Clean Power Lake County

Victory for Waukegan! Draft revisions to EPA rule address legacy coal ash dumps and landfills

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COAL ASH VICTORY! banner superimposed over photo of Waukegan coal plant

As part of a settlement between the Environmental Protection Agency (EPA) and public interest groups represented by Earthjustice, the agency on May 17 published proposed revisions to federal safeguards for coal ash.

In a major win for communities near coal plants—like Waukegan—the draft rule extends federal monitoring, closure, and cleanup requirements to hundreds of previously excluded older landfills, legacy ponds, and fill sites.

The revisions would close an important loophole in the 2015 Coal Combustion Residuals (CCR) rule, which excluded coal ash at power plants that stopped producing power and landfills that stopped receiving new waste before the law went into effect.

At least 566 landfills and ponds at 242 coal plants in 40 states were exempted from the 2015 federal regulations, according to Earthjustice.

View the Earthjustice map of coal ash dump sites.

The exempted coal ash ponds and landfills are sited disproportionately in low-income communities and communities of color.

Since October 2015, many coal plant owners have evaded cleanup requirements almost entirely by blaming nearby unregulated dumps for any pollution detected.

This practice would end under the proposed EPA rule: Site owners would be required to monitor and clean up all coal ash at a given site, rather than trying to regulate each dump at a site individually.

“We are hopeful this rule will hold these industries accountable and send a message that community members and taxpayers will no longer be responsible to clean up their mess. We all deserve healthy communities and environments that our families and future generations can enjoy,” said Dulce Ortiz, co-chair of Clean Power Lake County.

Proposed rule falls short

Unfortunately, the proposed rule does not address all coal ash dump sites at former coal plants. It leaves out ponds that did not contain water as of the original rule’s effective date (October 2015) or after.

In addition, it does not address coal ash that was used as construction fill at playgrounds, schools, and throughout neighborhoods.

Earthjustice and its partners, including Clean Power Lake County, insist that the EPA should extend federal coal ash regulations to all coal ash disposed at current and retired power plant sites to address immediate threats and prevent further contamination.

“As the EPA works to finalize these reforms by next year, there are a few things they need to do,” said Lisa Evans, senior counsel for Earthjustice. “The EPA must close the loophole tightly, so utilities cannot avoid cleaning up any toxic waste. It doesn’t matter when or where it’s been dumped; it needs to be dealt with. The EPA must keep close tabs on whether the utilities are complying with federal health protections. We’ve learned polluters rarely do the right thing unless they know
there are serious consequences. Enforcement will make or break these new safeguards.”

Once the rule is published in the federal register, there will be a 60-day public comment period and public hearings.

Nonprofit legal organization Earthjustice filed the coal ash landfill litigation in 2022 in US District Court on behalf of plaintiffs Statewide Organizing for Community eMpowerment (Tennessee), Indiana State Conference and LaPorte County Branch of the National Association for Advancement of Colored People, Hoosier Environmental Council (Indiana), Clean Power Lake County (Illinois), Environmental Integrity Project, and Sierra Club.

Earthjustice filed litigation to address legacy ponds in 2015 on behalf of Clean Water Action (Washington, D.C.), Comité Dialogo Ambiental Inc. (Puerto Rico), PennEnvironment (Pennsylvania), Hoosier Environmental Council, Tennessee
Clean Water Network, Environmental Integrity Project, Prairie Rivers Network, Sierra Club, and Waterkeeper Alliance.

EPA proposes new regulations to reduce cancer risks from ethylene oxide sterilization facilities

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[Photo by Takasuu-Getty Images]

Today, the U.S. Environmental Protection Agency (EPA) released two proposed actions to update its regulations of carcinogenic emissions from ethylene oxide (EtO) commercial sterilization facilities.

The first proposed rule will require sterilizer facilities to reduce emissions from both major and minor sources by installing control technology within 18 months of the publication of the final rule. According to the EPA, these regulations will eliminate an estimated 80% of EtO emissions once implemented.

The proposed rule is a long overdue and much needed first step, say advocates who have urged EPA to strengthen rules to fully protect communities and workers from this aggressive carcinogen.

However, today’s proposed rule falls short of providing communities with the full protection they deserve. One, it does not require fenceline monitoring. Two, it contains a potential loophole for off-site warehouses where sterilized products—which can continue to produce EtO emissions—are stored.

EPA also released a revised risk assessment and proposed interim registration review decision based on findings that registered uses of EtO present up to a 1 in 10 lifetime cancer risk for workers inside sterilization facilities. This is among the highest risks ever calculated under the nation’s federal pesticide control law.

EPA’s revised risk assessment and proposed interim registration includes new requirements for workers using ethylene oxide as a sterilizer, but it stops short of phasing out its use in food products.

Today’s proposed rule comes after Earthjustice filed a lawsuit against the EPA for failing to update standards to protect the public from harmful air emissions from EtO sterilization facilities.

The Clean Air Act directs the EPA to review its ethylene oxide standards every eight years. However, the agency has repeatedly missed this deadline—first in 2014 and again in April 2022.

“Today’s proposals are an important first step in remedying an injustice that affects far too many communities,” said Earthjustice attorney Marvin Brown. “Too many workers and community members have gotten cancer from facilities that are supposed to make sure that our medical equipment is safe. We know, and EPA knows, that ethylene oxide poses a dire cancer risk to anyone who breathes it in.”

Brown added, “While EPA must move quickly to reduce ethylene oxide emissions, it must go further and ensure that frontline communities have the data to know when their air is safe through fenceline monitoring. And the agency must move quickly to reduce and phase out the use of ethylene oxide for sterilizing products that can be safely sterilized by other means.”

“The EPA’s mission is to protect human health and the environment, and we are grateful that the agency has taken the first steps to follow through. However, we have been waiting too long for them to fulfill their legal obligation to us and communities across the country,” said Celeste Flores, steering committee member with Clean Power Lake County. “Ethylene oxide sterilizers emit harmful air emissions day in and day out, endangering those living, working, or going to school nearby. We’re looking forward to ensuring that the EPA is held accountable and enacts the strongest protection possible.”

Facilities that emit ethylene oxide are typically found in low-income neighborhoods and communities of color, many already grappling with elevated toxic exposure and health risks from multiple forms of industrial pollution. Children are particularly sensitive to ethylene oxide’s harmful effects.

CPLC: Statement on proposed expansion of Waukegan Airport and loss of public land

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Passenger airplane being pushed out from an airport terminal.
The Waukegan Port District has not engaged the public in a transparent process around impacts of the proposed expansion of Waukegan National Airport. [Photo: Thor Jorgen Udvang/Dreamstime]

The vision of Clean Power Lake County is to build a sustainable community that promotes the healthy development of all Lake County communities, especially those most vulnerable, by addressing environmental racism, practicing participatory democracy, advancing self-determination, and empowering BIPOC community members. The proposed expansion of Waukegan National Airport, specifically to replace the current runway with one longer than runways used at Midway and Chicago Executive Airports, completely undermines this vision. 

The Waukegan Port District, which owns and operates the airport, has failed to engage the public in a transparent process around impacts of the proposed expansion. Moreover, the municipal corporation failed to provide a thorough environmental impact statement for members of the public or the Lake County Forest Preserve District (LCFPD) to review before asking it to approve the proposal. 

For the planned expansion to proceed, the Port District needs to acquire 52 acres of designated public land entrusted to the LCFPD. This land is in a part of Lake County that has significantly less public green space than more affluent portions of the county, and where existing public lands have not been improved in ways that support public access. This area cannot afford to lose more green space. 

Clean Power Lake County believes it would be a violation of public trust for the LCFPD to enter into a Memorandum of Agreement with the Port District before the full environmental impact report is released and public hearings are held. 

The people of Wadsworth, Zion, Beach Park, and Waukegan have the right to access complete and accurate information about this proposal and must be allowed to exercise their rights as community members who will experience the negative impacts of airport expansion. 

The LCFPD has the responsibility to act in the best interests of both the people of Lake County and the green spaces entrusted to their care. Airport expansion is not urgent and does not require a rushed process. A change of this magnitude requires public engagement, transparency, and a thorough process.

The LCFPD must exercise its authority and require the Port District to demonstrate substantial value to the community, minimal negative environmental impacts, and assurance that there will be no loss of accessible green space in northeastern Lake County. Anything less would further erode the trust we place in our elected officials and jeopardize the future of our communities. 

CPLC: 2022 highlights

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  • The power plant on Waukegan’s lakefront stops burning coal in June 2022! [Photo: Karen Long MacLeod/CPLC]
  • Dulce Ortiz in video clip
    CPLC co-chair Dulce Ortiz worries about toxic coal ash at the Waukegan lakefront.
  • Dulce Ortiz at podium in Waukegan City Hall
    CPLC co-chair Dulce Ortiz demands toxic coal ash be removed from the lakefront ASAP. [Photo: Rep. Rita Mayfield]
  • CPLC interns in Facebook post
    CPLC Summer 2022 interns.
  • Eddie Flores poses with environmental coloring book.
    CPLC co-chair Eddie Flores shares his environmental justice journey in a new coloring book.
  • Fire and smoke from explosion in a middle of a cityy
    US EPA must do more to prevent chemical disasters, says CPLC’s Celeste Flores. [Photo: Coming Clean]

WE DID IT! In 2022, after working together as a community for more than 10 years, we shut down the last two coal-burning units at the Waukegan Generating Station’s Lake Michigan site.

The coal plant’s closure definitely stands out as the biggest milestone of the year for Clean Power Lake County (CPLC). Yet it is just one of several moments in 2022 worth noting.

January

January 11: State Rep. Rita Mayfield and State Sen. Adriane Johnson introduced legislation (House Bill 4358/Senate Bill 3073) requiring removal of all coal ash from the Waukegan Generating Station site. The toxic waste has contaminated groundwater at the Lake Michigan site for more than 10 years.

February

February 18: CPLC supporters met virtually with state legislators to lobby for bills addressing environmental injustices in the issuance of permits, requiring removal of all coal ash from the Waukegan Generating Station site, and more.

February 25: The Illinois Senate passed a bill requiring removal of all coal ash from the Waukegan Generating Station site. If enacted, it would safeguard Lake Michigan, the main source of drinking water for nearly 6 million people.

April

April 7: Despite widespread community support and Illinois Senate approval, a bill requiring removal of all coal ash from the Waukegan Generating Station site did not advance in the Illinois House during the last week of the spring legislative session.

April 27: ComEd filed new rates with the Illinois Commerce Commission to give direct credits of more than $1 billion to customers—a result of the Climate and Equitable Jobs Act (CEJA).

June

June 1: NRG shut down the last two coal-burning units at the Waukegan Generating Station. Huge win for our community! Closing the lakefront coal plant has been CPLC’s top priority for almost 10 years.

June 9: WBEZ-Chicago and WGN-TV highlighted serious concerns about hazardous coal ash waste left behind at the newly closed Waukegan Generating Station. CPLC co-chair Dulce Ortiz, Sierra Club’s Christine Nannicelli, State Rep. Rita Mayfield, and Waukegan Mayor Ann Taylor were interviewed.

June 13: CPLC celebrated the delivery of the first of six battery-electric Pace buses slated for Waukegan. The transit agency decided to make the North Division in Waukegan its first Zero Emission Facility in response to a strong campaign led by CPLC Steering Committee member Leah Hartung.

June 27: Citing newly identified flood risks at the Waukegan power plant, CPLC co-chair Dulce Ortiz demanded NRG be held accountable for cleaning up toxic coal ash at the site as soon as possible. Joining the call for action were Waukegan Mayor Ann Taylor, State Rep. Rita Mayfield, State Sen. Adriane Johnson, and Congressman Brad Schneider.

July

July 28: CPLC offered a fond farewell to Summer 2022 interns: Waukegan native Michelle Aguilar, a government and politics major at Scripps College in Claremont, California; and Maddie Young, an environmental studies major at American University in Washington, D.C.

August

August 16: President Joe Biden signed a sweeping $750 billion health care, tax, and climate bill into law. Thanks to the Climate and Equitable Jobs Act (CEJA), Illinois is in a strong position to use the historic climate funding included in the Inflation Reduction Act.

August 20: CPLC co-chair Eddie Flores signed copies of Eddie’s Environmental Justice Journey during a downtown Waukegan event. The bilingual coloring book was a collaborative effort by Brushwood Center at Ryerson Woods, CPLC, and local artist Diana Nava.

August 25: Earthjustice—on behalf of CPLC and other groups—sued the US Environmental Protection Agency (EPA) for exempting 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.

September

September 15: One year after the Climate and Equitable Jobs Act (CEJA) was signed, the Illinois Clean Jobs Coalition saluted volunteers across Illinois—including CPLC supporters—who fought like the planet depended on it (it does) for a #FossilFreeIL.

September 26–28: CPLC Steering Committee member Celeste Flores urged the US EPA to require chemical facilities to prepare for climate change by implementing safer chemicals and processes. Our message during the virtual hearing: Voluntary measures aren’t enough to prevent chemical disasters.

November

November 4: A project to monitor ethylene oxide (EtO) in Lake County will receive a US EPA grant funded by President Biden’s Inflation Reduction Act. “ Testing is a good start,” said CPLC Steering Committee member Celeste Flores in a Lake County News-Sun article.

December

December 14: Earthjustice—on behalf of CPLC and other groups—sued the US EPA for failing to take legally required action to protect the public from carcinogenic air emissions from ethylene oxide (EtO) sterilization facilities.

2023 vision 

Now that pandemic lockdowns are behind us (forever, we hope!), we are excited about the opportunity to work with you in person once again!

Priorities for 2023: 

  • Ensuring all coal ash is removed from the Waukegan Generating Station site. It should not be allowed to contaminate Lake Michigan, the source of drinking water for 6 million people in four states.
  • Working to ensure workforce training programs under the Climate and Equitable Jobs Act (CEJA) increase access for marginalized communities and include community-driven approaches that lead to jobs, capital to complete projects, and more.
  • Supporting federal action to protect our community from emissions of ethylene oxide and other harmful chemicals.

To support CPLC’s work, please make a gift today.

EPA inaction exposes vulnerable communities to cancer-causing ethylene oxide every day

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US EPA plaque
The US Environmental Protection Agency faces a lawsuit for inaction that exposes millions to cancer-causing ethylene oxide every day. [Image: Nojustice-Canva]

Last week, Earthjustice—on behalf of Clean Power Lake County and other environmental and health advocacy groups—filed a lawsuit against the U.S. Environmental Protection Agency (EPA) for failing to take legally required action to protect the public from harmful carcinogenic air emissions from ethylene oxide (EtO) sterilization facilities.

The Clean Air Act directs the EPA to review its EtO standards every eight years. However, the agency has repeatedly missed this deadline—first in 2014 and again in April 2022.

Clean Power Lake County and other groups hope this lawsuit will compel EPA to finally act and protect vulnerable communities across the country.

Ethylene oxide is a colorless, typically odorless, flammable gas used to sterilize medical equipment and to help produce chemicals needed for antifreeze, plastics, detergents, and adhesives. It is one of the most toxic air pollutants EPA regulates. This toxic chemical is a known carcinogen to humans, especially when inhaled.

EPA updated ethylene oxide’s toxicity value in 2016 and admits the chemical is 60 times more toxic than previously estimated. Yet, despite knowing that ethylene oxide emitters pose an elevated cancer risk to nearby communities, EPA has not reviewed its rules for sterilizers since 2006.

“For too long, EPA has delayed updating the sterilizer rule while communities suffer unnecessary toxic exposure and unacceptable cancer risks,” said Earthjustice attorney Marvin Brown. “The Clean Air Act requires EPA to protect communities from the harmful effects of air pollution and ensure that industry emissions do not threaten public health. By failing to timely revise its sterilizer rule, EPA has left communities to fend for themselves against a deadly, cancer-causing chemical. No one should get cancer from the facilities that make sure that medical equipment is safe. We are calling on the EPA to finally remedy this injustice without further delay.”

Facilities that emit ethylene oxide are typically found in low-income neighborhoods and communities of color, many already grappling with elevated toxic exposure and health risks from multiple forms of industrial pollution. Children are particularly sensitive to ethylene oxide’s harmful effects.

As each day passes, dozens of communities continue to wait on EPA to fulfill its legal obligations under the Clean Air Act.

“The EPA’s mission is to protect human health and the environment. They are failing my community and communities across the country with their inaction to regulate harmful air emissions from ethylene oxide facilities,” said Celeste Flores, steering committee member with Clean Power Lake County. “It’s unacceptable that everyday community members have been forced to file this suit in order for the EPA to be accountable and update their standards as required by law. Our rights have been violated and the EPA must do its job.”

Earthjustice filed the December 14 challenge on behalf of Communities Against Toxics, Clean Power Lake County, Rio Grande International Study Center, Sierra Club, and Union of Concerned Scientists

Public input needed on CEJA jobs curriculum and training programs

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[Photo: MariaGodfrida-Pixabay2]

Helping the Climate and Equitable Jobs Act (CEJA) become law was CPLC’s most important achievement in 2021.

Now the Illinois Department of Commerce and Economic Opportunity (DCEO) seeks public input on the curriculum to be used in several workforce training programs under CEJA. This process will only be successful if it engages with a diverse group of stakeholders and community members across Illinois.

Here’s how you can help:  

  • Attend a public listening session where you can tell DCEO what you think.
    • Register for Northern Illinois online listening session 1, Monday, October 24, 3–5 pm. 
    • Register for Northern Illinois online listening session 2, Thursday, October 27, 11 am–1 pm. 
  • Complete a feedback survey.
  • Send questions and comments to CEO.CEJA@illinois.gov.

It is critical that we speak out! We want to ensure the curriculum standards that come out of these meetings amplify access to the training. If we do not participate in these meetings, the hub training may not meet our equity expectations, and could easily be defined and awarded to traditional training providers that have not historically met the needs of marginalized communities, students, and workers. 

Talking points

The Illinois Clean Jobs Coalition supports:

  • Standards and curriculum components that increase access for marginalized communities.
  • Approaches that are based in the community and are delivered, supported by, and facilitated by community-led instructors, facilitators, and experts. The students should have instructors that reflect the diversity of state.
  • Instructional techniques that are mindful of traditional barriers that negatively impact performance of marginalized students (in other words, we want programs that address barriers).
  • Approaches that are community-driven and supported by community leaders.
  • Training that is delivered by organizations with proven experience training and placing marginalized workers.
  • Approaches that lead to jobs, access to mentors and capital to complete projects, and access to the hundreds of millions of dollars in solar and energy efficiency incentives for marginalized workers.
  • Approaches that ensure the diversity and access goals associated with training, and job creation are tracked, monitored, and publicly reported.

CPLC members say proposed EPA risk management rule doesn’t go far enough

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[Photo: Goir-Canva]

Waukegan, Gurnee, and other municipalities in Lake County, Illinois, are surrounded by dangerous chemicals, like ethylene oxide (EtO). We know it is up to us to push for further protections.

That’s why members of Clean Power Lake County spoke out last week during public Environmental Protection Agency (EPA) hearings on a proposed update to the Risk Management Program (RMP) rule. The update would partially restore critical chemical facility safety standards that were rolled back in 2019 by the Trump administration. It also proposes—for the first time ever—to require regulated facilities to account for the accelerating impacts of climate change.

Whitney Richardson, a member of Clean Power Lake County, shared her concerns: 

I’m a mother, wife, daughter, human rights and environment researcher, legislative professional, and community member. The nearest RMP facility from me is 3 miles away in Mundelein, Illinois, but there are many others in Lake County where I live—like Waukegan and Gurnee—and where many friends and family live within the state and nationally. 

I’m here today to urge the EPA to take responsibility on behalf of all and require that facilities do all that is in your power to prevent chemical disasters and protect all those at risk in the event of a disaster, taking into account the dire need to prepare for guaranteed climate-driven extreme weather events and power loss.

Already, I understand that about 150 serious chemical disasters occur at RMP facilities annually, leading to deaths, injuries, and other harms. There are many current climate-change scenarios panning out and future scenarios to come—both in which we know climate change poses certain risks, though the degree to which is still unknown. It is not only prudent but incredibly necessary to anticipate and protect against worst-case scenarios in the face of such uncertainty. 

EPA must require implementation of external hazard mitigation and backup power systems. We already know that one-third of RMP facilities are located in areas at risk of flooding, storm surges, and wildfires so the rule must require facilities to consider and protect against these scenarios and concurrent risks like power outages. 

The EPA should also account for cumulative health impacts of these facilities on communities overburdened with multiple polluting facilities, strengthen prevention requirements so harm to communities doesn’t predicate action, include workers in disaster prevention planning, and expand coverage of the program no later than next year (e.g., redefining “stationary source” definition, expanding list of covered substances to include ammonium nitrate and other reactive chemicals involved in crises).

Oftentimes, the focus on protecting against climate change—and hazards more generally—is cast into the future. This dangerously overlooks our responsibilities today to address already present and known issues and to take the necessary actions to prevent and reduce serious risks into the future. 

Here’s how you can help! 

It is up to us to push for further protections. You can help: Email your comments to www.regulations.gov/document/EPA-HQ-OLEM-2022-0174-0003 through October 31, 2022.

Email cplc@cleanpowerlakecounty.org for background materials (courtesy of our friends at Coming Clean Inc.) that can help you prepare your comments.

CPLC members push EPA to strengthen chemical accidents rule

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[Image: Dontree_m-Canva]

Last week, members of Clean Power Lake County spoke out during public Environmental Protection Agency (EPA) hearings on a proposed update to the Risk Management Program (RMP) rule. The update would partially restore critical chemical facility safety standards that were rolled back in 2019 by the Trump administration. It also proposes—for the first time ever—to require regulated facilities to account for the accelerating impacts of climate change.

Waukegan, Gurnee, and other municipalities in Lake County, Illinois, are surrounded by dangerous chemicals, like ethylene oxide (EtO). We know it is up to us to push for further protections.

Celeste Flores, a member of Clean Power Lake County’s steering committee, shared her concerns: 

I am calling today on behalf of 703,462 residents of Lake County, the third most populous county in Illinois, to urge the EPA to strengthen its Safer Communities by Chemical Accident Prevention Rule. 

While the rule is a step forward, it does not go far enough to prevent chemical disasters, keep workers safe, and advance environmental justice. I will suggest three specific ways the rules need to go further for community members.

1: As a community member, the EPA has not made it easy for me or others to access information about chemical facilities. Anyone should be able to access relevant chemical hazard information and how this information can help them protect themselves and their communities in the event of a chemical release.

The current EPA proposal to access information is too limiting; frankly, it makes me feel like y’all don’t want me to access it. Rather than provide limited access to chemical hazard information based on proximity to a facility, EPA should develop, no later than December 2023, a public, multilingual online database where any public member can access RMP facility information and risk management plans.

I am here this morning on my own time, starting work late, because I know how critical access to information is. Why should I continue to be expected to take time off, travel, and get through red tape to access this virtual information? 

2: The EPA should ensure that workers are included in disaster prevention and planning. The current rule must go further by requiring employers to have employees and their representatives at the decision-making table in developing risk management plans rather than merely requiring employers to consult with employees.

In Waukegan, Illinois, AB Specialty Silicones plant had an explosion in 2019. We lost 4 community members. Workers acted fast and alerted colleagues to get out but the loss of those 4 lives was preventable. Strengthening employees’ input can be done by this agency and that will lead to lives being saved. 

3: The EPA must require timely, multilingual community notification and real-time fenceline monitoring. We have seen the devastation one president can have on environmental justice communities. CPLC has been advocating for federal protections since 2013. We saw our wins taken away in the last administration. This agency has the opportunity to not only bring back protections but strengthen them and act with urgency to protect our lives. Lake County, Illinois, is 25% Hispanic/Latino. Waukegan, Illinois, is 60% Hispanic/Latino. It is critical for information to be multilingual.

It was not until late 2018 that I learned about the dangers of breathing ethylene oxide (EtO) on a daily basis. I have serious concerns about the lifelong impacts of breathing EtO daily. One of the community’s biggest questions when speaking about EtO is how much was being realized before late 2018. We will never know because this agency has not implemented fenceline monitoring.

My community deserves real-time fenceline monitoring to detect releases and provide the public with information about potentially toxic emissions like EtO. I know we have other chemicals being emitted into the air. Fenceline monitoring is also a critical tool for detecting unplanned releases and monitoring emissions following incidents. EPA must require RMP facilities to use real-time fenceline air monitors and make this information available to the public and first responders.

Here’s how you can help! 

It is up to us to push for further protections. You can help: Email your comments to www.regulations.gov/document/EPA-HQ-OLEM-2022-0174-0003 through October 31, 2022.

Email cplc@cleanpowerlakecounty.org for background materials (courtesy of our friends at Coming Clean Inc.) that can help you prepare your comments.

EPA faces lawsuit as inaction exposes millions to carcinogenic ethylene oxide every day

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US EPA plaque
The US Environmental Protection Agency faces a lawsuit for inaction that exposes millions to cancer-causing ethylene oxide every day. [Image: Nojustice-Canva]

Today, Earthjustice—on behalf of Clean Power Lake County and other environmental and health advocacy groups—sent a 60-day Notice of Intent to sue the U.S. Environmental Protection Agency (EPA) over the agency’s inaction to regulate harmful carcinogenic air emissions from ethylene oxide (EtO) facilities as the law required.

The Clean Air Act directs the EPA to review its EtO standards every eight years. However, the agency has repeatedly missed this deadline—first in 2014 and again in April 2022.

The EPA admits the chemical is 60 times more toxic than previously estimated and that facilities that emit EtO, including commercial sterilizers and chemical manufacturers, pose an elevated cancer risk to nearby communities. Children are particularly sensitive to ethylene oxide when exposed.

Ethylene oxide is a colorless, typically odorless, flammable gas used to sterilize medical equipment and in the production of chemicals needed for antifreeze, plastics, detergents, and adhesives. It is one of the most toxic air pollutants EPA regulates. This toxic chemical is a known carcinogen to humans, especially when inhaled.

Facilities that emit ethylene oxide are typically found in low-income neighborhoods and communities of color, many already grappling with elevated toxic exposure and health risks from multiple forms of industrial pollution.

“EPA has delayed for too long to update sterilizer rule while communities suffer unnecessary toxic exposure and unacceptable cancer risks,” said Earthjustice attorney Marvin Brown. “Congress passed the Clean Air Act to protect communities from the harmful effects of air pollution, and tasked EPA with ensuring that industry emissions do not threaten public health. By failing to timely revise its sterilizer rule, EPA has left communities to fend for themselves against a deadly, cancer-causing chemical. We are calling on the EPA to finally remedy this injustice without further delay.”

As each day passes, ethylene oxide threatens the health of many communities that continue to wait on EPA to fulfill its legal obligations under the Clean Air Act. Today’s letter provides notice that community and environmental groups cannot wait any longer—and will sue EPA to compel the agency to enact stronger, science-based standards that are protective of public health.

“Excuse after excuse has led to death after death and EPA refuses to act. The agency waited more than eight years after the first deadline, and now missed a second deadline to properly regulate ethylene oxide, even as it recognized that the chemical was causing cancer to people in communities across the country,” said Raul Garcia, legislative director of Healthy Communities at Earthjustice. ”Our letter intends to compel long overdue protective action from EPA, but should also serve as reminder to state and local officials that their inaction is leaving people exposed to severe risk of cancer and other illnesses in the very communities they serve. Cancer-causing chemicals must be properly regulated at every level of government immediately.”

“The EPA’s mission is to protect human health and the environment. They are failing my community and communities across the country with their inaction to regulate harmful air emissions from ethylene oxide facilities. It’s unacceptable that everyday community members have been forced to file this suit in order for the EPA to be accountable and update their standards as required by law. Our rights have been violated and the EPA must do its job,” said Celeste Flores, steering committee member with Clean Power Lake County.

Earthjustice filed the Notice of Intent on behalf of Rio Grande International Study Center, Clean Power Lake County, California Communities Against Toxics, Union of Concerned Scientists, and the Sierra Club.

CPLC, allies sue EPA for exempting half a billion tons of toxic coal ash from health protections

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US Environmental Protection Agency building
The US Environmental Protection Agency faces a lawsuit for exempting 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. [Image: Skyhobo-Canva]

Clean Power Lake County and other 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 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 US 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 1, more than 100 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 rule. Thus, the exempted inactive CCR 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 US District Court in Washington, DC, on behalf of plaintiffs Statewide Organizing for Community eMpowerment (Tennessee), Indiana State Conference and LaPorte County Branch of the National Association for Advancement of Colored People, Hoosier Environmental Council (Indiana), Sierra Club, Clean Power Lake County (Illinois), and Environmental Integrity Project.

Among the hundreds of landfills the EPA has exempted from their protections is NRG Energy’s Waukegan Generating Station, where an unregulated coal ash fill has been contaminating groundwater since at least 2010.

“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,” said Dulce Ortiz, co-chair of Clean Power Lake County. “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.”

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.”

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 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.”

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