1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) COMMUNITY IN-POWER AND DEVELOPMENT ASSO CIATION, INC., et al. , ) ) ) Plaintiffs, ) ) v. ) N o. 16-cv-1074 (KBJ) ) E. SCOTT PRUITT, in his official capacity as Administrator of the Environmental Protection Agency, ) ) ) ) Defendant. ) )

MEMORANDUM OPINION Several environmental advocacy groups (“Plaintiffs”) have bande d together to file this action against the Environmental Protection Agency (“ the EPA” or “the agency”) pursuant to the Clean Air Act’s citizen suit provision , 42 U.S.C. § 7604(a)(2). Plaintiffs seek to compel the E PA to perform obligatory and lon g-overdue rulemakings to protect people and the environ ment from hazardous air pollut ion ( see Compl., ECF No. 1, ¶ 1), and the EPA admits that it has violated the Clean Air Act’s prescriptions, insofar as the agency has faile d to promulgate revised emission standards for the nine source categories of pollutants at issue in this case in a time ly fashion ( see EPA’s Mem. in Opp’n to Pls.’ Mot. for Summ . J. & in Supp. of Cross-Mot. fo r Summ. J. (“Def.’s Mem.”), ECF No. 29-3, at 6). 1 Based on that admission, all th at remains of this dispute

1 Page-number citations to the doc uments that the parties have f iled refer to the page numbers that the Court’s electronic filing system automatically a ssigns. Any ci tations to the EPA’s cross-motion for summary judgment and its attachments thereto, including the mem orandum in support, refer to the page numbers of the corrected cross-motion for summary judgment that this Court ordered the EPA to provide. ( See Min. Order of June 15, 2017; see also General Order & Guidelines, ECF No. 8.)2 is a determination of how quickly the EPA must act to issue the revised emission standards. Before this Court at present are Plaintiffs’ and the EPA’s moti ons for summary judgment regarding that sole issue. ( See Mot. of Pls. for Summ. J . (“Pls.’ Mot.”), ECF No. 21; EPA’s Cross-Mot. for Sum m. J. (“Def.’s Cross-Mot.”), EC F No. 23.) The parties propose drastically different timelines for the EPA to act: Plaintiffs request a completion schedule of no more t han two years from the date of this Court’s Order ( see Pls.’ Mot. at 46), while the EPA asks for approximately seven y ears, until January of 2025, to complete the required rulemakings ( see EPA’s Reply Mem. in Supp. of CrossMot. for Summ. J. (“Def.’s Repl y”), ECF No. 34, a t 6). Having considered the parties’ briefs, their presentations at the motion hearing held on Novem ber 30, 2017 ( see generally Tr. of Mot. Hr’g ( Nov. 30, 2017) (“Hr’g T r.”), ECF No. 40), an d the EPA’s declarations, this Court will orde r the EPA to comply with its statutory obligations as expeditiously as possible, althou gh not on the extremely compre ssed timeline Plaintiffs propose. Specifically, the EPA must complete all nine overdue rulemakings over the next three and a half years, a nd no later than October 1, 2021. Accordingly, Plaintiffs’ motion for summar y judgment will be GRANTED IN PART and DENIED IN PART , and Defendant’s cross-motion for summary judgment will be DENIED . A separate Order consistent with this Me morandum Opinion will follow.

I. BACKGROUND A. The Clean Air Act Congress enacted the Clean A ir Act, 42 U. S.C. § 7401, et seq. , in 1963, “to protect and enhance the quality of the Nation’s air resources s o as to promote the public3 health and welfare and the productive capacity of its populatio n.” Id. § 7401(b)(1). In 1990, Congress overhauled the Act and implemented “an aggressiv e regime of new control requirements to address four crucially important air po llution problems: urban smog, hazardous air pollution, a cid rain, and depletion of the stratospheric ozone layer.” Cal. Cmtys. Against Toxics v. Pruitt , 241 F. Supp. 3d 199, 200 (D.D.C. 2017);
see also Blue Ridge Envtl. Def. League v. Pruitt , 261 F. Supp. 3d 53, 55 (D.D. C. 2017) (explaining that the overhaul r esulted from Congress’s recognit ion that the Act had “worked poorly” up to that point ). Among many other changes, t he 1990 amendments created an initial list of hazardous air pollutants, such as cy anide, mercury, and phosphorous, see 42 U.S.C. § 7412(b)(1), and impos ed a series of deadlines by wh ich the EPA was required to promulga te, and periodically revise, em ission standards for sources that emit those pollutants, see id. § 7412(c)(1), (c)(2), (d). Two of those deadlines are relevant here. First, the Act state s that the EPA “shall review, and revise as n ecessary (takin g into account dev elopments in practices, processes, and control technologies), emission standards promul gated under this section no less often than every 8 years [.]” Id. § 7412(d)(6) (emphasis added). This means that, within that timeframe, the EPA must conduct what is known as a “technology review” to determine whether the agency should modify current e mission standards in light of any improvements in pollution control technology. (De cl. of Panagiotis Tsirigotis (“June Tsirigotis Decl.”), ECF No. 29-5, ¶ 4.) Seco nd, the EPA must consider any risks to public health or the environment that rem ain despite the agency’s previously-implemented emissio n standards, and develop addition al standards to mitigate any residual risks. ( See id. ) This “residual risk review” must occur “ within 84 years after promulgation of standards for each category or subcategory of sources[.]” 42 U.S.C. § 7412( f)(2)(A) (emphasis added). The EPA division that is primaril y responsible for performing t hese reviews, as well as any associated rulemakings, is the Sector Policies and Programs Division (“SPPD”) within the Office of A ir Quality Planning and Standard s, Office of Air and Radiation. ( See June Tsirigotis Decl. ¶¶ 2–3; Decl. of Panagiotis Tsirigotis, Attach. 1 to June Tsirigotis Decl., ECF N o. 29-5, ¶ 4.) That division ge nerally performs both the technology review and the residual risk review at the same time , through a combined “risk and technology review” (“RTR ”) assessment, which is suppo sed to take place within the eight-year window set forth in the Clean Air Act. ( June Tsirigotis Decl. ¶ 4

. )
B. Procedural History Plaintiffs filed the complaint in the instant case on June 8, 2 016, alleging that the EPA has failed to complete timely either the mandatory technolo gy review or the mandatory residual risk review for the emission standards assoc iated with nine source categories of hazardous air pollutants. ( See Compl. ¶¶ 54–57.) 2The applicable due dates for the mandated reviews with respect to each of the nine pollutants are as follows:

2Plaintiffs’ complaint names form er EPA Administrator Gina McCa rthy as the defendant in this action ( see Compl. ¶ 11); the current EPA Administrator, Edward Scott Pruit t, has been automatically substituted as the defendant pursuant to Federal Rule of Civil Procedure 25(d). Because Administrator Pruitt is being sued in his official capacity only, this suit f unctions as an action against the EPA, and will be treated as such for purposes of this Memorandum Opinion

. See Cty. Bd. of Arlington v. U.S. Dep’t of Transp. , 705 F. Supp. 2d 25, 28 (D.D.C. 2010) (“[A]n official-capacity suit is a way of pleading an action against the agency which the official heads. ”).5 Source Category Date of Original Promulgation Deadline for Action Pursuant

to § 7412(d)(6) and § 7412(f)(2) Primary Copper Smelting J une 12, 2002 J une 12, 2010 Generic MACT II – Carbon Black Production July 12, 2002 J uly 12, 2010 Generic MACT II – Cyanide Chemicals Manufacturing July 12, 2002 J uly 12, 2010 Generic MACT II – Spandex Produc tion July 12, 20 02 July 12, 201 0 Flexible Polyurethane Foam Fabrication Operations Apr. 14, 2003 Apr. 14, 2011 Refractory Products Manufactur ing Apr. 16, 2003 Apr. 16, 2011 Semiconductor Manufacturin g May 22, 2003 M ay 22, 2011 Primary Magnesium Refining Oct. 10, 2003 O ct. 10, 2011 Mercury Emissions from Mercury Cell Chlor-Alkali Plants Dec. 19, 2003 Dec. 19, 2011

( See id. ¶ 1, Table A.) Because the required reviews ar e long overdue at this point, Pl aintiffs’ complaint asks this Court to declare that the EPA has violated the Clean Air Act, and order the agency to perform the mandated rulemakings for the nine source categories “in accordance with an expeditious dead line specified by this Court [.]” ( Id. ¶ 58; see also Pls.’ Mot. at 45 (arguing that the Court should compel the EPA to perform the nine overdue rulemakings “as expeditiously as possible” and “within the fastest possible timeframe”).) For five of the s ource categories, which Plainti ffs do not specify, Plaintiffs propose that the EPA be required to issue notices of proposed rules within eight months of this Court’s Orde r, and to promulgate final rul es within one year. ( See Pls.’ Mot. at 46.) For the remaining four source categories, w hich again Plaintiffs do not specify, Plaintiffs request that notices of proposed rules be issued within twenty months of this Court’s Order, and final rules be promulgated wi thin two years. ( See id. ) Thus, Plaintiffs would have the agency promulgate final rules f or five source categories6 by March 31, 2019, and promulgate f inal rules for the remaining four source categories by March 31, 2020. Although the EPA admits “that it has not yet completed its duty to conduct the technology and residual risk revie ws pursuant to 4 2 U.S.C. § 74 12(d)(6) and (f)(2) for the nine [source] categories” at issue in this case (Def.’s Mem . at 6), it argues that “[t]he issue . . . is not the shortest time period in which [th e agency] can issue a rule, but rather the time that is needed for [the agency] to complete a rulemaking that is sufficiently thorough to meet t he purpose intended by Congress” ( id. at 28). The EPA further maintains that Plaintiffs’ proposed schedule “would und ermine the soundness of the [emissions] rules by not allowi ng enough time for the [a]ge ncy to gather necessary emissions data or to properly all ow for public participation” ( id. at 16), and thus, Plaintiffs’ schedule “would require a significant compromise on the quality of the rule at issue” ( id. at 28). Instead, the EPA reque sts significantly more time to complete the mandated rulemakings, as indi cated in the schedule below:
Source Category EPA Proposed Rule Date EPA Final Rule Date Mercury Emissions from Mercury Cell Chlor-Alkali Plants July 23, 2021 J uly 22, 2022 Semiconductor Manufacturing Nov. 11, 2021 N ov. 10, 2022 Generic MACT II – Cyanide Chemicals Manufacturing Dec. 9, 2021 Dec. 8, 2022 Generic MACT II – Spandex Production Dec. 9, 2021 Dec. 8, 2022 Generic MACT II – Carbon Black Production Feb. 24, 2022 Feb. 23, 2023 Primary Copper Smelting No v. 17, 2022 Feb. 8, 2024 Flexible Polyurethane Foam Fabrication Operations July 20, 2023 O ct. 10, 2024 Refractory Products Manufacturin g Aug. 24, 2023 Nov. 14, 2024 Primary Magnesium Refining Oct. 19, 2023 J an. 16, 2025 ( See Def.’s Reply at 6.)7 The EPA makes two prim ary arguments in su pport of its proposed schedule. First, the EPA claims that all available agency resources to pe rform the nine RTRs at issue are already “fully utilized” because the agency is in the process of completing several dozen RTRs for othersource categories within schedules mandated by other court orders and consent decr ees. (Def.’s Reply at 12; see also Def.’s Mem. at 13–14 (listing the other schedules); June Tsirigotis Decl. ¶ 12 (desc ribing the other courtmandated rulemakings as “[c]ritical to the schedules” proposed by the EPA to complete the nine RTR rulemakings in the instant case).) Indeed, in Mar ch of last year, two courts from this District ordere d the EPA to complete the rulem akings for seven source categories by December of 2018, another twenty source categorie s by March of 2020, and the remaining six source cate gories at issue in those cases by June of 2020. See Blue Ridge , 261 F. Supp. 3d at 61; Cal. Cmtys. , 241 F. Supp. 3d at 207. 3
Because of these other court-or dered deadlines, the EPA says it will not have the necessary staff and resources available to even begin the nine RTRs at issue here until March of 2020—after the agency ha s completed most of the rulema kings already ordered by other courts. ( See Def.’s Mem. at 13–15; see also June Tsirigotis Decl. ¶ 12 (“All available SPPD staff are now assigned to RTR projects sub ject to court-ordered deadlines established in these other cases, and the workload fo r these 33 other RTRs

3 The EPA also identifies several other RTRs that are currently underway. Those RTRs include rulemakings for the Pulp and Pa per Combustion Sources source ca tegory and the Nutritional Yeast Manufacturing source category, which, pursuant to the order iss ued in Sierra Club v. McCarthy , No. 15-cv-1165, 2016 WL 1055120 (N.D. Cal. Mar. 15, 2016), were due by October 1, 2017. See id. at *7. While the instant case was still pending, the EPA successfully completed the RTRs and associated rulemakings for those two source categories within the deadline imposed by the Northern District of California. ( See Pls.’ Notice of Additional Evid. ( “Pls.’ Notice”), ECF No. 38, at 1.) The agency has also continued to engage in a number of discretionary rulemakin g activities relating to the Clean Air Act ( see Pls.’ 2d Notice of Additional Ev id. (“Pls.’ 2d Notice”), ECF No . 41, at 1–4), and Plaintiffs point out that the agency has a lso recently requested through t he President’s 2019 Proposed Budget that Congress reduce the funding dedicated to the agency’s air quality efforts ( see id. at 4).8 does not allow us to begin work on the 9 RTRs at issue here unt il most of the work is complete on the 33 RT Rs already subject to a court-ordered dead line.”).) But Plaintiffs reject the EPA’s claimed staffing shortage, arguing, inter alia , that “[the] EPA has not shown that it cannot supplement the currently-assigned SPPD sta ff with other EPA staff[,]” or “that it would be imp ossible to hire more contract ors to act more quickly[,]” or “that no SPPD or otherwise qua lified agency staff-time is as signed to purely ‘discretionary’ activities[.]” ( Pls.’ Combined Reply in Supp. of Pls.’ Mot. for Summ. J. & Opp’n to EPA’s Cross-Mot. (“P ls.’ Reply”), ECF No. 31, at 27– 28 (citations omitted).) Plaintiffs further insist that the overdue rulemaki ngs must be prioritized, and that, if necessary, the agency can “redirect resources from oth er regulatory initiatives to ensure the fullest use of resources to fulfill its obligations. ” (Pls.’ Mot. at 42–43 (internal quotation marks and citation omitted).) The EPA’s other main argument is that Plaintiffs’ schedule fail s to acknowledge the complexity of the rulemaki ngs at issue, and that the RTR ru lemaking process involves nine distinct phases that must be completed for each i ndividual source category. ( See Def.’s Mem. at 16–24; see also June Tsirigotis Decl. ¶¶ 13–21.) According to the EPA , it will take approximately twenty-eight m onths to complete the fastest rulemaking—for the Merc ury Emissions from Mercury Cell Chlor-Alkali Plants source category—and approximately fifty-eight months to complet e the longest—for the Primary Magnesium Refining source category. ( See June Tsirigotis Decl. ¶ 12, Tables 2 & 3 (attached hereto as Appendix A); see also Def.’s Reply at 6.) Plaintiffs counter that the EPA’s proposed timeline to complete each phase not onl y includes “discretionary” time that is not required to complete the rulem akings, but is also9 characterized by “speculative and equivocal language” about wha t may (as opposed to what will ) be required at each phase, an d adds “extra, hypothetical time ” to complete tasks that may not ultimately be r equired. (Pls.’ Reply at 35. ) The parties’ cross-motions for summary judgment are ripe for th is Court’s review ( see Pls.’ Mot.; Def.’s Cross-Mot.; Pls.’ Reply; Def.’s Reply; Pls. ’ Surreply Opposing Def.’s Cross-Mot. for S umm. J. (“Pls.’ Surreply”), ECF No. 37), and the Court heard the parties’ arguments on the cross-motions during a motion hearing held on November 30, 2017 ( see generally Hr’g Tr.).

II. LEGAL STANDARDS FO R REMEDYING A CLEAN AIR ACT VIOLATION The Clean Air Act permits “any person [to] commence a civil act ion on his own behalf” against the EPA “where there is alleged a failure of [t he EPA] to perform any act or duty . . . which is not discr etionary with [the agency]. ” 42 U.S.C. § 7604(a). The Act also empowers district cour ts to “order [the EPA] to perfor m” a mandated act or duty and to “compel [non-discretiona ry] agency action unreasona bly delayed[.]” Id. The D.C. Circuit has interprete d this provision as allowing dis trict courts to exercise their equity powers “to set enforceable deadlines both of an ul timate and an intermediate nature[.]” Nat. Res. Def. Council, Inc. v. Train , 510 F.2d 692, 705 (D.C. Cir. 1974). While a district court possesses broad discretion to set deadli nes for compliance, it may not, of course, order the EPA “to do an impossibility.” Id. at 713 (internal quotation marks and citation omitted); see also Cal. Cmtys. , 241 F. Supp. 3d at 207 (rejecting plaintiffs’ proposed timeline as being “simply too c ompressed . . . to afford any reasonable possibilit y of compliance” (in ternal quotation m arks and citation10 omitted)); Sierra Club , 2016 WL 1055120, at *3 (“[ C]ourts should not demand a deadline for agency compliance that is impossible or infeasible .”). But an agency has a “heavy burden to demonstrate” tha t the ordered requirements are impossible to meet, or that it is unable to comply with a particular remedial timeline

. Ala. Power Co. v.
Costle , 636 F.2d 323, 359 (D. C. Cir. 1979). That burden “serves to p revent an agency from shirking its duties by reas on of mere difficulty or inconv enience[,]” Am. Hosp.
Ass’n v. Price , 867 F.3d 160, 16 8 (D.C. Cir. 2017), and it “is especially hea vy where the agency has failed to demonstrate any diligence whatever in discharging its statutory duty to promulgate regulations and has in fact ignored that dut y for several years[,]”
Sierra Club v. Johnson , 444 F. Supp. 2d 4 6, 53 (D.D.C. 2006) (inte rnal quotation mark s and citation omitted). Thus, court s “must scrutinize carefully claims of impossibility, and ‘separate justifications gr ounded in the purposes of the Ac t from the footdragging efforts of a delinquent agency.’” Id. (quoting Train , 510 F.2d at 713) . Courts should also be wary of agency arguments “that additional time is neede d simply to improve the quality or soundness of the regul ations to be enacted[,]” id. , or “that competing regulatory priorities preclude comp liance with statutorily-mand ated deadlines[,]” id. at 54. Notwithstanding the heavy burden t hat an agency bears to prove its inability to comply with deadlines imposed by a statute that mandates certai n agency obligations, the D.C. Circuit has “recognized two possible legitimate constr aints on the agency’s ability to meet a statutory deadline[.]” Id. at 53. First, a court must be mindful of the “budgetary commitments and manpowe r demands [that are] required [,]” and thus avoid imposing deadlines that “are beyond the agency’s capacity or wo uld unduly jeopardize11 the implementation of other essential programs.” Train , 510 F.2d at 712. Second, it is generally acknowledged that, at times, “[the] EPA may be unable to conduct sufficient evaluation of available control technology to determine which i s the best practicable[,] or may confront problems in dete rmining the components of parti cular industrial discharges.” Id. In such circumstances, “additi onal time [may be] necessary to [e]nsure that the guidelines a re rooted in an understanding of the relative merits of available control technologies” and “to give meaningful conside ration of the technical intricacies of promising control mechanisms[,]” which “may well speed achievement of the goal of pollution abatement by obviating the need for time- consuming corrective measures at a later date.” Id.

III. ANALYSIS It is clear to this Court that t he EPA has failed to satisfy it s “heavy burden to demonstrate . . . impossibility,” Ala. Power Co. , 636 F.2d at 359, either with respect to the commencement of its work on t he nine overdue RTRs at issue in this case, or with respect to the completion of the review processes that Congress has required. Therefore, as explained below, thi s Court finds that the EPA’s proposed schedule— which requests another seven years to complete rulemakings that are already between six and eight years late—is not the fastest possible schedule, and the Court will give the EPA until October 1, 2021, to co mplete its RTRs and any associa ted rulemaking activities.
A. The EPA Has Not Demonstrated Tha t It Is Impossible To Begin Wor k Before March Of 2020 The Court’s first concern arise s with respect to the EPA’s cont ention that it will not be able to begin the RTRs at issue in this case, or any ass ociated rulemakings, until12 March of 2020 ( see Def.’s Mem. at 9), because of “3 9 other RTR rulemakings in whic h [the] EPA is either currently engaged or will begin shortly” ( id. at 13). The agency points to the “limited number of personnel with the expertise n eeded to conduct the necessary reviews and develop additional regulations” ( id. at 14–15) as the primary reason for its proposed delay in s tarting the work at issue. B ut the EPA’s assertion that it needs more than two years t o even begin working on the insta nt RTR rulemakings is unsatisfactory, for at least two reasons. First, the agency has admitted that it is possible to “utilize contractors for certain tasks” and to “use personnel from areas of [the] EPA other than SPPD to work on the RTR rulemakings[.]” ( Id. at 29–30.) The agency’s declarant acknowledges that the EPA has “re-programmed resources [ from other agency divisions a nd offices] in order to accelerate” the completion of court-ordered projects in the past, albeit at the expense of other, unidentified projects. (June Tsirigotis Decl. ¶ 12.) See also Sierra Club , 444 F. Supp. 2d at 54 (“[ S]hifting resources in response to statuto ry requirements and court orders is commonplace for [the] E PA.” (internal quotation marks and citation omitted)). And while the EPA implies that its proposed schedule contemplat es the use of outside contractors and other non-SPPD ag ency resources, it has not dem onstrated that it is impossible for the agency to hire new personnel, including outside contra ctors, or to reprogram additional existing agency resources right away , in order to accelerate the commencement of the instant overdue rulemakings. ( See Pls.’ Reply at 27–28.) To be sure, making such a showing might be difficult, given the agenc y’s current representations that it does not need additional funding from C ongress to satisfy its obligations at this time, and in fact can fulfill its “Core Mis sion” of “Improv[ing] Air13 Quality” with an almost fifty pe rcent reduction in its air qual ity-related budget from Fiscal Year 2017 levels. ( See Pls.’ 2d Notice at 4 (intern al quotation marks omitted); Ex. G to Pls.’ 2d Notice, ECF N o. 41-9, at 2.) But if the agen cy’s proposed schedule is to be countenanced, then it must at least try to make a persuasive claim that it is currently so cash strapped that it cannot possibly start the ma ndated reviews given the resources that it already has, notwithstanding its recent representations. Second, the EPA’s admission that at least some “of the SPPD’s r esources are devoted to projects that are not s ubject to statutory deadlines ” (Def.’s Reply at 10–11) undermines its claim that all potentially available resources a re already fully utilized on other court-mandated rulemakings. The agency concedes that at least three “fulltime equivalents” (“FTEs”) within SPPD are currently dedicated to di scretionary, nonstatutorily-mandated projects. ( See Decl. of Panagiotis Tsirigotis (“Sept. Tsirigotis Decl.”) ECF No. 34-1, ¶ 7.) 4And as Plaintiffs correctly observe, this admission pertains to “just the number of F TEs within SPPD that [the] EPA has allocated to” some of the discretionary projects that Plaintiffs have identified i n their summary judgment motion. (Pls.’ Surreply at 4 (emphasis omitted); see also Pls.’ Reply at 28–29 (listing “discretionary” activities in which the EPA is purportedly enga ged and which are not “statutorily mandated”).) There may well be others; the EPA ha s made no representations regarding the total number of otherwise-availab le FTEs that are currently assigned to the agency’s other discretionary actions, and while Plaintiffs have identified other discretionary act ivities that the agency has t aken while this case has

4The term fulltime equivalent ( “FTE”) commonly refers to the to tal hours that one fulltime employee works in a year, or the equivale nt hours worked by several part -time employees.14 been pending—e.g., efforts to ame nd previously finalized rules in order to extend industry compliance deadlines, and steps to repeal certain exis ting emission guidelines ( see Pls.’ Surreply at 4–6; Pls.’ No tice at 2; Pls.’ 2d Notice at 1– 4)—the EPA has neither denied its participation in such discretionary activiti es, nor provided any information about the number of SPPD or other age ncy staff who are working on such matters. Without that evidence (which the agency bears the bur den of providing under the circumstances presented here) , it certainly seems plausible that the EPA could reallocate additional FTEs from those kinds of discretionary ac tivities to address the overdue RTR rulemakings. Even if no more than three or f our FTEs are reallocated to the RTRs in this case, the record indicates that such a n increase would boost the manp ower that the EPA currently has dedicated to completing its mandatory statutory o bligations by nearly ten percent ( see Sept. Tsirigotis Decl. ¶ 5 (expl aining that thirty-seven FTEs are currently available to perform the RTR reviews)), which is not a “relativ ely small” amount ( id. ¶ 7), all things considered. Indeed, the EPA admits that relat ively few FTEs are needed to complete each RTR rulemaking. ( See id. ¶ 6 (acknowledging that “the least complex [RTR] projects have historically required about 1 FTE within SP PD[, while t]he most complex [RTR] projects have req uired about 3 FTEs within SPPD”) .) On a complexity scale of one to three, the EPA ha s classified five of the sourc e categories at issue here as a “one” (the least complex), four source categories as a “tw o” (medium complexity), and none as a “three” (the most complex). ( See June Tsirigotis Decl. ¶¶ 11–12.) Thus, it seems that three or more additional FTEs could have a measur able impact on the EPA’s ability to complete the ov erdue rulemakings expeditiously

.15 To be clear, this Court does notconclude that other agency activities for which there is no specific statutory deadline are “frivolous” (Def.’s Reply at 10), and it agrees with the EPA’s suggestion that attending to such matters as “en forcement actions or providing guidance to states re garding implementation of enviro nmental regulations” ( id. ) is important. Be that as it may, when Congress has ordered t he EPA to act by a certain deadline, “it is inappropriate for [the] agency to dive rt[,] to purely discretionary rulemaking[,] resources that co nceivably could go towards fulfi lling obligations clearly mandated by Congress.” Sierra Club , 444 F. Supp. 2d a t 57. And, indeed, “[t]o accept such [a practice] in the face of a congressional direction woul d effectively amount to condoning a fully discretionary a pproach to a nondiscretionary duty.” Id. at 54 (internal quotation mark s and citation omitted). Of course, this Court cannot ignor e the fact that the EPA is su bject to other recent court orders regarding ma ndatory review obligations that have constrained the agency’s ability to de vote all of its time and energy to addres sing the overdue RTRassociated rulemakings at issue in this case. ( See Def.’s Reply at 13 (urging this Court not to “ignore the real world”).) See also Sierra Club , 2016 WL 1055120, at *3 (“There is nothing . . . that suggests the Court must consider how long the EPA could complete the requested rulemakings in isolation.”). But, again, the app licable standard is impossibility , and in this Court’s view, the E PA has failed to demonstrate t hat it would be impossible for the agency t o follow a more expeditious sched ule than the one that it proposes in light of its existin g responsibilities, and this is especially so with respect to the proposed commencement date. Because the EPA has not shown that it cannot hire outside contractors, or reallocate existing EPA staff from othe r agency subcomponents,16 or cease discretionary activities, and thereby start working on the rulemakings at issue here before March of 2020, this C ourt will order the EPA to beg in the instant RTRs and associated rulemakings sooner, i.e., after its completion of th e first tranche of the existing court-ordered RTR reviews.
B. The EPA Has Not Demonstrated Tha t It Is Impossible To Complete The Nine-Phase Rulemakings More Expeditiously As noted above, the EPA has iden tified nine distinct phases of the RTR rulemaking process, and it has also predicted how long it belie ves the agency needs to complete each phase, and thus the entire rulemaking, for each o f the nine instant RTRassociated rulemakings. ( See Appendix A.) But in this Co urt’s judgment, the EPA has not shown that it would be impossible to complete the overdue r ulemakings on a more expedited schedule, and in certain respects, it is crystal clea r that a faster schedule is possible, because the agency’s proposal includes significant pe riods of time to complete work that may never actually occur. For example, all of the time that the EPA has allocated for Phase III to collect supplemental information—eighteen months for three of the sourc e categories, and seven months for another source category—is, at least today, hy pothetical; the EPA has not made “a final determination” that supplemental information is even required, and will not make that determination until after “the preliminary i nformation collection phase for each [rulemaking].” (June Tsirigotis Decl. ¶ 15(a).) The EPA has also built an additional six months into its proposed schedule for all nin e source categories, to facilitate a review of each rule by the Office of Management an d Budget (“OMB”) pursuant to Executive Order 12866 ( see id. ¶¶ 18(f), 21(e)); yet such OMB reviews are completely discretionary. See, e.g. , In re United Mine Workers of Am. Int’l Union , 19017 F.3d 545, 551 (D.C. Cir . 1999) (rejecting argument that the OMB review provision of the executive order excused part y’s failure to meet a statutory deadline); Nat. Res. Def. Council, Inc. v. Ruckelshaus , No. 84-cv-758, 1984 WL 6092, at *4 (D.D. C. Sept. 14, 1984) (“OMB review is not only unne cessary, but in contraventio n to applicable law.”). ( See also June Tsirigotis Decl. ¶¶ 18(f), 21(e) (acknowledging that OMB review is only conducted “for projects that are considered significant regulat ory actions”).) The EPA’s proposed sch edule also includes additional hypothetic al, contingent time that may never be needed. Thus, the agency adds two weeks to the review time for each source category, in order to c onduct “a risk-based demogra phic assessment[,]” but it admits that no such review will be needed if it turns out th at the “risks are well below a level of concern[.]” (June T sirigotis Decl. ¶ 17(d).) This Court does not know whether the risk-based demogra phic assessment, or any of the ot her contingent time included in the EPA’s schedule, will ultimately be necessary fo r the agency to fashion well-reasoned final rules, but neither does the agency, and tha t is precisely the point. Under the “impossibility” standard that the D.C. Circuit has ad opted, an agency must be ordered to complete the mandated tasks within the most efficien t timeframe possible, and a schedule that affords time for the EPA to complete tasks that may or may not be necessary does not comport with t he requirement that the minimu m possible timeframe be adopted. But while the EPA’s proposed schedule in the instant case is t oo lax, it appears that Plaintiffs’ proposed schedule is much too draconian. Plai ntiffs have provided no evidence to support their cont ention that the EPA can possibly complete its RTRs and associated rulemakings within the next two years. And Plaintif fs are mistaken to rely18 on the “statutory scheme” and “legislative design” of the Clean Air Act as evidence with respect to this timing issue. ( See Pls.’ Mot. at 46–47 (“[T]he Act directs that, starting from scratch, [the] EPA must, within two years, promul gate emission standards for over 40 major source categories, as well as other rulemakin gs.” (emphasis omitted)); Pls.’ Reply at 42 (“The Clean Air Act directs that [the] EPA wi ll conduct many air toxics rulemakings in no more t han two years . . . and complete a combination of as many as 165 rules and review ru lemakings in two to three years. ”).) To begin with, it is clear on the face of the statute that Congress adopted an eight -year—not a two-year— window within which the EPA must complete the RTRs and rulemaki ngs at issue here, and the statute does not speak to how much of that eight-year t imeframe should be dedicated to the mandated process. See 42 U.S.C. § 7412(d)(6), (f)(2); see also Cal. Cmtys. , 241 F. Supp. 3d at 205 (“A standard of how often something should take place does not describe how long the thi ng should take.” (emphasis in original)). It is likely that Congress did not intend for the EPA’s rulemaking to take t he entire eight years, but there is simply no basis for importing the Act’s two-year deadl ine for promulgating
initial emission standards, see 42 U.S.C. § 7412(e)(1)(A), into the entirely separate eight-year cycle for completing the RTRs and associated rulemak ings. Additionally, Congress did not speak to a specific remedy for a violation of the eight-year review period, or mandate a time by whic h overdue rulemakings must be completed. Coupled with the lack of specifics to support Plaintiffs’ proposed sche dule, this Court simply has no principled basis for adopting the undifferentiated two-year schedule that Plaintiffs
propose.19 Taking into account all of the a bove, while “Plaintiffs’ timeli ne may be ‘simply too compressed at this stage to afford any reasonable possibili ty of compliance[,]’” Cal. Cmtys. , 241 F. Supp. 3d a t 207 (quoting Sierra Club , 444 F. Supp. 2d at 58); see also Blue Ridge , 261 F. Supp. 3d at 61 ( same), this Court concludes that the E PA has failed to demonstrate that its proposed schedule is the fastest possib le plan for completing the instant rulemakings. Luckily, there is a middle ground between Plaintiffs’ schedule and the EPA’s schedule, and given the various representations by th e agency, it is reasonable to expect the EPA to complete all nine of the overdu e RTRs and rulemakings within thirty-three months of the commencement of its work. ( Cf. Def.’s Mem. at 28 (touting two and a half years as “a ‘useful benchmark’ in evalu ating what deadlines are possible for the Agen cy to meet” (quoting Cal. Cmtys. , 241 F. Supp. 3d at 205)).) This means that once the instant revi ews get underway, which will be on or before January 1, 2019, the EPA can be reasonably expected to act diligently to c omplete all of these rulemakings by October 1, 2021. A nd if more time is eventually needed, the agency can “move for an extension of [ the] deadline[s] where appropria te,” as it has done in the past. (Def.’s Mem. at 27–28; see also Hr’g Tr. at 10:2–5 (indicating that Plaintiffs would “be very happy” to allow fo r an extension if the EPA does , for example, “need to gather additional information”).) See also Train , 510 F.2d at 712 (“[P]alliative measures may be taken with regar d to specific categories if ind icated at a later date.”).

IV. CONCLUSION The EPA has not said that it w ould be impossible to reallocate existing personnel from other parts of the agenc y or to hire new personnel, includ ing outside contractors, to begin performing at least part of the overdue rulemakings no w, nor has it shown that20 qualified agency staff resources a re being spent only on mandat ory activities. To top it off, the EPA has indicated pub licly that it has no need for add itional resources with respect to its Clean Air Act responsibilities, and the extended schedule it proposes for the overdue RTRs at issue here includes time for work that may be unnecessary and thus may never occur. Therefore , this Court will not accede to the agency’s proposed timeline, but it will also reject the impossibly compressed dea dlines that Plaintiffs suggest. Instead, as set forth in the accompanying Order, the EPA will be required to begin the instant rulemakings no later than January 1, 2019, af ter completing its first tranche of the existing court- ordered RTR reviews, and it will be further ordered to complete all nine overdue rulemak ings no later than October 1, 2021. Consequently, Plaintiffs’ motion fo r summary judgment is GRANTED to the extent that it seeks an order setting a schedule for th e mandatory rulemakings, and DENIED with respect to the schedule proposed, and Defendant’s request for the schedule set forth in its crossmotion for summa ry judgment is DENIED

.
DATE: March 31, 2018 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

# APPENDIX AAppendix A

A1 EPA ESTIMATE FOR FINAL RULEMAKING BY SOURCE CATEGORY

Source Category Phase I Days Phase II Days Phase III Days Phase IV Days Phase V Days Phase VI Days Phase VII Days Phase VIII Days Phase IX Days Final Rule Date 5 Mercury Emissions from Mercury Cell Chlor-Alkali Plants 30 45 0 45 104 270 90 90 184 July 22, 2022 Semiconductor Manufacturing 60 90 0 90 44 321 90 90 184 Nov. 10, 2022 Generic MACT II – Cyanide Chemicals Manufacturing 60 90 0 90 44 349 90 90 184 Dec. 8, 2022 Generic MACT II – Spandex Production 60 90 0 90 44 349 90 90 184 Dec. 8, 2022 Generic MACT II – Carbon Black Production 60 90 0 90 104 366 90 90 184 Feb. 23, 2023 Primary Copper Smelting 60 90 210 90 104 422 90 120 238 Feb. 8, 2024 Flexible Polyurethane Foam Fabrication Operations 60 90 547 90 44 390 90 120 238 Oct. 10, 2024 Refractory Products Manufacturing 60 90 547 90 104 365 90 120 238 Nov. 14, 2024 Primary Magnesium Refining 60 90 547 90 104 421 90 120 245 Jan. 16, 2025

5 Each of the EPA’s proposed final rule dates is calculated usin g the agency’s requested start date of March 16, 2020.