Washington, D.C. —

The Biden administration will consider closing a loophole that exempts over half a billion tons of toxic coal ash in landfills from federal oversight. The U.S. Environmental Protection Agency (EPA) published its intent in the Federal Register today as part of a proposed settlement between the agency and public interest groups, represented by Earthjustice, who sued the agency in August of 2022.

According to Earthjustice’s research into EPA records, there are 292 unregulated landfills in 38 states with enough coal ash to fill freight train cars that could stretch around the earth twice.

These are only a portion of the unregulated landfills throughout the United States. In 2015, EPA adopted its first-ever safeguards to protect people from cancer-causing chemicals in the ash, which is the toxic waste left after coal is burned. But the agency excluded coal ash in landfills and waste piles that stopped receiving new waste before the law went into effect, as well as landfills at power plants that had already stopped producing power. The exempted landfills are sited disproportionately in low-income communities and communities of color.

EPA will accept public comments until March 6, 2023 on the settlement before finalizing and filing it with the court. If EPA decides to address the unregulated coal ash, federal law requires the agency to publish a draft rule, provide a public comment period and hold public hearings before issuing a final rule. Under the consent decree released today, such a draft rule would be completed by May 5, 2023, with a final rule issued by May 6, 2024.

An estimated one half of coal ash in America is exempt from federal oversight, counting unregulated ash in both landfills and ponds. A federal court already directed EPA to address the unregulated ash in ponds, which we urge the agency to do at the same time it addresses inactive landfills.

The rule exempts inactive dumps from all monitoring, inspection, maintenance, closure, cleanup, and reporting requirements. Making matters worse, industry has often blamed pollution from regulated dumps on nearby unregulated dumps, avoiding cleanup responsibility altogether.

As an increasing number of aging power plants across the United States cease operations, the operators who profited from burning coal for decades must not be allowed to walk away from hundreds of landfills leaking toxic waste into groundwater.

Earthjustice filed the lawsuit on behalf of plaintiffs Indiana State Conference and LaPorte County Branch of the National Association for Advancement of Colored People, Statewide Organizing for Community eMpowerment (TN), Clean Power Lake County (IL), Hoosier Environmental Council (IN), Environmental Integrity Project, and Sierra Club.

EPA has previously noted that exposure to coal ash is linked to risk of “cancer in the skin, liver, bladder and lungs,” “neurological and psychiatric effects,” “cardiovascular effects,” “damage to blood vessels,” and “anemia.”

A 2022 study by Environmental Integrity Project and Earthjustice found that the ash at 91 percent of U.S. coal-fired plants is contaminating groundwater with unsafe levels of carcinogens and neurotoxins including arsenic, cobalt, lithium, lead, mercury, molybdenum, selenium, and other heavy metals. This contamination threatens streams, rivers and drinking water aquifers, as well as fish.

More than one hundred organizations in dozens of states wrote to the EPA urging them to stop exempting these abandoned landfills filled with coal ash. (Letter available upon request.)

The proposed consent decree would require that EPA either complete a review of 40 CFR 257.50(d) and determine that no revision is necessary, or sign a proposed rule to revise it on or before May 5, 2023. If a proposal is issued, the EPA must take final action regarding the proposed revision no later than May 6, 2024.

Plaintiffs’ Attorney Mychal Ozaeta from Earthjustice said, “We are glad to see the EPA take the first step to close a loophole that effectively permitted coal plants to evade cleaning up their toxic coal ash. As coal plants continue to close, it is critical that operators address decades of toxic waste left in unlined pits and prevent contamination.”

Barbara Bolling-Williams, President of the Indiana State Conference of the NAACP, said, “You find toxic, polluting facilities like coal power plants disproportionately located in communities of color and low-income communities. As such, we have continually borne the health disparities and economic challenges. The EPA needs to hold plant owners accountable. As these coal plants close, Black and Brown communities cannot be left with unregulated toxic waste. They put that coal ash right by Lake Michigan, they put it in our cities. We stand up for our community, our health, and the millions of people who depend on Lake Michigan for drinking water.”

Dulce Ortiz, Co-chair of Clean Power Lake County, said, “Last summer NRG Energy finally shut down the last two coal-burning units at the Waukegan Generating Station’s Lake Michigan site. But decades of toxic waste remain. I am a lifelong resident raising my 3 children. We, residents of Waukegan, have the right to have clean soil and water. Whether the coal ash was put there 20 years ago or last year, you can’t tell us that just because the toxic sludge is old, NRG can just leave it along the lake, and not bother to clean it up and be held accountable.”

Abel Russ, Senior Attorney Environmental Integrity Project, said, “You can’t restore groundwater quality by cleaning up half of the coal ash at a site, while leaving the other half uncontrolled. Yet that’s exactly what we see at many sites under the current framework. A rule addressing unregulated landfills would go a long way toward fixing the problem and protecting our aquifers and streams and local communities.”

Bridget Lee, Sierra Club Senior Attorney, said, “Right now, a gaping hole in EPA’s coal ash rule allows for pollution of our waters with some of the nastiest contaminants around, from carcinogens like arsenic, cadmium and chromium to neurotoxins such as lead and lithium. We’re pleased EPA has agreed to review the loophole, which allows hundreds of toxic dump sites to operate without critical safeguards.”

This release was updated on February 3, 2023 to note that there are 292 unregulated landfills, rather than 287. Nearly all of these 292 landfills (at 161 coal plants) were identified through Earthjustice’s evaluation of a database of industry-provided information collected by the EPA Office of Water in 2010. The estimated number of inactive landfills is likely an underestimation. It is also possible that interpretation of industry data may have occasionally resulted in either an undercount or overcount of landfills at particular facilities.