On November 7, EPA filed a motion asking the D.C. Circuit to remand certain provisions of the CCR Rule for the Agency’s reconsideration. As background, on September 13, EPA granted USWAG’s and AES Puerto Rico’s petitions for reconsideration of the CCR Rule stating that it was “appropriate and in the public interest” for the Agency to reconsider parts of the regulation. EPA’s decision was largely based on the Water Infrastructure Improvements for the Nation (WIIN) Act, which alters the self-implementing nature of the Rule to one implemented through enforceable permit programs.

Shortly after granting the reconsideration petitions, EPA filed a motion asking the D.C. Circuit to continue the October 17 oral argument date and hold the case in abeyance while it reconsiders the rule. The D.C. Circuit rejected EPA’s request to hold the case in abeyance. However, the court to delayed oral argument until Nov. 20 and ordered EPA to file a status report specifying which provisions of the final rule “are or are likely” to be subject to reconsideration.

In the November 7 motion, EPA identifies the provisions of the rule it will reconsider and asks the court to remand those provisions back to the Agency without vacatur. In the petition, EPA states that the WIIN Act implements several “fundamental changes” and states that the Agency seeks to incorporate the WIIN Act into the Rule.

EPA requests remand of the following five issues, which are currently under consideration by the Court:

  1. Inactive Impoundment (40 C.F.R. §§257.50(c), 257.100): “EPA Lacks Authority to Impose RCRA’s ‘Open Dump’ Prohibition on Inactive Surface Impoundments.”
  2. 12,400 Ton Threshold (40 C.F.R. §257.53, definition of Beneficial Use, subsection (4)): “The 12,400 Ton Threshold in the Fourth CCR Beneficial Use Condition is Based Upon Fundamentally Mistaken Assumptions” (Submitted on the briefs)
  3. Alternative Groundwater Protection Standards (40 C.F.R. §257.95(h)(2): “EPA’s Elimination of Risk-Based Compliance Alternative is Arbitrary and Capricious.” (Submitted on the briefs)
  4. CCR Piles (40 C.F.R. §257.53, definition of CCR Pile): “EPA’s Regulation of CCR Piles is Arbitrary and Capricious” and “EPA Failed to Provide Notice of the Rule’s Regulation of CCR Stored for Beneficial Use.”
  5. Legacy Ponds (40 C.F.R. §257.50(e)): “Legacy Ponds Must be Regulated.”

The 12,400 Ton Threshold and Alternative Groundwater Protection Standards issues have been submitted on the briefs, while the other three issues are scheduled for oral argument on November 20. Because EPA’s remand request was filed so close to oral argument, it is unclear how the D.C. Circuit will decide. If the D.C. Circuit grants the remand without vacatur, the remanded provisions will remain in place and fully applicable unless and until EPA repeals or revises those provisions pursuant to a new rulemaking process.