EPA Ballast Complaint
April 9, 2001
The following complaint was filed in Federal District Court in San Francisco on April 2, 2001 after more than 2 years of stonewalling by the US EPA and their refusal to adequately address concerns for alleged violation of the Clean Water Act and Ballast Discharges in the Nations' Waters.
CRAIG JOHNSTON (OSB No. 88235) AARON COURTNEY (OSB No. 93525) Pacific Environmental Advocacy Center 10015 S.W. Terwilliger Boulevard Portland, OR 97219-7799 (503) 768-6727 (503) 768-6642 [FAX] DEBORAH A. SIVAS (CSB No. 135446) Earthjustice Legal Defense Fund Owen House 553 Salvatierra Walk Stanford, CA 94305-8620 (650) 723-0325 (650)725-8509 [FAX] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA NORTHWEST ENVIRONMENTAL ) Case # ADVOCATES; CENTER FOR MARINE ) CONSERVATION; and SAN FRANCISCO ) BAYKEEPER, ) ) COMPLAINT FOR ) DECLARATORY AND Plaintiffs, ) INJUNCTIVE RELIEF ) vs. ) Administrative Procedure Act Case ) (5 U.S.C. §§ 551-706) ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, ) ) Defendant. ) __________________________________________) INTRODUCTION 1. This is an action for declaratory and injunctive relief. Plaintiffs, Northwest Environmental Advocates (“NWEA”), Center for Marine Conservation (“CMC”), and San Francisco BayKeeper (“BayKeeper”) challenge the failure of the Administrator of the United States Environmental Protection Agency (“EPA”) to formally respond to Plaintiffs’ properly presented petition for repeal of 40 C.F.R. §122.3(a). A copy of the Plaintiffs’ petition is attached hereto as Exhibit A and is incorporated by reference. 2. This action arises under and alleges violations of Administrative Procedure Act (“APA”) (5. U.S.C. §§ 551-706), specifically sections 553(e), 555(b) and (e), and 706(1). 5 U.S.C. §§ 553(e), 555(b)(e), and 706(1). 3. Plaintiffs seek a declaration that the EPA’s failure to timely respond to Plaintiffs’ petition violates sections 553(e), and 555(b) and (e) of the APA (5 U.S.C. §§ 553(e) and 555(b), (e)), and constitutes agency action unlawfully withheld and/or unreasonably delayed pursuant to APA section 706(1). 5 U.S.C. § 706(1). 4. In accordance with APA § 706(1), Plaintiffs also seek injunctive relief compelling EPA to formally respond to the Plaintiff’s petition. 5 U.S.C. § 706(1). 5. Plaintiffs further seek an award of costs and attorneys fees pursuant to the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412. JURISDICTION 6. The court has jurisdiction over this action by virtue of 28 U.S.C. §§ 1331 (federal question), 2201 (declaratory judgment), and 2202 (injunctive relief), and 5 U.S.C. § 706(1) (APA). There is a present and actual controversy between the parties and plaintiffs have challenged a final agency action (as defined by section 551(13) of the APA (5 U.S.C. § 551(13)). 7. Venue is properly vested in this court pursuant to 28 U.S.C. 1391(e) because at least one of the Plaintiffs resides in the district and the Defendants maintain offices in San Francisco, California. PARTIES 8. Plaintiff NWEA is a regional non-profit environmental organization established in 1969 and incorporated under the laws of Oregon in 1981 with its principle place of business in Portland, Oregon. NWEA’s mission is to work through advocacy and education to protect and restore water and air quality, wetlands, and wildlife habitat in the Pacific Northwest with a focus on the Lower Columbia and Willamette Rivers. To this end, NWEA promotes informed citizen involvement in the protection of the Northwest’s waterways. NWEA’s members derive recreational, scientific, aesthetic, spiritual, and commercial benefits from these waterways’ being free of invasive species, biological materials, and other pollutants that result from unregulated ballast water discharges. 9. Plaintiff CMC is a national non-profit conservation organization with an interest in protecting coastal, estuarine, and marine resources, including the natural ecosystem of the San Francisco Bay/Delta. CMC is headquartered in Washington, D.C., and has regional offices in several locations, including San Francisco, California. CMC has approximately 120,000 members, including nearly 5,000 members who reside and work in the San Francisco Bay/Delta area. CMC’s mission is to protect coastal and marine environments and to conserve the global abundance and diversity of coastal and marine life. Through science-base advocacy, research, and public education, CMC promotes informed citizen participation to reverse the degradation of our coasts and oceans. 10. Plaintiff BayKeeper, a Project of WaterKeepers of Northern California (“BayKeeper”), is a non-profit public benefit corporation organized under the laws of the State of California with its main office in San Francisco, California. BayKeeper has approximately 2,500 members who live and recreate in and around the San Francisco Bay/Delta region. BayKeeper is dedicated to the preservation, protection, and defense of the environment, the wildlife and the natural resources of San Francisco Bay/Delta Estuary. To further these goals, BayKeeper actively seeks federal and state agency implementation of the environmental laws and, where necessary, directly initiates enforcement actions on behalf of itself. 11. Each of the named Plaintiffs is a petitioner that petitioned for repeal of 40 C.F.R. § 122.3(a) pursuant to the APA section 553(e). 5 U.S.C. § 553(e). Exhibit A. 12. The above-described recreational, educational, scientific, aesthetic, spiritual, and commercial interests of the Plaintiffs and their respective members have been, are being, and unless the relief requested is granted, will continue to be adversely affected and irreparably injured by the failure of the Defendant to comply with the APA. Plaintiffs have no adequate remedy at law. 13. Defendant, EPA, a federal agency, has the responsibility to implement the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387. Further, as a federal agency, Defendant has the obligation to respond within a reasonable time to a petition to repeal a regulation, pursuant to the APA sections 553(e), and 555(b) and (e) of the APA. 5 U.S.C. §§ 553(e) and 555(b), (e). BACKGROUND 14. The introduction of exotic species through ballast water has fundamentally altered many aquatic ecosystems and is becoming what scientists have described as a significant part of global environmental change. Exhibit A at 1 and 4. More than 21 billion gallons of ballast water containing live organisms are discharged into waters of the United States every year-an average rate of 2.4 million gallons per hour. Exhibit A at 3. 15. The negative environmental effects of non-indigenous species (“NIS”) that are introduced through ballast water discharges also have accompanying economic impacts. Exhibit A at 5-6. Unregulated ballast water also can spread bacteria and viruses associated with human sewage, and as such poses a significant human health risk. Exhibit A at 6. 16. Ballast water-caused introductions of NIS have impacted aquatic ecosystems across the country, including the Great Lakes, the Columbia River Basin, and San Francisco Bay. Exhibit A at 3 - 4. In fact, because of unregulated ballast water discharges, it is estimated that a new exotic species is established in San Francisco Bay on average once every 14 weeks; resulting in the establishment of more than 234 NIS in San Francisco Bay-a number that continues to rise. Exhibit A at 4. 17. NIS, which include bacteria and viruses as well as larger species, qualify as “biological materials” within the meaning of the CWA. 33 U.S.C. § 1362(12). Additionally, ballast water is also likely to contain other contaminants such as oil, chipped paint, sediment, and toxins, each of which qualify as “pollutants” under the CWA. 33 U.S.C. § 1362. Exhibit A at 3. Further, the CWA regulates vessels that discharge ballast water as “point sources.” 33 U.S.C. §1362(6). Consequently, the CWA mandates that such vessels must have National Pollution Discharge Elimination System (“NPDES”) permits in order to lawfully discharge ballast water into waters of the United States or into United States territorial seas. 33 U.S.C. § 1342. 18. Despite this clear statutory prohibition, EPA has promulgated a regulation that categorically exempts ballast water discharges from regulations under the CWA. 40 C.F.R. § 122.3(a). 19. Through their January 13, 1999, petition, Plaintiffs sought repeal of this regulation because it unlawfully authorizes the detrimental spread of invasive plant and animal species, including bacteria and viruses, that are associated with ballast water discharges. Exhibit A. 20. In an unofficial response to Plaintiffs’ petition, J. Charles Fox, EPA Assistant Administrator, sent Plaintiffs’ counsel a letter dated April 6, 1999. A copy of Mr. Fox’s letter is attached hereto as Exhibit B and incorporated herein. In that letter, Mr. Fox promised that EPA would release a draft report on new and existing technologies to assess, control, or treat ballast water discharges by September 1, 1999. Exhibit B at 3-4. Mr. Fox further stated: “I share your view that non-indigenous species pose a serious threat to the ecological health of the Nation’s waters and the economies they support. I also agree that the Clean Water Act provides EPA with broad authority for controlling the discharge of pollutants, and that authority could be extended to the control of ballast water discharges from vessels in some cases.” Exhibit B at 1. Despite Mr. Fox’s assurances on behalf of EPA, Plaintiffs did not and have not received a formal response to their petition, nor even the draft report referenced by Mr. Fox. 21. On September 17, 1999, Plaintiffs sent a follow up letter to Dorn Carlson, EPA, asking for information regarding Plaintiffs’ petition and the status of the overdue draft report. A copy of the September 17, 1999, letter is attached hereto as Exhibit C and incorporated by reference. Plaintiffs received no response to this letter from EPA. 22. On January 5, 2001, Plaintiffs sent a third letter regarding the failure of EPA to respond to Plaintiffs’ petition to repeal of 40 C.F.R. §122.3(a). A copy of the January 5, 2001, letter is attached hereto as Exhibit D and incorporated by reference. 23. On February 7, 2001, Diane Regas, Acting Assistant EPA Administrator, sent a letter to Plaintiffs’ counsel once again agreeing “that invasive species are a major threat to the ecological health of this Nation’s waters,” but again refusing to provide a formal response to Plaintiffs’ petition. A copy of Ms. Regas’ letter is attached hereto as Exhibit E and incorporated by reference. 24. Despite these extensive efforts by Plaintiffs there has been no official action taken by the EPA in response to Plaintiff’s petition--a delay of over two years. EPA’s failure to respond to Plaintiffs’ petition contravenes the agency’s legal obligations to timely respond as required by sections 553(e) and 555(b) and (e) of the APA. 5 U.S.C. §§ 553(e) and 555(b), (e). CLAIM FOR RELIEF 25. Plaintiffs incorporate by reference all preceding paragraphs. 26. The APA requires that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). 27. The APA further requires that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). 28. The APA provides that “prompt notice shall be given of the denial in whole or in part of a written application, petition or other request of an interested person made in connection with any agency proceeding.” 5 U.S.C. § 555(e). 29. By not formally taking action for over two years to Plaintiffs’ petition to revoke 40 C.F.R. § 122.3(a), EPA has unlawfully withheld and/or unreasonably delayed its statutorily required response. 30. Such unlawful and unreasonable action by the EPA is subject to judicial review under section 706(1) of the APA. 5 U.S.C. § 706(1). 31. Based on the above facts and legal obligations, the Secretary has violated sections 553(e) and 555(b) and (e) of the APA by failing to respond timely to Plaintiff’s petition for rulemaking. 5 U.S.C. §§ 553(e) and 555(b), (e). EPA’s failure to respond constitutes agency action unlawfully withheld and/or unreasonably delayed pursuant to the section 706(1) of the APA. 5 U.S.C. §706(1). PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court: 32. Declare that EPA’s failure to act on Plaintiffs’ petition violates sections 553(e), 555(b) and (e) of the APA (5 U.S.C. §§ 553(e), 555(b) and (e)), and constitutes agency action unlawfully withheld and/or unreasonably delayed pursuant to the section 706(a) of the APA. 5 U.S.C. § 706(1). 33. Order injunctive relief compelling the EPA to respond to the Plaintiff’s petition within 30 days of the date of this Court’s order, in accordance with the APA, 5 U.S.C. § 706(1). 34. Award Plaintiff their reasonable fees, costs, expenses, and disbursements, including attorneys fees, associated with this litigation, under EAJA. 28 U.S.C. § 2412. 35. Grant Plaintiffs such additional and further relief, as the Court may deem just and necessary. Dated this ____ day of ________, 2001 ____________________________ DEBORAH A. SIVAS (CSB No. 135446) Earthjustice Legal Defense Fund Owen House 553 Salvatierra Walk Stanford, CA 94305-8620 (650) 723-0325 (650)725-8509 [FAX]