In a ruling on March 13, 2019, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) granted the Environmental Protection Agency’s (EPA’s) request for voluntary remand without vacatur of the Phase 1, Part 1 CCR rule. That rule amended the 2015 CCR rule by, among other things, extending to October 31, 2020, the deadline to initiate closure for unlined impoundments subject to forced closure because they failed to meet a groundwater protection standard or impoundments that failed the aquifer location restriction. The bottom line of the Court’s March 13, 2019, ruling is that the October 31, 2020, deadline will remain in place while EPA undertakes a new rulemaking to determine the appropriate time frame for this class of CCR surface impoundments to initiate closure. EPA has stated that it intends to complete this rulemaking within the next nine months.
Under the initial 2015 CCR Rule, owners and operators of CCR surface impoundments were required to demonstrate compliance with the location restrictions set forth in 40 C.F.R. §§ 257.60–64 by October 17, 2018. Failure to meet a location restriction for an impoundment required the Owner to cease the receipt of CCR and initiate closure within six months of failing the criteria. In addition, unlined impoundments were also required to initiate closure within six months of failing to meet an applicable groundwater protection standard. In many cases this meant that, under the original 2015 rule, these impoundments would have to initiate closure in April 2019.
As noted above, in the Phase 1, Part 1 rule, EPA extended this deadline to October 31, 2020, for unlined impoundments failing to meet a groundwater protection standard and those failing to meet the aquifer location restriction. After the Phase 1, Part 1 rule was promulgated, the D.C. Circuit issued its decision in a case challenging the original 2015 CCR rule (USWAG et al. v. EPA, No. 15-1219 (D.C. Cir. 2015)). In that case, the D.C. Circuit held, among other things, that all unlined impoundments must close, irrespective of whether they meet the groundwater protection standards. Based on the Court’s holding in USWAG, environmental groups challenged the Phase 1, Part 1 rule’s extended deadline, arguing that allowing unlined impoundments (and those not meeting the aquifer location restriction) to operate until October 31, 2020, violated the Court’s finding in USWAG that all unlined impoundments must close. Environmental groups asked the D.C. Circuit to stay or summarily vacate the October 31, 2020, deadline.
EPA, on the other hand, asked the Court to allow it to “take back” the Phase 1, Part 1 rule, including the October 31, 2020, deadline, to reexamine the rule in light of the USWAG decision. EPA committed to undertake a new rulemaking to reevaluate the October 31, 2020, deadline and other aspects of the Phase 1, Part 1 rule. EPA argued, however, that the October 31, 2020, deadline should remain in place while it undertakes the new rulemaking. EPA explained that if the October 31, 2020, deadline was summarily vacated, as requested by environmental groups, utilities would have to immediately initiate the closure of all unlined impoundments, as well as those not meeting the aquifer location restriction, which EPA described as being “impossible” and a threat to power reliability.
In its March 13, 2019, Order, the D.C. Circuit Court granted EPA’s motion, and agreed with EPA and industry intervenors in support of EPA that summary vacatur of the October 31, 2020, deadline as requested by environmental groups would be unnecessarily disruptive. The Court disagreed with the environmental petitioners’ arguments, noting that they had not demonstrated that EPA would be unable to explain on remand a rationale in support of the October 31, 2020, deadline. As noted above, EPA has committed to initiate and complete this rulemaking within the next nine months, though the Court did not establish a Court-ordered deadline for the EPA to complete this rulemaking.