By Clark Mindock

Law360 (July 6, 2020, 6:35 PM EDT) -- The U.S. Environmental Protection Agency broke the law when it refused to hold an in-person hearing in January regarding proposed changes to a coal ash rule, environmental groups told a D.C. federal court on Monday.

Labadie Environmental Organization, Diné Citizens Against Ruining Our Environment, Waterkeeper Alliance Inc., the Hoosier Environmental Council and the Sierra Club said the EPA had failed to engage the public when it ignored its own long history of holding in-person meetings months before the coronavirus pandemic necessitated going virtual. 

Instead, the agency accepted comments from the public at a virtual hearing on its proposal to allow utilities to delay the closure of what the groups say are dangerously sited coal ash ponds that would then dump millions of tons of additional toxic coal ash into those facilities.

The groups say the virtual hearing was rife with deficiencies and violated the Resource Conservation and Recovery Act. They ask that the agency be forced to conduct a public hearing so a greater public perspective could be shared, once it is safe to do so.

Among the problems with the virtual hearing was the reduced participation from elderly citizens who were intimidated by the technology and reduced participation from low-income communities that don't have reliable access to the internet and who were denied the ability to express their concerns to administrators face-to-face, the complaint says.

"Participants did not have the opportunity to make eye contact or otherwise connect on a human-to-human basis with the regulators," the groups said, noting that the would-be participants were also denied the ability to connect and organize with others who might share their concerns.

In addition, the virtual hearing was occasionally met with technical difficulties that included muffled audio feeds, according to the complaint. In those instances, the commenters were simply cut off and told to submit written comments, the groups said.

Shubra Ohri of Earthjustice, who is the lead attorney representing the environmental groups, told Law360 in an email that there are "immeasurable and irreplaceable" benefits to in-person hearings because they provide an opportunity for people to speak with "emotion and urgency" that can be lost in a phone call.

"EPA's virtual hearings have created confusion and frustration among community members harmed by coal ash pollution and have not given them an adequate opportunity to make their voices heard. EPA needs to provide opportunity for human, face-to-face contact with people whose lives and health are directly affected by these regulations when public health conditions related to COVID-19 allow," Ohri said.

Coal ash rules were first propagated by the EPA in 2015 after the agency determined that surface impoundments and landfills were dangerous for public health.

Coal ash is identified by the EPA as one of the country's largest industrial wastes, with coal power plants in the U.S. producing more than 100 million tons of the substance each year, according to the complaint.

Toxic contaminants in coal ash are known to cause cancer and other health issues, including reproductive, neurological, respiratory and developmental harm, the groups say. Specific coal ash toxins include lead and arsenic.

The EPA did not respond to requests for comment.

The environmental groups are represented by Jennifer Cassel, Shubra Ohri, Thomas J. Cmar and Lisa Evans with Earthjustice.

Counsel information for the U.S. government was not immediately available.

The case is Labadie Environmental Organization et al. v. Andrew Wheeler et al., case number 1:20-cv-01819, in the U.S. District Court for the District of Columbia.

--Editing by Orlando Lorenzo.

Update: This story has been updated to include comment from the lead attorney for the environmental groups.

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