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RCRA “Review” Lawsuits and Toxicity Characteristic/TCLP

Ken Kastner

23 October 2012

Coal Combustion Residuals

The Resource Conservation and Recovery Act (RCRA), at Section 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, this provision had never been enforced to require action by EPA, but on April 5, 2012, ten environmental groups and an Indian Tribe attempted just that by bringing a citizens suit against EPA to compel the Agency to review its rules relating to the disposal of coal ash, the toxicity characteristic and the toxicity characteristic leaching procedure (TCLP). See Appalachian Voices, et al. v. Jackson, Civ. No. 1:12-cv-00523-RBW (D.D.C. 2012). The suit seeks a court-ordered deadline for EPA to finalize its 2010 proposed rule, in which the Agency co-proposed two options for regulating coal ash disposal—either as Subtitle C hazardous waste, or as Subtitle D nonhazardous waste—and contends that coal ash should be re-classified as Subtitle C hazardous waste. Following initiation of the suit, Headwaters Resources, Inc., the largest US manager and marketer of coal ash, filed its own lawsuit, seeking to ensure that disposal of coal ash is not regulated under the Subtitle C hazardous waste rules. See Headwaters Resources, Inc. v. Jackson, Civ. No. 1:12-cv-00585-RBW (D.D.C. 2012). Days later, Georgia-based coal ash recycler Boral Material Technologies Inc. filed a similar suit.  See Boral Material Technologies v. Jackson, Civ. No. 1:12-cv-629-RBW (D.D.C. 2012). Headwaters and Boral are concerned that Subtitle C regulation would reduce the recycling of coal ash. The industry and environmental lawsuits, which have been consolidated, will likely be resolved by the U.S. District Court for the District of Columbia on motions for summary judgment in early 2013.


Importantly, in EPA’s opening October 11, 2012 brief, it conceded that this never-before-used RCRA provision requires EPA to review its nonhazardous waste rules regarding coal ash, the toxicity characteristic and the TCLP.  EPA proposed to the court that it would complete those reviews in six months for the nonhazardous coal ash rules, and in one year for the toxicity characteristic and TCLP, and then would provide a schedule for any rule revisions the Agency thinks are necessary. Any revisions to the toxicity characteristic and TCLP would likely have broad implications—far beyond the management of coal ash. Further, Section 2002(b) of RCRA could become a common tool for industry, environmental groups and others to compel EPA to review any RCRA rule.

Ken Kastner

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