On March 13, 2019, a three-judge panel for the D.C. Circuit Court of Appeals granted EPA’s motion for voluntary remand without vacatur of the Agency’s recent revisions to the Coal Combustion Residuals (CCR) rule, commonly referred to as “Phase One, Part One.” The D.C. Circuit’s Order comes in response to dueling arguments EPA and a coalition of environmental groups presented regarding Phase One, Part One’s future in light of the Court’s recent vacatur and remand of portions of the CCR rule in USWAG v. EPA, 901 F.3d 414 (D.C. Cir. 2018).
Significantly, the D.C. Circuit’s Order leaves in place Phase One, Part One’s October 2020 deadline for CCR surface impoundments to stop receiving CCR after triggering closure. In granting EPA’s motion, the Court stated that EPA demonstrated that disruptive consequences would have resulted from vacatur.
EPA argued in its December 2018 motion that vacatur would have significant detrimental impacts, would require certain surface impoundments to immediately begin closing, and would require entities to immediately arrange for alternative disposal capacity for CCR and non-CCR wastestreams. EPA further argued in its response to the environmental groups’ motion that immediate compliance would not be feasible in many instances, and that vacating Phase One, Part One would require many power plants to cease operating for at least some period of time, which may have led to grid destabilization.
The D.C. Circuit’s decision is a significant victory for electric utilities. It allows them to continue closing surface impoundments based on the currently-in-place timeframe while EPA revisits the rule.
The D.C. Circuit expressed its confidence in EPA to “expedite its rulemaking proceedings on remand to the fullest extent possible.” We will provide updates regarding the remand process as they become available. For more information regarding the D.C. Circuit’s Order or other issues related to CCR, please contact Holly Hill or Buck Dixon.