Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 1 of 35 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) APPALACHIAN VOICES, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 12-0523 (RBW) ) GINA MCCARTHY,1 ) Consolidated Case Nos. 12-0585 (RBW) In her official capacity as Administrator, ) 12-0629 (RBW) United States Environmental ) Protection Agency, ) ) Defendant, and ) ) UTILITY SOLID WASTE ) ACTIVITIES GROUP, and ) ) NATIONAL MINING ASSOCIATION, ) ) Intervenor-Defendants. ) ____________________________________ ) MEMORANDUM OPINION 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 1 The plaintiffs filed suit against Lisa P. Jackson, then Administrator of the United States Environmental Protection Agency, in her official capacity. Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Gina McCarthy, who succeeded Jackson as the Administrator. 1 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 2 of 35 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 2 The Court uses the term “coal ash” to refer collectively to fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels. 3 In addition to the filings already referenced, the Court considered the following submissions, including all attached exhibits: (1) Plaintiffs Headwaters Resources, Inc. and Boral Material Technologies Inc.’s Memorandum in Support of Motion for Summary Judgment, ECF No. 18 (“Marketer Pls.’ Mem.”); (2) the Memorandum of Law in Support of Plaintiffs’ Motion for Summary Judgment, ECF No. 19-1 (“Envtl. Pls.’ Mem.”); (3) EPA’s Combined Opposition to Plaintiffs’ Motions for Summary Judgment, and Memorandum in Support of EPA’s Cross-Motion for Summary Judgment in Case Nos. 1:12-CV-00585 and 1:12-CV-00629, and for Partial Summary Judgment and Order to Govern Further Proceedings in Case No. 1:12-CV-00523, ECF Nos. 24-1, 25 (“EPA’s Mem.”); (4) Memorandum of Points and Authorities of Intervenor-Defendants Utility Solid Waste Activities Group and National Mining Association in Support of the Attached Joint Motion for Summary Judgment and in Opposition to the Plaintiffs’ Motions for Summary Judgment, ECF Nos. 26, 27 (“Intvs.’ Mem.”); (5) Plaintiffs Headwaters Resources, Inc. and Boral Material Technologies Inc.’s Combined Opposition to Defendant EPA’s and Intervenor-Defendants’ Motions for Summary Judgment and Reply, ECF Nos. 28, 29 (“Marketer Pls.’ Opp’n”); (6) the Plaintiffs’ Opposition to EPA’s Cross-Motion for Partial Summary Judgment and to Intervenor-Defendants’ Motion for Summary Judgment and Reply to EPA’s and Intervenor-Defendants’ Oppositions to Plaintiffs’ Motion for Summary Judgment, ECF Nos. 30, 31 (“Envtl. Pls.’ Opp’n”); (7) the Memorandum of Intervenor-Defendants Utility Solid Waste Activities Group and National Mining Association in Reply to Plaintiffs’ Responses to Intervenor-Defendants’ Joint Motion for Summary Judgment, ECF No. 32 (“Intvs.’ Reply”); and (8) EPA’s Reply in Support of EPA’s Cross-Motion for Summary Judgment in Case Nos. 1:12-CV-00585 and 1:12-CV-00629, and for Partial Summary Judgment and Order to Govern Further Proceedings in Case No. 1:12-CV-00523, ECF No. 33 (“EPA’s Reply”). 2 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 3 of 35 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 3 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 4 of 35 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. See Envtl. 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 4 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 5 of 35 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 5 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 6 of 35 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. See 65 Fed. Reg. 32,214-01, 32,235 (May 22, 2000). The EPA concluded that regulation of coal ash as hazardous waste under Subtitle C was inappropriate, but indicated in both the 1993 and 2000 determinations that it would continue to assess whether increased regulation of coal ash under Subtitle D is appropriate. See 58 Fed. Reg. 42,466-01, 42,466 (Aug. 9, 1993); 65 Fed. Reg. at 32,214. The EPA took no further actions to regulate coal ash under either Subtitle C or D until June 21, 2010, when it announced that it was considering two alternative options to increase regulation of coal ash. 75 Fed. Reg. 35,128-01, 35,128 (June 21, 2010). The first option was to “reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding [coal ash] and list these residuals as special wastes subject to regulation under subtitle C of [the] RCRA, when they are destined for disposal in landfills or surface impoundments.” Id. Under the second option, the EPA “would leave the Bevill determination in place and regulate disposal of such materials under subtitle D of [the] RCRA by issuing national minimum criteria.” Id. The 6 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 7 of 35 Agency noted that it “is not proposing to change the May 2000 Regulatory Determination for beneficially used[4] coal combustion residuals, which are currently exempt from the hazardous waste regulations.” Id. C. The Current Litigation The Environmental Plaintiffs filed this action on April 5, 2012, asserting three claims for relief based on the EPA’s alleged failure to review and revise, as necessary, its solid waste disposal regulations at least every three years, as required by § 2002(b) of the RCRA. See Envtl. Pls.’ Compl. ¶¶ 80–88. The Environmental Plaintiffs assert that the EPA has failed to fulfill this obligation with respect to (1) 40 C.F.R. § 261.4(b)(4), which provides that coal ash is not a hazardous waste, Envtl. Pls.’ Compl. ¶¶ 80–82, (2) regulations under Subtitle D concerning coal ash, in particular, 40 C.F.R. §§ 257.3-3, 257.3-4, and 257.3-7, Envtl. Pls.’ Compl. ¶¶ 83–85, and (3) 40 C.F.R. § 261.24, the toxicity characteristic for classification of hazardous wastes, Envtl. Pls.’ Compl. ¶¶ 86–88. Plaintiff Headwaters filed its complaint on April 13, 2012, alleging, as the Environmental Plaintiffs also do in their second claim for relief, that the EPA failed to review, and if necessary, revise its Subtitle D regulations regarding coal ash every three years as required by § 2002(b) of the RCRA. Headwaters Compl. ¶¶ 20–22. Boral instituted its suit on April 20, 2012, asserting this same claim for relief. See Boral Compl. ¶¶ 21–23. Both Headwaters and Boral market “coal combustion products,” which incorporate coal ash into construction materials in order to improve the materials’ performance. See Headwaters Compl. ¶ 7; Boral Compl. ¶ 7. In addition to marketing beneficial use products, Boral “provides coal-fired power generating plants with 4 As explained in greater detail below, coal ash is “beneficially used” through its incorporation into a variety of products. See Boral Compl. ¶ 7; Headwaters Compl. ¶ 7. 7 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 8 of 35 on-site ash handling and management, environmental services and engineering services.” Boral Compl. ¶ 7. All three suits are brought pursuant to the RCRA’s citizen suit provision, which provides that “any person may commence a civil action . . . against the Administrator where there is an alleged failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator,” 42 U.S.C. § 6972(a)(2), and all of the plaintiffs request that the Court order the EPA to complete a review, and, if necessary, revision of the regulations identified in each complaint, see Envtl. Pls.’ Compl. at 34 ¶¶ 2–3; Headwaters Compl. at 6 ¶¶ 2– 3; Boral Compl. at 6 ¶¶ 2–3. Otherwise, however, the relief requested by the Environmental Plaintiffs and the Marketer Plaintiffs diverges. As clarified during summary judgment briefing, the Environmental Plaintiffs ask the Court to order the EPA to “complete a review of the regulation exempting coal ash from the definition of hazardous waste, the RCRA [S]ubtitle D regulations governing the disposal of coal ash as a solid waste, and the regulations that establish and govern the use of the Toxicity Characteristic Leaching Procedure.” [Proposed] Order Granting Plaintiffs’ Motion for Summary Judgment at 1–2, ECF No. 19-3. They further request that the Court order the EPA to “make a formal determination of whether revision of any or all of the aforementioned regulations is necessary,” and to “revise those regulations” if the EPA determines that such revision is necessary, all within six months of the Court’s entry of their proposed order. Id. The Marketer Plaintiffs, on the other hand, ask the Court to “order [the] EPA to issue a final determination stating whether it will revise its regulations for disposed [coal ash] under [S]ubtitle C or D of RCRA, or not at all, and [to] identify[] its authority for [the] same within three months of this Court’s decision on [their] motion for summary judgment.” Marketer Pls.’ Mem. at 16–17. 8 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 9 of 35 Shortly after the plaintiffs each filed suit, the Court consolidated the three cases pursuant to a consent motion. The Utility Solid Waste Activities Group and the National Mining Association (collectively “Intervenor-Defendants”) subsequently sought to intervene in the consolidated action. The Utility Solid Waste Activities Group is “an association of over one hundred and ten energy industry operating companies and associations” whose members “represent more than 73 percent of the total electric generating capacity of the United States and service more than 95 percent of the nation’s consumers of electricity.” Intvs.’ Mem. at 1 n.1. The National Mining Association is “the national trade association representing[] the producers of most of America’s coal, metals, industrial and agricultural minerals; the manufacturers of mining and mineral processing machinery, equipment and supplies; and engineering, transportation, financial and other businesses that serve the mining industry.” Id. at 1 n.2. The Court granted both groups permission to participate in the litigation as intervenor-defendants. The Environmental Plaintiffs, the Marketer Plaintiffs, the EPA, and the Intervenor- Defendants have all moved for summary judgment. In its cross-motion for summary judgment and opposition to the plaintiffs’ motions, the EPA conceded that “it has an obligation to conclude review, and any necessary revision, of certain regulations within 40 C.F.R. Part 257 pertaining to [coal ash], and of its ‘toxicity characteristic’ regulation at 40 C.F.R. § 261.24(b),” and thus conceded the merits of the Environmental Plaintiffs’ second and third claims for relief. EPA’s Mem. at 1–2. The Intervenor-Defendants, however, raised a number of arguments in opposition to the Environmental Plaintiffs’ second and third claims. See Intvs.’ Mem. at 11–16, 26–36. In response to the Invervenor-Defendants’ argument that the Environmental Plaintiffs lack standing to challenge 40 C.F.R. § 261.24(b) as it related to non-coal ash wastes, the Environmental Plaintiffs clarified that their “claims challenging [the] EPA’s failure to complete a review of the 9 Case 1:12-cv-00523-RBW Document 40 Filed 10/29/13 Page 10 of 35 [Leaching Procedure] are limited to the application of the procedure to the determination of the toxicity of coal ash.” Envtl. Pls.’ Opp’n at 12. As a consequence of this clarification of their third claim, the EPA withdrew its concession as to the merits of the Environmental Plaintiffs’ third claim, and instead also challenged their standing to pursue the claim. EPA’s Reply at 1–2. The Court will now address the parties’ arguments. II. STANDARD OF REVIEW A motion for summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate if the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case,” on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). In evaluating a motion for summary judgment, the court must view the evidence “in the light most favorable to the nonmoving party” and must “draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to avoid summary judgment. Anderson, 477 U.S. at 252. Summary judgment is particularly appropriate when the issues presented for the Court’s resolution are primarily questions of law. Harris v. Dist. of Columbia, 561 F. Supp. 2d 63, 66 (D.D.C. 2008). III. ANALYSIS A. The EPA’s and the Intervenor-Defendants’ Challenges to the Court’s Jurisdiction 1. Statute of Limitations Notwithstanding the EPA’s concession regarding the merits of the Environmental 10