1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 ) 

COMMUNITY IN-POWER AND 

DEVELOPMENT ASSOCIATION, INC., et al.,

) 

) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) No. 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 banded 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 EPA to perform obligatory and long-overdue rulemakings 

to protect people and the environment from hazardous air pollution (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 failed to promulgate revised emission standards for the nine 

source categories of pollutants at issue in this case in a timely fashion (see EPA’s Mem. 

in Opp’n to Pls.’ Mot. for Summ. J. & in Supp. of Cross-Mot. for Summ. J. (“Def.’s 

Mem.”), ECF No. 29-3, at 6).1

 Based on that admission, all that remains of this dispute 

 

1

 Page-number citations to the documents that the parties have filed refer to the page numbers that the 

Court’s electronic filing system automatically assigns. Any citations to the EPA’s cross-motion for 

summary judgment and its attachments thereto, including the memorandum 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 motions for summary 

judgment regarding that sole issue. (See Mot. of Pls. for Summ. J. (“Pls.’ Mot.”), ECF 

No. 21; EPA’s Cross-Mot. for Summ. J. (“Def.’s Cross-Mot.”), ECF No. 23.) The 

parties propose drastically different timelines for the EPA to act: Plaintiffs request a 

completion schedule of no more than two years from the date of this Court’s Order (see

Pls.’ Mot. at 46), while the EPA asks for approximately seven years, until January of 

2025, to complete the required rulemakings (see EPA’s Reply Mem. in Supp. of CrossMot. for Summ. J. (“Def.’s Reply”), ECF No. 34, at 6). Having considered the parties’ 

briefs, their presentations at the motion hearing held on November 30, 2017 (see 

generally Tr. of Mot. Hr’g (Nov. 30, 2017) (“Hr’g Tr.”), ECF No. 40), and the EPA’s 

declarations, this Court will order the EPA to comply with its statutory obligations as 

expeditiously as possible, although not on the extremely compressed timeline Plaintiffs 

propose. Specifically, the EPA must complete all nine overdue rulemakings over the 

next three and a half years, and no later than October 1, 2021. Accordingly, Plaintiffs’ 

motion for summary 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 Memorandum Opinion will follow. 

I. BACKGROUND 

A. The Clean Air Act 

Congress enacted the Clean Air Act, 42 U.S.C. § 7401, et seq., in 1963, “to 

protect and enhance the quality of the Nation’s air resources so as to promote the public 
3 

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

1990, Congress overhauled the Act and implemented “an aggressive regime of new 

control requirements to address four crucially important air pollution problems: urban 

smog, hazardous air pollution, acid 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 resulted from Congress’s recognition that the Act had 

“worked poorly” up to that point). Among many other changes, the 1990 amendments 

created an initial list of hazardous air pollutants, such as cyanide, mercury, and 

phosphorous, see 42 U.S.C. § 7412(b)(1), and imposed a series of deadlines by which 

the EPA was required to promulgate, and periodically revise, emission 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 states that the EPA 

“shall review, and revise as necessary (taking into account developments in practices, 

processes, and control technologies), emission standards promulgated 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 emission standards in 

light of any improvements in pollution control technology. (Decl. of Panagiotis 

Tsirigotis (“June Tsirigotis Decl.”), ECF No. 29-5, ¶ 4.) Second, the EPA must 

consider any risks to public health or the environment that remain despite the agency’s 

previously-implemented emission standards, and develop additional standards to 

mitigate any residual risks. (See id.) This “residual risk review” must occur “within 8 
4 

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 primarily responsible for performing these reviews, as 

well as any associated rulemakings, is the Sector Policies and Programs Division 

(“SPPD”) within the Office of Air Quality Planning and Standards, Office of Air and 

Radiation. (See June Tsirigotis Decl. ¶¶ 2–3; Decl. of Panagiotis Tsirigotis, Attach. 1 

to June Tsirigotis Decl., ECF No. 29-5, ¶ 4.) That division generally 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 supposed 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, 2016, alleging that the 

EPA has failed to complete timely either the mandatory technology review or the 

mandatory residual risk review for the emission standards associated with nine source 

categories of hazardous air pollutants. (See Compl. ¶¶ 54–57.)2

 The applicable due 

dates for the mandated reviews with respect to each of the nine pollutants are as 

follows: 

 

2

 Plaintiffs’ complaint names former EPA Administrator Gina McCarthy as the defendant in this action 

(see Compl. ¶ 11); the current EPA Administrator, Edward Scott Pruitt, 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 functions 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 June 12, 2002 June 12, 2010 

Generic MACT II – Carbon Black 

Production 

July 12, 2002 July 12, 2010 

Generic MACT II – Cyanide Chemicals 

Manufacturing 

July 12, 2002 July 12, 2010 

Generic MACT II – Spandex Production July 12, 2002 July 12, 2010 

Flexible Polyurethane Foam Fabrication 

Operations 

Apr. 14, 2003 Apr. 14, 2011 

Refractory Products Manufacturing Apr. 16, 2003 Apr. 16, 2011 

Semiconductor Manufacturing May 22, 2003 May 22, 2011 

Primary Magnesium Refining Oct. 10, 2003 Oct. 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 are long overdue at this point, Plaintiffs’ 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 deadline 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 source categories, which Plaintiffs do not specify, 

Plaintiffs propose that the EPA be required to issue notices of proposed rules within 

eight months of this Court’s Order, and to promulgate final rules within one year. (See

Pls.’ Mot. at 46.) For the remaining four source categories, which 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 within two years. (See id.) 

Thus, Plaintiffs would have the agency promulgate final rules for five source categories 
6 

by March 31, 2019, and promulgate final 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 reviews pursuant to 42 U.S.C. § 7412(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 [the 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 the purpose intended by Congress” (id. at 28). The EPA 

further maintains that Plaintiffs’ proposed schedule “would undermine the soundness of 

the [emissions] rules by not allowing enough time for the [a]gency to gather necessary 

emissions data or to properly allow 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 requests significantly more time to complete the 

mandated rulemakings, as indicated 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 July 22, 2022 

Semiconductor Manufacturing Nov. 11, 2021 Nov. 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 Nov. 17, 2022 Feb. 8, 2024 

Flexible Polyurethane Foam Fabrication 

Operations 

July 20, 2023 Oct. 10, 2024 

Refractory Products Manufacturing Aug. 24, 2023 Nov. 14, 2024 

Primary Magnesium Refining Oct. 19, 2023 Jan. 16, 2025 

(See Def.’s Reply at 6.) 
7 

The EPA makes two primary arguments in support of its proposed schedule. 

First, the EPA claims that all available agency resources to perform the nine RTRs at 

issue are already “fully utilized” because the agency is in the process of completing 

several dozen RTRs for other source categories within schedules mandated by other

court orders and consent decrees. (Def.’s Reply at 12; see also Def.’s Mem. at 13–14 

(listing the other schedules); June Tsirigotis Decl. ¶ 12 (describing 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 March of last year, two 

courts from this District ordered the EPA to complete the rulemakings for seven source 

categories by December of 2018, another twenty source categories by March of 2020, 

and the remaining six source categories 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-ordered 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 has completed most of the rulemakings 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 subject to court-ordered 

deadlines established in these other cases, and the workload for these 33 other RTRs 

 

3

 The EPA also identifies several other RTRs that are currently underway. Those RTRs include 

rulemakings for the Pulp and Paper Combustion Sources source category and the Nutritional Yeast 

Manufacturing source category, which, pursuant to the order issued 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 rulemaking activities relating to the Clean Air 

Act (see Pls.’ 2d Notice of Additional Evid. (“Pls.’ 2d Notice”), ECF No. 41, at 1–4), and Plaintiffs 

point out that the agency has also recently requested through the 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 until most of the work is 

complete on the 33 RTRs already subject to a court-ordered deadline.”).) 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 staff with other EPA 

staff[,]” or “that it would be impossible to hire more contractors to act more quickly[,]” 

or “that no SPPD or otherwise qualified agency staff-time is assigned to purely 

‘discretionary’ activities[.]” (Pls.’ Combined Reply in Supp. of Pls.’ Mot. for Summ. J. 

& Opp’n to EPA’s Cross-Mot. (“Pls.’ Reply”), ECF No. 31, at 27–28 (citations 

omitted).) Plaintiffs further insist that the overdue rulemakings must be prioritized, and 

that, if necessary, the agency can “redirect resources from other 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 fails to acknowledge 

the complexity of the rulemakings at issue, and that the RTR rulemaking process 

involves nine distinct phases that must be completed for each individual 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 months to complete the 

fastest rulemaking—for the Mercury Emissions from Mercury Cell Chlor-Alkali Plants 

source category—and approximately fifty-eight months to complete 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 only includes 

“discretionary” time that is not required to complete the rulemakings, but is also 
9 

characterized by “speculative and equivocal language” about what may (as opposed to 

what will) be required at each phase, and adds “extra, hypothetical time” to complete 

tasks that may not ultimately be required. (Pls.’ Reply at 35.) 

The parties’ cross-motions for summary judgment are ripe for this Court’s 

review (see Pls.’ Mot.; Def.’s Cross-Mot.; Pls.’ Reply; Def.’s Reply; Pls.’ Surreply 

Opposing Def.’s Cross-Mot. for Summ. 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 FOR REMEDYING A CLEAN AIR ACT 

VIOLATION 

The Clean Air Act permits “any person [to] commence a civil action on his own 

behalf” against the EPA “where there is alleged a failure of [the EPA] to perform any 

act or duty . . . which is not discretionary with [the agency].” 42 U.S.C. § 7604(a). The 

Act also empowers district courts to “order [the EPA] to perform” a mandated act or 

duty and to “compel [non-discretionary] agency action unreasonably delayed[.]” Id. 

The D.C. Circuit has interpreted this provision as allowing district courts to exercise 

their equity powers “to set enforceable deadlines both of an ultimate 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 deadlines 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 compressed . . . to afford 

any reasonable possibility of compliance” (internal quotation marks and citation 
10 

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” that 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 prevent an agency 

from shirking its duties by reason of mere difficulty or inconvenience[,]” Am. Hosp. 

Ass’n v. Price, 867 F.3d 160, 168 (D.C. Cir. 2017), and it “is especially heavy where 

the agency has failed to demonstrate any diligence whatever in discharging its statutory 

duty to promulgate regulations and has in fact ignored that duty for several years[,]” 

Sierra Club v. Johnson, 444 F. Supp. 2d 46, 53 (D.D.C. 2006) (internal quotation marks 

and citation omitted). Thus, courts “must scrutinize carefully claims of impossibility, 

and ‘separate justifications grounded in the purposes of the Act from the footdragging 

efforts of a delinquent agency.’” Id. (quoting Train, 510 F.2d at 713). Courts should 

also be wary of agency arguments “that additional time is needed simply to improve the 

quality or soundness of the regulations to be enacted[,]” id., or “that competing 

regulatory priorities preclude compliance with statutorily-mandated deadlines[,]” id. at 

54. 

Notwithstanding the heavy burden that an agency bears to prove its inability to 

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

the D.C. Circuit has “recognized two possible legitimate constraints on the agency’s 

ability to meet a statutory deadline[.]” Id. at 53. First, a court must be mindful of the 

“budgetary commitments and manpower demands [that are] required[,]” and thus avoid 

imposing deadlines that “are beyond the agency’s capacity or would unduly jeopardize 
11 

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 is the best practicable[,] 

or may confront problems in determining the components of particular industrial 

discharges.” Id. In such circumstances, “additional time [may be] necessary to

[e]nsure that the guidelines are rooted in an understanding of the relative merits of 

available control technologies” and “to give meaningful consideration 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 the EPA has failed to satisfy its “heavy burden to 

demonstrate . . . impossibility,” Ala. Power Co., 636 F.2d at 359, either with respect to 

the commencement of its work on the 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, this 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 complete its RTRs and any associated rulemaking 

activities. 

A. The EPA Has Not Demonstrated That It Is Impossible To Begin Work 

Before March Of 2020 

The Court’s first concern arises with respect to the EPA’s contention that it will 

not be able to begin the RTRs at issue in this case, or any associated rulemakings, until 
12 

March of 2020 (see Def.’s Mem. at 9), because of “39 other RTR rulemakings in which 

[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 needed to conduct the 

necessary reviews and develop additional regulations” (id. at 14–15) as the primary 

reason for its proposed delay in starting the work at issue. But the EPA’s assertion that 

it needs more than two years to even begin working on the instant 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 and 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 statutory requirements and court 

orders is commonplace for [the] EPA.” (internal quotation marks and citation omitted)). 

And while the EPA implies that its proposed schedule contemplates the use of outside 

contractors and other non-SPPD agency resources, it has not demonstrated that it is 

impossible for the agency to hire new personnel, including outside contractors, 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 agency’s current 

representations that it does not need additional funding from Congress to satisfy its 

obligations at this time, and in fact can fulfill its “Core Mission” of “Improv[ing] Air 
13 

Quality” with an almost fifty percent reduction in its air quality-related budget from 

Fiscal Year 2017 levels. (See Pls.’ 2d Notice at 4 (internal quotation marks omitted); 

Ex. G to Pls.’ 2d Notice, ECF No. 41-9, at 2.) But if the agency’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 mandated 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 resources are 

devoted to projects that are not subject to statutory deadlines” (Def.’s Reply at 10–11) 

undermines its claim that all potentially available resources are already fully utilized on 

other court-mandated rulemakings. The agency concedes that at least three “fulltime 

equivalents” (“FTEs”) within SPPD are currently dedicated to discretionary, nonstatutorily-mandated projects. (See Decl. of Panagiotis Tsirigotis (“Sept. Tsirigotis 

Decl.”) ECF No. 34-1, ¶ 7.)4

 And as Plaintiffs correctly observe, this admission 

pertains to “just the number of FTEs within SPPD that [the] EPA has allocated to” some 

of the discretionary projects that Plaintiffs have identified in 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 engaged and which are not 

“statutorily mandated”).) There may well be others; the EPA has made no 

representations regarding the total number of otherwise-available FTEs that are 

currently assigned to the agency’s other discretionary actions, and while Plaintiffs have 

identified other discretionary activities that the agency has taken while this case has 

 

4

 The term fulltime equivalent (“FTE”) commonly refers to the total hours that one fulltime employee 

works in a year, or the equivalent hours worked by several part-time employees. 
14 

been pending—e.g., efforts to amend previously finalized rules in order to extend 

industry compliance deadlines, and steps to repeal certain existing emission guidelines 

(see Pls.’ Surreply at 4–6; Pls.’ Notice at 2; Pls.’ 2d Notice at 1–4)—the EPA has 

neither denied its participation in such discretionary activities, nor provided any 

information about the number of SPPD or other agency staff who are working on such 

matters. Without that evidence (which the agency bears the burden of providing under 

the circumstances presented here), it certainly seems plausible that the EPA could 

reallocate additional FTEs from those kinds of discretionary activities to address the 

overdue RTR rulemakings. 

Even if no more than three or four FTEs are reallocated to the RTRs in this case, 

the record indicates that such an increase would boost the manpower that the EPA 

currently has dedicated to completing its mandatory statutory obligations by nearly ten 

percent (see Sept. Tsirigotis Decl. ¶ 5 (explaining that thirty-seven FTEs are currently 

available to perform the RTR reviews)), which is not a “relatively small” amount (id.

¶ 7), all things considered. Indeed, the EPA admits that relatively 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 SPPD[, while t]he most 

complex [RTR] projects have required about 3 FTEs within SPPD”).) On a complexity 

scale of one to three, the EPA has classified five of the source categories at issue here 

as a “one” (the least complex), four source categories as a “two” (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 measurable impact on the 

EPA’s ability to complete the overdue rulemakings expeditiously. 
15 

To be clear, this Court does not conclude 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 “enforcement actions or 

providing guidance to states regarding implementation of environmental regulations” 

(id.) is important. Be that as it may, when Congress has ordered the EPA to act by a 

certain deadline, “it is inappropriate for [the] agency to divert[,] to purely discretionary 

rulemaking[,] resources that conceivably could go towards fulfilling obligations clearly 

mandated by Congress.” Sierra Club, 444 F. Supp. 2d at 57. And, indeed, “[t]o accept 

such [a practice] in the face of a congressional direction would effectively amount to 

condoning a fully discretionary approach to a nondiscretionary duty.” Id. at 54 

(internal quotation marks and citation omitted). 

Of course, this Court cannot ignore the fact that the EPA is subject to other 

recent court orders regarding mandatory review obligations that have constrained the 

agency’s ability to devote all of its time and energy to addressing 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 applicable standard is 

impossibility, and in this Court’s view, the EPA has failed to demonstrate that it would 

be impossible for the agency to follow a more expeditious schedule than the one that it 

proposes in light of its existing 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 other agency subcomponents, 
16 

or cease discretionary activities, and thereby start working on the rulemakings at issue 

here before March of 2020, this Court will order the EPA to begin the instant RTRs and 

associated rulemakings sooner, i.e., after its completion of the first tranche of the 

existing court-ordered RTR reviews. 

B. The EPA Has Not Demonstrated That It Is Impossible To Complete 

The Nine-Phase Rulemakings More Expeditiously 

As noted above, the EPA has identified nine distinct phases of the RTR 

rulemaking process, and it has also predicted how long it believes the agency needs to 

complete each phase, and thus the entire rulemaking, for each of the nine instant RTRassociated rulemakings. (See Appendix A.) But in this Court’s judgment, the EPA has 

not shown that it would be impossible to complete the overdue rulemakings on a more 

expedited schedule, and in certain respects, it is crystal clear that a faster schedule is 

possible, because the agency’s proposal includes significant periods 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 source categories, and 

seven months for another source category—is, at least today, hypothetical; the EPA has 

not made “a final determination” that supplemental information is even required, and 

will not make that determination until after “the preliminary information 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 nine source categories, to 

facilitate a review of each rule by the Office of Management and 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, 190 
17 

F.3d 545, 551 (D.C. Cir. 1999) (rejecting argument that the OMB review provision of 

the executive order excused party’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 unnecessary, but in contravention 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 regulatory actions”).) 

The EPA’s proposed schedule also includes additional hypothetical, contingent 

time that may never be needed. Thus, the agency adds two weeks to the review time for 

each source category, in order to conduct “a risk-based demographic assessment[,]” but 

it admits that no such review will be needed if it turns out that the “risks are well below 

a level of concern[.]” (June Tsirigotis Decl. ¶ 17(d).) This Court does not know 

whether the risk-based demographic assessment, or any of the other contingent time 

included in the EPA’s schedule, will ultimately be necessary for the agency to fashion 

well-reasoned final rules, but neither does the agency, and that is precisely the point. 

Under the “impossibility” standard that the D.C. Circuit has adopted, an agency must be 

ordered to complete the mandated tasks within the most efficient 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 the requirement that the minimum possible timeframe 

be adopted. 

 But while the EPA’s proposed schedule in the instant case is too lax, it appears 

that Plaintiffs’ proposed schedule is much too draconian. Plaintiffs have provided no 

evidence to support their contention that the EPA can possibly complete its RTRs and 

associated rulemakings within the next two years. And Plaintiffs are mistaken to rely 
18 

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, promulgate emission standards 

for over 40 major source categories, as well as other rulemakings.” (emphasis omitted)); 

Pls.’ Reply at 42 (“The Clean Air Act directs that [the] EPA will conduct many air 

toxics rulemakings in no more than two years . . . and complete a combination of as 

many as 165 rules and review rulemakings 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 rulemakings at issue here, 

and the statute does not speak to how much of that eight-year timeframe 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 thing should take.” (emphasis in original)). It is likely 

that Congress did not intend for the EPA’s rulemaking to take the entire eight years, but 

there is simply no basis for importing the Act’s two-year deadline 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 rulemakings. Additionally, 

Congress did not speak to a specific remedy for a violation of the eight-year review 

period, or mandate a time by which overdue rulemakings must be completed. Coupled 

with the lack of specifics to support Plaintiffs’ proposed schedule, this Court simply has 

no principled basis for adopting the undifferentiated two-year schedule that Plaintiffs 

propose. 
19 

Taking into account all of the above, while “Plaintiffs’ timeline may be ‘simply 

too compressed at this stage to afford any reasonable possibility of compliance[,]’” Cal. 

Cmtys., 241 F. Supp. 3d at 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 EPA has failed 

to demonstrate that its proposed schedule is the fastest possible 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 the agency, it is 

reasonable to expect the EPA to complete all nine of the overdue 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 evaluating what deadlines are 

possible for the Agency to meet” (quoting Cal. Cmtys., 241 F. Supp. 3d at 205)).) This 

means that once the instant reviews get underway, which will be on or before January 1, 

2019, the EPA can be reasonably expected to act diligently to complete all of these 

rulemakings by October 1, 2021. And if more time is eventually needed, the agency 

can “move for an extension of [the] deadline[s] where appropriate,” 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 for 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 regard to specific categories if indicated at a later date.”). 

IV. CONCLUSION 

The EPA has not said that it would be impossible to reallocate existing personnel 

from other parts of the agency or to hire new personnel, including outside contractors, 

to begin performing at least part of the overdue rulemakings now, nor has it shown that 
20 

qualified agency staff resources are being spent only on mandatory activities. To top it 

off, the EPA has indicated publicly that it has no need for additional 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 deadlines 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, after completing its first 

tranche of the existing court-ordered RTR reviews, and it will be further ordered to 

complete all nine overdue rulemakings no later than October 1, 2021. Consequently, 

Plaintiffs’ motion for summary judgment is GRANTED to the extent that it seeks an 

order setting a schedule for the mandatory rulemakings, and DENIED with respect to 

the schedule proposed, and Defendant’s request for the schedule set forth in its crossmotion for summary judgment is DENIED. 

DATE: March 31, 2018 Ketanji Brown Jackson

KETANJI BROWN JACKSON 

United States District Judge 
APPENDIX A 
Appendix 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 

Date5

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 using the agency’s requested start date of 

March 16, 2020.