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Coal ash ruling provides opportunity for environmentalists to sue EPA

On October 29 a federal district court ruled that the EPA must review RCRA rules every three years


Anthony Lacey
November 4, 2013 11:09PM (UTC)

The federal district court ruling finding EPA has a duty to review its Resource Conservation & Recovery Act (RCRA) coal ash rules every three years could open the door for groups to sue the agency to force reviews of years-old solid and hazardous waste rules, though EPA would not necessarily be forced to update the regulations.

EPA officials and others are still reviewing the Oct. 29 ruling and say it is too soon to know which rules environmentalists and others might seek to challenge, but one environmentalist suggests some options could include a challenge to an EPA toxicity test for wastes or unspecified regulatory exemptions under RCRA.

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Barnes Johnson, EPA's director of the Office of Resource Conservation & Recovery, acknowledged the ruling's scope in a brief Oct. 29 interview with Inside EPA. "As I read it [the ruling], it pretty broadly pertained to the whole of RCRA" he said, but cautioned that EPA is continuing to evaluate the decision to determine its scope.

U.S. District Court for the District of Columbia Judge Reggie Walton in an Oct. 29 order agreed with advocates that section 2002(b) of the waste law mandates the agency review, and if necessary revise, its coal ash rules every three years. On a conference call to discuss the ruling later that day, environmentalists involved in the litigation said the decision sets an important precedent subjecting all other RCRA rules to the three-year review mandate.

Section 2002(b) does not impose any criteria except timing on the reviews, saying, "Each regulation promulgated under this Act shall be reviewed and, where necessary, revised not less frequently than every three years."

Walton agreed with environmentalists that EPA has not complied with the section in terms of its coal ash rules, and is requiring the agency to submit to the court by Dec. 29 a plan for finalizing its long-delayed coal combustion residual rulemaking process. EPA in 2010 proposed to regulate ash as either hazardous waste under RCRA subtitle C or under one of two less-stringent subtitle D options, but it is unclear when the agency plans to finalize the rule.

The judge's decision sets an "important new precedent that extends far beyond coal ash," said Earthjustice attorney Lisa Evans on the conference call, because it could force reviews of rules last revised more than three years ago.

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She added, "The broadness of the ruling in terms of all RCRA regulations being open to suit for review and revision every three years is certainly something that we couldn't talk about a month ago," when Walton issued a two-page order Sept. 29 siding with environmentalists on the three-year review part of their ash rule lawsuit. The judge said that he would follow up with a more detailed memorandum opinion, which he issued Oct. 29.

Legal Challenges

Environmentalists could cite the ruling in a future legal challenge to try to force an update to EPA's Toxicity Characteristic Leaching Procedure (TCLP), a test used to determine if contaminants leach from waste, which could be used as part of an ash rule. In the coal ash suit, Appalachian Voices, et al. v. Gina McCarthy, advocates said, "Just as EPA has failed to revisit its regulation exempting coal ash from hazardous waste regulation in the face of mounting evidence that coal ash is hazardous, the Agency also has resisted revising its test for characterizing wastes as hazardous in the face of incontrovertible evidence that its current test is not credible."

But Walton sided with EPA in rejecting an attempt to force an update to TCLP, saying environmentalists lacked standing because they could not show a direct connection between the test and the coal ash rule.

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"In sum, the Environmental Plaintiffs' alleged harms resulting from the EPA's failure to, in their view, adequately regulate coal ash, are not sufficiently caused by the EPA's failure to review and revise the toxicity characteristic and are not likely to be redressed by the EPA's satisfaction of its statutory obligation to do so," Walton wrote.

On the conference call with reporters, Earthjustice's Evans said that although advocates lost their TCLP challenge on standing grounds in the ash suit, the ruling reinforcing EPA's duty to review and revise all RCRA rules at least every three years could be used in a future suit seeking to update the rules establishing TCLP. "That's the sort of regulation that might be updated" if a group were to file suit citing Walton's decision, she said.

Environmentalists argue that EPA should revise TCLP because flaws in the test are leading to weak disposal standards in states that use the procedure when setting their statutory limits for ash disposal. In lieu of EPA finalizing a solid waste or hazardous waste RCRA rule, states are largely responsible for crafting ash rules.

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Evans said that there is evidence that TCLP is out of date and in need of review. "Yes, there is a regulation that requires establishment of the TCLP, yes it is ripe, and hasn't been reviewed in over three years."

RCRA also contains many regulatory exemptions, Evans noted, which could be ripe for review under the three-year review provision. The statute "exempts certain wastes from regulation as it did for coal ash. It might be that some of those exemptions could be reexamined," she said, but did not provide any examples.

The 1980 Bevill amendment is an exemption that excluded coal combustion residuals (CCRs) and other high-volume, low-toxicity wastes from hazardous waste requirements and required EPA to make a "determination" over whether CCR warranted subtitle C regulation. At the time, agency officials determined it did not. While the ruling does not affect the amendment -- which Congress inserted into the law -- it could potentially have consequences for RCRA regulations that cite the amendment and have not been updated in the last three years.

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EPA's Johnson said in the brief interview on the sidelines of a state waste officials' conference in Washington, D.C., that his understanding is that the Bevill amendment itself would not be affected by the ruling.

On the call with reporters, Evans noted the ruling had only just been issued and that groups involved in the suit have made no decisions on using the ruling to force other rule reviews. "We just got the decision today," she cautioned. "All caveats that there might be some deeper thinking that goes on later" about the ruling, she said.

One industry source says Walton's ruling on the three-year review was not a surprise given that EPA had conceded in briefing it was overdue in reviewing its ash rules. But the source notes the section only requires a review of RCRA rules -- it does not mandate any changes to rules, and EPA could opt to keep rules in place after a review.

"Just because the agency has the obligation to review the rules, it doesn't mean the rules will be revised," the source says in response to a question about potential suits seeking review of TCLP or RCRA exemptions. "If the exemptions are still good policy then there's no need to wipe them off or revise them," the source says.

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Judge's Opinion

Walton's opinion moves EPA toward a potential court-ordered deadline for issuing an ash policy -- something environmentalists have long sought. The agency first proposed in 2010 to regulate ash either under strict RCRA subtitle C hazardous waste rules; weaker subtitle D solid waste rules; or a third, least-stringent option that the ash industry supports known as subtitle D "prime," which would not require some coal ash landfills to close or install liners to reduce coal ash releases because of arguments that they pose low risk at some existing facilities.

The possible subtitle C rule would reverse the agency determinations in 1993 and 2000 that regulation of coal ash under subtitle C is inappropriate, and that the correct option is to regulate the material as a solid waste under subtitle D rules. Environmentalists favor subtitle C rules, saying the strict controls are vital to reduce risks of contamination and spills.

Since issuing the 2010 proposal, EPA has hinted that its preference is to issue some type of subtitle D rule for coal ash due to related effluent limitation guidelines (ELG) that the agency is crafting to regulate liquid discharges under the Clean Water Act, though advocates say the ELG should not be a "substitute" for a strict ash rule.

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But the agency has delayed finalizing a rule, instead issuing notices of data availability seeking more comment on data relevant to the rule. And EPA previously told the district court in Appalachian Voices that it would need months to process the more than 450,000 comments it received on the proposed version of the rule.

Walton's opinion says "given the time that has already elapsed and the EPA's recognition of the need to revise its coal ash regulations, it is entirely possible that review of these comments has now been completed and no longer stands as a barrier to expedited completion of the process. The court therefore requires updated information from the Agency regarding the status of its review and revision to properly fashion a schedule for the EPA's compliance with its obligation to review and revise it necessary its Subtitle D regulations concerning coal ash."

Walton says the court is "sensitive" to EPA's desire to conduct its review of ash regulations and is "cognizant" that the agency is in the best position to assess how much time it needs to finalize the rule. But the judge says the court cannot permit EPA to set its own schedule "in a manner dictated solely by the Agency's discretion."

Earthjustice's Evans said she expects EPA to submit to the court a proposal to releasing an ash rule sometime in 2014, and Environmental Integrity Project's Jennifer Duggan said on the call that the ELG -- which the agency is eager to coordinate with the coal waste rule -- is due for release in May under a consent decree deadline.

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Evans said the ELG "will not do many, many things that a coal ash rule will need to" such as imposing engineering conditions on landfills, controlling fugitive dust, or requiring safe closure of impoundments. "One rule cannot substitute for another," she said. "The coal ash rule is important for its own reasons having to do with disposal practices."

The industry source says that EPA should be given enough time to develop a "reasonable" rule, cautioning that a too-brief timetable could be at odds with Administrative Procedure Act requirements such as providing adequate time for public notice-and-comment. The source expects EPA to propose finalizing the rule in late 2014.

The source adds that the ELG and ash rule "don't have to come out at the same time to be coordinated . . . but it's important they be coordinated and not at cross-purposes." -- Anthony Lacey (alacey@iwpnews.com)

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Anthony Lacey

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