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Waterkeeper Alliance, Inc. v. Wheeler

United States District Court for the District of Columbia

April 15, 2020, Decided; April 15, 2020, Filed

Civil Action No. 18-2230 (JDB)

Opinion

MEMORANDUM OPINION

Three environmental groups challenge EPA's approval of an Oklahoma program regulating the disposal of coal combustion residuals ("coal residuals" or "coal ash"). Plaintiffs bring two sets of claims: first, a citizen suit alleging that EPA failed to perform its statutory duty to develop and publish minimum guidelines for public participation in the program's approval; and second, claims under the Administrative Procedure Act ("APA") alleging that EPA's approval of the program was arbitrary, capricious, or otherwise unlawful. The State of Oklahoma, as well as various utility companies, moved to intervene to defend EPA's approval of the program, and the Court granted their motions. Before the Court are plaintiffs' motion for summary judgment and defendants' and intervenors' cross-motions for summary judgment. For the reasons stated herein, the Court will grant in part and deny in part each of the parties' motions, granting summary judgment for defendants and intervenors on all but one claim.

BACKGROUND

A. Statutory and Regulatory Landscape

In 1976, Congress passed and President Ford signed [*3]  into law the Resource Conservation and Recovery Act of 1976 ("RCRA"), Pub. L. 94-580, 90 Stat. 2795 (codified at 42 U.S.C. § 6901), as an amendment to the Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992 (1965). RCRA established a comprehensive framework for regulating the treatment, storage, and disposal of hazardous and non-hazardous waste. See Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 420 (D.C. Cir. 2018) (per curiam) [hereinafter USWAG].

Subtitle D of RCRA "calls on the EPA to promulgate criteria distinguishing 'sanitary landfills,' which are permissible under the statute, from 'open dumps,' which are prohibited." Id. (quoting 42 U.S.C. § 6944(a)). In 2015, EPA promulgated federal regulations governing disposal of coal residuals under Subtitle D. See Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities ("2015 Rule"), 80 Fed. Reg. 21,302 (Apr. 17, 2015) (codified at 40 C.F.R. § 257.50). Coal residuals, or coal ash, "are generated from the combustion of coal . . . for the purpose of generating steam for powering a generator." See Oklahoma: Approval of State Coal Combustion Residuals Permit Program ("Final Authorization"), 83 Fed. Reg. 30,356, 30,356 (June 28, 2018). Although coal residuals may be put to beneficial use, many are shipped to off-site disposal facilities like landfills or surface impoundments. Id.

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2020 U.S. Dist. LEXIS 66290 *; 50 ELR 20092

WATERKEEPER ALLIANCE, INC., et al., Plaintiffs, v. ANDREW WHEELER, Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants.

Prior History: Waterkeeper All., Inc. v. Wheeler, 330 F.R.D. 1, 2019 U.S. Dist. LEXIS 14131 (D.D.C., Jan. 29, 2019)

CORE TERMS

coal, residuals, public participation, regulations, permits, guidelines, state program, WIIN Act, programs, impoundments, argues, Intervenors', Comments, promulgate, summary judgment, Environmental, cross-motion, unlined, vacated, Final Rule, modifications, invalid, publish, Combustion, nondiscretionary, capricious, quotation, authorization, deadline, update