Voices v. McCarthy

• Decision Date: 29 October 2013
• Docket Number: Civil Action No. 12–0523 (RBW),Consolidated Case Nos. 12–0585 (RBW) 12–0629 (RBW)
• Citation: 989 F.Supp.2d 30
• Parties: Appalachian Voices, et al., Plaintiffs, v. Gina McCarthy, In her official capacity as Administrator, United States Environmental Protection Agency, Defendant, and Utility Solid Waste Activities Group, and National Mining Association, Intervenor–Defendants.
• Court: U.S. District Court — District of Columbia

989 F.Supp.2d 30

Appalachian Voices, et al., Plaintiffs,

v.Gina McCarthy,¹ In her official capacity as Administrator, United States Environmental Protection Agency, Defendant,andUtility Solid Waste Activities Group, and National Mining Association, Intervenor–Defendants.

Civil Action No. 12–0523 (RBW)

Consolidated Case Nos. 12–0585 (RBW) 12–0629 (RBW)

United States District Court, District of Columbia.

October 29, 2013

Bridget M. Lee, Abigail M. Dillen, Pro Hac, Vice, Lisa G. Evans, Pro Hac, Vice, Earthjustice, New York, NY, Jennifer C. Chavez, Earthjustice, Washington, DC, Adam J. Siegel, Kathryn Leighann Lannon, Kenneth M. Kastner, Hogan Lovells U.S. LLP, Washington, DC, David M. Williamson, Williamson Law & Policy, Elise N. Paeffgen, William Bruce Pasfield, Alston & Bird LLP, Washington, DC, for Plaintiffs.

Eric G. Hostetler, United States Department of Justice, Washington, DC, for Defendant.

Douglas Haber Green, Justin W. Curtis, Venable, LLP, Donald Joseph Patterson, Jr., Beveridge & Diamond, P.C., Washington, DC, Aladdine D. Joroff, Beveridge & Diamond, P.C., Wellesley, MA, for Intervenor–Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

Plaintiffs Appalachian Voices, Chesapeake Climate Action Network, Environmental Integrity Project, Kentuckians For The Commonwealth, Montana Environmental Information Center, Moapa Band of Paiutes, Prairie Rivers Network, Physicians for Social Responsibility, Southern Alliance for Clean Energy, Sierra Club, and Western North Carolina Alliance (collectively, “Environmental Plaintiffs”), and plaintiffs Headwaters Resources, Inc. (“Headwaters”) and Boral Material Technologies Inc. (“Boral”) (collectively, “Marketer Plaintiffs”), bring this suit against Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency (“EPA”), pursuant to the citizen suit provision of the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(2) (2012), alleging that the EPA has failed to timely review and revise certain regulations concerning coal ash, ² in accordance with the provisions of that Act. See Complaint for Declaratory and Injunctive Relief, No. 12–0523 (Environmental Plaintiffs' Complaint, hereinafter “Envtl. Pls.' Compl.”) ¶¶ 80–88; Complaint for Declaratory and Injunctive Relief, No. 12–0585 (Headwaters Complaint, hereinafter “Headwaters Compl.”) ¶¶ 20–22; Complaint for Declaratory and Injunctive Relief, No. 12–0629 (Boral Complaint, hereinafter “Boral Compl.”) ¶¶ 21–23. Cross-motions for summary judgment by the Environmental Plaintiffs, the Marketer Plaintiffs, the EPA, and intervenor-defendants Utility Solid Waste Activities Group and National Mining Association are currently before the Court. Upon careful consideration of the parties' submissions, ³ the Court concludes that it must grant summary judgment to the EPA on the Environmental Plaintiffs' first and third claims, and grant summary judgment in part to the Environmental Plaintiffs and to the Marketer Plaintiffs on their shared claim for the reasons described below.

I. BACKGROUND

A. The Resource Conservation and Recovery Act and the Bevill Amendment

Congress enacted the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §§ 6901–6987 (2012), “to establish a comprehensive federal program to regulate the handling of solid wastes.” Envtl. Def. Fund v. U.S. EPA, 852 F.2d 1309, 1310 (D.C.Cir.1988). To accomplish this objective, Congress authorized the Administrator of the EPA to “prescribe, in consultation with Federal, State, and regional authorities, such regulations as are necessary to carry out [the Administrator's] functions under this Act.” Resource Conservation and Recovery Act of 1976 § 2002(a)(1), 42 U.S.C. § 6912(a)(1). The RCRA further provides that “[e]ach regulation promulgated under this Act shall be reviewed and, where necessary, revised not less frequently than every three years.” Id.§ 2002(b), § 6912(b). The Act also required the EPA, “[w]ithin one year of enactment of this section, and from time to time thereafter, ... [to] develop and publish suggested guidelines for solid waste management.” Id. § 1008(a), § 6907(a).

The RCRA created a two-prong approach to the regulation of solid wastes, which the Act defines, in pertinent part, as “any ... discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations.” Id. § 1004(27), § 6903(27). Subtitle C of the RCRA governs wastes classified as “hazardous,” creating “a ‘cradle to grave’ federal regulatory system for [their] treatment, storage, and disposal.” Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 774 (D.C.Cir.1996) (citation omitted). The EPA was charged with “develop[ing] and promulgat[ing] criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject to the provisions of this subtitle....” Resource Conservation and Recovery Act of 1976 § 3001(a), 42 U.S.C. § 6921(a). The Act further provides that “[s]uch criteria shall be revised from time to time as may be appropriate.” Id. Under the regulations subsequently promulgated, a waste is considered “hazardous” and subject to regulation under Subtitle C if it exhibits any one of four characteristics of hazardousness—ignitability, corrosivity, reactivity, or toxicity. 40 C.F.R. §§ 261.11(a)(1), 261.20–24 (2012). The characteristic of toxicity is “the leaching of toxic residues into surrounding liquid,” Envtl. Def. Fund, 852 F.2d at 1310, as determined using the Toxicity Characteristic Leaching Procedure (“Leaching Procedure”) set forth in EPA Publication SW–846, 40 C.F.R. § 261.24.

Disposal of all other solid wastes is regulated under Subtitle D of the Act. SeeEnvtl. Def. Fund, 852 F.2d at 1310. “Under Subtitle D, states use federal financial and technical assistance to develop solid waste management plans in accordance with federal guidelines.” Id. The EPA is responsible for “promulgat[ing] regulations containing criteria for determining which facilities shall be classified as sanitary landfills and which shall be classified as open dumps,” open dumps being prohibited under the Act. Resource Conservation and Recovery Act of 1976 §§ 4004(a), (b), 42 U.S.C. §§ 6944(a), (b). State plans must then provide for the disposal of solid waste in sanitary landfills and the closing or upgrading of existing open dumps. Id. §§ 4003(3), (6), §§ 6943(3), (6).

As originally enacted, the RCRA directed the EPA to “conduct a detailed and comprehensive study on the adverse effects of solid wastes from active and abandoned surface and underground mines on the environment,” including “the adequacy of means and measures currently employed ... to dispose of and utilize such solid wastes and to prevent or substantially mitigate such adverse effects.” Resource Conservation and Recovery Act of 1976 § 8002(f), 42 U.S.C. § 6982(f). This provision reflected Congress' determination that “ ‘information on the potential danger posed by mining waste [was] not sufficient to form the basis for legislative action.’ ” Envtl. Def. Fund, 852 F.2d at 1310 (quoting H.R.Rep. No. 94–1491, at 15 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6253).

Following the enactment of the RCRA, the EPA “attempted to develop a regulatory approach to various types of mining wastes.” Id. at 1311. Dissatisfied with the EPA's intended course of action, Congress amended the RCRA with the so-called Bevill Amendment one month before the EPA's regulations went into effect. Solite Corp. v. U.S. EPA, 952 F.2d 473, 478 (D.C.Cir.1991). The Amendment expanded the scope of the study mandated by § 8002(f), and required the EPA to complete and submit its study of mining wastes to Congress within twenty-four months after the Amendment's enactment. Solid Waste Disposal Act of 1980 § 8002(n), 42 U.S.C. § 6982(n). The Amendment then required that the EPA, “after public hearings and opportunity for comment, either determine to promulgate regulations” under Subtitle C for the mining wastes specified by the Bevill Amendment, “or determine that such regulations are unwarranted.” Id. § 3001(b)(3)(C), 42 U.S.C. § 6921(b)(3)(C). The specified wastes were exempted from regulation as hazardous wastes under Subtitle C “until at least six months after the date of submission of the applicable study required to be conducted ... and after promulgation of regulations in accordance with” the EPA's determinations concerning the necessity of regulating the enumerated wastes as hazardous wastes. Id. § 3001(b)(3)(A), 42 U.S.C. § 6921(b)(3)(A). The specified wastes included “[f]ly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels.” Id. § 3001(b)(3)(A)(i), 42 U.S.C. § 6921(b)(3)(A)(i). Thus, “[p]ending pursuit and completion of the mining waste studies and, thereafter, until [the] EPA's final regulatory determination, the Bevill Amendment prohibited the Agency from regulating mining and mineral processing wastes as hazardous wastes within the compass of Subtitle C.” Solite Corp., 952 F.2d at 478. Several months before the passage of the Bevill Amendment, the EPA adopted a regulation exempting fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste from regulation under Subtitle C. 40 C.F.R. § 261.4(b)(4).

B. The EPA's Bevill Amendment Determinations and Promulgation of Regulations

The EPA missed its statutory deadline for submitting its study of mining wastes to Congress. Solite Corp., 952 F.2d at 478. It subsequently commenced and completed its Bevill Amendment regulatory determinations in 1993 and 2000 pursuant to a consent decree after various groups brought suit to force the EPA to comply with the Amendment's requirements. See65 Fed.Reg. 32,214–01, 32,235 (May 22, 2000). The EPA concluded that regulation of coal ash as...