The court

23 explained: “[T]he burden is not on Rosemere to show it will file another complaint. The

24 burden is on the EPA to show that Rosemere will not do so. The EPA’s attempt to reverse

25 this burden is insufficient to show mootness.” Id. at 1174. Rather, the plaintiff need only

26 have “a stated intention to resume the actions that led to the litigation.” Id. Additionally,

27 the court found significant evidence suggesting that the EPA has a demonstrable pattern of

28 failing to process administrative complaints within regulatory guidelines, noting that

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1 “Rosemere’s experience before the EPA appears, sadly and unfortunately, typical of those

2 who appeal to OCR to remedy civil rights violations.” Id. at 1175. The court concluded

3 that “[t]his pattern of delay as shown by the experiences of other parties before an agency

4 can be relevant to the mootness analysis, … and helps convince us that this action should

5 go forward.” Id. (citations omitted).

6

In the instant case, the EPA attempts to distinguish Rosemere on the ground that

7 Plaintiffs have failed to provide an evidentiary record to establish with sufficient certainty

8 their intention to file future Title VI complaints. Defs.’ Reply at 11. More specifically, the

9 EPA claims that since Plaintiffs’ intention to file additional complaints is dependent on

10 “upcoming permitting actions” by third parties (i.e., state and/or local agencies), their plan

11 to file additional complaints is, at best, “hypothetical.” Id. The flaw in this argument is

12 that it overlooks one of the core holdings in Rosemere. As the Ninth Circuit’s opinion

13 makes clear, the burden is not on Plaintiffs to show that they will file another complaint.

14 Rosemere, 581 F.3d at 1174. Rather, the burden is on the EPA to demonstrate that it is

15 “extremely unlikely” that Plaintiffs will file another Title VI complaint or that it will

16 resolve any such complaint in a timely manner. Id.; see Friends of the Earth, 528 U.S. at

17 170 (“The heavy burden of persuading the court that the challenged conduct cannot

18 reasonably be expected to recur lies with the party asserting mootness.”). The EPA has

19 made no such showing.

20

The EPA contends that the district court in Padres Hacia Una Vida Mejor v. Jackson

21 (“Padres”), 922 F. Supp. 2d 1057, 1065 (E.D. Cal. 2013), aff’d sub nom. Padres Hacia Una

22 Vida Mejor v. McCarthy, 614 F. App’x 895 (9th Cir. 2015) rejected application of the

23 voluntary cessation doctrine in circumstances analogous to this case. Defs.’ Reply at 11.

24 The EPA misreads Padres. In that case, the district court found that the plaintiffs lacked

25 standing to seek prospective injunctive relief because it was uncertain whether they would,

26 in fact, file another Title VI complaint. The court noted that the declaration submitted by

27 Plaintiffs failed to establish that they “actually intend to file another Title VI complaint or

28 that another Title VI complaint is likely to be filed following judicial action by this Court.”

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1 Id. at 1067. Despite the EPA’s assertions to the contrary, the court’s decision did not

2 address the voluntary cessation doctrine. Id. at 1065 n.3 (“The Court expresses no opinion

3 on the issue of the voluntary cessation exception to mootness or how DeLeon’s declaration

4 may effect voluntary cessation.”). This distinction is critical because the burdens are

5 different, depending on whether the issue is one of standing or mootness. Rosemere

6 teaches that the plaintiffs’ intention to file additional complaints is germane to the issue of

7 mootness, as opposed to standing. Rosemere, 581 F.3d at 1173-75.

8

The above notwithstanding, Plaintiffs herein, unlike in Padres, have established their

9 intention to file further Title VI complaints with the EPA. In response, the EPA argues that

10 Plaintiffs’ intentions are too speculative and uncertain because it is questionable whether

11 grounds to file future complaints will arise. But the EPA also glosses over record evidence

12 establishing that the purportedly speculative future permitting actions have, in fact, already

13 occurred or are likely to occur. E.g., Lado Decl. ¶ 3 & Ex 2. (confirming that ABSCO filed

14 a new Title VI complaint on April 28, 2017, concerning the same landfill facility that was

15 the subject of its 2003 complaint); Smith Decl. ¶ 34 (stating ABSCO’s intention to file

16 additional Title VI complaints based on the Alabama Department of Environmental

17 Management’s February 2017 decision to approve the Stone’s Throw Landfill permit

18 application); Schmitter Decl. ¶ 23 (stating that the Prayer Center plans to file new

19 complaint “regarding new developments at the Genesee Power Station”); Fields Decl. ¶ 18

20 (stating the Sierra Club’s intention to file a complaint based on the upcoming permit

21 renewal and modification for the ExxonMobil refinery in Beaumont, Texas); Reade Decl.

22 ¶ 19 (noting that NMED announced in January 2017 its intention to renew the permit for

23 the Triassic Park hazardous waste facility, and CARD’s plan to file a complaint with the

24 EPA once the permit is granted); Boyd Decl. ¶ 29 (stating CARE’s intention to file

25

26

27

28

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1 additional complaints based on upcoming permitting actions, including the mandatory

2 permit renewal process).17

3

The Court concludes that the EPA has failed to carry “its formidable burden of

4 showing that it is absolutely clear” that Plaintiffs’ will not encounter future delays in the

5 processing of their Title VI complaints in a manner that violates applicable regulations.

6 Friends of the Earth, 528 U.S. at 189-90 (2000). As such, even if Plaintiffs claims are

7 deemed moot, dismissal is not warranted under the voluntary cessation exception.

8

4. Pattern and Practice

9

In their Sixth Claim for Relief, Plaintiffs allege that the EPA has engaged in a

10 “pattern and practice” of failing to issue preliminary findings and recommendations for

11 voluntary compliance, if any, within 180 days of accepting a Title VI complaint for

12 investigation. SAC ¶¶ 131-135. This claim is based on the EPA’s failure to act on each of

13 the Title VI complaints that form the basis of Plaintiffs’ individual claims, as set forth in

14 Claims One through Five. In its motion, the EPA argues that: (1) Plaintiffs’ pattern and

15 practice claim is impermissible under the APA and is tantamount to an improper request for

16 programmatic review; and (2) said claim is otherwise duplicative of Plaintiffs’ individual

17 claims. Defs.’ Mot. at 15-17; Defs.’ Reply at 21-22.

18

As an initial matter, Plaintiffs have failed to persuasively establish that a pattern and

19 practice claim is cognizable under the APA. As stated above, a § 706(1) claim must be

20 based on “discrete agency action that it is required to take.” Norton, 542 U.S. at 64. The

21 “discrete” agency action requirement thus precludes a “broad programmatic attack”

22 regarding general deficiencies in an agency’s compliance. Lujan, 497 U.S. at 891 (“Under

23 the terms of the APA, [a plaintiff] must direct its attack against some particular ‘agency

24 action’ that causes it harm.”). The rationale underlying the discrete agency action

25
17 It bears noting that a bare “stated intention” to file another complaint is, standing 26 alone, sufficient. Rosemere, 581 F.3d at 1174-75. In Rosemere, the court noted that the
plaintiffs in that case did “more” than what is required by supplementing the record with a 27 declaration from a Rosemere officer who stated that his organization “will likely file
another complaint once it is assured of timely processing by the EPA—lest it direct its 28 limited resources at fruitless efforts.” Id.

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1 requirement and corresponding proscription against programmatic attacks “is to protect

2 agencies from undue judicial interference with their lawful discretion, and to avoid judicial

3 entanglement in abstract policy disagreements which courts lack both expertise and

4 information to resolve.” Norton, 542 U.S. at 66-67 (holding that a challenge to the Bureau

5 of Land Management’s failure to manage wilderness study areas and manage public lands

6 in accordance with the land use plans constituted an improper programmatic attack under

7 the APA).

8

In the instant case, Claims One through Five challenge and seek relief based on the

9 EPA’s failure to act on each of the Plaintiffs’ respective Title VI complaints. Those claims

10 clearly satisfy the discrete agency action requirement. In contrast, Claim Six does not

11 challenge a discrete or specific act or failure to act, but is instead premised on the EPA’s

12 alleged ongoing practice of failing to timely act on Plaintiffs’ Title VI complaints. SAC

13 ¶¶ 133-135. By challenging the EPA’s general practice in handling those complaints, as

14 opposed to seeking relief on a specific complaint, Plaintiffs are, in effect, making a

15 programmatic attack, which is impermissible under Norton and Lujan. See Del Monte

16 Fresh Produce N.A., Inc. v. United States, 706 F. Supp. 2d 116, 119 (D.D.C. 2010) (finding

17 that a claim challenging the Food and Drug Administration’s “pattern and practice” of

18 unreasonable delay in handling plaintiff’s shipments of perishable produce is not justiciable

19 under the APA).18

20

Plaintiffs deny that they are seeking a “wholesale” improvement of the EPA,

21 pointing out that they only seek relief for themselves. Pls.’ Reply at 8. That is a distinction

22 without a difference. As the pleadings make clear, Claim Six is based entirely on EPA’s

23 general practice in handling Plaintiffs’ Title VI complaints as opposed to a specific, discrete

24

25

18 Although Plaintiffs insist that a pattern and practice claim may be brought under

the APA, they fail to cite a single case where a court has held as such or allowed such a

26 claim to proceed. Plaintiffs attempt to make much of decisions permitting pattern and

practice claims involve claims under the Freedom of Information Act, constitutional

27 violations brought under 42 U.S.C § 1983 and for discrimination under Title VII. See Pls.’

Reply at 6. However, those cases are not germane because the claims therein were not

28 subject to the APA’s “discrete agency action” limitation.

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1 act or failure to act. In any event, to the extent that Plaintiffs only seek relief for

2 themselves, and not a general improvement in the EPA’s complaint handling practices,

3 their pattern and practice claim is virtually indistinguishable from their individual claims.

4 As such, Plaintiffs’ Six Claim also is subject to dismissal on the ground that it is redundant

5 of their individual claims. E.g., Mangindin v. Wash. Mut. Bank, 637 F.Supp.2d 700, 707

6 (N.D. Cal. 2009) (“A claim for declaratory relief is unnecessary where an adequate remedy

7 exists under some other cause of action”).

8

The Court concludes that Plaintiffs’ pattern and practice claim is not legally

9 cognizable, and grants summary judgment on said claim in favor of the EPA.

10 IV. CONCLUSION

11

For the reasons stated above,

12

IT IS HEREBY ORDERED THAT:

13

1. Plaintiffs’ Motion to Strike Defendants’ Unauthorized Notice is DENIED.

14

2. The EPA’s motion to dismiss is DENIED.

15

3. Plaintiffs’ Motion for Summary Judgment is GRANTED as to Plaintiffs’ First

16 through Fifth Claims for Relief and DENIED as to the Sixth Claim for Relief.

17

4. The EPA’s motion for summary judgment as to Plaintiffs’ Sixth Claim for

18 Relief is GRANTED.

19

5. Within fourteen (14) days of this Order, Plaintiffs shall submit a proposed

20 form of judgment that is consistent with the Court’s rulings above. Plaintiffs shall meet and

21 confer with Defendants prior to submitting the proposed judgment. If the parties disagree

22 as to the form of the judgment, they shall submit their respective positions in a joint letter

23 brief not to exceed two (2) pages in length at the same time Plaintiffs submit their proposed

24 judgment. However, in the event the parties desire an opportunity to attempt to reach a

25 global resolution of the action before the entry of judgment, the parties shall notify the

26 Court of such request in lieu of submitting a proposed form of judgment within the

27 aforementioned time-frame. The parties’ request shall indicate that they desire an

28 opportunity to discuss a global settlement and identify one or more magistrate judges, if

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1 any, the parties jointly agree should preside over a settlement conference. The Court will

2 then refer this matter for a settlement conference and defer entering judgment in this action

3 until such time as the parties conclude their settlement discussions.

4

IT IS SO ORDERED.

5 Dated: March 30, 2018
6 7

______________________________ SAUNDRA BROWN ARMSTRONG Senior United States District Judge

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