Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency
901 F.3d 414
| D.C. Cir. | 2018Background
- EPA promulgated the 2015 CCR (coal combustion residuals) Final Rule under RCRA Subtitle D to set national minimum criteria for landfills and surface impoundments holding coal ash, addressing risks of groundwater contamination and catastrophic impoundment failures.
- Record showed hundreds of existing impoundments are unlined or clay-lined, with substantial modeled probabilities of leaking and documented damage cases (e.g., Kingston, Dan River). New units require composite liners; the Rule allowed many existing units to remain in place subject to monitoring and phased corrective action.
- Two consolidated petitions: Environmental groups challenged EPA for not requiring closure/retrofit of unlined and clay-lined units and for exempting "legacy ponds" (inactive impoundments at inactive plants); industry petitioners challenged various substantive provisions and EPA authority to regulate inactive impoundments.
- EPA moved to hold proceedings in abeyance and to remand several provisions in light of the WIIN Act and planned reconsideration; the court denied abeyance but granted limited remand without vacatur of certain provisions (pile definition, 12,400-ton beneficial-use threshold, alternate groundwater standards).
- The D.C. Circuit vacated and remanded portions of the Rule: the allowance for continued operation of unlined impoundments until they leak; the treatment of clay-lined impoundments as effectively "lined"; and the exemption for legacy ponds. It upheld (inter alia) EPA authority to regulate inactive impoundments and several seismic, notice, and closure-timeline provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continued operation of existing unlined surface impoundments | Environmental petitioners: allowing unlined impoundments to remain until a leak is detected violates RCRA’s “no reasonable probability” standard | EPA/Industry: monitoring + corrective action on first indication of leak satisfies RCRA; many unlined units do not leak | Vacated §257.101: EPA acted arbitrarily and capriciously; cannot rely on post-leak detection monitoring/slow closure to meet RCRA’s standard |
| Treatment of clay-lined (compacted soil) impoundments as "lined" | Env: clay-lined units still pose substantial leak risk and should not be treated as protective; repairs and delayed corrective action are inadequate | EPA: repair-first approach and monitoring addresses risks | Vacated §257.71(a)(1)(i): treating clay-lined units as lined was arbitrary and remanded |
| Exemption for legacy ponds (inactive impoundments at inactive facilities) | Env: legacy ponds pose equal or greater risks and EPA’s stated difficulty identifying responsible parties is contradicted by record | EPA: enforcement/identification challenges justify a reactive approach; rely on imminent-and-substantial-endangerment and CERCLA | Vacated §257.50(e): exemption arbitrary; remanded for further consideration |
| EPA authority to regulate inactive impoundments under RCRA | Industry: RCRA’s phrase "where solid waste is disposed of" requires ongoing/active disposal; inactive sites fall outside EPA authority | EPA: definitional reading ("is disposed of") covers sites where waste remains and may leak; Chevron deference applies if ambiguous | Held for EPA: statute read to include inactive impoundments; EPA interpretation reasonable (Chevron step two), concurrence would find ambiguity but still defer to EPA |
| Notice re: aquifer location restriction applicability to existing impoundments | Industry: insufficient notice because Proposed Rule referenced only new units | EPA: preamble and proposal made clear EPA considered applying restrictions to existing impoundments; comments addressed it | Held for EPA: notice adequate; final rule was logical outgrowth of proposal |
| Remand requests (pile definition, beneficial-use threshold, alternate standards) | EPA sought remand to reconsider in light of WIIN Act and implementation issues | Petitioners: some opposed remand; parties largely agreed those provisions could remain in force pending reconsideration | Court granted voluntary remand without vacatur for specified provisions |
Key Cases Cited
- Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30 (D.D.C. 2013) (district court ordered EPA to propose schedule for RCRA regulation of CCR)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency interpretations of ambiguous statutes reviewed under Chevron framework)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (Chevron deference applies to agency interpretations of statutory jurisdictional grants)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action arbitrary and capricious where important aspects ignored)
- Ethyl Corp. v. Browner, 989 F.2d 522 (D.C. Cir. 1993) (discussing remand to agency to cure record or reconsider rulemaking)
- Limnia, Inc. v. Department of Energy, 857 F.3d 379 (D.C. Cir. 2017) (standards for granting agency voluntary remand)