EPA Faces Lawsuit for Exempting Half a Billion Tons of Toxic Coal Ash from Health Protections

Washington, D.C. —

Environmental, civil rights, and community groups today filed a lawsuit against the Environmental Protection Agency (EPA) in federal court for letting hundreds of toxic coal ash landfills off the hook from complying with important federal health and environmental protections.

Earthjustice mined databases buried in EPA archives and found that the agency exempted at least half a billion tons of coal ash in nearly 300 landfills in 38 states from standards designed to protect people from cancer-causing chemicals. The landfills are sited disproportionately in low-income communities and communities of color. See this map. It is enough coal ash to fill train cars that could go around the earth two times.

Plaintiffs’ Attorney Mychal Ozaeta from Earthjustice said, “Power plant records reveal that about half of the toxic coal ash waste in the U.S. is entirely exempt from any federal health protections. This is outrageous. The coal power industry is poisoning drinking water sources and the air we breathe while causing global warming.”

When the EPA adopted the first-ever rules in 2015 for toxic ash generated when burning coal, the agency excluded coal ash landfills and waste piles that stopped receiving new waste before the law went into effect. It also didn’t cover landfills at power plants that had already stopped producing power.

On August 1st, more than one hundred organizations in dozens of states and Puerto Rico wrote to the EPA urging them to stop exempting these abandoned landfills filled with coal ash (which is also known as “coal combustion residuals” or “CCR”).

The EPA has noted that the risks to humans associated with exposure to coal ash include “cancer in the skin, liver, bladder and lungs,” “neurological and psychiatric effects,” “cardiovascular effects,” “damage to blood vessels,” and “anemia.”

The lawsuit says what we know about the extent of water contamination from coal ash “is just the tip of the iceberg.” The suit describes an Environmental Integrity Project and Earthjustice study of industry data: “Groundwater contamination exceeding federal health-based standards was found at 76% of the regulated CCR [coal combustion residuals] landfills. Regulated landfills are newer and more likely to be lined than the older landfills EPA exempted from the CCR [Coal Combustion Residuals] Rule. Thus, the exempted inactive CCR [coal combustion residuals] landfills are likely to be releasing even higher levels of toxic contaminants.”

The lawsuit states, “Coal-fired power plants generate one of the largest toxic solid waste streams in the United States. In this voluminous waste stream are large quantities of heavy metals and metal compounds such as arsenic, boron, cadmium, chromium, cobalt, lead, lithium, mercury, molybdenum, radium, selenium, and thallium.”

Nonprofit legal organization Earthjustice filed the lawsuit in U.S. District Court in Washington, D.C. on behalf of plaintiffs Statewide Organizing for Community eMpowerment (TN), Indiana State Conference and LaPorte County Branch of the National Association for Advancement of Colored People, Hoosier Environmental Council (IN), Sierra Club, Clean Power Lake County (IL), and Environmental Integrity Project.

Among the hundreds of landfills the EPA has exempted from their protections are:

• Stanton Energy Center in Orlando, Florida, which has an immense 90-acre coal ash landfill contaminating groundwater. The landfill evades all federal requirements because the plant’s owner, the Orlando Utilities Commission, stopped disposing of ash just 52 days before the EPA’s 2015 Rule became effective thereby avoiding its requirements.
• NIPSCO’s Michigan City Generating Station in an environmental justice community in Indiana where activists are fighting the utility to clean up the two million tons of fill containing coal ash. The fill is leaking toxic chemicals into Lake Michigan and is held back from spilling into the lake by only corroding steel pilings.
• TVA’s Bull Run Fossil Plant in Clinton, Tennessee, which has two unregulated, unlined and leaking landfills that are contaminating groundwater with toxic levels of arsenic, boron, cobalt, manganese and molybdenum.
• NRG Energy’s Waukegan Generating Station in Illinois, where an unregulated coal ash fill has been contaminating groundwater in an environmental justice community with boron and sulfate since at least 2010.

President of the Indiana State Conference of the NAACP, Barbara Bolling-Williams, said, “Utilities have been allowed to pollute our communities for decades with little oversight and regulation. When the government fails to do its job to hold this industry responsible for the harm that is caused, once again, Black and Brown communities are left, holding the proverbial ash bag with a ticking bomb inside.”

Statewide Organizing for Community eMpowerment’s standing witness Todd Waterman said, “I’ve seen friends poisoned by cleaning up the Kingston coal ash spill suffer and die, and felt the grief of their friends and families. The Bull Run coal plant’s fly ash contaminates the lovely reservoir that supplies the drinking water to my house and much of Knoxville. Once in our bodies, these chemicals can cause permanent damage. Please protect us and our children now, not when it’s too late.”

Sierra Club Attorney Bridget Lee said, “The continued storage of toxic coal ash in unlined landfills without groundwater monitoring flies in the face of EPA’s own science and risk assessments and threatens fenceline communities across the country. The agency must act now to close this dangerous loophole.”

Indra Frank, MD, MPH, and Environmental Health & Water Policy Director of the Hoosier Environmental Council said, “Indiana’s many inactive coal ash landfills need to meet the same standards as the active ones in order to protect the state’s water resources. NIPSCO’s Michigan City disposal site is a prime example with the threat it poses to Lake Michigan.”

Abel Russ, senior attorney at the Environmental Integrity Project said, “The goal here — EPA’s goal and our goal — is to restore groundwater quality, but you can’t really do that with rules that only apply to some of the coal ash dumps at each site. Instead, we need comprehensive rules that lead to site-wide corrective action.”

Dulce Ortiz, co-chair of Clean Power Lake County said, “For years we have fought hard for our community to be protected, for our community to be respected and for our community to be seen. For starters, this can be done by ensuring the EPA protects our community by addressing the coal ash landfill that sits on our lakefront. Minority and economically disadvantaged communities are disproportionately burdened by pollution and the Waukegan community is no different. The EPA must do what it was intended to do, to protect our community residents and our environment.”

According to the lawsuit, if the EPA had followed the law (the Resource Conservation and Recovery Act), “basic safeguards would be in place for inactive CCR [coal combustion residuals] landfills that would keep coal ash toxins out of our drinking water, air, rivers, lakes, and streams, and require remediation at the scores of sites already known to be contaminating water at dangerous levels.”