Lawyering in the Time of COVID

Apr. 6, 2020

The hearing was held on the proposed rule, “A Holistic Approach to Closure Part B: Alternate Demonstration for Unlined Surface Impoundments; Implementation of Closure,”[1] one of six proposals by the U.S. Environmental Protection Agency to weaken federal standards that protect people from toxic coal ash. The EPA is taking comments from the public[2] for six more days.

The agency is not holding any in-person hearings on this rulemaking. The U.S. Environmental Protection Agency’s failure to hold in-person public hearings is unprecedented and contrary to law and public policy. A month earlier, Earthjustice sent a formal letter[3] on behalf of more than 60 public-interest groups to the EPA, calling for genuine, in-person hearings after the pandemic crisis had passed, and an extension of the 45-day public comment period to 120 days.

If finalized, the proposal will weaken critical protections, allowing operators to continue to dump millions of tons of toxic coal ash[4] waste in unlined, leaking pits — including those currently required to close due to leaking, instability or dangerous siting. When rainwater passes through coal ash sludge, toxic chemicals seep into groundwater. Coal ash contains carcinogens such as arsenic, and neurotoxins such as lead and lithium

The full statement read by Lisa Evans[5], senior counsel at Earthjustice, during the phone-in public hearing:

“62 groups, representing more than 9.5 million members, declare together our opposition to the Trump administration’s holding of this virtual public hearing in the midst of the global COVID-19 pandemic, when Americans nationwide are unable to exercise their right to participate.

“Although all 62 organizations strongly oppose the Part B Proposal, many of our members are unable to speak to you today due to obstacles presented by the COVID-19 pandemic. Do you expect someone who has fallen ill or has a sick family member to be on the phone today? What about the healthcare workers, the parents who are busy trying to home-school their children and the millions of Americans who are so worried that it’s hard to think about anything else?

“During this global pandemic and national health emergency, the EPA’s actions to weaken health and environmental protections from coal ash pollution are unconscionable. The EPA should be working to make Americans safer, not endanger them further by throwing protections from toxic pollution out the window.

“The Part B Proposal will expose more Americans to hazardous pollution from coal ash, including to carcinogens like arsenic, hexavalent chromium and radium; neurotoxins like lithium and lead, and poisons that kill fish and wildlife like selenium and cadmium.

“We ask EPA to stop trying to gut the public health protections in the Coal Ash Rule, and instead strengthen the rule, as ordered by the federal Court of Appeals.

“The EPA has suspended enforcement of environmental laws, no longer expecting compliance with routine monitoring and reporting of pollution with no end date in sight — yet the agency somehow expects communities to timely submit comments and participate in these hearings amid the pandemic. The Trump administration should press pause on this dangerous plan, extend the comment period, and give Americans a meaningful chance to weigh in when the crisis is over.”

One more of EPA’s six proposals to weaken coal ash safeguards remains open to public comment: “Proposed Rule for Disposal of Coal Combustion Residuals from Electric Utilities; Federal CCR Permit Program.”[6] A virtual hearing will take place on April 15. On April 6, the agency issued a prepublication extension[7] of the comment period of this proposal, to May 20.

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