2-1-17 Natural Resources Defense Council V EPA Complaint
2-1-17 Natural Resources Defense Council V EPA Complaint
INTRODUCTION
Agencys (EPAs) unlawful rescission of a final rule promulgated under the Clean
Water Act. The final rule would reduce the discharge of mercury and other toxic
metals from dental offices into municipal sewage treatment plants and ultimately
environment can cause serious harm to human health, largely through consumption
of contaminated seafood.
amalgams for fillings. The final mercury rule at issue here, formally titled Effluent
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Limitations Guidelines and Standards for the Dental Category, would prevent
dental offices from discharging into the environment 5.1 tons of mercury and 5.3
4. The EPA Administrator signed the final mercury rule on December 15,
2016, and the agency delivered the final rule to the Office of the Federal Register for
publication in the Federal Register. The Office of the Federal Register posted the
final rule for public inspection on or before Thursday, January 19, 2017, and
memorandum issued by the White House to all federal executive agencies late in
the day on Friday, January 20, 2017, shortly after President Trump was
inaugurated.
6. However, the final mercury rule was adopted and duly promulgated by
EPA when it was signed by the EPA Administrator, sent to the Office of the Federal
Register, and at the latest, when it was filed for public inspection. EPAs rescission
of the final rule without any public process violates the notice and comment
rule.
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PARTIES
environmental and public health organization with more than 325,000 members.
public health and the environment. NRDCs mission includes preventing health
threats posed by the release of mercury and other toxic chemicals to the
environment.
9. Plaintiff brings this action on its own behalf and on behalf of its
families who are concerned about the health risks from exposure to mercury.
Defendants rescission of the final mercury rule creates a risk of harm to plaintiffs
mercury per year. That harm would be redressed by an order invalidating EPAs
withdrawal of the final rule. Additionally, defendants failure to comply with notice-
and-comment requirements before rescinding the rule harmed plaintiff and its
plaintiff had an opportunity to comment, it would have opposed EPAs repeal of the
rule.
10. Defendant EPA is the federal agency responsible for implementing the
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management of all decisions and actions of that agency. Plaintiff sues Acting
12. This Court has jurisdiction over this action pursuant to 28 U.S.C.
1331.
13. EPAs withdrawal of the mercury rule is a final agency action subject
14. This Court has the authority to issue the requested declaratory and
injunctive relief pursuant to 28 U.S.C. 2201-02 and 5 U.S.C. 702 and 706.
15. The requested relief would redress the harm to plaintiff and its
16. Venue is proper in this district because plaintiff NRDC resides and has
its principal place of business in this judicial district. 28 U.S.C. 1391(c)(2), (e)(1).
17. Congress enacted the Clean Water Act in 1972 to restore and
maintain the chemical, physical, and biological integrity of the Nations waters. 33
U.S.C. 1251(a). The Clean Water Act sets as an ultimate goal the elimination of
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18. Among other things, the Clean Water Act requires EPA to regulate the
discharge of pollutants into the nations waters through municipal sewage plants,
which are known as publicly owned treatment works, or POTWs. Id. 1317(b). EPA
of dischargers (in this case, dental offices), to minimize the amount of pollutants (in
this case, mercury and other metals) those dischargers send through the sewers to
POTWs and eventually to surface waters. Within ninety days after proposing
standards under this subsection, the EPA Administrator shall promulgate those
publish a notice of proposed rulemaking in the Federal Register and solicit public
comment before adopting or repealing a rule, unless the agency for good cause
finds that notice and comment are impracticable, unnecessary, or contrary to the
public interest. 5 U.S.C. 553. The APA defines rule making as the agency
process for formulating, amending, or repealing a rule. Id. 551(5). The APA
20. Under the APA, a reviewing court shall hold unlawful and set aside
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21. The Freedom of Information Act (FOIA) mandates that [e]ach agency
shall separately state and currently publish in the Federal Register . . . substantive
22. FOIA also provides that [e]xcept to the extent that a person has
actual and timely notice of the terms thereof, a person may not in any manner be
23. The Federal Register Act (FRA) directs that [t]here shall be published
24. The Office of the Federal Register is responsible for the prompt and
published in the Federal Register be filed with the Office of the Federal Register for
processing prior to publication. Id. 1503. Upon receipt, the Office of the Federal
Register must make each document immediately available for public inspection,
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Federal Register is not valid as against a person who has not had actual knowledge
of it until . . . the document ha[s] been filed with the Office of the Federal Register
and a copy made available for public inspection. Id. 1507. Unless otherwise
26. Dentists use mercury in amalgams for dental fillings. Dental amalgam
is almost fifty percent mercury by weight. The rest of the amalgam is usually
composed of a combination of silver, tin, copper, zinc, and small amounts of indium
and palladium. The mercury and other metals found in dental amalgam are
27. Discharges of dental amalgam into public sewer systems occur when
dentists are filling a cavity and excess amalgam is rinsed or suctioned out of the
patients mouth. Dental amalgam discharges also occur when dentists remove old
fillings that are worn or damaged, and the amalgam is rinsed or suctioned out of the
patients mouth.
28. Dental offices are the main source of mercury discharges to municipal
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application of sewage sludge, which is the solid material that remains after
becomes diffuse, and mercury pollution in the environment is difficult and costly to
can cause toxicity to the fetuss developing brain. At very low levels of exposure
including decreases in motor function, attention span, verbal abilities, memory, and
31. Although pregnant women and children are the populations at greatest
risk, methylmercury is also toxic to adults, and can cause adverse cardiovascular
pretreatment standards for waste dental mercury. According to EPA, the rule sets a
uniform national standard that will greatly reduce the discharge of mercury-
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EPA expects compliance with this final rule will annually reduce the discharge of
mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental
33. The rule requires dental offices to use a practical, affordable, and
separator, to capture waste mercury that can then be recycled. The rule also adopts
remove mercury from waste dental amalgam before it is dumped into the drain and
released into the environment through sewage treatment plants, which cannot
proposed mercury rule, and plaintiff NRDC submitted public comments in response.
EPA published the proposed mercury rule on October 22, 2014, and again solicited
public comment. NRDC filed additional comments in response to the proposed rule.
35. Under the Clean Water Act, EPA was required to finalize the mercury
rule by January 20, 2015, which is ninety days from the date of proposal. 33 U.S.C.
1317(b)(1).
36. After reviewing public comments, the EPA Administrator signed the
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37. The final rule was widely publicized, including within the regulated
community. On the date the rule was signed by the EPA Administrator, the
fair and reasonable approach to the management of dental amalgam waste. The
publicly owned treatment works, also published a statement, referring to the final
38. EPA sent the signed final rule to the Office of the Federal Register for
39. On information and belief, and based on the Office of the Federal
Register website, the Office of the Federal Register filed the final mercury rule for
public inspection on Thursday, January 19, 2017, and scheduled the rule for
Later that day, White House Chief of Staff Reince Priebus issued a Memorandum
for the Heads of Executive Departments and Agencies. The Priebus Memorandum
was made available on the White House website on January 20 and was published
in the Federal Register on Tuesday, January 24. See 82 Fed. Reg. 8346 (Jan. 24,
2017).
federal agencies to immediately withdraw final rules sent to the Office of the
Federal Register but not yet published in the Federal Register. The Priebus
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Memorandum further states that agencies should exclude from withdrawal any
42. In response to the Priebus Memorandum, EPA sent the Office of the
Federal Register a letter on January 23, asking to withdraw all EPA documents
currently at the Office of the Federal Register and scheduled for publication on
January 24, 2017, or later. EPAs withdrawal letter lists all documents EPA
the mercury rule as a Final Rule and notes that it is already on public
inspection.
43. EPA asked to withdraw the final mercury rule from publication even
though the Priebus Memorandum by its terms did not apply to that rule, because
the rule was subject to a statutory deadline contained in the Clean Water Act, 33
U.S.C. 1317(b)(1), and was required by law to be finalized within ninety days of its
proposal.
44. The Office of the Federal Register acceded to the EPA withdrawal
46. EPA adopted the final mercury rule as authorized by law and was
latest, the final mercury rule was adopted and duly promulgated by EPA when it
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was filed with the Office of the Federal Register and made available for public
47. EPA unlawfully withdrew the final mercury rule without publishing a
48. EPAs withdrawal of the final mercury rule was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law, id. 706(2)(A), and
49. EPA did not have good cause to disregard the notice and comment
50. Neither the Priebus Memorandum nor any other authority provides a
lawful basis for EPAs repeal of the final rule without notice and comment.
D. Granting such other relief that the Court considers just and proper.
Respectfully submitted,
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