United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
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. 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
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).
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.
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
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.
 the Oklahoma Gas and Electric Company
(“OG&E”),  the State of Oklahoma and the
Oklahoma Department of Environmental Quality
(“Oklahoma”), and  the Public Service Company
of Oklahoma (“PSO”) and the Utility Solid Waste
Activities Group (“USWAG”) have moved to
intervene. 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).
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.
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).
defendant-intervenors must also demonstrate Article III
standing by establishing injury in fact, causation, and
redressability. 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.”).
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
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). The Court then
will address the propriety of placing conditions or
restrictions upon movants' intervention.