The D.C. Circuit Court Coal Combustion Conclusion: “C” is for Cookie, that’s good enough for me!”

Posted on September 19, 2018 by Kathy Beckett

As our blue friend, The Cookie Monster, looks for words that begin with “c” he immediately settles upon a single favorite, the cookie. There is a bias in the selection by The Cookie Monster, as he prefers only one thing, cookies.  By using one noun and offering no other, we can conclude The Cookie Monster has a bias against other “c” nouns like carrots, cabbage and  cauliflower.  Using The Cookie Monster preferred word “c” methodology as applied to the recent D.C. Circuit decision in Utility Solid Waste Activities Group, et al. v. EPA et al., No. 15-1219 (August 21, 2018), one can find several “c” words selected by the panel of judges, Henderson, Millett, and Pillard that predict the conclusion.  As with The Cookie Monster, early choice of words sends a message.

Beginning with the obvious, the petitions filed by industry and environmental advocates concerned “coal”, “coal residuals” to be precise.  The petitioners challenge the EPA 2015 Final Rule governing the disposal of coal combustion residuals produced by electric utilities and independent power plants.    The Court offers in their Background discussion an opening observation that contaminants that are cancerous are found in coal residuals that are disposed of in concentrated locations that are massive.  These disposal areas are constructed without composite liners sometimes using inadequate clay liners allowing the commingling of water and contaminants.  Background conditions may not be able to be restored.  Catastrophic risks are posed and consequences may be amplified.  A compendium of damage cases has been compiled.  Complete destruction of aquatic ecosystems are identified. 

With the initial “c” analysis as noted above, the casual reader can predict the EPA Coal Residual rule does not fare well with this panel.  A few opinion highlights are offered:

  • Congress’ passage of the Water Infrastructure Improvements for the Nation Act (“WINN Act”) will have to be managed by EPA later.
  • Continued operation of unlined impoundments pursuant to 40 CFR 257.101 is vacated and remanded for consideration.
  • Clay-lined impoundments are not actually lined, so the court vacates 40 CFR 257.71(a)(1)(i).
  • Capricious describes the legacy ponds regulation.
  • Cure for select portions of EPA’s coal residual rule is a remand of (i) the regulation of coal piles; (ii) the Proposed Rule’s notice of Coal Residuals pile regulation; and (iii) the 12,400-ton threshold for beneficial use (and notice thereof).

Concurring, Henderson construes disposal to mean CCR is not curb trash. 



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