EPA Moves to Hold Coal Ash Rule in Abeyance and to Continue Oral Argument

Last week, EPA filed a motion asking the D.C. Circuit to postpone oral argument scheduled for October 17 in Utility Solid Waste Activities Group v. EPA, Docket No. 15-1219, the litigation surrounding its Coal Ash Rule.  EPA also moved to hold all proceedings related to the rule in abeyance for 120 days, after which it proposed to report to the court on which portions of the rule it intends to reconsider through further rulemaking.  Although EPA has not yet decided to initiate rulemaking proceedings to rescind or revise any portion of the rule, it argued that an abeyance was necessary to allow the agency to undertake a careful review of the rule in response to two petitions for administrative reconsideration submitted by industry groups, and as a result of the passage of the Water Infrastructure Improvements for the Nation (WIIN) Act in December 2016.  The Act provides EPA with authority to approve state coal ash permit programs to operate in lieu of the federal Coal Ash Rule if the state programs are at least as protective as the federal rule.

A group of Environmental Petitioners* have opposed EPA’s motion, arguing that EPA failed to demonstrate the extraordinary cause required for a court to postpone oral argument.  The Environmental Petitioners also argue that the WIIN Act did not make changes to the fundamental statutory standard governing the Coal Ash Rule, and since the rule is “the baseline against which a proposed state permitting program must be measured, [its] legality . . .  remains of central relevance to any state programs as well as in those states where federal requirements apply.”

The D.C. Circuit has not yet ruled on EPA’s motion.


* Environmental Petitioners include Clean Water Action, Environmental Integrity Project, Hoosier Environmental Council, PennEnvironment, Prairie Rivers Network, Sierra Club, Tennessee Clean Water Network, Waterkeeper Alliance, and Comité Dialogo Ambiental, Inc.

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