REGGIE B. WALTON, United States District Judge.
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,
Congress enacted the Resource Conservation and Recovery Act of 1976
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 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
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 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).
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
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 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."
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 [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.
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).
Notwithstanding the EPA's concession regarding the merits of the Environmental Plaintiffs' second claim in its cross-motion for summary judgment, the Intervenor-Defendants raise several arguments in opposition to the Environmental Plaintiffs' claims that the EPA does not join. See Intvs.' Mem. at 11-16, 26-29, 31-32. "The general rule in this circuit is that `[i]ntervenors may only argue issues that have been raised by the principal parties.'" Ass'n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675 (D.C.Cir.2013) (Silberman, J., concurring) (quoting Nat'l Ass'n of Regulatory Utility Comm'rs v. ICC, 41 F.3d 721, 729 (D.C.Cir.1994)). The Intervenor-Defendants nonetheless seek to argue that this Court lacks jurisdiction over all of the plaintiffs' claims because they were brought outside of the six-year statute of limitations for claims against the United States under 28 U.S.C. § 2401(a). Intvs.' Mem. at 11-16. Because this argument implicates this Court's jurisdiction over the plaintiffs' claims, the Court must address this argument even though the principal parties to this litigation have not raised it. See Ass'n of Battery Recyclers, 716 F.3d at 675 n. 1 (Silberman, J., concurring); cf. Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented." (citation omitted)).
Section 2401(a) provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues," 28 U.S.C. § 2401(a), and the limitation period "applies to all civil actions whether legal, equitable or mixed," Spannaus v. U.S. DOJ, 824 F.2d 52, 55 (D.C.Cir.1987). "Statutes of limitations generally fall into two broad categories: affirmative defenses that can be waived and so-called `jurisdictional' statutes that are not subject to waiver or equitable tolling." John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 140, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (Stevens, J., dissenting). As the name of the latter category implies, a court lacks subject matter jurisdiction to hear a claim that is barred by a jurisdictional statute of limitations. See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 218 (D.C.Cir.2013). This Circuit "has long held that section 2401(a) creates `a jurisidictional condition
The applicability of § 2401(a) to claims to compel agency action after the agency has failed to meet a statutorily-required deadline for a particular action has yet to be conclusively resolved in this Circuit. See Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1203-04, 2013 WL 4417452, at *2 (D.C.Cir.2013) (observing that determination of the applicability of § 2401(a) to claims of agency inaction "will have to await another day" because the claims in the case, which had been dismissed as time-barred under § 2401(a), had become moot during the pendency of the appeal). In The Wilderness Society v. Norton, 434 F.3d 584 (D.C.Cir.2006), the Circuit considered a claim analogous to the ones asserted here and suggested in dicta that § 2401(a) would not bar a claim brought more than six years after an agency fails to meet a statutorily-mandated deadline to take a specified action. 434 F.3d at 588-89. Citing In re United Mine Workers of America International Union, 190 F.3d 545 (D.C.Cir.1999), and In re Bluewater Network, 234 F.3d 1305 (D.C.Cir.2000), the Circuit noted that it "has repeatedly refused to hold that actions seeking relief under 5 U.S.C. § 706(1) to `compel agency action unlawfully withheld or unreasonably delayed' are time-barred if initiated more than six years after an agency fails to meet a statutory deadline." Wilderness Soc'y, 434 F.3d at 588-89. Characterizing the plaintiff's claims against the agency as alleging "continuing violations by the Government," the Circuit reasoned that the plaintiff "does not complain about what the agency has done but rather about what the agency has yet to do," and thus the Circuit found that § 2401(a)'s six-year statute of limitations was not applicable. Id. at 589. Subsequently, however, other members of this Court have questioned whether the reasoning of Wilderness Society can be reconciled with the Circuit's longstanding precedent classifying § 2401(a) as jurisdictional, and have declined to follow it as dicta that contradicts the Circuit's binding authority. See Alaska Cmty. Action on Toxics v. U.S. EPA, 943 F.Supp.2d 96, 106-09, 2013 WL 1876795, at *9-11 (D.D.C.2013) (Bates, J.); Conservation Force v. Salazar, 811 F.Supp.2d 18, 28 n. 4 (D.D.C.2011) (Rothstein, J.), vacated and remanded on other grounds by Conservation Force, 733 F.3d 1200, 2013 WL 4417452 (D.C.Cir.2013); W. Va. Highlands Conservancy v. Johnson, 540 F.Supp.2d 125, 139-43 (D.D.C.2008) (Bates, J.). But see Sierra Club v. U.S. EPA, 850 F.Supp.2d 300, 304 (D.D.C.2012) (Roberts, C.J.) (following Wilderness Society but recognizing discussion on subject is dicta). The Circuit, meanwhile, has neither consistently endorsed Wilderness Society's discussion of § 2401(a), nor repudiated it. Compare AKM LLC v. Sec'y of Labor, 675 F.3d 752, 757 n. 4 (D.C.Cir.2012) (noting that Wilderness Society "was in the context of [the court's] mandamus jurisdiction," which "is altogether different than ordinary rights of action"), with id. at 763 n. 6 (Garland, C.J., concurring) (explaining that "[a]lthough [the court] did regard the plaintiff's statutory claims as comparable to mandamus, what mattered was that the plaintiff did `not complain about what the agency ha[d] done but rather about what the agency ha[d] yet to do'" (citation omitted)).
Relying on this Court's decision in West Virginia Highlands Conservancy and cases adopting similar reasoning, the Intervenor-Defendants argue that this Court lacks jurisdiction over the plaintiffs' claims because both the Environmental Plaintiffs
While the Court agrees that it is bound by controlling authority from this Circuit to treat § 2401(a) as a jurisdictional statute of limitations,
The term "continuing violation" has been used to describe two distinct lines of argument. See id. at 306-07. The first, and more common, application of the doctrine pertains to conduct whose "character as a violation did not become clear until it was repeated during the limitations period, typically because it is only its cumulative impact (as in the case of a hostile work environment) that reveals its illegality." Id. at 306 (citation omitted). In such cases, "the statute of limitations begins to run only after the date of the last injury." Keohane v. United States, 669 F.3d 325, 329 (D.C.Cir.2012) (citation omitted). The second application of the doctrine is when "the text of the pertinent law imposes a continuing obligation to act or refrain from acting." Earle, 707 F.3d at 307. Thus, "where a ... statute [] imposes a continuing obligation to act, a party can continue to violate it until that obligation is satisfied
Determining whether a statute creates a continuing obligation "is a question of statutory construction," which begins, as always, with the plain language of the statute. Earle, 707 F.3d at 307. Section 2002(b) provides that "[e]ach regulation promulgated under this chapter shall be reviewed and, where necessary, revised not less frequently than every three years." 42 U.S.C. § 6912(b). By its plain terms, the statute charges the EPA with the ongoing obligation to review and, if necessary, revise the regulations promulgated under the RCRA every three years. The language is unambiguous in its command and contains no limitation ending the EPA's obligation to undertake such reviews and revisions at least every three years. The interpretation of § 2002(b) as imposing a continuing obligation on the EPA to review and revise its regulations is consistent with the Act's emphasis on the ongoing development of improved solid waste disposal methods. See 42 U.S.C. § 6902(a)(9). It is also consistent with the RCRA's citizen suit provision, which permits suit for the present failure of the EPA to perform any non-discretionary act under the RCRA, while providing no relief for prior failures by the agency that have been remedied. See 42 U.S.C. § 6972(a)(2). The Court thus concludes that § 2002(b) imposes "a continuing obligation to act" on the EPA, such that the EPA "continue[s] to violate it until that obligation is satisfied." Earle, 707 F.3d at 307 (citation omitted).
Having concluded that the application of the continuing violation doctrine is appropriate under the circumstances here, the only remaining issue to resolve is whether § 2401(a)'s designation as a jurisdictional statute of limitations prohibits the Court from applying it. Assuming arguendo that labeling a statute of limitations as "jurisdictional" categorically precludes the application of equitable doctrines,
Both the EPA and the Intervenor-Defendants raise challenges to the plaintiffs' standing. See EPA's Reply at 10-15; Intvs.' Mem. at 33-37. Because Article III of the Constitution limits the jurisdiction of this Court to the resolution of cases and controversies, "a showing of standing `is an essential and unchanging' predicate to any exercise of [the Court's] jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To demonstrate standing, a plaintiff must show that
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). Associations such as the environmental groups who filed suit here may bring suit on behalf of their members if (1) the association's members would have standing to bring suit in their own right, (2) the interests at stake in the litigation are germane to the association's purpose,
The party that invokes federal jurisdiction bears the burden of establishing the elements of standing "in the same way as any other matter on which the plaintiff bears the burden of proof." Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. At the summary judgment stage, "[b]are allegations are insufficient," Sierra Club, 292 F.3d at 898, and the plaintiff "must `set forth' by affidavit or other evidence `specific facts,' ... which for purposes of the summary judgment motion will be taken to be true," Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. 2130. "[A] plaintiff must demonstrate standing for each claim [it] seeks to press and for each form of relief that is sought." Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (citation and quotation marks omitted). However, "if one party has standing in an action, a court need not reach the issue of the standing of other parties when it makes no difference to the merits of the case." Comcast Corp. v. FCC, 579 F.3d 1, 6 (D.C.Cir.2009) (citation omitted).
Neither the EPA nor the Intervenor-Defendants contest the Environmental Plaintiffs' standing to bring their first and second claims. The EPA, however, argues that the Marketer Plaintiffs lack standing to pursue their sole claim, see EPA's Mem. at 11-15, which alleges that the EPA violated its non-discretionary duty under § 2002(b) of the RCRA to review and, if necessary, revise its Subtitle D regulations concerning coal ash, see Headwaters Compl. ¶¶ 20-22; Boral Compl. ¶¶ 21-23. This claim is substantially identical to the Environmental Plaintiffs' second claim. See Envtl. Pls.' Compl. ¶¶ 83-85. Nonetheless, the EPA contends that the Marketer Plaintiffs must separately establish standing to assert their claim because the Environmental Plaintiffs propose a different deadline for the EPA to complete its review and potential revision and because the Marketer Plaintiffs also request that the Court order the EPA to issue a final determination as to whether it intends to regulate coal ash under Subtitle C or D of the RCRA, or not at all, and to identify its authority for doing so. See EPA's Reply at 19-21. In the EPA's view, the Marketer Plaintiffs "request that [the] EPA be directed to take a different action, within a different time period, than has been requested by [the] Environmental Plaintiffs." Id.
While there are minor differences in the litigation strategy and relief requested by the Environmental Plaintiffs and the Marketer Plaintiffs, the Court agrees with the Marketer Plaintiffs that the differences are insignificant. It is well-established that "courts should avoid passing on constitutional issues unless the resolution of these issues is necessary to the disposition of the case." Ry. Labor Execs.' Ass'n v. United States, 987 F.2d 806, 810 (D.C.Cir.1993). For this reason, when a plaintiff's "presence or absence is of little consequence," a court need not assess the constitutional standing of that plaintiff, even if it adopts a different litigation strategy than the other parties. Id. For example, in Railway Labor Executives Ass'n, this Circuit declined to address the standing of one of two plaintiff organizations even though they challenged different administrative determinations because,
Here, the Environmental Plaintiffs and the Marketer Plaintiffs allege the same substantive violation of the RCRA and seek similar, albeit slightly different, relief. Although the parties propose different schedules for the EPA to come into compliance with its statutory obligations, they both ask the Court to reject the EPA's proposed schedule and require its expedited compliance. See [Proposed] Order Granting Plaintiffs' Motion for Summary Judgment at 1-2, ECF No. 19-3 (proposing that review and revision be completed within six months); Marketer Pls.' Mem. at 16-17 (proposing that the EPA announce its regulatory direction within three months). Further, the Court disagrees that the differences in the requested relief constitute requests "to take a different action." EPA's Reply at 20. The Marketer Plaintiffs' complaints both request that the Court order the EPA "to complete a review" of its regulations under Subtitle D and to "promulgate revisions" of its Subtitle D regulations concerning coal ash if it finds that such revisions are necessary. Headwaters Compl. at 6 ¶¶ 2-3; Boral Compl. at 6-7 ¶¶ 2-3. And their request that the EPA announce whether it will promulgate regulations under Subtitle C or D essentially amounts to a timeline for the first part of this requested relief, the EPA's completion of its review. The Environmental Plaintiffs and the Marketer Plaintiffs thus seek essentially the same basic result — an order from this Court requiring the EPA to complete a review and revision of its Subtitle D regulations concerning coal ash "as soon as possible." Compare Envtl. Pls.' Compl. at 34 ¶ 2, with Headwaters Compl. at 6 ¶¶ 2-3, and Boral Compl. at 6-7 ¶¶ 2-3. Moreover, because it is clear, as discussed below, that the Court is empowered only to direct the agency to act, and not to compel it to take any particular action, and therefore cannot order the EPA to issue a determination of whether it will promulgate regulations concerning coal ash under Subtitle C or D, the Marketer Plaintiffs' argument on this point can be "confidently and concisely reject[ed]" on its merits; thus, a lengthy inquiry into the Marketer Plaintiffs' constitutional standing is unnecessary. Ry. Labor Execs.' Ass'n, 987 F.2d at 811. Accordingly, the Court finds that the Marketer Plaintiffs need not separately establish their standing because the Court's "disposition of the main issue[s] of this case is ... unaffected by [their] presence," id. and the Court may therefore rely on the uncontested standing of the Environmental Plaintiffs
The Environmental Plaintiffs' third claim, as limited in its opposition to summary judgment, asserts that the EPA has violated its non-discretionary duty under § 2002(b) to review and revise, as necessary 40 C.F.R. § 261.24, solely as it relates to coal ash. Envtl. Pls.' Opp'n at 12. The EPA and the Intervenor-Defendants assert that the Environmental Plaintiffs lack standing to pursue this claim because § 261.24 does not apply to coal ash, and so the plaintiffs' alleged harms are not caused by the EPA's failure to review and revise this regulation, nor can their harms be redressed by an order from this Court compelling the EPA to take such action. See EPA's Reply at 10-16; Intvs.' Mem. at 33-35.
The Court agrees with the EPA and the Intervenor-Defendants that the Environmental Plaintiffs lack standing to pursue this claim because coal ash is not subject to 40 C.F.R. § 261.24.
The Environmental Plaintiffs' efforts to cure these causation and redressability problems are unavailing. They argue that standing is satisfied here because "[h]istorically, [the] EPA has relied upon the [Leaching Procedure] to characterize coal ash, and it will continue to rely upon [it] to evaluate the toxicity of coal ash in its ongoing rulemaking process unless it is ordered to review and revise the toxicity characteristic and [Leaching Procedure] regulations." Envtl. Pls.' Opp'n at 31-33. While it is true that the EPA has relied on the results of the Leaching Procedure as one factor in its determination not to regulate coal ash as a hazardous waste, see, e.g., 58 Fed.Reg. at 42,467-68; id. at 42,472, the EPA also cited numerous other considerations in its determination, see, e.g., id. at 42,472-73 (cases of damage caused by the wastes); id. at 42,476 (current industry practices); id. at 42,477 (comments). Indeed, the EPA's 1993 Bevill Amendment regulatory determination expressly stated that while it considered the results of the Leaching Procedure, "they are not the sole basis for determining whether to regulate fossil-fuel combustion wastes under RCRA Subtitle C." Id. at 42,472. Because the EPA relied on multiple other factors to sustain its decision not to regulate coal ash as a hazardous waste, the Environmental Plaintiffs have not established that the EPA's failure to, in the plaintiffs' view, appropriately revise 40 C.F.R. § 261.24, actually caused their alleged harms resulting from the inadequate regulation of coal ash. See Cnty. of Delaware, Pa. v. Dep't of Transp., 554 F.3d 143, 149 (D.C.Cir.2009) (holding that plaintiffs could not establish that agency's reliance on regulation caused their injury where regulation was only one of two alternative grounds for its decision).
The Environmental Plaintiffs face a similar problem under the redressability prong of the standing inquiry. It is conceivable, as the Environmental Plaintiffs suggest, that revision of § 261.24 may result in a determination by the EPA that coal ash should be regulated as a hazardous waste based, in part, on the results of the Leaching Procedure. See Envtl. Pls.' Opp'n at 30-33. However, unlike the cases cited by the Environmental Plaintiffs, the uncertainty here is not just whether the agency will adopt a plaintiff's position on the subject when forced by court order to act. See, e.g., Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130 (explaining that "one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered"). Rather, the uncertainty here is three-fold: first, whether the EPA will revise § 261.24 as the Environmental Plaintiffs hope, and then, whether the EPA will use the results of the revised Leaching Procedure to determine that coal ash should be regulated as hazardous, assuming the results show that coal ash exhibits toxicity, and finally, whether the EPA will determine that coal ash should be regulated under Subtitle C in view of all of the other factors considered by the EPA in making this determination. While the redressability requirement is lowered in cases challenging agency action, the Environmental Plaintiffs' argument here simply
The Environmental Plaintiffs attempt to bolster their standing arguments by pointing out that the "EPA's toxicity characteristic and [Leaching Procedure] are commonly used by state regulators to exempt coal ash disposal from basic waste disposal requirements." Envtl. Pls.' Opp'n at 33-36. But standing ordinarily cannot depend on the actions of third parties who are not before the Court and who will not be bound by the Court's decision. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (Article III "requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court"). Unlike National Parks Conservation Ass'n v. Manson, 414 F.3d 1 (D.C.Cir. 2005), on which the Environmental Plaintiffs rely, see Envtl. Pls.' Opp'n at 36, there is no requirement that any state use the EPA's toxicity characteristic or Leaching Procedure in its own promulgation of hazardous waste regulations, and therefore, there is no certainty whatsoever that an order from this Court granting the plaintiffs' requested relief will have any impact on states' independent regulatory decisions, see Nat'l Parks Conservation Ass'n, 414 F.3d at 3 (finding that redressability was satisfied because federal agency action "doubtless would significantly affect" state proceedings since the state agency was required to explain its decision to ignore a federal report on the issue if it chose to act in opposition, even though state agency retained final decision-making authority). Thus, it cannot be assumed with any degree of certainty that an order from this Court granting the plaintiffs the relief they request will change any particular state's independent regulatory decisions regarding coal ash.
In sum, the Environmental Plaintiffs' alleged harms resulting from the EPA's failure to, in their view, adequately regulate coal ash, are not sufficiently caused by the EPA's failure to review and revise the toxicity characteristic and are not likely to be redressed by the EPA's satisfaction of its statutory obligation to do so. The Environmental Plaintiffs' third claim must therefore be dismissed for lack of standing.
Finally, the Intervenor-Defendants argue that this Court lacks jurisdiction over the Environmental Plaintiffs' claim regarding review and revision of the EPA's Subtitle D regulations concerning coal ash (their second claim) because it is moot, and at the same time, argue confusingly that this matter is not yet ripe. Intvs.' Mem. at 29-31. A claim is moot "when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome" so that "the court can provide no effective remedy because a party has already `obtained all the relief that [it has] sought.'" Conservation Force, 733 F.3d at 1204, 2013 WL 4417452, at *2 (citations omitted). The Intervenor-Defendants assert that because the EPA has already initiated its review of its Subtitle D regulations concerning coal ash, the EPA is in compliance with its duty under § 2002(b), and thus, the Court is without power to order any relief. Intvs.' Mem. at 29-31. While the EPA's June 2010 notice of proposed rulemaking may indicate that it is undertaking a review of its Subtitle D regulations concerning coal ash, it has not completed the review and any necessary
The Intervenor-Defendants' argument that the plaintiffs' shared claim is not yet ripe because the EPA has not yet failed to complete its revision within three years similarly fails. The EPA's revision of its Subtitle D regulations has been delayed longer than three years, as the EPA itself concedes. See EPA's Mem. at 1-2. The Intervenor-Defendants' ripeness argument is therefore rejected.
Having now resolved all of the EPA's and the Intervenor-Defendants' arguments concerning the justiciability of the claims asserted in this case, the Court will turn to the merits of the Environmental Plaintiffs' first claim and the Environmental Plaintiffs' and the Marketer Plaintiffs' shared claim.
The Environmental Plaintiffs allege that the EPA has violated its non-discretionary duty under § 2002(b) of the RCRA to review, and if necessary, revise its regulatory exemption of coal ash from regulation under Subtitle C, 40 C.F.R. § 261.4(b)(4). Envtl. Pls.' Compl. ¶¶ 80-82. The EPA responds that it does not have a non-discretionary duty to review and revise this regulation because its regulatory powers with respect to the coal ash exemption are constrained by the Bevill Amendment. See EPA's Mem. at 17-19; EPA's Reply at 2-4. The Intervenor-Defendants agree that the EPA does not have a non-discretionary duty to take any action concerning this regulation, but further contend that the EPA has no authority to revise it at all, Intvs.' Mem. at 18-26, a position with which the EPA disagrees, EPA's Reply at 4. Whether the EPA has the authority to revise its regulatory exemption of coal ash from regulation under Subtitle C is not the issue before this Court, however, and since the Court does not need to reach this issue to resolve the claim before it, the Court expresses no opinion on it. The sole issue before this Court is whether the EPA has a non-discretionary duty to review and revise § 261.4(b)(4) under § 2002(b) of the RCRA. Because § 261.4(b)(4) is simply a regulatory codification of the Bevill Amendment's statutory exemption of coal ash from regulation under Subtitle C, the Court concludes that the EPA does not have a non-discretionary duty to review and, if necessary, revise it every three years.
The Bevill Amendment provides that coal ash
42 U.S.C. § 6921(b)(3)(A). Subparagraph (C) then provides that after completing the study required by 42 U.S.C. § 6982(n), "the Administrator shall, after public hearings and opportunity for comment, either determine to promulgate regulations under this subchapter ... or determine that such
In support of its position that it does not have a non-discretionary duty to review and revise § 261.4(b)(4), the EPA cites American Portland Cement Alliance v. EPA, 101 F.3d 772 (D.C.Cir.1996), where this Circuit discussed whether the "determinations" required under the Bevill Amendment were considered "regulations" within the meaning of the RCRA's judicial review provision, which provides the Circuit with original jurisdiction over petitions for review of the EPA's action "in promulgating any regulation ... or denying any petition for the promulgation, amendment or repeal of any regulation" under the RCRA. Id. at 774-76 (quoting 42 U.S.C. § 6976(a)). The Circuit reasoned that the RCRA differentiates between "regulations" and "determinations" and that the plain language of the statute therefore deprived it of jurisdiction over Bevill Amendment regulatory determinations. Id. at 775-76. Because the issue here concerns a regulation, albeit a regulation based on a regulatory determination, American Portland Cement Alliance is not directly on point. However, the Circuit's discussion of the different status of Bevill Amendment regulatory determinations supports the Court's conclusion here that the Bevill Amendment carves out a distinct regulatory process for Bevill wastes that does not fall within the EPA's routine regulatory authority under the RCRA. In light of the exception specifically created for the regulation of Bevill wastes from the EPA's general authority to promulgate regulations under Subtitles C and D, § 2002(b)'s general requirement is inapplicable to § 261.4(b)(4), and the Environmental Plaintiffs' first claim must be dismissed.
The sole remaining claim for relief, the Environmental Plaintiffs' and Marketer Plaintiffs' shared claim, is that the EPA has failed to perform its nondiscretionary duty under § 2002(b) of the RCRA to complete its review and, if necessary, revision of the Subtitle D regulations concerning coal ash at least every three years. Envtl. Pls.' Compl. ¶¶ 83-85; Headwaters Compl. ¶¶ 20-22; Boral Compl. ¶¶ 21-23. As the Court previously noted, the EPA has 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 combustion residuals." EPA's Mem. at 1-2. In addition to the justiciability arguments just discussed, the Intervenor-Defendants also argue that granting summary judgment to the Environmental Plaintiffs and the Marketer Plaintiffs on this claim is inappropriate because the EPA's review and revision of the regulations concerning coal ash under Subtitle D is a discretionary duty that the Court cannot compel the EPA to undertake. Intvs.' Mem. at 27-29.
A statute may create a non-discretionary duty by setting forth a date certain by which an agency must comply with an obligation, or by providing a deadline that is "readily-ascertainable by reference to some other fixed date or event." Sierra Club v. Thomas, 828 F.2d 783, 790-91 (D.C.Cir.1987). In a suit seeking to enforce a non-discretionary duty, "the only required judicial role would be to make a clear-cut factual determination of whether a violation did or did not occur." Id. at 791. Thus, "it is highly improbable that a deadline will ever be nondiscretionary, i.e. clear-cut, if it exists only by reason of an inference drawn from the overall statutory framework." Id. (citation and quotation marks omitted).
Beginning with the plain language of the statute, § 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." Resource Conservation and Recovery Act of 1976 § 2002(b), 42 U.S.C. § 6912(b) (emphasis added). Use of the word "shall" in a statute generally creates a mandatory duty, Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), here imposing a requirement that the EPA review and, if necessary, revise each regulation promulgated under the RCRA at least every three years. And although § 2002(b) does not set forth a date certain by which the EPA must review and make any necessary revision, it imposes a recurring obligation on the EPA that is "readily-ascertainable" by reference to the date of the regulation's promulgation. See Defenders of Wildlife, 284 F.R.D. at 4 (finding that Clean Water Act provision that required review and, if necessary, revision of regulations every five years imposed a non-discretionary duty). Nor does the discretion accorded by the statute to determine whether a revision is necessary and the substance of an appropriate revision selected by the EPA convert this mandatory duty to a discretionary one, as "`[i]t is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decisionmaking.'" Sierra Club v. Leavitt, 355 F.Supp.2d 544, 550 (D.D.C.2005) (Walton, J.) (quoting Bennett, 520 U.S. at 172, 117 S.Ct. 1154). Indeed, the United States Court of Appeals for the Second Circuit, considering a similarly-worded provision of the Clean Air Act, found that the provision at issue there imposed a non-discretionary duty on the EPA "to make some formal decision whether to revise" standards mandated by the Clean Air Act, even though the district court had no jurisdiction to order any particular revision. Envtl. Def. Fund v. Thomas, 870 F.2d 892, 898-900 (2d Cir. 1989). Accordingly, the Court finds that § 2002(b) creates a nondiscretionary duty requiring the EPA to undertake a review and, if necessary, revision of each regulation promulgated under the RCRA at least every three years.
The only remaining disputes regarding this claim concern the scope of relief that the Court can and should order. As mentioned previously, the Marketer Plaintiffs request that the Court order the EPA to announce its regulatory direction within three months of this Court's decision and also identify its regulatory authority. Marketer Pls.' Mem. at 16-17. However, the clear terms of the citizen suit provision state that this Court has jurisdiction only to "order the Administrator to perform such act or duty as the case may be." 42 U.S.C. § 6972(a). The Court thus cannot dictate to the agency the outcome of its review and revision, but only that it must undertake a review and revision in accordance with its non-discretionary duty to do so. See Thomas, 870 F.2d at 899 (holding that while district court had jurisdiction to order agency to take some action, "the content of that decision [was] within the Administrator's discretion"); cf. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 65, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ("Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency's discretion, a court can compel the agency to act, but has no power to specify what the action must be.").
Finally, the parties disagree as to the rapidity with which the EPA must conclude its review and issue revised regulations if deemed necessary. The Environmental Plaintiffs request that the Court order the EPA to conclude its review and revision within six months of this Court's order. [Proposed] Order Granting Plaintiffs' Motion for Summary Judgment at 1-2, ECF No. 19-3. The EPA, on the other hand, asks that the Court defer setting a deadline for the EPA's completion of review and promulgation of any necessary revisions, and instead permit the Agency to file a brief within six months of this Court's decision proposing a final deadline. EPA's Mem. at 27. The EPA represents in its briefs that the Agency is currently in the process of conducting its review of the regulations at issue, and insists that it needs additional time in order to "review these regulations in a manner that will
A court enforcing a statutory obligation to perform a non-discretionary duty "may exercise its equity power `to set enforceable deadlines both of an ultimate and an intermediate nature.'" Sierra Club v. Johnson, 444 F.Supp.2d 46, 52 (D.D.C.2006) (quoting NRDC v. Train, 510 F.2d 692, 705 (D.C.Cir.1974)). However, a court "may afford an agency additional time for compliance[] `where it is convinced by the official involved that he has in good faith employed the utmost diligence in discharging his statutory responsibilities.'" Id. (quoting NRDC, 510 F.2d at 713). Generally, courts reject agency arguments that amount to no more than a general desire to further study an issue before acting, see Sierra Club v. Ruckelshaus, 602 F.Supp. 892, 899 (N.D.Cal. 1984), but in determining appropriate relief, a court is also charged to "separate justifications grounded in the purposes of the Act from the footdragging efforts of a delinquent agency," NRDC, 510 F.2d at 713.
The Court is sensitive to the EPA's desire to conduct its review and revision of the regulations at issue in a responsible fashion and is cognizant that the Agency is in the best position to assess the time in which it will be able to do so. However, the Court cannot permit the EPA to set its own schedule to the extent that the EPA's non-discretionary duty is pursued in a manner dictated solely by the Agency's discretion. See Sierra Club v. Browner, 130 F.Supp.2d 78, 95 (D.D.C. 2001). In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations, particularly given the progress that the Agency presumably would have already made while the motions that have been addressed in this opinion were being briefed and then were under consideration by the Court. For example, the EPA cites the need to review the 450,000 comments it received on its proposed rule as a primary objection to the plaintiffs' proposed deadline. EPA's Mem., Ex. 1 (Rudzinski Decl.) ¶¶ 22, 26. But given the time that has already elapsed and the EPA's recognition of the need to revise its coal ash regulations, it is entirely possible that review of these comments has now been completed and no longer stands as a barrier to expedited completion of the process. The Court therefore requires updated information from the Agency regarding the status of its review and revision to properly fashion a schedule for the EPA's compliance with its obligation to review and revise if necessary its Subtitle D regulations concerning coal ash. The EPA requests six months to make this determination, but considering the time that has elapsed since that request was made, the Court finds that sixty days is sufficient.
For the foregoing reasons, the Court concludes that it must grant summary judgment to the EPA on the Environmental Plaintiffs' first and third claims, and that it must grant summary judgment to the Environmental Plaintiffs and the Marketer Plaintiffs on their shared claim. As to this shared claim, the EPA shall advise the Court within sixty days of this Court's decision of when it proposes to complete its review and revision of its Subtitle D regulations concerning coal ash. The plaintiffs may then file a response to the EPA's proposal in accordance with the
