On February 11, three environmental groups — Sierra Club, Alliance for Affordable Energy, and PennEnvironment, Inc. — filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment. Part B is the second of two rulemakings comprising EPA’s “Holistic Approach to Closure” amendments to the coal combustion residuals (CCR) rule. Environmental groups filed a similar challenge to the “Part A” rule in the D.C. Circuit in November 2020. That case, Labadie Environmental Organization v. EPA, is currently pending.
In accordance with the D.C. Circuit’s 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Cir. 2018) (USWAG decision), Part A amended the CCR rule to classify clay-lined CCR surface impoundments as “unlined.” See 85 Fed. Reg. 53,516, 53,561 (Aug. 28, 2020) (revising 40 C.F.R. § 257.71). As a result, owners and operators of clay-lined surface impoundments that were previously allowed to continue operating were now subject to a fast-approaching April 11, 2021 closure deadline.
In response to the USWAG decision and Part A, industry groups and electric utilities submitted reports to EPA demonstrating that clay liners can be as equally protective of human health and the environment as the composite liners the CCR rule requires. Upon review of these reports, EPA determined that it is possible for owners and operators to demonstrate that clay liners are sufficiently protective. See 85 Fed. Reg. at 72,508. Accordingly, EPA promulgated Part B, which put in place a two-step process for owners and operators to submit site-specific demonstrations.
While the petition for review does not include the legal arguments for why the environmental groups believe Part B is unlawful, environmental groups have broadly contended that allowing the continued operation of unlined impoundments, including those with clay liners, poses an environmental threat.
It is also worth noting that the petition for review is dated more than 90 days after EPA promulgated the Part B rule. It is therefore arguably outside the timeframe in which parties may seek review of regulations promulgated under RCRA, thus raising the question as to whether it is within the D.C. Circuit’s jurisdiction to hear the case. See 42 U.S.C. § 6976(a)(1).
For more information about this case and other CCR-related issues, please contact Holly Hill or Buck Dixon.