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West Virginia Highlands Conservancy v. Johnson

March 21, 2008

WEST VIRGINIA HIGHLANDS CONSERVANCY, ET AL., PLAINTIFFS,
v.
STEPHEN L. JOHNSON, ADMINISTRATOR U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

The Resource Conservation and Recovery Act, 42 U.S.C. §§ 6902 et seq., (hereinafter "RCRA") was passed by Congress to establish a "comprehensive federal program to regulate the handling and disposal of solid wastes." Defs.' Mot at 3. The act requires the Environmental Protection Agency ("EPA") and the Department of the Interior ("DOI") to take certain actions to develop an extensive federal management scheme for handling potentially hazardous waste. Plaintiffs bring this action against the Administrator of the EPA and the Secretary of DOI claiming that they, and their respective agencies, have failed to perform the non-discretionary duties imposed on them by RCRA. Specifically, plaintiffs allege that defendants have never undertaken the study of coal mining wastes requested by Congress and, accordingly, have failed to determine whether such wastes should be regulated as "hazardous" under Subtitle C of RCRA. Defendants have moved to dismiss the complaint. They argue that the lawsuit is untimely and that the Court lacks jurisdiction over the subject matter of the complaint. They also maintain that plaintiffs lack standing to bring this challenge. That motion is now fully briefed and ripe for resolution. Upon careful consideration, and for the reasons set forth below, the Court will grant defendants' motion.

BACKGROUND

"Coal mining, beneficiation, and processing generate large amounts of waste, including overburden and coal slurry." Compl. ¶ 12. Overburden consists of the "earthen material removed in order to gain access to a coal seam." Id. ¶ 13. Coal slurry is the waste generated by the beneficiation, or cleansing, of coal. Id. ¶ 14. By plaintiffs' count, "[i]n West Virginia today, there are at least 111 impoundments holding back billions of gallons of coal mining and cleaning waste." Pls.' Opp'n at 1. Those impoundments are created by "constructing embankments from coarse coal refuse across valleys, creating unlined basins behind the embankments to hold slurry and other liquid and semi-liquid coal wastes." Id. at 1-2. Unfortunately, impoundments have occasionally been known to fail. In 1972, a coal waste impoundment in West Virginia "catastrophically failed, releasing 132 million gallons of coal mining waste. . . . The resulting flood was the most destructive in West Virginia history: 125 people lost their lives, 1,100 were injured, and 4,000 rendered homeless." Id. at 2. More recently, an impoundment failed in Kentucky in 2000, releasing "250 million gallons of coal slurry" into the environment. Id. Aside from the disastrous effects of total impoundment failure, so-called "'blackwater' spills from coal waste impoundments are frequent, with damaging effects on surface water quality." Id.

Plaintiffs are West Virginia Highlands Conservancy, Inc. ("WVHC"), Ohio Valley Environmental Coalition ("OVEC"), and Coal River Mountain Watch ("CRMW"). WVHC is a non-profit organization with 2,000 members devoted to "conservation and wise management of West Virginia's natural resources." Compl. ¶ 9. OVEC, for its part, is a 1,000 member nonprofit organization dedicated to "organiz[ing] and maintain[ing] a diverse grassroots organization [for] the improvement and preservation of the environment through education, coalition building, leadership development, and media outreach." Id. ¶ 10. In addition, OVEC is a founding member of the Sludge Safety Project, which is "a collaborative effort seeking to document the effects of coal slurry . . . on human health and the environment, to reform the regulation of the disposal of coal slurry, and to encourage the adoption of alternative" coal cleansing methods. Id. Finally, CRMW is a non-profit organization that is "dedicated to the establishment of social, economic, and environmental justice in the southern coalfields of West Virginia." Id. ¶ 11. CRMW is also a founding member of the Sludge Safety Project. The constituent members of CRMW, the argument goes, "are harmed by the lack of information about the chemical makeup of coal slurry, the amount of it generated by the coal mining industry, and the extent of its disposal into slurry impoundments and underground injection wells." Id.

In 1976, "Congress enacted RCRA . . . to establish a comprehensive federal program to regulate the handling of solid wastes." Envtl. Def. Fund v. EPA, 852 F.2d 1309, 1310 (D.C. Cir. 1988). Under Subtitle C of RCRA, "Congress directed EPA to develop criteria to identify hazardous wastes and authorized the agency to list particular wastes as hazardous according to § 3001(a) criteria." Id. The criteria that factor into hazardous status are: ignitability, corrosivity, reactivity, and EP toxicity, which is "defined as the leaching of toxic residues into surrounding liquid." Id. (quoting 40 C.F.R. §§ 261.20 - 261.24). Subtitle C contemplates a "cradle to grave" regulatory plan, which "requires EPA to promulgate regulations to govern the treatment, storage, and disposal of these wastes." Id. (quoting 42 U.S.C. § 6924). Subtitle D, by contrast, governs the handling of solid wastes that do not qualify as hazardous. "Under Subtitle D, states use federal financial and technical assistance to develop solid waste management plans in accordance with federal guidelines." Id.

When it first enacted RCRA, Congress recognized that the "'information on the potential danger posed by mining waste is not sufficient to form the basis for legislative action.'" Id. (quoting H.R. Rep. No. 1491, 94th Cong., 2d Sess. 15). Thus, 42 U.S.C. § 6982(f), more commonly referred to as § 8002(f) of RCRA, directs the EPA to "conduct a detailed study of mining wastes to evaluate 'the potential danger to human health and environmental vitality.'" Id. RCRA also directed the Administrator of EPA to consult with the Secretary of the Interior while preparing the § 8002(f) study. Despite Congress' instructions, EPA pushed forward with mining waste regulation during the period between 1978 and the fall of 1980 without first conducting the § 8002(f) study. At the time, EPA proposed several regulations governing hazardous waste under Subtitle C. Under those proposed regulations, "certain smelting and refining waste streams satisf[ied] the . . . criteria for hazard [and] were 'listed' under Subtitle C." Envtl. Def. Fund, 852 F.2d at 1311.

Before EPA's proposed regulations went into effect, however, Congress passed the Solid Waste Disposal Act of 1980, Pub. L. 96-482, 94 Stat. 2334, which added to RCRA the so-called "Bevill Amendment," 42 U.S.C. § 6921(b)(3). The Bevill Amendment included § 8002(p), which "expanded the scope of EPA's study of mining industry wastes." Id. In addition to directing EPA to consider several additional criteria in its study of mining wastes,*fn1 the Bevill Amendment "suspended regulation of mining processing wastes under Subtitle C until at least six months after the agency had completed and submitted [the] study to Congress." Id. Congress also required EPA to issue a regulatory determination on mining wastes within six months of delivering its report. Following a public comment period, EPA was directed either to propose regulations for each type of mining waste under Subtitle C or to explain why such regulation was "unwarranted." Id. Thus, the effect of the Bevill Amendment was to strip EPA of authority to regulate mining wastes under Subtitle C until it performed the following steps: (1) conduct a detailed study of mining wastes that takes into account the appropriate statutory criteria; (2) publish the results of that study to Congress; and then (3) within six months of publishing its report to Congress -- and following an opportunity for public comment -- issue a regulatory determination as to regulation of mining wastes under Subtitle C. Congress instructed EPA to complete its § 8002(p) study by not later than October 16, 1983.

As plaintiffs point out, "[i]n response to the 1980 amendments to RCRA, on November 19, 1980, EPA promulgated an interim final regulation without notice and comment. That rule categorically excluded 'solid waste from the mining, beneficiation, and processing of ores and minerals (including coal)' from the definition of 'hazardous waste.'" Pls.' Opp'n at 5 (quoting 40 C.F.R. § 261.4(b)(7)). In relevant part, the interim regulation stated that because "coal is arguably a 'mineral or ore' under Section 3001(b)(3), wastes from the extraction, beneficiation and processing of coal are excluded from RCRA Subtitle C regulation in today's amendment." 45 Fed. Reg. 76,619. The interim rule was designed to tide over the regulated community while EPA purportedly undertook to conduct the § 8002(p) study required by RCRA and the Bevill Amendment. Meanwhile, DOI established a permanent regulatory program concerning mining wastes through the Office of Surface Mining Reclamation and Enforcement ("OSMRE"). In its regulations, OSMRE indicated that "any noncoal . . . mine waste defined as 'hazardous' under [RCRA] . . . shall be handled in accordance with the requirements of subtitle C of RCRA." See 48 Fed. Reg. 44,006, 44,030, 44,032 (1983). As for coal, OSMRE explained that "OSM and EPA have undertaken a joint study under Subtitle C of RCRA. Until that study is completed, OSM has no responsibility for regulating coal mine waste under Subtitle C or RCRA." 48 Fed. Reg. 44,027.*fn2

EPA missed the statutory deadline for the 8002(p) study imposed by Congress. Consequently, the agency was sued and judicially compelled to "complete the studies mandated by sections 8002 (f) and (p) of RCRA with respect to extraction and beneficiation wastes by December 31, 1985, and to take final action on the proposed reinterpretation by September 30, 1986." Defs.' Mot. at 6; see also Concerned Citizens of Adamstown v. EPA, Civ. No. 84-3041 (D.D.C. Aug. 21, 1985). Thus, on December 31, 1985, EPA submitted a "Report to Congress on Wastes from the Extraction and Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden from Uranium Mining and Oil Shale" (hereinafter "Hard Rock Mining Report"). Defs.' Mot. Ex. A.

That report is the focal point of this lawsuit.*fn3 Significantly, EPA expressly excluded any study of coal mining waste from the Hard Rock Mining Report:

The Agency excluded wastes from coal mining and beneficiation, because both EPA and the Department of the Interior play a role in their regulation, and it is not clear whether Congress intended coal mining to be included within the scope of the studies conducted in response to Sections 8002 (f) and (p) or RCRA.

Id. Ex. A at 7-8. In addition, the Hard Rock Mining Report concluded that primary responsibility for regulation of coal mining waste rested with DOI pursuant to the Surface Mining Control and Reclamation Act ("SMCRA") of 1977. Indeed, EPA stated that "the Secretary of the Interior, with concurrence from the Administrator of EPA, is responsible for promulgating regulations that effectuate the purposes of Subtitle C of RCRA with respect to coal mining waste or overburden." Id. Ex. A at 1-9 (internal quotation omitted).

Following a public comment period, EPA issued its regulatory determination concerning extraction and beneficiation wastes on July 3, 1986. See 51 Fed. Reg. 24,496 (1986). It determined that "regulation of mining waste under Subtitle C of [RCRA] is not warranted at this time." Id. Although EPA was "concerned about certain actual and potential mining waste problems," it concluded that those concerns were best addressed under Subtitle D: "[EPA] therefore plans to develop a program for mining waste under Subtitle D of RCRA." Id. The agency's decision to exclude all mining extraction and beneficiation wastes from Subtitle C regulation was challenged and upheld by the D.C. Circuit in Envtl. Def. Fund v. EPA. See 852 F.2d at 1313-15.

Several years later, EPA "completed the rulemaking process for amending the Bevill exclusion with respect to processing wastes with final rules published on September 1, 1989, see 54 Fed. Reg. 36,592, and January 23, 1990, see 55 Fed. Reg. 2,322." Defs.' Mot. at 8. In its report to Congress, EPA limited "the Bevill exclusion for mineral processing wastes to 20 specific" wastes, including coal processing wastes. Defs.' Mot. at 8, Ex. B at 2-3. On June 13, 1991, EPA issued its regulatory determination that "regulation under Subtitle C of RCRA is inappropriate for all 20 of the special wastes [including coal processing waste] that were studied." 56 Fed. Reg. 27,300. The agency indicated that it "plann[ed] to address 18 of the wastes [including coal processing waste] under Subtitle D, possibly in the program being developed for mining wastes." Id. Once this processing wastes final regulatory determination was issued, EPA believed it had finally satisfied its statutory and judicial obligations under §§ 8002(f) and (p).

Plaintiffs take a different view, however. They complain that EPA has effectively left the wastes from extraction and beneficiation of coal both unstudied and unregulated in contravention of Congress' direct instructions. By omitting coal extraction and beneficiation from the Hard Rock Mining Report, plaintiffs argue, EPA flouted a requirement of the Bevill Amendment. And because of that omission, EPA's 1986 regulatory determination "neither expressly nor implicitly discussed whether continued exemption of coal mining wastes from such regulation was warranted." Pls.' Opp'n at 7. Consequently, as plaintiffs would have it, EPA has never revisited its 1980 interim "decision to categorically exclude coal mining wastes from regulation as hazardous." Id. at 5; see also 45 Fed. Reg. 76,619. To make matters worse, "OSMRE never promulgated the regulations to effectuate Subtitle C that EPA told Congress justified its failure to study or report the environmental effects of coal mining wastes." Pl.'s Opp'n at 7. Nor has either agency ever undertaken to regulate coal mining under Subtitle D. As a result, "EPA and OSMRE each point the finger at the other when asked who must regulate coal mining wastes . . . [and] the studies of coal mining and beneficiation wastes that Congress required remain unperformed." Id. at 8. Through this lawsuit, plaintiffs seek to compel EPA ...


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