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Waterkeeper Alliance, Inc. v. Wheeler

United States District Court, District of Columbia

January 29, 2019

WATERKEEPER ALLIANCE, INC., et al., Plaintiffs,
ANDREW WHEELER, Acting Administrator, U.S. Environmental Protection Agency, et al., Defendants.



         Plaintiffs are three environmental groups that challenge the EPA's approval of an Oklahoma program regulating the disposal of coal combustion residuals (“CCRs” or “coal ash”), a byproduct of coal-fired power plants.[1] They bring two types of claims: (1) a citizen suit alleging that the EPA failed to perform a nondiscretionary duty to develop and publish minimum guidelines for public participation in the program's approval and (2) Administrative Procedure Act (“APA”) claims alleging that the EPA's approval of the program was arbitrary and capricious. Now before the Court are three motions to intervene as defendants pursuant to Federal Rule of Civil Procedure 24(a). Two of the motions are filed by Oklahoma utility companies and an association of utility companies (“industry movants”) and the third motion is filed by the State of Oklahoma. While no party opposes applicants' intervention in this action generally, plaintiffs contend that industry movants' intervention should be limited to the APA claims. For the reasons stated herein, all three motions to intervene will be granted as to all claims, subject to certain conditions.


         The Resource Conservation and Recovery Act of 1976 (“RCRA”), Pub. L. 94-580, 90 Stat. 2795 (1976) (codified at 42 U.S.C. §§ 6901 et seq.), created a framework for regulating the treatment, storage, and disposal of hazardous and non-hazardous waste. See Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 420 (D.C. Cir. 2018) [hereinafter USWAG]. In 2015, the EPA promulgated federal regulations governing CCRs under Subtitle D of RCRA. See Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals From Electric Utilities (“2015 Rule”), 80 Fed. Reg. 21, 302 (Apr. 17, 2015) (codified at 40 C.F.R. § 257.50 et seq.); 42 U.S.C. §§ 6941-6949a. Pursuant to Subtitle D, individuals may file citizen suits against the EPA administrator for failure “to perform any act or duty under this chapter which is not discretionary.” 42 U.S.C. § 6972(a)(2).

         In 2016, Congress passed the Water Infrastructure Improvements for the Nation Act (“WIIN Act”), Pub. L. No. 114-322, 130 Stat. 1628 (2016) (codified at 42 U.S.C. § 6945(d)). The WIIN Act “amended RCRA . . . to allow the EPA to approve State permitting programs ‘to operate in lieu of [the EPA's federal] regulation of [CCR] units in the State,' provided those programs are at least as environmentally protective as the existing [EPA regulations set forth in the 2015 Rule] . . . or successor[] EPA regulations.” USWAG, 901 F.3d at 426 (quoting 42 U.S.C. § 6945(d)(1)(A)). Oklahoma developed and submitted a proposed permitting program under the amended RCRA, which the EPA subsequently approved as “at least as protective” as existing federal regulations. Oklahoma: Approval of State Coal Combustion Residuals Permit Program (“Final Rule”), 83 Fed. Reg. 30, 356 (June 28, 2018). The program regulations are codified in Oklahoma law. See Disposal of Coal Combustion Residuals from Electric Utilities, Okla. Admin. Code § 252:517-1-1 et seq.

         Shortly thereafter, the D.C. Circuit vacated and remanded parts of the 2015 Rule, holding inter alia that, as to certain provisions, “the EPA acted arbitrarily and capriciously” for failure to fulfill its duty to ensure “no reasonable probability of adverse effects” on health or the environment. USWAG, 901 F.3d at 426-34, 449.

         Plaintiffs bring two sets of claims against the EPA. The first, set forth in Count 1 of the complaint, is a citizen suit claiming that the EPA failed to perform a nondiscretionary duty under RCRA, codified at 42 U.S.C. § 6974(b)(1), to develop and publish minimum guidelines for public participation in the design, implementation, and approval of state CCR programs. See Compl. [ECF No. 1] ¶¶ 64-72. The second set of claims, brought under the APA and set forth in Counts 2 through 7, alleges inter alia that the EPA's approval is invalid because some of Oklahoma's CCR regulations mirror those the D.C. Circuit vacated in USWAG and-building on the allegation in the citizen suit-that the EPA's failure to perform its nondiscretionary duty to publish guidelines for public participation under 42 U.S.C. § 6974(b)(1) rendered its approval arbitrary and capricious. Id. ¶¶ 73-83; see generally id. ¶¶ 73-113.

         Now, [12] the Oklahoma Gas and Electric Company (“OG&E”), [14] the State of Oklahoma and the Oklahoma Department of Environmental Quality (“Oklahoma”), and [18] the Public Service Company of Oklahoma (“PSO”) and the Utility Solid Waste Activities Group (“USWAG”) have moved to intervene.[2] USWAG is an electric utility association that represents over 150 electric utilities, including PSO, and OG&E and PSO are electric utility companies with CCR facilities in Oklahoma. See OG&E Mot. at 1; USWAG & PSO Mot. at 2-3. Each applicant seeks intervention as of right as a defendant under Federal Rule of Civil Procedure 24(a).[3]

         The EPA does not oppose the motions. See Defs.' Notice of Non-Opp'n to Mots. to Intervene [ECF No. 22]. Plaintiffs take no position on any applicants' intervention with respect to its APA claims in Counts 2 through 7 but oppose intervention of the industry movants as to Count 1, their citizen suit alleging that the EPA failed to comply with a nondiscretionary duty under RCRA. Pls.' Resp. in Opp'n to OG&E's Mot. to Intervene [ECF No. 19] at 1; Pls.' Resp. in Opp'n to Mot. of USWAG & PSO to Intervene [ECF No. 16] at 1-2. The motions are fully briefed and ripe for resolution.


         Parties may intervene as of right under Federal Rule of Civil Procedure 24(a) if the Court finds that (1) the application to intervene is timely; (2) the applicant has an interest relating to the property or transaction which is the subject of the action; (3) the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest is not adequately represented by existing parties. See Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1322-23 (D.C. Cir. 2013).

         Prospective defendant-intervenors must also demonstrate Article III standing by establishing injury in fact, causation, and redressability.[4] See id. at 1323. “In most instances, ” however, “the standing inquiry will fold into the underlying inquiry under Rule 24(a): generally speaking, when a putative intervenor has a ‘legally protected' interest under Rule 24(a), it will also meet constitutional standing requirements, and vice versa.” Wildearth Guardians v. Salazar, 272 F.R.D. 4, 13 n.5 (D.D.C. 2010); see also Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003) (“With respect to intervention as of right in the district court, the matter of standing may be purely academic. . . . [A]ny person who satisfies Rule 24(a) will also meet Article III's standing requirement.”).

         Even if an applicant may intervene as of right, courts have discretion to impose conditions or restrictions on the intervenor's participation. Wildearth Guardians, 272 F.R.D. at 13; see also Fed. R. Civ. P. 24 advisory committee's note to 1966 amendment (“An intervention of right . . . may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.”).


         Although the applications to intervene are largely unopposed, the Court nevertheless will address whether movants meet the factors necessary to establish a right to intervene under Federal Rule of Civil Procedure 24(a).[5] The Court then will address the propriety of placing conditions or restrictions upon movants' intervention.

         I. ...

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