EPA Sued For Proposed Rollbacks To The 2015 Coal Ash Rule

Multiple environmental groups sued the Environmental Protection Agency (EPA) and its administrator Andrew Wheeler on Monday for violations of the Resource Conservation and Recovery Act (RCRA).  The plaintiffs alleged Wheeler and the EPA violated the RCRA by refusing to hold an in-person public hearing and ensure adequate public participation on the EPA’s proposed rollback to the 2015 Coal Ash Rule.

Plaintiffs Labadie Environmental Organization, Diné Citizens Against Ruining Our Environment, Waterkeeper Alliance, Inc., Hoosier Environmental Council, and the Sierra Club alleged that the EPA refused “repeated requests for an in-person hearing and a longer comment period” in regards to the proposed rollback.  The Coal Ash Rule is formally entitled 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.  Additionally, the plaintiffs alleged if the rollbacks are allowed “millions of tons of additional toxic coal ash to be dumped into leaking, unlined, and/or dangerously-sited ponds.”

The complaint outlined coal ash as “one of the largest industrial wastestreams” in the country, with coal-fired power plants producing “more than 100 million tons of coal ash each year.”  The complaint added that coal ash contains pollutants such as carcinogens and neurotoxins.

The plaintiffs alleged two counts against the EPA.  First, they claimed the defendants unlawfully failed to hold an in-person public hearing on the proposed rollbacks.  According to the RCRA, the EPA is required to hold in-person public hearings prior to developing and publishing coal ash regulations, via 42 U.S.C. §§ 6907(a) and 6944(a).  The EPA did hold a virtual meeting on January 7 (prior to the COVID-19 pandemic’s effect on the United States) but the plaintiffs assert the “virtual hearing did not satisfy Defendants’ nondiscretionary duty to hold a public hearing as required by RCRA.”  Furthermore, the plaintiffs alleged “[u]nless Defendants perform their nondiscretionary duty to have an in person public hearing, Plaintiffs and their members will suffer irreparable harm.”

The second count alleged a failure to ensure adequate public participation on the part of the EPA in regard to the proposed rollbacks.  Quoting language from the RCRA, the plaintiffs argued it requires the EPA to have “[p]ublic participation in the development, revision, implementation, and enforcement of any regulation, guideline, information, or program under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States. 42 U.S.C. § 6974(b)(1).”  The plaintiffs also characterized this as a “nondiscretionary duty.”

The plaintiffs are being represented by Earthjustice.