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Federal Court Orders EPA to Establish Timeline for Reviewing Coal Ash Regulation

On October 28, 2013, the U.S. District Court for the District of Columbia (“Court”) issued its Memorandum Opinion in the Environmental Protection Agency (“EPA”) Coal Combustion Residue (“CCR”) litigation [enhanced version available to subscribers]. Under the Memorandum Opinion, the Court is directing EPA to provide a proposed schedule near the end of December for completing its CCR rulemaking.

Once EPA submits the schedule, the plaintiffs (environmental groups and CCR marketing companies) will have 30 days to file a response to EPA’s proposed schedule, and EPA will have 14 days to reply to that response. After these filings, which should be made by mid-February 2014, the Court will consider the proposed schedule and the arguments, after which the Court will establish a Court-ordered deadline for EPA to finalize the proposed CCR rule. The Court also set forth its rationale for dismissing the remaining two claims in the litigation and ruling for EPA on these two claims. First, the Court held that the Bevill Amendment – an amendment to the Resource Conservation and Recovery Act that requires an agency after public comment to either promulgate regulations, or determine such regulations are unnecessary – is a regulatory codification of the statutory exemption for CCR and, therefore, EPA does not have a non-discretionary duty to review and revise, as necessary, the Bevill Amendment every three years under RCRA Section 2002(b) [enhanced version available to subscribers]. In addition, the Court held that since CCRs are not subject to hazardous waste regulation and the Toxicity Characteristic Leaching Procedure, there was no standing to bring this claim. Timing of the CCR rule is not certain, but there could be a final rule in 2014.

A copy of the Memorandum Opinion is available here.

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