Greens Met EPA Suit Deadline, Judge Says

     SAN FRANCISCO (CN) – A federal judge refused to dismiss claims that the Environmental Protection Agency ignored a group’s attempts to limit toxic ocean dumping.



     Eyeing the U.S. Navy’s sinking exercise program, a toxic waste watchdog group, wanted to initiate rulemaking that would limit the ocean dumping of polychlorinated biphenyls (PCBs).
     Basel Action Network filed its petition under Section 21 of the Toxic Substances Control Act, which allows citizens to file petitions with the EPA, and requires the agency to grant or deny a petition within 90 days. It also gives petitioners a 60-day window to file a civil suit if the EPA does not respond by the deadline.
     Basel Action mailed its petition to the EPA on July 1, 2011, and emailed a digital copy on July 12. The EPA received both versions of the petition roughly a week later, and sent Basel a letter on July 21 acknowledging that it had received both the hard and digital copies.
     When the 90-day deadline passed without a response from the EPA, Basel asked for a status update. Basel and the Sierra Club filed suit on Dec. 9 when the agency again failed to respond.
     In a motion to dismiss, the EPA argued that the groups did not file within the 60-day deadline. It claimed that the review period started on July 8, when its administrative office received the petition by mail, making Dec. 6 the final day to file suit.
     The environmental groups disagreed. They claim the review period started on July 21, the date on the EPA’s acknowledgement letter, and that they therefore filed in time.
     “Plaintiffs thus argue that plaintiffs reasonably relied on EPA’s acknowledgement letter, and equitable tolling should apply,” U.S. District Judge Edward Chen wrote.
     Equitable tolling allows parties to file suit even after a deadline has passed if they did not know about a problem before the deadline, or if they could not file during the prescribed period.
     Chen said the case turns on whether the 90-day time limits in Section 21 “operate as a statute of limitations or as a jurisdictional requirement.”
     Quoting precedent, the judge noted that, “if it is the former, the traditional defenses of waiver, estoppel, and equitable tolling apply. If it is the latter, such defenses are inapplicable, and [the court] lack[s] subject matter jurisdiction over the case entirely.” (Brackets in original.)
     Chen found that Congress did not intend Section 21 to be jurisdictional because the deadline applies to the agency, not the filing party.
     “Thus, the agency’s internal actions officially set the clock running, not the petitioner’s,” the decision states. “If the agency denies the petition, the petitioner may seek judicial review within 60 days of the agency’s decision. However, it is only when the agency fails to comply with the statute’s mandate that the time calculation at issue here comes into play.”
     Since the public never knows on what the date the EPA receives petitions, the environmental groups cannot know when the 90-day time period officially begins.
     Congress included Section 21 to let citizens petition the EPA and “receive appropriate attention” from the agency. Interpreting time limits as jurisdictional would only hurt petitioners’ rights, the judge found.
     Citing a report from the U.S. House of Representatives, Chen said that, “by requiring the administrator to act on any such petition within 90 days, the conferees will facilitate such a petitioner’s right to seek judicial review should the Administrator deny the petition. Otherwise, the administrator could avoid any judicial review simply by failing to take action.”
     Though other courts have interpreted Section 21 to imply that time limits are jurisdictional, such rulings deviate from several Supreme Court decisions, Chen said.
     “Accordingly, the court concludes that Section 21’s time limit for petitioners to obtain judicial review of an agency’s failure to initiate rulemaking is a non-jurisdictional claim-processing rule,” the decision states.
     Chen also applied equitable tolling because of the ambiguity about when the time limits actually started.
     “EPA stated that it had received the petition ‘by email on July 12, 2011, and by U.S. mail,'” the decision states. “This could mean either that EPA received both the paper and electronic versions of the petition on July 12, or that it received only the electronic version on July 12, and received the paper version on a different, unspecified date.”
     “Because EPA gave only one date, it is reasonable for BAN (and this court) to hold the EPA to that date rather than force BAN to be bound by a date never disclosed, especially since BAN attempted to follow up with EPA and received no response,” Chen added (parentheses in original).
     “This is not a case in which the plaintiff has exhibited a lack of diligence; rather, BAN simply relied on the date EPA gave it in calculating the time it had to petition for review of EPA’s inaction,” the decision states later.
     As such Chen refused to dismiss.

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