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

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

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.”

Additional resources
Related case documents and news

CPLC: 2020 Highlights

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After the year we just had, the term “2020 vision” will never sound quite the same. 

2020 brought more than its share of tragedies and challenges, yet Clean Power Lake County (CPLC) had moments worth celebrating. We’re excited to share some of these moments with you because they highlight the many ways our supporters continue to show up to fight for environmental justice in Lake County. 

January 

  • January 6: CPLC joined Illinois Communities for Coal Ash Cleanup to comment on the Illinois Environmental Protection Agency’s draft rules for coal ash impoundments. 
  • January 6: The Waukegan City Council passed a resolution to support Illinois’ Clean Energy Jobs Act (CEJA). The resolution recognized that environmental risks and burdens fall disproportionately on communities of color—and that these burdens cumulatively contribute to climate change. CPLC supports CEJA as a solution to both environmental racism and climate change at the local level.
  • January 14: CPLC co-chair Celeste Flores traveled to Texas for EPA public hearings on the proposed Miscellaneous Organic Chemical Manufacturing rule. The proposed rule included regulations on ethylene oxide (EtO) emissions. Representatives of environmental justice organizations from across the nation attended the hearings. 
  • January 20: CPLC co-chair and Mano a Mano Executive Director Dulce Ortiz received a Drum Major Award from Waukegan Township. Announced on Martin Luther King Jr. Day, the awards recognize people who stand up for human rights and civil rights in their personal and professional lives.
  • January 21: CPLC joined other members of the Illinois Clean Jobs Coalition (ICJC) at a press conference to demand that legislators block Trump-backed fossil fuel bailouts. ICJC said the bailouts exacerbate climate change, pollution, and energy inequity.
  • January 21: The public finally learned that Medline Industries in Waukegan had initiated a temporary shutdown of EtO operations on December 13.
  • January 27: CPLC helped deliver 38,000 petitions from Illinois residents urging Gov. J.B. Pritzker to pass CEJA. Colin Byers of Waukegan spoke on our behalf. He was accompanied by Steering Committee members Rev. Eileen Shanley-Roberts, Eddie Sandoval, and Celeste Flores.
  • January 29: Gov. J.B. Pritzker mentioned clean energy as a priority during his State of the State address. (Let’s continue to urge the governor to act on this priority in 2021; see actions at the end of this post.)

February

  • February 4: Co-chair Celeste Flores attended the State of the Union address in Washington, D.C., as a guest of Sen. Tammy Duckworth to help shine a light on environmental justice and “raise awareness of the fact that these communities face public health challenges at alarming rates while too many in power look the other way.”
  • February 18: CPLC signed a joint organization letter calling on the EPA to reduce EtO and other emissions from chemical plants to decrease the risk of cancer.
  • February 21: Co-chair Dulce Ortiz spoke at an Illinois House Public Utilities Committee hearing, urging legislators to protect communities against the harmful impacts of continued fossil fuel bailouts by passing CEJA and growing an equitable clean energy economy.

March

April  

May

August

  • August 11: CPLC joined national environmental justice organizations in sending a letter to the EPA opposing attempts to undermine the independent scientific standard for EtO.
  • August 12-13: Ten CPLC volunteers delivered public comments at the first of two sets of coal ash hearings hosted by the Illinois Pollution Control Board. 

September

October

  • October 7: Anticipating that CEJA might come up for a vote during the scheduled veto session, CPLC partnered with ICJC to create a video with our perspective on the need for CJEA.  Although the veto session was cancelled, the video remains a strategic tool to help move legislators during the next session.
  • October 31: As of this date, 1,712 people had signed a joint Sierra Club/Faith in Place/Eco-Justice Collaborative/CARE petition calling for strong coal ash rules. More than 310 petitions contained personalized messages.

November

December

Last, but not least

  • CPLC, partnering with the Illinois Environmental Council Education Fund, launched the “Support CPLC” fundraising campaign. Proceeds will help us ramp up public work to transition northeastern Lake County toward a clean, sustainable future and to fight environmental injustice in our community. As of today, we are more than halfway toward our $30K goal. To support CPLC, please make a gift here.

2021 vision

We predict that CEJA will pass in 2021—with your help! So we must tell our elected officials to pass CEJA now!

We have much justice work to do this year. Despite 2021’s disturbing start, we look forward to continuing this work, together, to create a more livable, more just world.  

CPLC Members Call for Stronger Coal Ash Rules

It is part of Clean Power Lake County’s DNA to support state action on toxic coal ash ponds.  So when the Illinois Pollution Control Board (IPCB) held its August hearing on proposed rules for the Coal Ash Pollution Prevention Act, we were there to call for stronger rules. 

Why was that important? Because the groundbreaking Coal Ash Pollution Prevention Act provided an important framework for addressing toxic coal ash waste (see CPLC Celebrates as Governor Signs Milestone Coal Ash Cleanup Bill Into Law) and a rulemaking process. However, it did not establish enforcement standards. Instead, it tasked the Illinois Environmental Protection Agency (IEPA) with drafting the actual rules for enforcing the law. 

The August hearing was IEPA’s first opportunity to testify in defense of its proposed rules. It also was the first time that industry representatives, environmental groups, and other public stakeholders could ask IEPA about the proposed rules.

Several Clean Power Lake County members—including folks who participated in IEPA coal ash listening sessions in Waukegan last September—made virtual statements during the public comment periods of the August hearing. 

Mary Mathews represents the League of Women Voters of Lake County, a coalition member of Clean Power Lake County. Mathews demanded strict measures for coal ash: “In order to protect the groundwater’s chemical integrity, rules for cleanup and closure of coal ash sites must provide permanent protection from coal ash pollution.”

She also stressed the importance of public participation in the decision-making process: “The public has the right to know about pollution levels, dangers to health and environment, and proposed policies and options. Accordingly, the rules should include expanded outreach and require that opportunities, materials, and documents be made available to non-English speaking stakeholders. Additionally, hearings should be held in easily accessible locations, at convenient times, and, when possible, in the area concerned.”

Leah Hartung, an intern for Clean Power Lake County, stressed that improper coal ash management makes drinking water unsafe: “Since groundwater monitoring began in 2010, the groundwater at the Waukegan power plant has been found 400 times to have the contaminants related to coal ash above allowable levels. This is unacceptable. Safe drinking water is a human right, not a privilege.”

When IPCB holds its September 29-October 1 hearing—its second and final hearing on the proposed coal ash rules—Clean Power Lake County members will be there once again. We will stress the importance of adopting the strongest possible rules to protect us and residents of other communities burdened by coal ash pollution. 

Here’s how you can help: Email your comments to Clerk of the Board Don Brown by October 15.

Want background information to use to prepare written comments? Download Coal Ash Rulemaking Document by Prairie Rivers Network and Coal Ash Backgrounder by Earthjustice.

Illinois has the highest concentration of coal ash impoundments in the country.

There are two unlined coal ash ponds at the NRG Energy coal-fired power plant on Waukegan’s lakefront.

CPLC Environmental Justice Rally: Highlights

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Activists representing Waukegan’s immigrant, low-income, and working-class families came together for a rally on June 22, 2019, united in the hope that achieving social and environmental justice will help them build a healthier, more sustainable community.

Here are some highlights from speeches given at the rally.

Edgar Sandoval: Environmental justice

Environmental justice is a movement that seeks to broaden the social assumptions we have about what the environment is and who can be an environmentalist. Historically, mainstream environmental groups have framed the environment as something that existed over there, in nature preserves and national parks. Many people who do environmental justice work have reframed the environment to consider three arenas: where we live, where we work, and where we play.

Championed primarily by African Americans, Latinxs, Asians, Pacific Islanders and Native Americans, the environmental justice movement addresses a statistical fact: People who live, work and play in the US’s most polluted environments are commonly people of color, immigrants, and living in impoverished conditions. Environmental justice advocates have shown that this is no accident. Communities of color, which are often poor, are routinely targeted to host facilities that have negative environmental impacts—say, a landfill, a dirty industrial plant or a truck depot. The statistics provide clear evidence of what the movement rightly calls environmental racism.

Environmental justice is about environmental racism. To address one requires addressing the other. Race is the commonsense ideology that explains difference based on biology. Racism is the exercise of unequal power relations on the basis of racial ideologies. In other words, racism is about power.

The US EPA is addressing five sites in the city of Waukegan through its Superfund program, which allows the EPA to clean up contaminated sites and forces parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work. Three sites are listed on the National Priorities List: Johns-Manville Corp. (a former asbestos manufacturing plant that operated from the 1920s to the 1980s) and Outboard Marine Corp.—both of which are along Waukegan’s lakefront—and Yeoman Creek Landfill. The other two sites—North Shore Gas North and South plants—are being addressed under EPA’s Superfund Alternative Sites program.

These various hazards indicate that the residents of Waukegan experience cumulative exposure to a range of toxins, which means that the effects of this accumulation of chemicals is not additive but exponential. This means that the harmful effects (feeling sick, for example) of one chemical are made a lot worse by the introduction of other chemicals into your body.

Andrew Rehn: Coal ash

I work for Prairie Rivers Network, a nonprofit based in Champaign that works to protect water, heal land, and inspire change in Illinois. Some of you may be familiar with coal ash. It’s the byproduct of burning coal. Coal itself has trace elements of toxic heavy metals, and those trace elements end up getting concentrated in the coal ash, which is then stored in large holding ponds.

At the Waukegan power plant just a few miles from here, coal ash has been produced for decades over the operation and is stored in two huge ponds. Worse, coal ash has also been historically dumped across the site in unmarked areas.

Last year, a report we released in partnership with the Environmental Integrity Project, Earthjustice and Sierra Club showed that 22 of the 24 coal-fired power plants that we examined had groundwater above health-based thresholds.

The Coal Ash Pollution Prevention Act, Senate Bill 9, will force polluters to prove that they have the money to pay for cleaning up coal ash by requiring financial assurances. It funds the Illinois EPA to regulate coal ash with fees from polluters. It ensures that the public has a voice in the coal ash pond closure process. And it prioritizes environmental justice communities for cleanup.

We also won a major lawsuit, which began in 2012, that will hold NRG Energy’s subsidiary liable for the pollution at four of their coal-fired power plants, including Waukegan.

We’ve had a lot of good news, but there’s still more work to be done. Our coal ash bill is going to be drafted into rules—and the devil is in the details. We’re going to need continued grassroots support to ensure our bill becomes a good rule. And the lawsuit itself isn’t over—legal matters are never that simple. NRG’s subsidiary is found liable for their pollution. The next legal battle is remedy. We’re going to work to ensure that the coal ash is removed and stored in a safe location. I’m hopeful that we’re on the right track to solving coal ash in Illinois

Guadalupe Bueno: Coal ash

Canoeing with other Eco-Ambassadors last summer, we saw coal ash leaching into the beautiful Vermilion River, visibly discoloring the water and staining the sandstone.

In Vermilion, the coal-fired generating station was retired in 2011. The company fulfilled the minimum requirements for capping the three coal ash ponds, which are located feet from the river itself. Within five years, those ponds began leaching into the river, poisoning a scenic waterway that supports fish, animals, and farms as it flows into the Illinois River.

Seeing the Vermilion river made me realize that this could occur in Waukegan, as well. The NRG plant is located on the shore of Lake Michigan, which supplies our drinking water.

Daniela Lopez: Ethylene oxide

The most recent threats of breathing ethylene oxide (EtO) are the most recent example of environmental injustices being played out not only in our state but across the nation.

When EtO was identified as a concern in Willowbrook (Sterigenics)—a 77 percent white suburb with an average per capita income of more than $71,000 a year—US EPA officials met with residents almost immediately. They began monitoring air three months later and put a seal the plant three months after that.

In Waukegan (Medline Industries)—where the neighborhoods most affected are only 25 percent white and have a per capita income of about $14,000—residents learned about the dangerous chemical in the air from a newspaper article in November when our elected officials were informed of the elevated levels in August. Residents are still waiting for the US EPA and the Illinois EPA to act.

If you have been following these government agencies, you know that we have received the ambient air testing results for the first phase of testing. Unfortunately the results confirmed our suspicions that the levels of EtO are on par with those found around the Sterigenics facility in Willowbrook, and at the highest 500 times higher than the EPA’s actionable limit for EtO (50,000 higher than the levels linked to an increase in rates of cancer). This is also the location closest to Alice’s Discovery Academy, a daycare center for children 6 weeks to 12 years old, and the Landings at Amhurst Lake, a large apartment complex.

Celeste Flores: Clean Energy Jobs Act

The Illinois Clean Jobs Coalition is working to expand on the success of the Future Energy Jobs Act, advocating for more urgent active at the state level.

Our partner, Faith In Place Action Fund, is working to pass the Clean Energy Jobs Act. This legislation would make Illinois a national clean energy leader by bringing the state to 100% renewable energy, a carbon-free grid by 2030, and a significantly cleaner transportation sector, creating jobs and economic opportunity throughout Illinois.

The Clean Energy Jobs Act also would:

  • Generate more than $30 billion in new infrastructure and thousands of jobs in the state.
  • Create an equitable distribution of economic benefits for communities that stand to gain the most through Clean Jobs Workforce Hubs and Clean Energy Empowerment Zones.
  • Increase investments and incentives for clean transportation and electric vehicle charging.
  • Grant more residents access to popular cost-saving community solar programs

The Clean Energy Jobs Act will ensure an equitable energy transition that benefits all of Illinois and doesn’t leave communities like Waukegan behind.

CPLC Celebrates Passage of Landmark Legislation to Clean Up Coal Ash

Coal ash pollution seeps into the Vermilion River in central Illinois. [Prairie Rivers Network photo]

Clean Power Lake County joined a dozen statewide and regional partner organizations on May 28, 2019, in celebrating the passage of SB9, The Coal Ash Pollution Prevention Act, by the Illinois Legislature. The bill now heads to the desk of Gov. J.B. Pritzker for signature.

The groundbreaking bill addresses the many waste pits filled with coal ash, the toxic byproduct of burning coal, located all over the state:

  • Creates a regulatory framework to ensure polluters, not taxpayers, pay for needed closure and cleanup.
  • Guarantees public participation and transparency around cleanups for affected communities.
  • Provides the Illinois EPA the funds it needs to properly oversee closure and cleanup.
  • Requires Illinois to put in place standards for coal ash impoundments that are at least as protective as federal coal ash rule requirements, with additional protections against dust and water pollution.

Illinois — which has the highest concentration of coal ash impoundments in the country — now is the third state in the country to pass legislation providing significant coal ash protections above and beyond federal requirements. Virginia and North Carolina also are addressing coal ash through state-level legislation.

The NRG Energy coal-fired power plant on Waukegan’s lakefront has two unlined coal ash ash ponds.

“The passage of SB9 out of the general assembly is a historic step forward for environmental justice communities across the state, like Waukegan,” said Dulce Ortiz, co-leader of Clean Power Lake County. “Environmental justice communities still have a long fight to assure community members have the basic human right of breathing clean air and drinking clean water. We call on Gov. Pritzker to prioritize the voices of a community like Waukegan and protect them from polluters like NRG Energy.”

“The passage of SB9 is a historical win for environmental justice communities throughout our state,” said Celeste Flores, with the Faith In Place Action Fund and co-leader of Clean Power Lake County. “People of faith across Illinois applaud the leadership of our elected leaders in the Senate and House for taking action on coal ash contamination of our land and water and implore the general assembly to continue to hold polluters accountable for injustice, oppression, and environmental degradation.”

The Illinois EPA has found groundwater contamination from coal ash waste sites dating back to 2009. A 2018 report from environmental groups Environmental Integrity Project, Earthjustice, Prairie Rivers Network and Sierra Club analyzing data collected by ash dump owners under the federal coal ash rule found that 22 of 24 of Illinois’ reporting coal ash dump sites have unsafe levels of toxic pollutants in the groundwater.

We thank the many Lake County elected officials who supported this important legislation: State Senators Melinda Bush, Terry Link, and Julie Morrison; and State Representatives Rita Mayfield, Joyce Mason, Dan Didech, Mary Edly-Allen, Bob Morgan, and Sam Yingling.

We also thank everyone who signed petitions, made phone calls, and visited your elected officials. We are stronger together.