Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency, No. 15-1219

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPer Curiam
Citation901 F.3d 414
Parties UTILITY SOLID WASTE ACTIVITIES GROUP, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent Waterkeeper Alliance, et al., Intervenors
Decision Date21 August 2018
Docket NumberNo. 15-1219,15-1228,15-1222,15-1229,15-1227,15-1223,C/w 15-1221

901 F.3d 414

UTILITY SOLID WASTE ACTIVITIES GROUP, et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent

Waterkeeper Alliance, et al., Intervenors

No. 15-1219
C/w 15-1221
15-1222
15-1223
15-1227
15-1228
15-1229

United States Court of Appeals, District of Columbia Circuit.

Argued November 20, 2017
Decided August 21, 2018


Douglas H. Green and Paul J. Zidlicky argued the causes for Industry petitioners. With them on the joint briefs were John F. Cooney, Margaret K. Kuhn, Samuel B. Boxerman, Eric Murdock, Makram B. Jaber, Joshua R. More, Raghav Murali, Richard G. Stoll, Lori A. Rubin, and Thomas J. Grever. Stephen J. Bonebrake, Brian H. Potts, and Aaron J. Wallisch entered appearances.

Thomas Cmar argued the cause for Environmental petitioners. With him on the briefs were Matthew E. Gerhart, Mary M. Whittle, and Lisa Evans.

Perry M. Rosen, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the briefs were Jeffrey H. Wood, Acting Assistant Attorney General, Jonathan Skinner-Thompson, Attorney, and Laurel Celeste, Attorney, U.S. Environmental Protection Agency.

Douglas H. Green, John F. Cooney, and Margaret K. Kuhn were on the brief for Industry intervenor-respondents.

Matthew E. Gerhart, Mary M. Whittle, and Lisa Evans were on the brief for Environmental intervenor-respondents.

Before: Henderson, Millett and Pillard, Circuit Judges.

Opinion filed Per Curiam.

Per Curiam:

These consolidated petitions challenge the Environmental Protection Agency’s 2015 Final Rule governing the disposal of coal combustion residuals ("Coal Residuals") produced by electric utilities and independent power plants. See

901 F.3d 420

Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities ("Final Rule"), 80 Fed. Reg. 21,302 (April 17, 2015). Coal Residuals make up "one of the largest industrial waste streams generated in the U.S." Id. at 21,303. Coal-fired power plants in the United States burned upwards of 800 million tons of coal in 2012 alone and produced approximately 110 million tons of solid waste as Coal Residuals. Id. That waste contains myriad carcinogens and neurotoxins. See Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities ("Proposed Rule"), 75 Fed. Reg. 35,128, 35,153, 35,168 (June 21, 2010). Power plants generally store it on site in aging piles or pools that are at varying degrees of risk of protracted leakage and catastrophic structural failure. See 80 Fed. Reg. 21,327–21,328. The Final Rule sets criteria designed to ensure that human health and the environment face "no reasonable probability" of harm from Coal Residuals spilling, leaking, or seeping from their storage units and harming humans and the environment. Id. at 21,338–21,339 ; 42 U.S.C. § 6944(a).

The statutory framework calling for regulation of solid waste generation, storage, and disposal has been in place since 1976, when Congress enacted the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. , but regulations implementing RCRA have been long in the making. The EPA has long studied the Coal Residuals disposal problem and struggled over how to address its scale, complexity, and gravity. The agency has been goaded by public outrage over catastrophic failures at sites storing toxic Coal Residuals, see 75 Fed. Reg. at 35,132, 35,137, and was directed by a federal court to devise a schedule to comply with its obligation to regulate under RCRA, see Appalachian Voices v. McCarthy , 989 F.Supp.2d 30, 56 (D.D.C. 2013). Nearly four decades after Congress enacted RCRA, the EPA finally promulgated its first Final Rule regulating Coal Residuals in 2015.

These consolidated petitions—one on behalf of environmental organizations ("Environmental Petitioners") and several others (collectively, "Industry Petition") for a consortium of power companies and their trade associations ("Industry Petitioners")—challenge various provisions of that Final Rule under the Administrative Procedure Act and RCRA. RCRA Subtitle D calls on the EPA to promulgate criteria distinguishing "sanitary landfills," which are permissible under the statute, from "open dumps," which are prohibited. 42 U.S.C. § 6944(a) ; see id. § 6903(14), (28). The statutory baseline for the EPA’s criteria for sanitary landfills is that, at a minimum, they "shall provide that a facility may be classified as a sanitary landfill and not an open dump only if there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility." Id . § 6944(a). Each claim here relates to what a utility operating one or more Coal Residuals disposal site(s) must do to qualify such site as a sanitary landfill that may lawfully operate under RCRA.

Shortly before oral argument, the EPA announced its intent to reconsider the Final Rule, and moved to hold all proceedings in abeyance. We asked for clarification on the exact provisions of the Rule that would be subject to reconsideration. The EPA then filed a separate motion to remand six specific provisions.

For the reasons that follow, we deny the EPA’s abeyance motion, and partially grant its remand motion. We also grant in part the Environmental Petition and deny the Industry Petition.

901 F.3d 421

I. Background

A.

"Coal Residuals" is a catch-all term for the byproducts of coal combustion that occurs at power plants. It includes "fly ash," "bottom ash," "boiler slag," and "flue gas desulfurization materials." See 75 Fed. Reg. at 35,137. These residuals vary in their size and texture, but all contain "contaminants of * * * environmental concern." Id. at 35,138. According to the EPA, Coal Residuals contain carcinogens and neurotoxins, including arsenic, boron, cadmium, hexavalent chromium, lead, lithium, mercury, molybdenum, selenium, and thallium. 80 Fed. Reg. at 21,449. The risks to humans associated with exposure to the identified contaminants include elevated probabilities of "cancer in the skin, liver, bladder, and lungs," as well as non-cancer risks such as "neurological and psychiatric effects," "cardiovascular effects," "damage to blood vessels," and "anemia." Id. at 21,451. Both cancer and non-cancer risks to infants "tend[ ] to be higher than other childhood cohorts, and also higher than risks to adults." Id. at 21,466. The risks to plant and animal wildlife include "elevated selenium levels in migratory birds, wetland vegetative damage, fish kills, amphibian deformities, * * * [and] plant toxicity." 75 Fed. Reg. at 35,172.

In developing the Final Rule, the EPA collected data on coal-fired units and their environs, identified hazards for evaluation, and specified benchmarks of toxicity that it determined "generally will be considered to pose a substantial present or potential hazard to human health and the environment and generally will be regulated." Final Rule, 80 Fed. Reg. at 21,449, 21,451. The EPA analyzed potential pathways of contamination to determine those most likely to pose a reasonable probability of adverse effects on humans or the environment. Id. at 21,450–21,451. The EPA concluded that current management practices for Coal Residuals posed risks to human health and the environment at levels justifying uniform national guidelines. Id. at 21,303. The main exposure pathways the EPA found were through waste that escapes landfills and surface impoundments and then contaminates groundwater tapped as drinking water, and contaminates surface water that comes in direct contact with fish and other ecological receptors. Id.

Under most circumstances, the operators of coal-fired power plants dispose of the waste either by dumping it in dry landfills or by mixing it with water to channel it to wet surface impoundments. 80 Fed. Reg. at 21,303. These disposal sites are massive. On average, landfills span more than 120 acres and are more than 40 feet deep. Id. Surface impoundments average more than 50 acres in size with an average depth of 20 feet. Id. As of 2012, there were at least 310 landfills and 735 surface impoundments in the United States currently receiving coal ash. Id. The EPA identified at least 111 surface impoundments that are no longer receiving coal ash, but are not fully closed. See EPA, Regulatory Impact Analysis: EPA’s 2015 RCRA Final Rule Regulating Coal Combustion Residual (CCR) Landfills and Surface Impoundments at Coal-Fired Utility Power Plants, 2–3 (2014), Joint App’x (J.A.) 1096. The record does not specify the number of inactive landfills. See id . The Rule also addresses circumstances under which Coal Residuals safely may be "beneficially used"—e.g. , to make cement—thereby reducing the total volume that must be managed as waste. See 75 Fed. Reg. at 35,212.

Landfills and surface impoundments both pose threats to human health and the environment. 80 Fed. Reg. at 21,327–21,328. The risks generally stem from the fact

901 F.3d 422

that "thousands, if not millions, of tons [of coal ash are] placed in a single concentrated location." Id. These disposal sites are at risk of structural failure, particularly where they are located in...

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41 practice notes
  • A Community Voice v. U.S. Envtl. Prot. Agency, No. 19-71930
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 14 Mayo 2021
    ...and implementation dichotomy in the Resource Conservation and Recovery Act (RCRA). Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 449 (D.C. Cir. 2018) (citations omitted). The RCRA instructs the EPA to classify sanitary landfills only "if there is no reasonable probability of adver......
  • A Cmty. Voice v. U.S. Envtl. Prot. Agency, No. 19-71930
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 14 Mayo 2021
    ...and implementation dichotomy in the Resource Conservation and Recovery Act (RCRA). Util. Solid Waste Activities Grp. v. EPA , 901 F.3d 414, 449 (D.C. Cir. 2018) (citations omitted). The RCRA instructs the EPA to classify sanitary landfills only "if there is no reasonable probability of adve......
  • Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler, No. 18-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 10 Julio 2020
    ...agency intends to take further action with respect to the original agency decision on review." Util. Solid Waste Activities Grp. v. EPA , 901 F.3d 414, 436 (D.C. Cir. 2018) (internal quotation marks omitted). That said, "[w]e have broad discretion to grant or deny [such a motion]," and in e......
  • Am. Waterways Operators v. Wheeler, Case No. 18-cv-02933 (APM)
    • United States
    • U.S. District Court — District of Columbia
    • 30 Noviembre 2020
    ...concluded that EPA was not required to consider costs when determining whether a waste site should be classified as an "open dump." 901 F.3d 414, 448–49 (D.C. Cir. 2018). The statute there directed EPA to determine "if there is no reasonable probability of adverse effects on health or the e......
  • Request a trial to view additional results
40 cases
  • A Community Voice v. U.S. Envtl. Prot. Agency, No. 19-71930
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 14 Mayo 2021
    ...and implementation dichotomy in the Resource Conservation and Recovery Act (RCRA). Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 449 (D.C. Cir. 2018) (citations omitted). The RCRA instructs the EPA to classify sanitary landfills only "if there is no reasonable probability of adver......
  • A Cmty. Voice v. U.S. Envtl. Prot. Agency, No. 19-71930
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 14 Mayo 2021
    ...and implementation dichotomy in the Resource Conservation and Recovery Act (RCRA). Util. Solid Waste Activities Grp. v. EPA , 901 F.3d 414, 449 (D.C. Cir. 2018) (citations omitted). The RCRA instructs the EPA to classify sanitary landfills only "if there is no reasonable probability of adve......
  • Clean Wis. v. Envtl. Prot. Agency & Andrew Wheeler, No. 18-1203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 10 Julio 2020
    ...agency intends to take further action with respect to the original agency decision on review." Util. Solid Waste Activities Grp. v. EPA , 901 F.3d 414, 436 (D.C. Cir. 2018) (internal quotation marks omitted). That said, "[w]e have broad discretion to grant or deny [such a motion]," and in e......
  • Am. Waterways Operators v. Wheeler, Case No. 18-cv-02933 (APM)
    • United States
    • U.S. District Court — District of Columbia
    • 30 Noviembre 2020
    ...concluded that EPA was not required to consider costs when determining whether a waste site should be classified as an "open dump." 901 F.3d 414, 448–49 (D.C. Cir. 2018). The statute there directed EPA to determine "if there is no reasonable probability of adverse effects on health or the e......
  • Request a trial to view additional results
1 books & journal articles
  • Bad Policy, Disastrous Consequences: Coal-Fired Power in Puerto Rico
    • United States
    • Environmental Law Reporter Nbr. 50-1, January 2020
    • 1 Enero 2020
    ...in our power to stop it. 23 at inactive power plants from regulation.” Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency, 901 F.3d 414, 449, 48 ELR 20151 (D.C. Cir. 2018). hus, the appellate court struck down certain provisions of the April 2015 inal rule that allowed unlined and cla......

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