On February 11, three environmental groups — Sierra Club, Alliance for Affordable Energy, and PennEnvironment, Inc. — filed a petition for review in the D.C. Circuit Court of Appeals (D.C. Circuit) challenging the U.S. Environmental Protection Agency’s (EPA) recent final rule titled, “Hazardous and Solid Waste Management System: Disposal of CCR; A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments,” 85 Fed. Reg. 72,506 (Nov. 12, 2020). Commonly called “Part B,” the rule allows owners and operators to submit demonstrations showing their clay-lined impoundments are adequately protective of human health and the environment. Part B is the second of two rulemakings comprising EPA’s “Holistic Approach to Closure” amendments to the coal combustion residuals (CCR) rule. Environmental groups filed a similar challenge to the “Part A” rule in the D.C. Circuit in November 2020. That case, Labadie Environmental Organization v. EPA, is currently pending.
In accordance with the D.C. Circuit’s 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Cir. 2018) (USWAG decision), Part A amended the CCR rule to classify clay-lined CCR surface impoundments as “unlined.” See 85 Fed. Reg. 53,516, 53,561 (Aug. 28, 2020) (revising 40 C.F.R. § 257.71). As a result, owners and operators of clay-lined surface impoundments that were previously allowed to continue operating were now subject to a...
