Appalachian Voices v. McCarthy

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
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
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
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
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
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
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
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
 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
[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
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 (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 (2008) (Stevens, J., dissenting). As the

name of the latter category implies, a court lacks subject matter jurisdiction to hear a claim that is

11
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 attached to the government’s waiver of sovereign immunity,’” and it

thus falls into the latter category. P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021,

1026 (D.C. Cir. 2008) (citing Spannaus, 824 F.2d at 55).

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, __ F.3d __, __, 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 §

12
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, __ F. Supp. 2d __, __, 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, __ F.3d

__, 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 and the Marketer Plaintiffs

initiated their cases outside of § 2401(a)’s six-year statute of limitations, see Intvs.’ Mem. at 11–

16, and that due to the jurisdictional nature of § 2401(a), the Court is prohibited from applying

13
equitable doctrines such as the continuing violation doctrine to excuse the plaintiffs’ purportedly

untimely filing, see id. at 16–18. In the Intervenor-Defendants’ view, the limitations period of §

2401(a) commenced once three years had elapsed after the EPA’s last revision of the relevant

regulations, and accordingly the plaintiffs were required to initiate their claims by no later than

May 2009, with respect to 40 C.F.R. § 261.4(b)(4) and the Subtitle D regulations, and March

1999, with respect to the Environmental Plaintiffs’ claim regarding 40 C.F.R. § 261.24, despite

the EPA’s ongoing failure to fulfill its statutory obligations. See Intvs.’ Mem. at 13–15.

While the Court agrees that it is bound by controlling authority from this Circuit to treat §

2401(a) as a jurisdictional statute of limitations, 5 see, e.g., P & V Enters., 516 F.3d at 1026, the

Court disagrees that § 2401(a) bars the claims asserted here. “A cause of action against an

administrative agency ‘first accrues,’ within the meaning of § 2401(a), as soon as (but not

before) the person challenging the agency action can institute and maintain a suit in court.”

Spannaus, 824 F.2d at 56 (citations omitted). The Intervenor-Defendants contend that the

plaintiffs “cannot rescue their claims by alleging that EPA’s failure to perform its duties under

RCRA Section 2002(b) constitutes a ‘continuing violation’” because “[t]he continuing violation

rule is precisely the type of judicially recognized exception that may be applicable in other

contexts, but cannot be applied to the jurisdictional statute of limitations in § 2401(a).” Intvs.’

Mem. at 17. But this reasoning oversimplifies both plaintiffs’ arguments on this point and the

5
The Court notes that the continued vitality of this authority has been the subject of some recent debate. See Felter
v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007) (declining to address whether the continuing violation
doctrine or equitable tolling apply to § 2401(a)); Harris v. FAA, 353 F.3d 1006, 1013 n.7 (D.C. Cir. 2004) (declining
to resolve whether this Circuit’s holding that § 2401(a) is jurisdictional has been undermined by recent Supreme
Court decisions); see also P & V Enters., 516 F.3d at 1027 (declining to address prior precedent holding that §
2401(a) is jurisdictional because neither party challenged holding). As explained below, however, the Court finds
that the plaintiffs’ action is not time-barred in any event, and so the Court has no need to question whether it must
adhere to existing authority on this subject.

14
application of the “intricate and somewhat confusing” continuing violation doctrine. Earle v.

Dist. of Columbia, 707 F.3d 299, 306 (D.C. Cir. 2012) (citation and quotation marks omitted).

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 and the statute of limitations will

not begin to run until it does.” Id. (alterations in original) (emphasis added) (quoting AKM LLC,

675 F.3d at 763 (Garland, C.J., concurring)). It is the latter application of the doctrine that the

plaintiffs urge here. See Envtl. Pls.’ Opp’n at 13–16; Marketer Pls.’ Opp’n at 27–28.

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 §

15
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, 6 the continuing violation doctrine nonetheless

applies to determine when a claim accrues, see Earle, 707 F.3d at 306 (describing the continuing

violation doctrine as an exception to the “general rule” that “[a] claim normally accrues when the

factual and legal prerequisites for filing suit are in place” (alteration in original) (citation and

quotation marks omitted)), rather than to excuse the plaintiff’s failure to bring a claim that has

long-since accrued, cf. McKinney v. U.S. Postal Serv., No. 11-631, 2013 WL 164283, at *3–4

(D.D.C. Jan. 16, 2013) (holding that application of discovery rule was not barred even if §

6
The applicability of equitable doctrines to statutes of limitations that have been categorized as “jurisdictional” is
not as conclusively settled as the Intervenor-Defendants’ discussion of this issue implies. Indeed, the language in at
least one recent Supreme Court case suggests that the application of equitable doctrines may not be categorically
barred. See John R. Sand & Gravel, 552 U.S. at 133–34 (“The Court has often read the time limits of
[jurisdictional] statutes as more absolute, say as requiring a court to decide a timeliness question despite a waiver, or
as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period.”
(emphasis added)); see also McKinney, 2013 WL 164283, at *3 (“In this Court’s view . . . whether § 2401(a) is
(continued . . .)

16
2401(a) is a jurisdictional statute of limitations because it governs when the plaintiff’s claim

accrues, instead of operating to extend the limitations period due to considerations of equity).

The Court recognizes that other members of this Court have described the continuing violation

doctrine as an equitable exception, and have thus declined to apply it to claims subject to §

2401(a)’s statute of limitations. See Alaska Cmty. Action on Toxics, __ F. Supp. 2d at __, 2013

WL 1876795, at *10–11; Historic E. Pequots v. Salazar, __ F. Supp. 2d __, __, 2013 WL

1289571, at *6 (D.D.C. 2013); Conservation Force, 811 F. Supp. 2d at 27–28; Keohane v.

United States, 775 F. Supp. 2d 87, 90 (D.D.C. 2011); W. Va. Highlands Conservancy, 540 F.

Supp. 2d at 138. 7 However, this Court finds the reasoning of those cases to be incompatible with

Earle’s discussion of the continuing violation doctrine as a rule governing claim accrual.

Moreover, the Court’s conclusion here is consistent with the discussion of the continuing

violation doctrine in Wilderness Society, 434 F.3d at 588–89, and reconciles the reasoning of the

Circuit’s dicta with its precedent concerning the jurisdictional nature of § 2401(a). Accordingly,

the Court finds that § 2401(a) does not bar the action here because the statute of limitations has

not yet run on the plaintiffs’ claims.

(. . . continued)
jurisdictional in nature, and whether equitable exceptions can apply to extend its limitations period, remain open
questions.”).
7
In Felter v. Norton, 412 F. Supp. 2d 118 (D.D.C. 2006), another member of this Court noted that “[t]raditionally,
when a statute of limitations has been deemed jurisdictional, it has acted as an absolute bar and could not be
overcome by the application of judicially recognized exceptions, such as waiver, estoppel, equitable tolling,
fraudulent concealment, the discovery rule, and the continuing violations doctrine,” citing Cato v. United States, 70
F.3d 1103, 1108–09 (9th Cir. 1995), as support for this characterization of the continuing violations doctrine. 412 F.
Supp. 2d at 122 (internal citations omitted). The cases just cited and decided by other members of the Court relied
on Felter or cases which cite Felter as support for characterizing the continuing violation doctrine as an equitable
exception that cannot be applied to claims subject to § 2401(a). The Court notes, however, that Cato, the case upon
which Felter relies for its characterization of the continuing violation doctrine, briefly discussed the pro se plaintiff’s
invocation of the continuing violation doctrine, but ultimately upheld the district court’s dismissal of the case
because of lack of standing and other justiciability problems, not the inapplicability of the continuing violation
doctrine. See 70 F.3d at 1109–10.

17
 2. Standing

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 (1992)). To demonstrate standing, a plaintiff must show that

(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (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, and (3) neither the claim asserted nor the relief requested requires the participation of

individual members of the association in the litigation. Sierra Club v. EPA, 292 F.3d 895, 898

(D.C. Cir. 2002) (citing Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342–43

(1977)).

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. 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. “[A] plaintiff must

18
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 (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).

i. The Environmental Plaintiffs’ First and Second Claims

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

19
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, despite the differences in approach,

their strategies were “based primarily on the same substantive arguments . . . and they [were]

designed to achieve the same result.” Id. at 810–11. Further, the court found that it could

address insignificant arguments raised only by the plaintiff whose standing was in question when

those arguments could be “confidently and concisely reject[ed] on the merits.” Id. at 811.

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

20
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 8 to assert their claim.

8
The Court undertook its own inquiry regarding the Environmental Plaintiffs’ standing to assert their first and
second claims pursuant to its independent obligation to ensure that it has jurisdiction, and is satisfied that the
Environmental Plaintiffs have demonstrated standing to pursue these claims. Kathy Little, a member of both the
Sierra Club and Kentuckians For The Commonwealth, submitted an affidavit stating that she lives about 100 yards
from a coal-fired power plant that contains a coal ash landfill. Envtl. Pls.’ Mem., Exhibit (“Ex.”) 7 (Declaration of
Kathy Little) ¶ 9. Ms. Little stated that “[c]oal ash from the landfill blows all over the neighborhood constantly
coating nearby homes with dust that [she] understand[s] to be laden with toxi[n]s” so that she “can’t open [her]
windows, and still the dust penetrates [her] home and covers [her] furniture.” Id. She further alleges that her “use
and enjoyment of [her] property has been greatly diminished” because she “would like to be able to open [her]
windows, and spend time outside on [her] front porch, but [she] cannot currently do that because of the coal ash
contamination.” Id. In addition, Ms. Little stated that she “no longer swim[s] or fish[es] in the river due to toxic
coal ash from the plant.” Id. ¶ 11. The Environmental Plaintiffs have thus shown that Ms. Little is suffering an
actual injury to the enjoyment of both her property and nearby recreational areas due to the EPA’s alleged failure to
(continued . . .)

21
 ii. The Environmental Plaintiffs’ Third Claim

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. 9 The EPA promulgated its toxicity characteristic regulation pursuant to § 3001(a) of

Subtitle C of the RCRA, which requires the EPA to “develop and promulgate 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). Coal ash, however, is expressly exempted from regulation under

Subtitle C by the Bevill Amendment in accordance with the EPA’s regulatory determinations.

See 42 U.S.C. §§ 6921(b)(3)(A)(i), (b)(3)(C). Thus, the toxicity characteristic, which only

(. . . continued)
undertake its required review and revision of its regulation exempting coal ash from regulation as a hazardous waste
under Subtitle C and its regulations concerning coal ash under Subtitle D, and that an order from this Court
compelling the EPA to undertake such review and revision would likely redress the harm alleged. See Nuclear
Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1266 (D.C. Cir. 2004); cf. La. Envtl. Action Network v. U.S. EPA, 172
F.3d 65, 67–68 (D.C. Cir. 1999). Because the Sierra Club and Kentuckians For The Commonwealth have
associational standing to bring suit by virtue of Ms. Little’s standing, the Court finds that the Environmental
Plaintiffs have met their burden to establish standing to pursue their first and second claims.
9
Because the Environmental Plaintiffs have clarified that their third claim is for review and revision of 40 C.F.R. §
(continued . . .)

22
applies to wastes that should be regulated under Subtitle C, is not applicable to coal ash, which is

explicitly exempted from regulation under Subtitle C. It is true, as the Environmental Plaintiffs

point out, and the EPA admits, see EPA’s Reply at 11 n.6, that there is no “bright line between

hazardous waste and solid waste, where the [Leaching Procedure] test applies only to hazardous

waste and is irrelevant for solid wastes,” Envtl. Pls.’ Opp’n at 30 n.16, to the extent that some

wastes are excluded from regulation as hazardous because they do not exhibit toxicity as defined

by 40 C.F.R. § 261.24. But this argument ignores the Bevill Amendment’s express exemption of

coal ash from regulation under Subtitle C. If the Court granted the Environmental Plaintiffs’

requested relief on this claim and the EPA undertook a revision of § 261.24, the plaintiffs’

alleged harms would remain because coal ash would continue to be exempted from regulation

under Subtitle C regardless of whether it exhibited toxicity under a new testing procedure.

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

(. . . continued)
261.24 solely as it relates to coal ash, the Court need not address the Intervenor-Defendants’ standing arguments
with respect to the Environmental Plaintiffs’ ability to challenge the rule as to other wastes.

23
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 (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

24
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 has too many

layers of uncertainty to say that “the relief sought . . . will likely alleviate the particularized

injury alleged.” Cnty. of Delaware, 554 F.3d at 149 (emphasis added) (citation and quotation

marks omitted).

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 (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

25
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.

3. Mootness and Ripeness

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, __ F.3d at __, 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 revision of its regulations as required by § 2002(b), as

26
the EPA itself concedes. EPA’s Mem. at 1–2. Accordingly, the Court can still order relief and

thus the Environmental Plaintiffs’ and the Marketer Plaintiffs’ shared claim is not moot. Cf.

Conservation Force, __ F.3d at __, 2013 WL 4417452, at *2–3 (finding that plaintiffs’ claim

regarding agency’s obligation to issue determination within statutorily-mandated timeframe was

moot when agency completed review and issued determination, even though untimely).

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.

B. Exemption of Coal Ash from Regulation as a Hazardous Waste

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,

27
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

shall . . . be subject only to regulation under other applicable provisions of Federal or
State law in lieu of this subchapter until at least six months after the date of submission of
the applicable study required to be conducted under [42 U.S.C. § 6982(n)] and after
promulgation of regulations in accordance with subparagraph (C) of this paragraph.

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 regulations are unwarranted.” 42 U.S.C. § 6921(b)(3)(C). Whether these statutory

provisions create a one-time obligation, as the Intervenor-Defendants contend, or whether they

create a process which the EPA must follow before regulating coal ash under Subtitle C, as the

EPA argues, it is clear that the Bevill Amendment removes the regulation of coal ash as a

hazardous waste from the RCRA’s general regulatory scheme by creating a different process for

regulating coal ash as hazardous waste. Assuming that the Bevill Amendment does not create a

one-time process, the statute unequivocally provides that the EPA cannot regulate coal ash under

Subtitle C until after it determines that regulation is warranted and promulgates regulations

28
accordingly. This process, specific to Bevill wastes, removes § 261.4(b)(4) from the purview of

§ 2002(b), the RCRA’s general review and revision provision.

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.

C. Subtitle D Regulations Concerning Coal Ash

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

29
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. Although the Intervenor-Defendants did not style their argument in this

manner, other members of this Court have interpreted provisions similar to 42 U.S.C. § 6972 as

requiring that the Court determine that a duty is non-discretionary in order to exercise subject

matter jurisdiction over the claim. See, e.g., Friends of the Earth v. U.S. EPA, __ F. Supp. 2d __,

__, 2013 WL 1226822, at *5–7 (D.D.C. 2013); Defenders of Wildlife v. Jackson, 284 F.R.D. 1, 4

(D.D.C. 2012). Thus, out of an abundance of caution, the Court will address the Intervenor-

Defendants’ argument that the EPA does not have a non-discretionary duty to review and revise

its Subtitle D regulations concerning coal ash despite the EPA’s concession.

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

30
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 (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). 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

31
892, 898–900 (2d Cir. 1989). Accordingly, the Court finds that § 2002(b) creates a non-

discretionary 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 Intervenor-Defendants argue, however, that even if § 2002(b) creates a general non-

discretionary duty, § 2002(b) is not applicable to the EPA’s Subtitle D regulations concerning

coal ash. Intvs.’ Mem. at 27–29. In the Intervenor-Defendants’ view, § 1008(a) controls

because Subtitle D regulations are promulgated pursuant to § 1008(a), id., which provides that

“[w]ithin one year of enactment of this section, and from time to time thereafter, the

Administrator shall, in cooperation with appropriate Federal, State, municipal, and

intermunicipal agencies, and in consultation with other interested parties, and after public

hearing, develop and publish suggested guidelines for solid waste management,” Resource

Conservation and Recovery Act of 1976 § 1008(a), 42 U.S.C. § 6907(a). The Court discerns no

apparent conflict between Sections 1008(a) and 2002(b). By their plain language, § 1008(a)

governs the initial promulgation of regulations, and § 2002(b) governs their periodic review and

revision. Thus, § 1008(a) need not be adopted as the controlling provision at the expense of §

2002(b). Moreover, the plain language of § 2002(b), that is set forth in Subtitle B, and which

establishes the Office of Solid Waste and vests the EPA with the authority to execute the RCRA,

expressly states that the review and revision requirement applies to “[e]ach regulation

promulgated under the Act.” Id. § 2002(b). Accordingly, the Court finds that § 2002(b) creates

a non-discretionary duty that may be enforced pursuant to the RCRA’s citizen suit provision, 42

U.S.C. § 6972(b).

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

32
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 (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 result in an outcome that is scientifically

33
sound and legally defensible.” EPA’s Mem. at 19–20; EPA’s Mem., Exhibit (“Ex.”) 1

(Declaration of Suzanne Rudzinski (“Rudzinski Decl.”)) ¶ 26.

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.

34
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.

IV. CONCLUSION

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

schedule set forth in the order accompanying this opinion.

SO ORDERED this 29th day of October, 2013. 10

REGGIE B. WALTON
United States District Judge

10
An order consistent with this Memorandum Opinion shall be issued contemporaneously.

35