Electric Energy , Inc . v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 7, 2024 Decided June 28, 2024
No. 22-1056
ELECTRIC ENERGY , INC ., ET AL.,
P ETITIONERS
v.
ENVIRONMENTAL P ROTECTION A GENCY AND M ICHAEL S.
R EGAN, ADMINISTRATOR , UNITED S TATES ENVIRONMENTAL
P ROTECTION A GENCY ,
R ESPONDENTS
S TATE OF TEXAS , ET AL.,
INTERVENORS
Consolidated with 22-1058
On Petitions for Review of Actions
of the Environmental Protection Agency

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No. 23-1035
ELECTRIC ENERGY , INC ., ET AL.,
P ETITIONERS
v.
ENVIRONMENTAL P ROTECTION A GENCY AND M ICHAEL S.
R EGAN, ADMINISTRATOR , UNITED S TATES ENVIRONMENTAL
P ROTECTION A GENCY ,
R ESPONDENTS
S IERRA C LUB ,
INTERVENOR
Consolidated with 23-1036, 23-1037, 23-1038
On Petitions for Review of Actions
of the Environmental Protection Agency
P. Stephen Gidiere III and Stacey L. VanBelleghem argued
the causes for petitioners. With them on the joint briefs were
Joshua R. More, Helgi C. Walker, David Fotouhi, Julia B.
Barber, Michael L. Raiff, David W. Mitchell, Douglas Green,
Margaret K. Fawal, Karl A. Karg, Matt Gregory, and Ann H.
MacDonald.
Ken Paxton, Attorney General, Office of the Attorney
General for the State of Texas, Kellie E. Billings-Ray, Chief,
Environmental Protection Division, and John Hulme and Jake

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Marx, Assistant Attorneys General, were on the brief for State
Petitioner-Intervenors in case No. 22-1056. Priscilla M.
Hubenak, Assistant Attorney General, entered an appearance.
Nash E. Long, Andrew R. Varcoe, Stephanie A. Maloney,
and Elbert Lin were on the brief for amicus curiae the Chamber
of Commerce of the United States in support of petitioners in
case No. 22-1056.
David Mitchell, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the briefs were
Todd Kim, Assistant Attorney General, Environmental &
Natural Resources Division, Perry M. Rosen, Attorney, and
Laurel Celeste, Senior Attorney, U.S. Environmental
Protection Agency.
Gavin Kearney argued the cause for respondent-
intervenors. With him on the joint briefs were Thomas Cmar,
Jennifer Cassel, Gilbert Zelaya, Lisa Evans, Nicholas S.
Torrey, and Frank S. Holleman, III.
Before: M ILLETT and P ILLARD, Circuit Judges, and
R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: In these two related cases, the
owners and operators of several coal-fired power plants
challenge Environmental Protection Agency actions applying
and enforcing regulations that govern the disposal of coal
combustion residuals. Petitioners argue that the challenged
agency actions amend existing legislative rules governing such
disposal and that EPA was therefore required to promulgate
those amendments according to the notice-and-comment
procedures of the Administrative Procedure Act. Because the

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challenged documents straightforwardly apply existing
regulations, they do not amount to the kind of agency action
“promulgating a[] regulation, or requirement” that we have
jurisdiction to review under the Resource Conservation and
Recovery Act. 42 U.S.C. § 6976(a)(1). We accordingly
dismiss the related petitions for lack of jurisdiction.
I.
A.
When an electric utility or power plant burns coal to
produce electricity, it generates ash, slag, and other coal
“residuals.” See Hazardous and Solid Waste Management
System; Identification and Listing of Special Wastes; Disposal
of Coal Combustion Residuals from Electric Utilities, 75 Fed.
Reg. 35128, 35137 (June 21, 2010). EPA has determined that
coal residuals contain myriad carcinogens and neurotoxins that
contribute to increased rates of “cancer in the skin, liver,
bladder, and lungs,” “neurological and psychiatric effects,”
“damage to blood vessels,” and “anemia” in people exposed to
them. Hazardous and Solid Waste Management System;
Disposal of Coal Combustion Residuals from Electric Utilities
(“2015 Rule”), 80 Fed. Reg. 21302, 21451 (Apr. 17, 2015).
EPA has also found that the residuals pose risks to plant and
animal wildlife, including “[e]levated selenium levels in
migratory birds, wetland vegetative damage, fish kills,
amphibian deformities, . . . [and] plant toxicity.” 75 Fed. Reg.
at 35172.
To address the health and environmental risks associated
with coal residuals, EPA regulates their disposal under Subtitle
D of the Resource Conservation and Recovery Act (RCRA), 42
U.S.C. § 6901 et seq. See Util. Solid Waste Activities Grp. v.
EPA (USWAG), 901 F.3d 414, 421-25 (D.C. Cir. 2018) (per
curiam) (discussing the regulatory landscape governing

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disposal of coal residuals). With Subtitle D of RCRA,
Congress seeks to “assist [states and regional authorities] in
developing and encouraging methods” for solid waste disposal
that are “environmentally sound” and promote resource
conservation. 42 U.S.C. § 6941. As relevant here, RCRA calls
on EPA to “promulgate regulations containing criteria for
determining which facilities shall be classified as sanitary
landfills and which shall be classified as open dumps.” Id.
§ 6944(a). The statute requires that the regulatory criteria for
classification as a sanitary landfill be sufficiently stringent to
ensure “no reasonable probability of adverse effects on health
or the environment from disposal of solid waste at such
facility.” Id. If the agency classifies a practice as “the open
dumping of solid waste or hazardous waste,” RCRA provides
for citizen suits against those engaging in such dumping, id.
§§ 6945(a), 6972, and requires states to prohibit the practice in
their waste management plans, id. § 6944(b).
In 2015, EPA promulgated a final rule governing the
disposal of coal residuals produced by electric utilities and
power plants. The 2015 Rule applies to owners and operators
of two types of coal residual disposal sites—surface
impoundments and landfills—which we collectively refer to as
coal residual units. See 40 C.F.R. § 257.53. As contemplated
by the statute, the 2015 Rule set criteria “designed to ensure
that human health and the environment face ‘no reasonable
probability’ of harm from [c]oal [r]esiduals spilling, leaking, or
seeping from their storage units and harming humans and the
environment.” USWAG, 901 F.3d at 420 (quoting 42 U.S.C.
§ 6944(a)).
To that end, the Rule established, among other things,
restrictions on the location of coal residual units; requirements
pertaining to lining of coal residual units, their structural
integrity and relation to groundwater; and criteria for recycling

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coal residuals for beneficial uses, such as by substituting it for
cement in road construction. See 40 C.F.R. §§ 257.60-74. And
the Rule also indicates that a coal residual unit is considered an
“open dump”—and therefore must be retrofitted or closed—
when “groundwater sampling . . . reveals an excess of [c]oal
[r]esidual constituents in the water table.” USWAG, 901 F.3d
at 447 (citing 40 C.F.R. § 257.101).
Closure is a defined concept under RCRA. See 42 U.S.C.
§ 6945(a). The 2015 Rule dictates how coal residual units must
close when the site is deemed an open dump. A unit owner
may close the site “either by leaving the [coal residuals] in
place and installing a final cover system” designed to
“minimize infiltration and erosion,” or by “remov[ing]” the
coal residuals and “decontaminat[ing]” the unit. 40 C.F.R.
§ 257.102(a), (d)(3). When the unit owner opts to close with
coal residuals in place, the 2015 Rule imposes two
requirements that are particularly relevant to these petitions.
First, the Rule mandates that, at a minimum, the unit close in a
manner that will (a) “[c]ontrol, minimize or eliminate, to the
maximum extent feasible, post-closure infiltration of liquids
into the waste”; (b) control, minimize, or eliminate “releases of
[coal residuals], leachate, or contaminated run-off to the
ground or surface waters or to the atmosphere”; and (c)
“[p]reclude the probability of future impoundment of water,
sediment, or slurry” in the unit. Id. § 257.102(d)(1)(i)-(ii).
Second, the Rule dictates that, before installing the “final cover
system” over the unit, “[f]ree liquids must be eliminated by
removing liquid wastes or solidifying the remaining wastes and
waste residues.” Id. § 257.102(d)(2)(i).
In response to USWAG v. EPA, 901 F.3d 414 (D.C. Cir.
2018), in which we vacated portions of the 2015 Rule as
arbitrary and capricious, EPA amended the Rule. It newly
classified unlined coal residual units—those units without a

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composite liner preventing leakage into the soil—as open
dumps that must stop receiving coal residuals and initiate
closure by April 11, 2021. See Hazardous and Solid Waste
Management System: Disposal of Coal Combustion Residuals
from Electric Utilities; A Holistic Approach to Closure Part A:
Deadline to Initiate Closure, 85 Fed. Reg. 53516, 53517 (Aug.
28, 2020). At the same time, EPA granted leeway via an
“alternative closure” exemption. That exemption allowed the
owner or operator of an unlined surface impoundment to
extend the closure deadline beyond April 2021 and manage the
coal residuals in place in the meantime. To qualify for the
exemption, the rule required the owner or operator to establish,
as relevant here, (1) that “[n]o alternative disposal capacity is
available on or off-site” of the facility, and (2) that the owner
or operator remains in compliance with all of the other
requirements of the coal residuals regulations. 40 C.F.R.
§ 257.103(a)(1)(i), (iii). The rule set an outer time limit on
extensions: “[N]o facility may be granted time to operate the
[non-complying] impoundment beyond” October 15, 2024. Id.
§ 257.103(f)(1)(vi), (vii).
B.
Dozens of companies with unlined units, including several
of the petitioners in this case, sought extensions of the April
2021 closure deadline. An application from the General James
M. Gavin Plant is illustrative: The plant operator requested an
extension until May 4, 2023, by which date it would cease
routing all coal residuals to its active, unlined surface
impoundment (known as the Bottom Ash Pond) and close the
pond with some coal residuals in place. The Clifty Creek

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Power Station and the Ottumwa Generating Station filed
similar requests.
On January 11, 2022, EPA published proposed denials of
Gavin, Clifty Creek, and Ottumwa’s extension applications.1
See 40 C.F.R. § 257.103(f)(3)(iii) (requiring publication of
proposed decisions for a 15-day comment period). In each of
the three proposed denials, EPA concluded that the facility’s
owner or operator failed to demonstrate that the facility
remained in compliance with other requirements of the coal
residuals regulations, and thus did not meet the preconditions
to receive an extension. See id. § 257.103(a)(1)(iii). Three of
EPA’s proposed reasons for finding such non-compliance are
relevant here.
First, EPA proposed finding that each of the three facilities
had a coal residual unit with its base sitting in and saturated
with groundwater. The extension applications did not discuss
any “engineering measures taken to ensure that the
groundwater had been removed from the unit prior to the start
of installing the final cover system, as required by 40 C.F.R.
§ 257.102(d)(2)(i).” Proposed Gavin Denial at 46 (Joint
Appendix (J.A.) 75, No. 22-1056); Proposed Clifty Creek
1 Petitioners also purport to challenge the Proposed Conditional
Approval of an Alternative Closure Deadline for H.L. Spurlock
Power Station in Maysville, Kentucky. That conditional approval is
distinct from the proposed denials petitioners challenge because it
rests on a proposed finding that the facility had not yet adequately
demonstrated compliance with the 2015 Rule’s groundwater
monitoring requirements—not on a proposed finding of failure to
comply with the closure requirements in 40 C.F.R. § 257.102.
Petitioners raised no argument regarding that conditional approval in
their briefing or at oral argument, so they have abandoned that
challenge. See Me. Lobstermen’s Ass’n v. Nat’l Marine Fisheries
Serv., 70 F.4th 582, 594 (D.C. Cir. 2023).

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Denial at 40 (J.A. 158, No. 22-1056); Proposed Ottumwa
Denial at 41 (J.A. 238, No. 22-1056). Given the potential for
groundwater to infiltrate the coal residual unit and for coal
residuals to dissolve in the water and migrate out of the unit,
the facilities had not established, as required by the 2015 Rule,
how those units had been closed in a manner that would
“[c]ontrol, minimize or eliminate, to the maximum extent
feasible, post-closure infiltration of liquids into the waste and
releases of [coal residuals], leachate, or contaminated run-off
to the ground or surface waters or to the atmosphere.” 40
C.F.R. § 257.102(d)(1)(i). Because the plants did not comply
with the closure requirements in sections 257.102(d)(1) and
(2), EPA proposed that it could not grant the requested
extensions. See id. § 257.103(a)(1).
Second, EPA proposed that Clifty Creek’s proposal to
construct concrete settling tanks for coal residual storage was,
in effect, a proposal to build a new coal residual surface
impoundment. And, because Clifty Creek had not established
that the new surface impoundment complied with the 2015
Rule’s liner design criteria in 40 C.F.R. § 257.72, EPA
proposed finding that it could not grant the extension.
Lastly, EPA proposed finding that Ottumwa Generating
Station’s closure plan was not compliant with the closure
requirements because Ottumwa proposed, contrary to existing
regulations, placing additional coal residuals in a surface
impoundment during closure. The 2015 Rule explicitly
requires that the owner or operator of an existing unlined
surface impoundment “cease placing” coal residuals into that
impoundment, 40 C.F.R. § 257.101(a)(1); EPA explained that

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there is, contrary to Ottumwa’s assertion, no exception for
placement that might be considered a “beneficial use.”
The same day EPA published the proposed decisions, the
agency issued a press release announcing its intention to
“protect communities and hold facilities accountable for
controlling and cleaning up the contamination created by
decades of coal ash disposal.” Press Release at 1 (J.A. 1, No.
22-1056). The press release described EPA’s “propos[ed]
decisions on requests for [closure-deadline] extensions,”
which, in the agency’s words, “re-state[d] EPA’s consistently
held position that surface impoundments or landfills cannot be
closed with coal ash in contact with the groundwater.” Id. at 1,
3 (J.A. 1, 3, No. 22-1056). It also announced that EPA was
“putting several facilities on notice regarding their obligations
to comply with [the existing coal residual] regulations” and
“laying out plans for future regulatory actions.” Id. at 1-2 (J.A.
1-2, No. 22-1056).
As forecasted in the press release, EPA directors sent
letters that same day to Georgia’s Environmental Protection
Division and to four companies with power stations in Indiana,
Ohio, Kansas, and Puerto Rico, describing how the 2015 Rule’s
closure standards applied to those companies’ coal residual
units that are saturated in groundwater. EPA’s letter to Duke
Energy, for example, informed it that two of its unlined surface
impoundments in New Albany, Indiana—which it had
removed from service and covered with soil and grass in 1989,
but which continued to sit in 20 feet of groundwater—are
“subject to the requirements of 40 C.F.R. Part 257.” Duke
Energy Letter at 1 (J.A. 9, No. 22-1056). If Duke Energy
planned to close the two sites with waste in place, EPA
explained, it would need to “implement engineering measures

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to remove groundwater from the unit[s]” before installing the
final cover system. Id. at 3 (J.A. 11, No. 22-1056).
Taken together, we call the issuance of the January 11,
2022 documents—the proposed decisions, the press release,
and the letters—the January 2022 actions.
C.
On November 28, 2022, EPA published in the Federal
Register notice of its final order on Gavin’s extension request.
See Final Decision on Request for Extension of Closure Date
Submitted by Gavin Power, LLC, 87 Fed. Reg. 72989 (Nov.
28, 2022). As it had proposed to do, EPA rejected Gavin’s
extension request and ordered the facility to cease receipt of
coal residuals into the Bottom Ash Pond no later than April 12,
2023. Id. at 72990. In support of its denial, EPA cited Gavin’s
failure to demonstrate its compliance with the 2015 Rule’s
closure performance standards for a separate unlined surface
impoundment known as the Fly Ash Reservoir, which had
ostensibly been closed while indefinitely saturated in 64 feet of
groundwater.
That impoundment, EPA explained, did not meet two of
the closure requirements set forth in the 2015 Rule.
Specifically, Gavin’s submission failed to show: (1) that the
facility had eliminated “free liquids” from the Fly Ash
Reservoir before closure, as required by 40 C.F.R.
§ 257.102(d)(2)(i); and (2) that the facility had taken
engineering measures to “control, minimize, or eliminate to the
maximum extent feasible” the “post-closure infiltration of
liquids from either side or base of the units into the waste,” or
to “preclude the probability of future impoundment of water,
sediment, or slurry,” as required by 40 C.F.R.
§ 257.102(d)(1)(i) and (ii). EPA also denied the extension
request because Gavin had not demonstrated compliance with

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the 2015 Rule’s groundwater monitoring and sampling
standards.
D.
Two groups of petitioners sought review in this court.
First, in Case No. 22-1056 and the consolidated petition,
entities that operate or represent coal-fueled power plants
challenged EPA’s January 2022 actions as unlawfully
amending the existing closure regulations. Petitioners argue
that EPA violated both the Administrative Procedure Act and
RCRA by announcing in a series of informal documents what
they claim is a legislative rule subject to notice-and-comment
rulemaking. See 5 U.S.C. § 553. Second, in No. 23-1035 and
consolidated petitions, another (partially overlapping) group of
companies filed what they describe as a “protective” petition,
in the event this court lacks jurisdiction to review the January
2022 actions. As in Case No. 22-1056, petitioners in Case No.
23-1035 assert that EPA promulgated, in its final denial of the
Gavin plant’s application, a legally binding amendment to the
existing coal residuals regulations without the requisite notice-
and-comment rulemaking.
II.
Our consideration of the petitions begins and ends with
jurisdiction. RCRA vests this court with original, exclusive
jurisdiction over “petition[s] for review of action of the
Administrator in promulgating any regulation, or requirement
under this chapter or denying any petition for the promulgation,
amendment or repeal of any regulation.” 42 U.S.C.
§ 6976(a)(1). The statute governs venue, mandating that
“challenges to final regulations be brought before us rather than
in another court.” Molycorp., Inc. v. EPA, 197 F.3d 543, 545
(D.C. Cir. 1999). It also operates as “a limitation on our
jurisdiction,” cabining our review to final regulations,

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requirements, and denials of petitions to promulgate, amend, or
repeal a regulation. Id. Challenges to other final EPA actions
under RCRA must be brought in the first instance in federal
district court. See 42 U.S.C. § 6976(a).
Both sets of petitioners contend that the challenged EPA
actions are reviewable as final “regulations” because they
amend existing legislative rules and because an “amendment to
a legislative rule must itself be legislative.” Sierra Club v.
EPA, 873 F.3d 946, 952 (D.C. Cir. 2017). EPA, for its part,
asserts that we have jurisdiction to review only the final Gavin
Denial, which it contends is a reviewable “requirement” within
the meaning of 42 U.S.C. § 6976(a)(1). We consider our
jurisdiction to review the January 2022 documents at issue in
Case No. 22-1056 before turning to whether we have
jurisdiction to review the final Gavin Denial at issue in Case
No. 23-1035.
A.
Petitioners assert that, in the January 2022 actions, EPA
promulgated a binding legislative rule subject to direct review
in this court. Specifically, they argue that the January 2022
documents are legislative rules because they amended the
existing coal residuals rule in two important ways: (1) by
announcing a new prohibition on closing coal residual units
with waste in contact with groundwater; and (2) by expanding
the types of waste storage units and practices subject to the coal
residuals regulations.
To ascertain whether regulatory action constitutes the
promulgation of a reviewable regulation under 42 U.S.C.
§ 6976(a)(1), we look to whether the action “binds private
parties or the agency itself with the ‘force of law.’” Cement
Kiln Recycling Coal. v. EPA, 493 F.3d 207, 227 (D.C. Cir.
2007) (quoting Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C.

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Cir. 2002)). In other words, we ask whether the agency action
constitutes a final legislative rule. See id.; Nat’l Mining Ass’n
v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (explaining
that a legislative rule has the “force and effect of law” (quoting
INS v. Chadha, 462 U.S. 919, 986 n.19 (1983))). Because an
agency’s amendment of an existing legislative rule must itself
be legislative, see Sierra Club, 873 F.3d at 952, we would have
jurisdiction to review amendments to the legislative rules
governing coal residual disposal. But we are unpersuaded by
petitioners’ assertion that the January 2022 documents amend
the 2015 Rule.
1.
Start with petitioners’ claim that EPA announced, for the
first time in January 2022, a prohibition on closing unlined
surface impoundments while coal residuals sat in contact with
groundwater. Petitioners assert that EPA thereby “eliminate[d]
one of th[e closure] options” the existing regulations
contemplate for surface impoundments: the option to close
with waste in place. Pet’r Br. 36, No. 22-1056; see 40 C.F.R.
§ 257.102(a) (providing that landfills and surface
impoundments can close either with waste in place or by
removing waste).
The 2022 documents announce no such novel requirement.
They do provide that, if operators wish to close their coal
residual units with waste in place, EPA may require them to
implement engineering measures designed to interrupt any
contact between the groundwater and coal residuals in the
relevant unit. But that much was clear from the text of the 2015
Rule. After all, it is the 2015 Rule, not the January 2022
documents, that requires unit operators closing surface
impoundments with waste in place to eliminate “free
liquids”—“liquids that readily separate from the solid portion

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of a waste under ambient temperature and pressure,” 40 C.F.R.
§ 257.53—from the impoundment before installing the final
cover system. Id. § 257.102(d)(2)(i). And it is the 2015 Rule,
not the January 2022 documents, that mandates closure in a
manner that will “control, minimize or eliminate, to the
maximum extent feasible, post-closure infiltration of liquids
into the waste and releases of [coal residuals], leachate, or
contaminated run-off to the ground or surface waters.” Id.
§ 257.102(d)(1)(i). A unit operator closing a surface
impoundment with waste saturated feet-deep in groundwater
has neither eliminated “free liquids” from the impoundment
nor controlled the “infiltration of liquids” into that unit. See id.
§ 257.102(d)(1)(i), (2)(i).
The 2015 Rule, standing on its own, makes clear that
operators cannot close their surface impoundments with
groundwater leaching in and out of the unit and mixing with
the coal residuals. EPA’s proposed action contemplates
enforcing those closure standards by requiring the unit’s
operator to discuss “the engineering measures taken” before
installation of the cover system “to ensure that the groundwater
had been removed from the unit,” and to describe the steps
taken to control water and waste flow in and out of the surface
impoundment. Proposed Gavin Denial at 46 (J.A. 75, No. 22-
1056); see id. at 47 (J.A. 76, No. 22-1056). That is a
straightforward application, not an amendment, of the 2015
Rule. Nothing in EPA’s description of those requirements as a
prohibition on closing coal residual units with “coal ash in
contact with groundwater” amends the 2015 Rule. Press
Release at 3 (J.A. 3, No. 22-1056).
Petitioners insist that, to “shoehorn the new prohibition
into the text of the existing regulations,” EPA changed the
meaning of two key terms in 40 C.F.R. § 257.102(d), which
sets out the requirements for closure with waste in place. Pet’r

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Br. 38, No. 22-1056. First, petitioners argue that the January
2022 documents newly define “free liquids”—which, per the
2015 Rule, must be “eliminated” before closure, 40 C.F.R.
§ 257.102(d)(2)(i)—to include groundwater. They assert that
“free liquids” in the 2015 Rule do not include groundwater.
Petitioners stress that the Rule defines “free liquids” as “liquids
that readily separate from the solid portion of a waste under
ambient temperature and pressure,” and separately defines
“groundwater” as “water below the land surface in a zone of
saturation.” Pet’r Br. 42, No. 22-1056 (emphases omitted)
(quoting 40 C.F.R. § 257.53). But the fact that the Rule
includes distinct definitions of “free liquids” and
“groundwater” gives us no reason to doubt that, when
groundwater makes its way into a coal residual unit, it “readily
separate[s] from the solid portion of a waste under ambient
temperature and pressure,” becoming a free liquid. 40 C.F.R.
§ 257.53. Indeed, petitioners offer no argument that
groundwater would not, once in a coal residual unit, separate
as described. See O.A. Tr. 33:15-23.
Second, petitioners argue that the January 2022 documents
newly require facilities closing with waste in place to control
the post-closure infiltration of liquids not just “downward”
through the final cover system, but also from “any direction,
including the top, sides, and bottom of the unit.” Pet’r Br. 38,
No. 22-1056 (emphases omitted) (quoting Proposed Gavin
Denial at 47 (J.A. 76, No. 22-1056)); see id. at 38-39. But
EPA’s description of “infiltration” works no change to the
existing regulatory text. Nothing in the 2015 Rule supports
petitioners’ assertion that unit operators must minimize
infiltration from only one direction—in their words, “the
downward movement of water through the final cover system.”
Id. at 38. To the contrary, the mandate in section 257.102(d)(1)
that units “control, minimize or eliminate . . . post-closure
infiltration of liquids into the waste” appears in a set of

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requirements applicable to the closure of the coal residual
“unit” as a whole. 40 C.F.R. § 257.102(d)(1)(i).
Section (d)(1) is distinct from a different subsection of the
Rule—section 257.102(d)(3)—which requires that the final
cover system itself be “designed to minimize infiltration and
erosion,” including through the installation of an “infiltration
layer” of earthen material in the final cover system. Id.
§ 257.102(d)(3), (d)(3)(i)(B). Section 257.102(d)(3) appears to
be limited to controlling infiltration from above through the
final cover system. But nothing in section 257.102(d)(1)
suggests that it could be so limited. As EPA confirmed in a
2020 summary of a proposed rulemaking, “the [coal residual]
regulations currently include [both] detailed technical
standards for final cover systems in § 257.102(d)(3)” and “a
general performance standard” in section 257.102(d)(1).
Hazardous and Solid Waste Management System: Disposal of
CCR; A Holistic Approach to Closure Part B: Alternate
Demonstration for Unlined Surface Impoundments;
Implementation of Closure, 85 Fed. Reg. 12456, 12464 (Mar.
3, 2020). And “surface impoundment[s] that extend[] into the
groundwater table will need to include measures to comply”
with the general “performance standard[].” Id.
In sum, the January 2022 documents did not amend
petitioners’ obligations to remove existing groundwater and to
prevent future groundwater infiltration from coal residual units
when closing with waste in place.
2.
Petitioners also claim that the January 2022 actions
expanded the types of waste storage units and practices subject
to the coal residuals regulations without using the requisite
rulemaking procedures. In particular, they argue that EPA
amended existing coal residuals regulations by: (1) expanding

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the definition of “inactive surface impoundment” to apply to
facilities that stopped receiving coal residuals before EPA
promulgated the 2015 Rule; (2) expanding the meaning of
regulated “surface impoundment[s]” to include self-supporting
concrete settling tanks; and (3) narrowing the regulatory
exclusion for “beneficial use.” Pet’r Br. 44, No. 22-1056. We
are not persuaded.
First, regarding regulation of units that stopped receiving
coal residuals before October 2015, the plain text of the 2015
Rule applies to “inactive service impoundments,” 40 C.F.R.
§ 257.50(c), which the Rule defines as “surface
impoundment[s] that no longer receive[] [coal residuals] on or
after October 19, 2015 and still contain[] both [coal residuals]
and liquids on or after October 19, 2015,” id. § 257.53.
Consistent with that regulatory text, EPA’s letter to Duke
Energy contemplated applying the 2015 Rule to surface
impoundments that no longer receive coal residuals but still
contain coal residuals and groundwater.
Second, we are unpersuaded that EPA amended the 2015
Rule when it asserted, in the proposed Clifty Creek Denial, that
a self-supporting concrete settling tank system is a coal residual
surface impoundment within the meaning of 40 C.F.R.
§ 257.53. Section 257.53 defines a surface impoundment as “a
natural topographic depression, man-made excavation, or
diked area, which is designed to hold an accumulation of [coal
residuals] and liquids.” 40 C.F.R. § 257.53. Petitioners assert
that the Rule does not specifically “define ‘[coal residual]
surface impoundment’ to include ‘tanks.’” Pet’r Br. 46, No.
22-1056. But an EPA determination that a specific self-
supporting tank system is a “man-made excavation” or “diked
area” does not change the definition of “surface
impoundment.” At most, EPA advanced an application of the

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rule’s terms that, as we explain below, is not a reviewable
“regulation.”
Finally, petitioners contend EPA functionally amended the
2015 Rule when it proposed applying to the Ottumwa facility
the Rule’s prohibition on “placing [coal residuals] in a [surface
impoundment] that is required to close.” Proposed Ottumwa
Denial at 35 (J.A. 232-33, No. 22-1056); see id. at 35-36.
Petitioners contend that the facility could add coal residuals as
“fill” to a closing unit because the added waste is a “beneficial
use” exempt from regulation. Pet’r Br. 33, 47, No. 22-1056.
True enough, the 2015 Rule “does not apply to [waste disposal]
practices that meet the definition of a beneficial use” of coal
residuals. 40 C.F.R. § 257.50(g). But it is not at all clear that
Ottumwa’s use would meet the definition. A “beneficial use”
subject to the exception is limited to practices, like the use of
encapsulated coal residuals as a filler in concrete, plastics, and
brick, that “provide a functional benefit” and “substitute for the
use of a virgin material, conserving natural resources that
would otherwise need to be obtained through practices, such as
extraction.” 40 C.F.R. § 257.53; see 80 Fed. Reg. at 21327-28.
More fundamentally, there was nothing new about how
EPA proposed to apply the prohibition to Ottumwa. Well
before the challenged January 2022 actions, EPA spelled out
its understanding that, once the provisions of section 257.101
are triggered, “[a]ll further placement of [coal residuals] into
the unit,” whether it “might be considered beneficial
use . . . [or] disposal,” is prohibited. Hazardous and Solid
Waste Management System: Disposal of Coal Combustion
Residuals from Electric Utilities; Amendments to the National
Minimum Criteria (Phase One); Proposed Rule, 83 Fed. Reg.
11584, 11605 (Mar. 15, 2018). EPA’s reiteration in 2022 of its

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preexisting view of the closure standard’s interaction with the
beneficial-use exception does not prescribe new law.
3.
None of the January 2022 documents, then, amends the
2015 Rule. Each simply explains, interprets, and applies the
2015 Rule’s obligations. It is the 2015 Rule, not the challenged
set of 2022 documents, that “binds private parties [and] the
agency itself with the ‘force of law.’” Cement Kiln Recycling
Coal., 493 F.3d at 227 (quoting General Elec. Co., 290 F.3d at
382).
In a final effort to establish that the January 2022
documents are legislative rules, petitioners draw our attention
to EPA’s later communications encouraging state
environmental commissions to read the January 2022 proposed
decisions “to understand EPA’s application of closure in place”
to facilities with “waste below the water table,” including in
their own jurisdictions. J.A. 500, No. 22-1056. They also point
to a meeting EPA convened in March 2022 with agencies from
eight states for a discussion of coal residual disposal. That
discussion was informed by EPA’s January 2022 proposed
decisions, which the agency described as “re-stat[ing] EPA’s
position that surface impoundments or landfills cannot be
closed with coal ash in contact with groundwater.” J.A. 456,
No. 22-1056.
None of EPA’s communications in the months after
January 2022—about the meeting or otherwise—indicates that
EPA treated the January 2022 documents “in the same manner
as it treats a legislative rule.” Pet’r Br. 55, No. 22-1056
(quoting Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021
(D.C. Cir. 2000)). Rather than rendering the 2022 documents
a legal requirement with independently binding force, the
agency’s communications highlight that the agency viewed its

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2022 enforcement actions as examples informative for
regulated parties as to how the agency interprets and applies
the codified closure regulations.
Petitioners assert in passing that the 2022 documents are
reviewable directly in this court even if they are not legislative
rules but simply announce the agency’s “interpretations of the
existing regulations.” Pet’r Br. 61 n.6, No. 22-1056. Not so.
An interpretive rule construing an existing regulation “can
constitute final [agency] action” that courts may, under certain
circumstances, review under the Clean Air Act or other statutes
providing for judicial review of agency action. POET
Biorefining, LLC v. EPA, 970 F.3d 392, 406 (D.C. Cir. 2020).
But RCRA cabins our original jurisdiction to review of rules
that “bind[] private parties [and] . . . agenc[ies] with the ‘force
of law.’” Cement Kiln Recycling Coal., 493 F.3d at 227
(quoting General Elec. Co., 290 F.3d at 382). Mere
interpretive rules lack “the force and effect of law” carried by
an underlying legislative rule or statute. Cal. Cmtys. Against
Toxics v. EPA, 934 F.3d 627, 635 (D.C. Cir. 2019); see Perez
v. Mortgage Bankers Ass’n, 575 U.S. 92, 97 (2015)
(“Interpretive rules ‘do not have the force and effect of
law . . . .’” (quoting Shalala v. Guernsey Mem. Hosp., 514 U.S.
87, 99 (1995))). Even assuming that the January 2022
documents operated as a final interpretive rule, we would lack
power to review them under RCRA.
We accordingly dismiss the petitions in Case No. 22-1056
(and related petitions) for lack of jurisdiction.
B.
We turn next to Case No. 23-1035 and related petitions, in
which Gavin and operators of other coal-fueled power plants
raise a similar challenge to what they frame as a legislative rule
announced in the final Gavin Denial. Like the petitioners in

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Case No. 22-1056, petitioners here argue that the final Gavin
Denial announced a prohibition on waste-in-place closures for
coal residual units saturated in groundwater. That prohibition,
they contend, amounts to a legislative rule promulgated
without the requisite notice-and-comment rulemaking.
As above, we begin and end with our jurisdiction over
these petitions, an issue on which the parties take conflicting
and somewhat counterintuitive stances.
Petitioners argue that we have jurisdiction to review only
the legislative rule that, in their view, EPA announced in the
final Gavin Denial—but not the denial itself. In other words,
petitioners here, as in Case No. 22-1056, seek to challenge a
generally applicable prohibition on closing coal residual units
with waste in contact with groundwater, not EPA’s
determinations in the final Gavin Denial that Gavin itself failed
to comply with the closure regulations. In fact, petitioners
argue that, apart from the generally applicable legislative rule
announced therein, the final Gavin Denial is not a reviewable
“regulation” or “requirement” under 42 U.S.C. § 6976(a)(1).
Pet’r Br. 52, No. 23-1035. Gavin has instead sought to
challenge the Gavin-specific compliance findings in federal
district court in the Southern District of Ohio. See Gavin
Power, LLC v. EPA, No. 2:24-cv-41 (S.D. Ohio filed Jan. 4,
2024).
EPA, by contrast, argues that the entire Gavin Denial must
be challenged in the first instance in this court because it
imposed a binding “requirement” for Gavin to initiate closure
of its Bottom Ash Pond. EPA contends that any challenges to
the Gavin Denial raised only in the Ohio case and not in
petitioners’ opening brief here are forfeited. But because the
Gavin Denial does not announce a legislative rule—or any
other kind of rule—but rather is a classic site-specific, fact-

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intensive adjudication of Gavin’s extension request, EPA
asserts that it is not a “regulation” under RCRA subject to the
requirements of notice-and-comment rulemaking.
We consider first whether the final Gavin Denial
announces a reviewable legislative rule (i.e., a “regulation”)
before ascertaining whether the Denial, as a whole, is
reviewable as the “promulgation” of a “requirement.” 42
U.S.C. § 6976(a)(1).
1.
Petitioners’ assertion that the final Gavin Denial
announces a legislative rule boils down to the same argument
addressed in our discussion of Case No. 22-1056: that, in the
Gavin Denial, EPA amended the 2015 coal residuals regulation
by announcing therein that the agency is “unaware of a
circumstance where [the closure] standards could be, or have
been, met when the waste in a closed, unlined impoundment
remains in contact with groundwater that freely migrates in and
out of the [coal residuals] remaining in the closed unit.” Final
Gavin Denial at 33 (J.A. 33, No. 23-1035). But, as we
explained above, EPA regulations adopted long before 2022
independently established that unit operators could not close
surface impoundments with coal residuals saturated in
groundwater. See supra 14-17. EPA did not amend the
existing regulations when it spelled that out in the final Gavin
Denial. Nor are we persuaded by petitioners’ assertion that
EPA announced, in the final Gavin Denial, an interpretation of
the term “infiltration” in 40 C.F.R. § 257.102(d)(1)(i) that
conflicts with its prior description of the term “infiltration” as
“applying ‘only’ to ‘percolation’ through the cap.” Pet’r Br.
43, No. 23-1035 (quoting EPA, Human and Ecological Risk
Assessment of Coal Combustion Residuals, K-1 (Dec. 2014)).
The source of that description pre-dates the 2015 Rule, and

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nothing in the 2015 Rule itself suggests that EPA incorporated
that understanding or expressly limited “infiltration” in that
manner.
To the extent the Gavin Denial contains any “rule,” that
rule could at most be interpretive, not legislative, because it
clarified and explained preexisting regulatory requirements.
See Mendoza v. Perez, 754 F.3d 1002, 1021 (D.C. Cir. 2014).
And, as we explained above, an interpretive rule—which lacks
the force and effect of law—is not a “regulation” directly
reviewable in this court under RCRA. See Cement Kiln
Recycling Coal., 493 F.3d at 226-27.
We are also unpersuaded that EPA announced a rule of any
sort in the final Gavin Denial. It engaged in classic fact-
specific adjudication. Unlike rulemaking, which typically
announces “generally applicable legal principles” and
“governs only the future,” adjudication involves “case-specific
determinations” that “immediately bind parties by retroactively
applying law to their past actions.” ITServe All., Inc. v. U.S.
Dep’t of Homeland Sec., 71 F.4th 1028, 1035 (D.C. Cir. 2023)
(formatting modified). EPA issued the final Gavin Denial in
response to an individual facility’s claim of entitlement to an
alternative closure deadline under 40 C.F.R. § 257.103. In it,
EPA interpreted the existing 2015 Rule’s closure standards for
coal residual units and applied them to deny the extension
request. The denial immediately bound the Gavin plant to
conform its pending closure proposals to the closure standards.
In other words, the Gavin Denial “reads and functions like a
judicial decision interpreting an agency regulation and then
applying it to resolve a case or controversy.” Id.
The role of EPA’s final Gavin Denial in elucidating
principles that could inform future agency decision-making
does not make it a legislative rule. Nor does the fact that EPA

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cited the final Gavin Denial in its later proposed disapproval of
Alabama’s Coal Residual program. EPA’s denial of
Alabama’s program noted that the agency “ha[d] previously
explained” in the final Gavin Denial that it “considers
groundwater to be a liquid under the existing regulation” and
that “a closed, unlined impoundment, where the [coal residual]
remains in groundwater several feet deep” did not meet the
requirements of § 257.102(d). Alabama: Denial of State Coal
Combustion Residuals Permit Program, 88 Fed. Reg. 55220,
55236-37 (Aug. 14, 2023).
“The fact that an order rendered in an adjudication may
affect agency policy and have general prospective application”
does not make it a legislative rule. Neustar, Inc. v. FCC, 857
F.3d 886, 894 (D.C. Cir. 2017) (quotation marks omitted). To
the contrary, “[a]djudicating a specific controversy requires
identifying the governing law, which may involve resolving
disputes about what that law means.” ITServe All., Inc., 71
F.4th at 1035. “Neither does [a] tangential impact on other
entities necessarily transform an informal adjudication into a
rulemaking since ‘the nature of adjudication is that similarly
situated non-parties may be affected by the policy or precedent
applied, or even merely announced in dicta, to those before the
tribunal.’” Neustar, Inc., 857 F.3d at 895 (quoting Goodman
v. FCC, 182 F.3d 987, 994 (D.C. Cir. 1999)). We accordingly
conclude that the final Gavin Denial did not announce a
legislative rule.
2.
Having determined that EPA’s final Gavin Denial does not
include a legislative rule, we consider EPA’s assertion that the
Denial is nevertheless reviewable in this court under 42 U.S.C.
§ 6976(a)(1) as a “requirement,” and that petitioners therefore
forfeited any future challenges to the final Gavin Denial not

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raised in their opening brief. EPA argues that, because the
regulatory closure deadline of April 10, 2021, is, upon
submission of a complete extension application,
“toll[ed] . . . until issuance of a decision,” 40 C.F.R.
§ 257.103(f)(3)(ii), the order’s April 12, 2023, closure deadline
imposes a “new obligation that carries legal consequence” and
that accordingly constitutes a legal requirement: “Gavin must
cease receiving waste . . . by April 12, 2023 (a date not supplied
by any statute or regulation).” EPA Br. 22, No. 23-1035.
We need not delineate the exact contours of the word
“requirement” in section 6976(a)(1) to decide that the April 12,
2023, deadline set forth in the Gavin Denial is not one. That is
because the Gavin Denial imposes no new legal obligations on
Gavin. The regulatory scheme always required the Gavin Plant
to cease placing coal‐combustion residuals in the Bottom Ash
Pond by the compliance deadline. See 40 C.F.R.
§ 257.101(a)(1).
EPA highlights that, under section 257.103(f)(3)(ii),
“[s]ubmission of a complete demonstration will toll the
facility’s deadline to cease receipt of waste until issuance of a
decision” on the extension, and that an extension decision “will
contain” a new deadline “to cease receipt of waste.” EPA Br.
20, No. 23-1035. But EPA is wrong to suggest that, absent a
decision on Gavin’s extension request, the Gavin Plant is under
no obligation to close. The fact that the deadline was tolled and
then reinstated after the tolling condition expired does not
transform the reinstatement of that deadline into a new legal
requirement. Moreover, the 2015 Rule mandates that even
surface impoundments eligible for an extension must close “no
later than October 15, 2023,” or, under specified eligibility
requirements, “no later than October 15, 2024.” Id.
§ 257.103(f)(1)(vi). In light of the nature of tolling as pausing
rather than eliminating the deadline, reinforced by the

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regulatory backstop deadline, we reject EPA’s contention that
its identification of the closure deadline “impose[d] a new
obligation that carries legal consequence” for the Gavin Plant.
EPA Br. 22, No. 23-1035. We accordingly lack jurisdiction to
review the final Gavin Denial.
* * *
For the foregoing reasons, we dismiss the petitions for
lack of jurisdiction.
So ordered.

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