Decision in RCRA “Deadline” Suits: For the First Time, EPA Compelled to Review RCRA Rules by Court-Ordered Deadline

RCRA 2002(b) provides that each of EPA’s hazardous and nonhazardous waste rules “shall be reviewed [by EPA] and, where necessary, revised not less frequently than every three years.”  Until recently, no one had used this provision to obtain a court established deadline by which EPA must review and revise a waste rule.  In April 2012, ten environmental groups and an Indian Tribe brought a citizens suit seeking to compel EPA to review its 40 CFR Part 257 nonhazardous waste rules relating to the disposal of coal ash, its “Bevill” rule at 40 CFR §261.4(b)(4) exempting coal ash from regulation as a hazardous waste, and the toxicity characteristic leaching procedure (TCLP) at 40 CFR §261.24 as it relates to the regulation of coal ash.  These environmental plaintiffs asked the U.S. District Court for the District of Columbia to make EPA complete its review and revisions of these rules within six months.  The environmental plaintiffs hoped that EPA would regulate disposed coal ash under the RCRA Subtitle C hazardous waste rules that EPA had proposed in June 2010 instead of under the Subtitle D nonhazardous rules that EPA had co-proposed.  (For more on the lawsuit and Subtitle C and D, see earlier post)   Headwaters Resources, Inc. and Boral Materials Technologies, Inc., which manage and market recycled coal ash, filed companion citizens suits arguing that EPA has a statutory obligation under RCRA 2002(b) to complete its June 21, 2010 proposed rulemaking and revise its Part 257 nonhazardous waste coal ash rules.   The coal ash citizen suits were consolidated, and on October 29, 2013, the Court issued the Opinion and Order.  The Court agreed with Headwaters, Boral and the environmental plaintiffs that EPA must complete its review of the 40 CFR part 257 nonhazardous waste coal ash rules, and, as necessary, revise those rules. The Court has not yet set a deadline, but instead has ordered EPA to submit a proposed deadline with justifications within 60 days.  The other parties will then have 30 days to comment on EPA’s proposed deadline, and the Court likely will then set the deadline. The Court, however, rejected the environmental plaintiffs’ second and third claims, in which Headwaters and Boral did not join.  On the second claim, the Court held that EPA is not required under RCRA 2002(b) to review its Bevill rule at 40 CFR § 261.4(b)(4), which exempts coal ash from regulation as a hazardous waste.  The Court reasoned that the Bevill exemption sets up a different process for potentially regulating coal ash as a hazardous waste whereby EPA must first conduct a study, present the results of the study to Congress, and then promulgate regulations as necessary.  Because of this special statutory review process, the Court determined that the Bevill exemption rule is not subject to the general RCRA 2002(b) three-year review process. On the third claim, the Court also denied the environmental plaintiffs’ position that EPA must review under RCRA 2002(b) the TCLP rule at 40 CFR §261.24.  The Court first found that the environmental plaintiffs’ interest was to have the TCLP revised so as to cause EPA to regulate coal ash as a hazardous waste.  Based on this, the Court concluded that the environmental plaintiffs had no standing because they had not shown how a revised TCLP would directly or likely cause EPA to regulate coal ash as hazardous waste. This Court's decision is the first reported case affirming the use of RCRA 2002(b) as a tool to compel EPA to review and as necessary revise its RCRA rules by a court-ordered deadline.  Undoubtedly environmental groups will continue to use this tool to try to get EPA to devote its limited resources to review and revise RCRA rules that those groups want changed.  But as demonstrated by this lawsuit, recycling and industrial companies and associations also can use this tool to cause EPA to devote its resources to considering changes in RCRA rules that they believe need to be revised.

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