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.