Court Rules Against EPA For Failing to Update the National Contingency Plan

Yesterday, the Northern District of California issued an order granting Earth Island Institute’s motion for summary judgment in its case against Michael Regan and the Environmental Protection Agency (EPA). The plaintiffs alleged that the EPA failed to take discretionary action in accordance with the National Contingency Plan (NCP), as required by the Clean Water Act.

Reportedly, the EPA is responsible for creating a NCP to “provide for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances.” Earth Island found that the EPA had not updated Subpart J of the plan since 1994 to include the “most appropriate efficacy testing protocol.” An updated rule, allegedly, would have allowed the EPA to take more effective measures after the BP Deepwater Horizon Oil Spill in 2010.

In 2015, the EPA proposed three measures to add to Subpart J and two measures have still not been approved: revising the data and information requirements for chemical agent products to be listed on the Subpart J Product Schedule, and revising the authorization of use of procedures for chemical agents in response to an oil discharge to waters, the order explained.

The Court said that “the NCP is ineffective and inefficient” after reading the report from the Office of the Inspector General which concluded the same thing. Furthermore, the Court agreed with Earth Island that the EPA “ failed to fulfill its nondiscretionary duty to revise or amend the NCP.”

As a remedy, the Court agreed with the EPA’s suggestion to “take final action on the following components of the Proposed Rule by May 31, 2023: the authorization of chemical agent use in response to oil discharges as well as listing provisions for chemical agent products on the NCP Product Schedule.” The EPA will be required to file a status report every 180 days until the final rule is published.

The plaintiffs are represented by the UC Berkeley School of Law and the Center for Biological Diversity. The EPA is represented by the United States Department of Justice’s Environmental Defense Section.