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Court Rejects EPA’s Coal Ash Settlement Agreement

Sue And Settle: Court Rules Consent Decree Not Consistent with Public Interest - December 19, 2014 Deadline for Proposing Coal Ash Rules Should Not Be Subject to Delay by the Parties

By Kathy Beckett and Kathy Milenkovski

The United States District Court for the District of Columbia recently rejected a proposed settlement agreement in litigation between several environmental groups and the EPA over EPA’s review of a proposed rule to classify coal ash as a hazardous waste. According to the judge, the proposed settlement agreement in Appalachian Voices et al. v. McCarty, while fair and reasonable in all other aspects, was not in the public’s interest because it would allow both EPA and the parties to extend the deadline for EPA final action without any oversight by the court.

The case – filed in 2012 by a number of plaintiffs – involved allegations that EPA had failed to meet requirements of the Resource Conservation and Recovery Act (RCRA) to timely review and revise regulations concerning coal ash – which includes fly ash, bottom ash, slag and flue gas emission control waste. The court agreed with plaintiffs’ allegations that EPA had failed to perform a nondiscretionary duty under the statute. In granting plaintiffs’ motion for summary judgment, the court required the parties to file supplemental briefs regarding an appropriate deadline for EPA to fulfill its statutory obligation. The parties put forth a proposed consent decree that would have required EPA to sign for publication in the Federal Register a notice of final action regarding EPA’s proposed revisions to the RCRA coal ash regulations by December 19, 2014. However, the proposed agreement included language that EPA and the plaintiffs could extend that deadline by written stipulation, without requiring judicial approval. Citing language from a similar provision in another case, the court held that without judicial involvement and approval of any additional extensions of time, the parties could conceivably continue to extend deadlines “for any reason or for no reason at all” and that the public interest in the regulations would be left unprotected. The court ordered the parties to submit a revised consent decree that would require court approval of any extensions of EPA’s deadline, noting that such an agreement would be promptly approved when submitted.

This order indirectly speaks to the assertions by the regulated community that settlements between environmental advocates and the federal government often result in situations where decisions are being made about the implementation of administrative law without input from all public stakeholders. In this case, however, the parties to the litigation represented federal government, environmental advocates, and the regulated community. One might argue that in this instance all primary stakeholders were at the table.

As the federal courts are being criticized and challenged relative to the “Sue and Settle” litigation model that implements consent decrees impacting administrative law, we will be observing an elevated scrutiny of proposed settlements. Although this particular order may jeopardize the ultimate thoughtful regulatory decision for regulation of coal ash, it represents an active court reviewing the consent decree a function that has been ignored in other instances.

Appalachian Voices et al. v. McCarty, Case 1:12-cv-00523 (D. D.C. April 24, 2014), [enhanced version available to subscribers].

Kathy Beckett is an environmental lawyer who is skilled at finding practical regulatory compliance solutions that compliment the ease of operating a business. She is also experienced in designing emergency response strategies for environmental impacts. Twenty-five years of experience practicing environmental, regulatory and natural resources law have enabled Ms. Beckett to develop a national reputation for her ability to influence environmental policies on behalf of her clients.

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