According to Inside EPA, “A federal court in California has agreed with environmentalists that EPA has a nondiscretionary duty under the Clean Water Act (CWA) to update its rules governing oil spills in order to better regulate dispersants, relying in part on a landmark appellate decision that found EPA had unduly delayed updating its lead paint dust hazard standards. In a precedent-setting June 2 decision, Judge William Orrick of the U.S. District Court for the Northern District of California denied EPA’s motion to dismiss the suit, Earth Island Institute, et al. v. Andrew Wheeler, et al., finding that the relevant section of the CWA does not give the agency discretion on whether it should update the CWA National Oil and Hazardous Substances Pollution Contingency Plan (NCP). ‘Overall, Section [311](d) contemplates an ongoing duty that in turn strongly suggests that the duty to update and revise the NCP ‘as advisable’ is not discretionary, but required,’ the judge wrote. Orrick also rejected American Petroleum Institute’s (API) motion to intervene in the case ‘because this lawsuit addresses the agency’s procedure, not its substantive decision.’ Claudia Polsky, an attorney with the University of California-Berkeley School of Law who argued on behalf of the plaintiffs, tells Inside EPA that Orrick’s ruling is ‘very consequential’ because it holds EPA accountable in the future for making sure the NCP ‘doesn’t get dusty.’ While the environmentalists brought the suit under both the CWA and the Administrative Procedure Act (APA), EPA only filed a motion to dismiss the CWA claim, not the APA claim.”

Full article at Inside EPA.com

 

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