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Appalachian Voices v. McCarthy

ELR Citation: 43 ELR 20243
Nos. No. 12-0523, (D.D.C., 10/29/2013) (Walton, J.)

A district court ordered EPA to submit within 60 days a schedule on when it proposes to complete its review and revision of its RCRA Subtitle D coal ash regulations. In 1980, Congress amended RCRA by adding §3001(b)(3)(A)(ii), known as the Bevill Amendment, to prohibit EPA from regulating mining and mineral processing wastes as hazardous wastes under Subtitle C. Prior to Congress' adoption of the Bevill Amendment, EPA promulgated a regulation exempting coal ash waste from regulation under Subtitle C. In 1993 and 2000, EPA made regulatory determinations pursuant to the Bevill Amendment that regulation of coal ash as hazardous waste under Subtitle C was inappropriate, but that it would continue to assess whether increased regulation of coal ash under Subtitle D was appropriate. In 2010, EPA announced that it was considering two alternative options to increase regulation of coal ash, but no rulemaking has yet been issued. In this lawsuit, environmental groups and companies filed a citizen suit against EPA alleging that the Agency failed to timely review and revise the coal ash regulations. The environmental groups claimed that EPA had a nondiscretionary duty to review §261.4(b)(4) under RCRA §2002(b). But because §261.4(b)(4) is simply a regulatory codification of the Bevill Amendment's statutory exemption, the court rejected this claim. However, the court agreed with the groups and the companies on their shared claim that EPA failed to perform its nondiscretionary duty under RCRA §2002(b) to complete its review and, if necessary, revision of the Subtitle D regulations concerning coal ash at least every three years. RCRA §2002(b) provides that "[e]ach regulation promulgated under this Act shall be reviewed and, where necessary, revised not less frequently than every three years." Use of the word "shall" in a statute generally creates a mandatory duty, and although §2002(b) does not set forth a date certain by which EPA must review and make any necessary revision, it imposes a recurring obligation on EPA that is "readily-ascertainable" by reference to the date of the regulation's promulgation. In light of the competing considerations at stake, the court ordered EPA to submit, within 60 days, a schedule of when it proposes to complete its review and revision of its coal ash rulemaking.