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West Virginia Highlands Conservancy v. Johnson

ELR Citation: 38 ELR 20085
Nos. No. 07-0667, (D.D.C., 03/21/2008)

A district court dismissed environmental groups' claim that the U.S. Environmental Protection Agency (EPA) has never undertaken the study of coal mining wastes requested by Congress and, accordingly, has failed to determine whether such wastes should be regulated as "hazardous" under Subtitle C of the Resource Conservation and Recovery Act (RCRA). If the complaint is regarded as a challenge to final agency action, it must be dismissed for failure to state a claim. EPA issued its final regulatory determination excluding mining wastes from Subtitle C regulation in 1986. Although the determination itself was silent on the issue of coal wastes, it was a direct byproduct of the Hard Rock Mining Report—and its accompanying public comment period—that explicitly excluded coal wastes from study. RCRA requires that any petition for review of a decision by the Administrator concerning regulations must be filed within 90 days of publication. Here, the groups are over 20 years late. In the alternative, if the complaint is more properly regarded as an action to compel agency action unreasonably withheld, the complaint must be dismissed for lack of jurisdiction. The six-year limitations period expired well before the groups instituted the present action, and the continuing violations doctrine does not toll the limitations period under the facts of this case.