EPA Fires Back in D.C. Circuit Appellate Brief on Coal Ash Rules

The Environmental Protection Agency (EPA) filed its opening brief in a long-running dispute originally filed by Waterkeeper Alliance. In its brief, the agency argued that it is not required to involve the public in the approval process for state-level coal ash disposal programs.

Coal ash, key to the dispute, is the residue left behind from the combustion of coal. The EPA’s brief recoutned the origins of the case; coal ash disposal regulations were first enacted in 2015, as part of the Resource Conservation and Recovery Act. That Act was amended in 2016 to allow for the EPA to approve state-level programs governing coal ash disposal. The case centers around a 2017 submission from the state of Oklahoma. The EPA approved the program in 2018, and Waterkeeper sued, the brief explained.

The EPA summarized Waterkeeper’s arguments as claiming that the agency was required to promulgate guidelines for public participation in state programs; additionally, they claimed that the agency violated the Administrative Procedures Act (APA) because the approved program lacked public participation, and under the plan the state would be allowed to approve lifetime permits.

On appeal, the EPA argues that Waterkeeper’s claims fail because they impose a mandatory duty on the agency when the duty in question is, in their view, discretionary. The agency argued further that it had satisfied any such duty by publishing guidance on public participation, in lieu of mandatory rules. They also countered Waterkeeper’s attempts to toss the approval of Oklahoma’s state coal ash program, arguing that the decision was “well within the bounds of EPA’s discretion.” Finally, the agency claimed that the underlying statute did allow for “permits for life” and ensures that permits must be kept in line with changes in law.

Waterkeeper, joined as appellants by Sierra Club and Lead Agency, is represented by Earthjustice.