Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Action No. 1:20-cv-1819
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`
`
`LABADIE ENVIRONMENTAL ORGANIZATION,
`DINÉ CITIZENS AGAINST RUINING OUR
`ENVIRONMENT, HOOSIER ENVIRONMENTAL
`COUNCIL, WATERKEEPER ALLIANCE, INC.,
`and SIERRA CLUB,
`
`Plaintiffs,
`
`v.
`
`ANDREW WHEELER, ADMINISTRATOR, U.S.
`ENVIRONMENTAL PROTECTION AGENCY, in
`his official capacity,
`
`and
`
`U.S. ENVIRONMENTAL PROTECTION
`AGENCY,
`
`Defendants.
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`

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`Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 2 of 22
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`INTRODUCTION
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`1.
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`Plaintiffs Labadie Environmental Organization, Diné Citizens Against Ruining
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`our Environment, Waterkeeper Alliance, Inc., Hoosier Environmental Council, and Sierra Club
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`(collectively “Plaintiffs”) assert violations of the Resource Conservation and Recovery Act
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`(“RCRA”) by Defendants Andrew Wheeler, Administrator of the United States Environmental
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`Protection Agency, and the United States Environmental Protection Agency (collectively “EPA”
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`or “Defendants”) for refusing to hold an in-person public hearing and ensure adequate public
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`participation on EPA’s proposed rollback to the 2015 Coal Ash Rule entitled: Hazardous and
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`Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric
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`Utilities; A Holistic Approach to Closure Part A: Deadline to Initiate Closure, 84 Fed. Reg.
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`65,941 (Dec. 2, 2019) (“Part A Proposal”).
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`2.
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`EPA refused Plaintiffs’ repeated requests for an in-person hearing and a longer
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`comment period on the Part A Proposal, thereby impairing Plaintiffs’ and their members’ ability
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`to effectively communicate their grave concerns about the Part A Proposal which would allow
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`millions of tons of additional toxic coal ash to be dumped into leaking, unlined, and/or
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`dangerously-sited ponds.
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`3.
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`Coal ash generated by coal-fired power plants is one of the largest and most toxic
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`solid waste streams in the United States. It contains contaminants that can cause cancer and other
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`adverse health impacts including reproductive, neurological, respiratory, and developmental
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`harm.
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`4.
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`For decades, in the absence of national standards requiring safe disposal, coal ash
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`was dumped in thousands of unlined and unmonitored lagoons, landfills, pits, and mines. The
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`Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 3 of 22
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`result was the widespread release of dangerous pollutants from coal ash to water, air, and soil,
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`endangering human health and the environment.
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`5.
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`In 2015, after concluding that the “current management practice of placing [coal
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`ash] waste in surface impoundments and landfills poses risks to human health and the
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`environment,” EPA promulgated the Coal Ash Rule pursuant to the Resource Conservation and
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`Recovery Act, creating the first-ever national regulations specifying environmental and public
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`health protections from coal ash disposal after a long history of regulatory delay. See Hazardous
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`and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric
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`Utilities, 80 Fed. Reg. 21,302, 21,451 (Apr. 17, 2015) (“2015 Rule” or “2015 Coal Ash Rule”).
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`6.
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`Just a few years after the 2015 Rule was promulgated, at industry’s urging and
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`contrary to a 2018 D.C. Circuit decision requiring more stringent regulation, EPA commenced a
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`vigorous effort to weaken the 2015 Rule.
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`7.
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`Within the eight-month period from July 2019 to March 2020, EPA proposed five
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`significant new rulemakings that would weaken the environmental and public health protections
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`in the 2015 Coal Ash Rule, as well as a related proposal that would roll back Clean Water Act
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`treatment standards for coal ash discharges.
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`8.
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`The Part A Proposal is EPA’s third set of amendments seeking to weaken the
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`critical protections set forth in the 2015 Coal Ash Rule. The Part A Proposal would have adverse
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`impacts on the environment and the health of individuals throughout the United States by
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`allowing utilities to delay closing and therefore to dump millions of tons of additional toxic coal
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`ash into leaking, unlined, and/or dangerously-sited ponds.
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`9.
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`Plaintiffs’ members derive recreational, scientific, aesthetic, commercial, life-
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`sustaining, and spiritual benefits from groundwater, rivers, waterways, and other areas affected
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`by EPA’s Part A Proposal.
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`10.
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`Despite the grave threats posed by the Part A Proposal to Plaintiffs and their
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`members, and other communities impacted by coal ash pollution, EPA refused to hold an in-
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`person hearing and only offered the public a “virtual,” audio-only public hearing on the Part A
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`Proposal. EPA’s refusal to have an in-person public hearing on the Part A Proposal marks a clear
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`reversal of its longstanding position that RCRA requires EPA to hold in-person public hearings
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`on proposed coal ash regulations and amendments thereto.
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`11. While virtual public hearings can be an important supplement to in-person public
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`hearings, they alone do not satisfy EPA’s nondiscretionary duty under RCRA to hold a public
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`hearing on regulatory changes and to provide for, assist, and encourage adequate public
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`participation.
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`12.
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`EPA further curtailed opportunities for public comment on the Part A Proposal by
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`offering an insufficient comment period that ran over the winter holidays and coincided with the
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`comment period for a separate but related coal ash regulatory rollback proposal.
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`13.
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`Plaintiffs seek a declaratory judgment that EPA’s refusal to hold an in-person
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`public hearing and to provide sufficient participation opportunities on the Part A Proposal
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`violated RCRA. Plaintiffs also seek injunctive relief compelling EPA to hold an in-person public
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`hearing when it is safe to do so and to re-open the comment period on the Part A Proposal.
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`JURISDICTION AND VENUE
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`14.
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`This action arises under the citizen suit provision of the Resource Conservation
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`and Recovery Act, 42 U.S.C. § 6972(a)(2).
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`15.
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`This Court has jurisdiction over this action pursuant to 42 U.S.C. § 6972(a), 28
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`U.S.C. § 1331, and 28 U.S.C. § 1361.
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`16.
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`17.
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`Plaintiffs have standing to bring this action on behalf of their members.
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`This Court may award Plaintiffs all necessary relief pursuant to 42 U.S.C. §
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`6972(a) and 28 U.S.C. §§ 2201-02.
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`18.
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`Venue is proper because the RCRA citizen suit provision expressly provides that
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`any action under 42 U.S.C. § 6972(a)(2) may be brought in the District Court for the District of
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`Columbia.
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`19.
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`By registered letter posted on February 7, 2020, and received on February 10,
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`2020, Plaintiffs gave notice of their intent to sue Defendants for their failure to perform
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`mandatory duties under RCRA and have thereby complied with the sixty-day notice requirement
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`of the RCRA citizen suit provision. See 42 U.S.C. § 6972(c); Notice Letter (attached as Ex. 1).
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`PARTIES
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`20.
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`Plaintiff LABADIE ENVIRONMENTAL ORGANIZATION (LEO) is a
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`grassroots, non-profit, non-partisan citizens group in Franklin County, Missouri focused on
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`addressing public concerns related to coal ash and coal-fired power plant pollution. It was
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`established in 2009, when electricity utility company Ameren Missouri proposed to build a coal
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`ash landfill in the floodplain of the Missouri River at its Labadie power plant. LEO’s mission is
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`to inform and educate the community about environmental issues impacting their health and
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`well-being, to inspire positive change, and to encourage practices for sustainability.
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`21.
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`LEO members live, work and recreate near Ameren’s coal ash ponds. LEO
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`members are concerned about the unlined coal ash ponds at the Labadie plant which are leaking
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`and contaminating groundwater and the threat such contamination presents to the groundwater
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`that they drink and rely on for other domestic purposes.
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`22.
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`Plaintiff DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT (Diné
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`C.A.R.E.) is an all-Navajo organization comprised of grassroots community members active on
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`Navajo Nation lands in and around the Four Corners region of Arizona, New Mexico, Colorado,
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`and Utah. Diné C.A.R.E. advocates for traditional teachings by protecting and providing a voice
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`for all life within and beyond the Four Sacred Mountains. Diné C.A.R.E promotes regenerative
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`and sustainable uses of natural resources consistent with the Diné philosophy of life. It
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`empowers local and traditional people to organize and determine their own destinies, in ways
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`that protect the health of their communities, their long held subsistence practices and way of life.
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`23.
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` Diné C.A.R.E. members are deeply concerned about coal ash pollution from
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`leaking, unlined coal ash ponds at the Four Corners Generating Station on Navajo Nation lands
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`and the impact this toxic pollution has on nearby groundwater, major rivers, waterways and
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`nearby Navajo communities as well as culturally significant sites. This pollution detrimentally
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`threatens Diné C.A.R.E. members’ food security. It adversely impacts their cultural and spiritual
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`practices connected to Chaco Wash and the San Juan River and hinders their ability to enjoy and
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`recreate on the San Juan and Animas Rivers.
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`24.
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`Plaintiff HOOSIER ENVIRONMENTAL COUNCIL, INC. (HEC) is an Indiana
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`non-profit organization dedicated to shaping Indiana’s environmental future. It is one of the
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`state’s largest environmental advocacy organizations and uses education and advocacy to secure
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`a healthier environment for all Hoosiers and protection of Indiana’s forests, lakes, rivers, native
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`fish and wildlife, and groundwater.
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`25.
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`HEC members live and work near unlined coal ash ponds in Indiana where there
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`is evidence of contamination of groundwater on which they rely. The coal ash ponds are also
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`located within floodplains and next to major rivers, which HEC members recreate on or near,
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`and which are also threatened with coal ash contamination.
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`26.
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`Plaintiff WATERKEEPER ALLIANCE, INC. is a non-profit organization
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`headquartered in New York, New York, uniting more than 350 Waterkeeper member and
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`affiliate organizations that are on the frontlines of the global water crisis and patrolling and
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`protecting more than 2.5 million square miles of waterways on six continents. From the Great
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`Lakes to the Himalayas, Alaska to Australia, the Waterkeeper movement defends the
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`fundamental human right to drinkable, fishable, and swimmable waters, and combines firsthand
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`knowledge of local waterways with an unwavering commitment to the rights of communities.
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`Within the United States, Waterkeeper Alliance, Inc. works with more than 175 Waterkeeper
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`member organizations and affiliates.
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`27. Members of Waterkeeper Alliance work and recreate in waterways that are
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`threatened by coal ash pollution from unlined coal ash ponds nationwide. They are concerned
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`about their health and well-being as they work to protect these waterways from new threats and
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`clean up existing pollution. As a result of this concern, they limit their recreational activity on the
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`waterways to avoid prolonged contact with water contaminated by coal ash pollution.
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`28.
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`Plaintiff SIERRA CLUB is America’s largest grassroots environmental
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`organization, with more than 3 million members and supporters nationwide. Sierra Club’s
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`mission is to explore, enjoy, and protect the wild places of the earth, practice and promote the
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`responsible use of the Earth’s resources and ecosystems, educate and enlist humanity to protect
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`and restore the quality of the natural and human environment, and use all lawful means to carry
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`out those objectives. Its activities include public education, advocacy, and litigation to enforce
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`environmental laws.
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`29.
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`Sierra Club members recreate near and on rivers which are threatened by coal ash
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`contamination from nearby unlined, leaking coal ash ponds. They are deeply concerned about the
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`impacts this toxic pollution has on the rivers, their riparian habitat, and aquatic life. This concern
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`diminishes their ability to enjoy and recreate on or near the rivers they so value.
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`30.
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`Plaintiffs’ members use and enjoyment of their property, groundwater, and local
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`waterways have been, and/or are threatened to be, diminished due to coal ash pollution that will
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`be exacerbated by the Part A Proposal. These members have an interest in protecting their own
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`health, the health of their children and families, and the health of their communities.
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`31.
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`Defendants’ refusal to provide an in-person public hearing and adequate public
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`participation opportunities on the Part A Proposal, as required by RCRA, denied Plaintiffs’
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`members the opportunity to effectively communicate to EPA their concerns about increased
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`exposure to contamination associated with coal ash waste.
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`32.
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`Although Plaintiffs’ members participated in the January 7 virtual public hearing,
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`they found it to be an inadequate substitute for an in-person hearing and were denied the
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`opportunity to speak directly to and engage in dialogue with EPA representatives, to use visual
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`aids, and to draw support from others physically present in the same room. As a result of the
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`meeting format, they were unable to effectively communicate their concerns about the Part A
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`Proposal.
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`33.
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`Particularly when combined with EPA’s refusal to extend the sixty-day comment
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`period on the Part A Proposal that overlapped with the winter holidays, EPA’s refusal to hold an
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`in-person hearing deprived Plaintiffs’ members of the opportunity to adequately provide
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`comment on the Part A Proposal.
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`34.
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`EPA’s refusal to provide an in-person hearing and extend the comment period on
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`the Part A Proposal (a) deprives Plaintiffs’ members of opportunities to effectively communicate
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`their concerns to EPA and provide input about the Part A Proposal; (b) increases the risk to
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`Plaintiffs’ members of exposure to contaminants in coal ash waste; and (c) in some cases,
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`increases and prolongs Plaintiffs’ members’ ongoing exposure to such contaminants and their
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`associated risk of adverse health effects accordingly.
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`35.
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`Plaintiffs’ members would like to, and if given the opportunity when public health
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`conditions related to COVID-19 allow for safe travel and public congregation, would testify in-
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`person to express their concerns about the Part A Proposal.
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`36.
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`Plaintiffs’ members have been and, unless the relief prayed for herein is granted,
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`will continue to be adversely affected by EPA’s failure to comply with RCRA.
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`37.
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`Defendant Andrew Wheeler is the Administrator of the United States
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`Environmental Protection Agency. He is being sued in his official capacity only.
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`38.
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`Defendant United States Environmental Protection Agency is an agency of the
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`federal government. EPA’s mission is “to protect human health and the environment.”
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`LEGAL FRAMEWORK
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`I.
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`39.
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`The Resource Conservation and Recovery Act and the 2015 Rule
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`RCRA is the principal federal statute governing the handling, storage, treatment,
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`transportation, and disposal of solid and hazardous waste. In enacting RCRA, Congress
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`recognized that “disposal of solid waste and hazardous waste in or on the land without careful
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`planning and management can present a danger to human health and the environment.” 42
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`U.S.C. § 6901(b)(2). RCRA also articulates Congress’s recognition that “inadequate and
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`environmentally unsound practices” for the disposal of solid waste create greater amounts of air
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`and water pollution and other problems for the environment and health. 42 U.S.C. § 6901(b)(3).
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`40.
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`The goal of RCRA is to protect health and the environment by, among other
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`things, requiring open dumps to convert to facilities which do not pose a danger to the
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`environment or health. See id. § 6902(a)(3).
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`41.
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`In 2015, pursuant to a court order, EPA established the first-ever federal
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`regulations governing coal ash disposal under RCRA. See Appalachian Voices v. McCarthy, 989
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`F. Supp. 2d 30, 54-56 (D.D.C. 2013) (directing EPA to comply with statutory duty to promulgate
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`coal ash disposal regulations); 42 U.S.C. §§ 6907(a), 6944(a); 80 Fed. Reg. 21,302. The 2015
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`Rule established national minimum criteria for coal ash ponds and landfills including location
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`restrictions, design and operating criteria, groundwater monitoring, corrective action, post-
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`closure care, recordkeeping, notification, and public disclosure requirements. Id.
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`42.
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`Because in 2015, RCRA neither authorized EPA to directly implement minimum
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`national criteria for solid waste disposal facilities nor to enforce such criteria, EPA established
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`the 2015 Coal Ash Rule as a “self-implementing rule” enforced by members of the public via
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`citizen suits. Id. at 21,331.
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`43.
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`RCRA authorizes citizen suits “against the Administrator where there is alleged a
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`failure of the Administrator to perform any act or duty under this chapter which is not
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`discretionary with the Administrator.” 42 U.S.C. § 6972(a)(2).
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`44.
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`RCRA imposes a clear-cut, nondiscretionary duty on Defendants to hold public
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`hearings when it promulgates coal ash regulations. 42 U.S.C. §§ 6907(a) and 6944(a). EPA has
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`cited both of these statutory provisions as its legal authority for the Part A Proposal.
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`45.
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`RCRA also imposes a clear-cut, nondiscretionary duty on Defendants to ensure
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`that the public has meaningful opportunities to provide input into regulations governing the
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`disposal of coal ash waste. RCRA provides that “[p]ublic participation in the development,
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`revision, implementation, and enforcement of any regulation, guideline, information, or program
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`under this chapter shall be provided for, encouraged, and assisted by the Administrator.” Id. §
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`6974(b) (emphasis added). Prior to departing from this practice for the Part A Proposal, EPA had
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`routinely held in-person public hearings in implementing these nondiscretionary duties, as
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`supported by EPA regulations and guidance going back to 1979.
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`46.
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`EPA’s public participation regulations commit the Agency to “provide for,
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`encourage, and assist the participation of the public,” “foster a spirit of openness and mutual trust
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`among EPA . . . and the public,” and “use all feasible means to create opportunities for public
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`participation, and to stimulate and support participation.” 40 C.F.R. § 25.3(a), (c).
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`FACTUAL BACKGROUND
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`The Toxic Threats Posed by Coal Ash
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`Coal ash is one of the largest industrial wastestreams in the United States. Coal-
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`I.
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`47.
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`fired power plants in the United States produce more than 100 million tons of coal ash each year.
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`Coal ash contains “myriad carcinogens and neurotoxins” and utilities dispose of it in “massive”
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`disposal sites including hundreds of landfills and ash ponds throughout the country, which are
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`“generally . . . at varying degrees of risk of protracted leakage and catastrophic structural
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`failure.” See Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency, 901 F.3d 414, 420-21 (D.C.
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`Cir. 2018).
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`48. When coal ash is not disposed of in properly sited, constructed, and operated
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`facilities, toxic contaminants can be released to air, groundwater, surface water, and soil.
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`49.
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`There are hundreds of leaking, unlined, and improperly sited coal ash ponds in the
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`U.S. polluting groundwater as well as bays, lakes, rivers, and streams. These coal ash ponds
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`release toxic and radioactive substances into the water, including large quantities of heavy metals
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`and metal compounds such as arsenic, boron, cadmium, hexavalent chromium, lead, lithium,
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`mercury, molybdenum, selenium, and thallium.
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`50.
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`The toxic contaminants in coal ash can cause cancer and other adverse health
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`impacts including reproductive, neurological, respiratory, and developmental harm.
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`51.
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`Arsenic is a known human carcinogen that causes cancer of the skin, liver,
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`bladder, and lungs. 80 Fed. Reg. at 21,451. Boron “can pose developmental risk to humans when
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`released to groundwater and can result in stunted growth, phytotoxicity, or death to aquatic biota
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`and plants when released to surfacewater bodies.” Hazardous and Solid Waste Management
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`System: Disposal of Coal Combustion Residuals From Electric Utilities; Amendments to the
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`National Minimum Criteria (Phase One); Proposed Rule, 83 Fed. Reg. 11,584, 11,589 (Mar. 15,
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`2018). Lead is a very potent neurotoxin that can cause “kidney disease, lung disease, fragile
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`bone[s], decreased nervous system function, high blood pressure, and anemia.” Hazardous and
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`Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal
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`Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. Reg. 35,128, 35,169 (June
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`21, 2010). Exposure to mercury, another neurotoxin, can “permanently damage the brain,
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`kidneys, and developing fetus.” Id. Molybdenum exposure can result in “higher levels of uric
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`acid in the blood, gout-like symptoms, and anemia.” 80 Fed. Reg. at 21,451.
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`52.
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`In 2015, EPA promulgated regulations to begin to address the longstanding
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`threats posed by coal ash. See 80 Fed. Reg. 21,302. The 2015 Coal Ash Rule provides safeguards
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`for coal ash disposal and protections for communities threatened by coal ash contamination.
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`53.
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`On September 13, 2017, EPA announced that it would initiate rulemaking to
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`reconsider provisions of the 2015 Rule as requested in petitions submitted by the Utility Solid
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`Waste Activities Group and AES-Puerto Rico. Since promulgating the 2015 Coal Ash Rule, EPA
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`has proposed five different revisions to the Rule that significantly blunt important protections.
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`54.
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`One of those proposals is the Part A Proposal, which was published in the
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`Federal Register on December 2, 2019. See Part A Proposal, 84 Fed. Reg. 65,941.
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`55.
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`The Part A Proposal would enable utilities to delay closing ash ponds for a
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`significantly longer period of time than the deadline provided in the 2015 Rule, notwithstanding
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`the D.C. Circuit’s 2018 ruling that the existing provisions of the rule are insufficiently protective.
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`56.
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`The Part A Proposal would therefore allow millions of tons of additional toxic
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`coal ash waste to be dumped into leaking, unlined, and/or dangerously-sited ponds and would
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`prolong the risk to neighboring communities of groundwater contamination, catastrophic spills,
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`or other harms from those ponds.
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`57.
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`Nationwide, risk of harm from coal ash pollution is borne disproportionately by
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`communities of color and low-income communities.
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`58. Members of the Plaintiff organizations are adversely affected by the closure
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`delays and increased risks of harm due to EPA’s Part A Proposal.
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`59.
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`Plaintiffs’ members were also harmed by Defendants’ decision not to hold an in-
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`person public hearing and to curtail opportunities for public comment because it undermined
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`their ability to express their concerns about the Part A Proposal.
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`II.
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`60.
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`Public Hearing and Participation on the Part A Proposal
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`Upon publishing the Part A Proposal on December 2, 2019, EPA announced a
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`sixty-day comment period on the proposed rule. This comment period ran through the winter
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`holiday season, including Christmas, Hanukkah, Kwanzaa, New Year’s Day, and Martin Luther
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`King, Jr. Day, which substantially shortened the available working days for Plaintiffs and the
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`public in general. Part A Proposal, 84 Fed. Reg. 65,941 (Dec. 2, 2019).
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`61.
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`In addition, the comment period for the Part A Proposal almost entirely
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`overlapped with the comment period for a related EPA proposal which would roll back Clean
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`Water Act treatment requirements for coal ash wastewater dischargers, which was also of great
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`concern to and would adversely impact Plaintiff organizations and their members. Effluent
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`Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source
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`Category. 84 Fed. Reg. 64,620 (Nov. 22, 2019).
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`62.
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`Plaintiffs were therefore required to comment on two concurrently-pending,
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`highly-technical regulatory proposals during an abbreviated comment period. This served to
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`inhibit rather than encourage public participation and undermined Plaintiffs’ and their members’
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`ability to adequately comment on the Part A Proposal.
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`63.
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`EPA’s December 2, 2019 proposal stated that it would hold one public hearing on
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`the Part A Proposal, to be held on January 7, 2020 with a registration deadline of January 3,
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`2020. EPA did not specify whether the hearing would be held virtually or in person. Id.
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`64.
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`EPA later indicated that the public hearing on the Part A Proposal would be
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`virtual. Speakers were required to first register online and then to call in to a webinar to provide
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`oral testimony.
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`65.
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`EPA announced its decision to have a virtual rather than an in-person hearing, and
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`provided registration instructions, only electronically and did not publish notice of the virtual
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`hearing decision in the Federal Register or in any other official print publications. Virtual Public
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`Hearing on the Proposal: A Holistic Approach to Closure Part A,
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`13
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`Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 15 of 22
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`https://www.epa.gov/coalash/forms/virtual-public-hearing-proposal-holistic-approach-closure-
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`part.
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`66.
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`EPA’s decision to hold only a virtual hearing on the Part A Proposal, and its
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`refusal to hold an in-person public hearing, was a clear reversal of its longstanding position that
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`RCRA requires EPA to hold in-person public hearings on proposed regulatory changes. Indeed,
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`prior to the Part A rulemaking EPA had held at least one, if not multiple, in-person hearings for
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`every proposed coal ash regulation and amendments thereto.
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`67.
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`As evidenced by EPA’s 2016 RCRA Public Participation Manual, 1979 Part 25
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`Public Participation Regulation, and 2003 Public Involvement Policy, EPA’s longstanding
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`interpretation of a public hearing is that it is an in-person event and that virtual public hearings
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`should supplement, but not replace, in-person hearings, which are the bedrock of public
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`participation in the rulemaking process.
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`68.
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`Former long-time EPA staff who were directly involved in promulgating the
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`Agency’s public participation regulations and in other public participation efforts submitted
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`comments to EPA on the Part A Proposal urging it to hold an in-person public hearing. These
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`former EPA staff stated that hearing directly, in-person, from affected citizens is a crucial part of
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`the decision-making process and that the “Part 25 Public Participation regulation expected
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`hearings to be in-person hearings and that was the common understanding at EPA.” See
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`Comment of Lee Daneker, Docket ID. No. EPA-HQ-OLEM-2019-0172-0027 (Jan. 7, 2020);
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`Comment of Environmental Protection Network, Docket ID. No. EPA-HQ-OLEM-2019-0172
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`(Jan. 31, 2020). As one former EPA staff member explained, in-person hearings promote
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`dialogue and encourage questioning that elicits useful information, which is much harder to do
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`Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 16 of 22
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`when contact is a “disembodied voice.” See Comment of Steven Silverman, Docket ID. No.
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`EPA-HQ-OLEM-2019-0172-0026 (Jan. 2, 2020).
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`69.
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`Despite being contrary to EPA’s own regulations and guidance, EPA has now
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`offered only virtual hearings, and refused requests for in-person public hearings, for three major
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`proposals regarding coal ash disposal. This dramatic change in position, which began with
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`EPA’s refusal to have an in-person hearing on the Part A Proposal, does not reflect EPA’s
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`authoritative, expert-based, or fair and considered judgment, and violates RCRA.
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`70.
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`On December 4, 2019, eighty-seven public interest organizations, including
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`Plaintiffs, requested that EPA hold an in-person public hearing on the Part A Proposal in addition
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`to the virtual public hearing, and extend the comment period to 120 days to ensure that the public
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`has a meaningful opportunity to express its concerns about the Part A proposal to EPA.
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`71.
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`EPA refused these requests in a letter dated December 16, stating that it would
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`neither hold an in-person public hearing nor extend the comment period.
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`72.
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`73.
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`EPA held a virtual hearing on the Part A Proposal on January 7, 2020.
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`Participation at the hearing was sparse. No one commented at all during nearly
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`half of the eight hour hearing.
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`74.
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`Participants had to call in at a designated time to deliver their testimony. Because
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`they could only call in and not participate by video, participants could not share any visual aids
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`to supplement their verbal testimony. Nor could they see who, if anyone, was listening and could
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`therefore not gauge how their testimony was being received.
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`75.
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`Participants did not have the opportunity to make eye contact or otherwise
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`connect on a human-to-human basis with the regulators. Nor did participants, including those
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`who provided testimony and those who listened, have an opportunity to connect with other
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`Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 17 of 22
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`members of the public who may share their concerns. Participants lost the ability to organize and
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`draw support from others physically present in the same room.
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`76.
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`At times, the testimony itself was muffled and was disrupted by technological or
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`telephonic problems. In some cases, EPA simply cut off the testimony of a participant when such
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`problems arose and asked the participant to submit written copies of their remarks instead.
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`77.
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` EPA also abruptly muted several participants as they were delivering their
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`testimony because EPA’s predetermined five-minute time limit had expired, notwithstanding the
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`fact that there were multiple open periods with no scheduled testimony.
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`78.
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`The hearing format discouraged dialogue between EPA and participants. EPA
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`panelists did not ask any participants clarifying questions and there was no opportunity for
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`informal conversation.
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`79.
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`Over seventy-five percent of participants at the hearing used part of their limited
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`speaking time to highlight their dismay over the virtual format of the hearing, citing it as a
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`deterrent to public participation and expressing that they felt constrained by the format.
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`80. Many participants stressed that they did not feel heard or seen by EPA through the
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`virtual format, and some questioned whether anyone was listening to them at all while testifying.
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`These commenters uniformly called upon EPA to hold an in-person hearing on the Part A
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`Proposal.
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`81.
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`Several participants from communities impacted by coal ash pollution in rural
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`West Virginia, Virginia, Missouri, and the Ohio River Valley explained that many of their
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`community members had limited access to the internet, thereby impairing their ability to
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`participate or deterring them from participating in the January 7 hearing.
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`Case 1:20-cv-01819 Document 1 Filed 07/06/20 Page 18 of 22
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`82.
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`Participants also noted that the technology required to received notice of and
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`participate in the hearing specifically discouraged elderly community members from
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`participating. A member of Plaintiff Waterkeeper Alliance read aloud the testimony of another
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`member, a seventy-year-old man who was too intimidated by the required technology to
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`participate directly but would have driven hundreds of miles to participate at an in-person
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`hearing. A ninety-two-year-old member of Plaintiff Labadie Environmental Organization needed
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`help from others in order to participate because she did not have access to the appropriate
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`technology.