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Committee Leaders Urge EPA to Defend Agency's Legal Discretion Under RCRA

Press Release

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Location: Washington, DC

Energy and Commerce Committee Chairman Fred Upton (R-MI), Environment and the Economy Subcommittee Chairman John Shimkus (R-IL), and other members of the Energy & Commerce Committee today sent a bipartisan letter to Environmental Protection Agency Administrator Lisa Jackson urging the agency to defend EPA's legal discretion to revise certain regulations under the Resource Conservation and Recovery Act (RCRA), particularly regulations regarding the disposal of coal ash. Earthjustice and other environmental groups recently notified EPA of their intent to sue over the agency's failure to perform alleged "nondiscretionary duties under the Resource Conservation and Recovery Act." Energy and Commerce leaders are concerned that if EPA settles this lawsuit, it would jeopardize the agency's independent rulemaking authority under RCRA, inhibit EPA's consideration of other stakeholders in the rulemaking process, and encourage subsequent lawsuits.

The members wrote:

"Thanks to the clear Agency discretion in section 2002(b) [of RCRA, 42 U.S.C. §6912(b)], EPA need not settle a lawsuit filed on the issues raised in the NOI. We urge you to preserve the Agency's independent rulemaking authority under RCRA and the discretion afforded the Administrator, by Congress, in this subsection.

"We also urge you to consider the significant stakeholder interest regarding the regulations at issue in the NOI. Establishing rule language as part of a settlement compromise and agreeing to a court-ordered deadline for issuance of such rules, would prevent EPA from thoroughly considering the views of thousands of stakeholders -- including the States -- and may prevent completion of the review process by the Office of Management and Budget. Stakeholders are concerned about being cut out of the rulemaking process as evidenced by Headwaters Resources, Inc. now submitting its own notice of intent to sue to ensure that its voice will be heard with respect to any rule that may result from settlement. The fact that some stakeholders feel compelled to also bring suit to prevent themselves from being cut out of the rulemaking process underscores that the NOI threatens to inappropriately convert what is an open and discretionary process that takes into account the views of all stakeholders, to a potentially closed-door, judicial process involving only the narrow interests of select parties."

Last fall, the House approved H.R. 2273, the Coal Residuals Reuse and Management Act, with broad bipartisan support. The legislation provides a practical alternative to EPA's proposal to regulate coal ash under RCRA, setting up a state-based, federally enforceable program to ensure coal ash is safely managed and disposed of. The legislation is a commonsense approach that will enhance environmental protections and save hundreds of thousands of jobs.


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