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: Statement on EPA study that identifies 23 high-risk EtO facilities

Medical instruments being sterilized in an autoclave. sterilizer.
Steam sterilization, dry heat sterilization, chemical sterilization using gases like ethylene oxide, and radiation are among the most common methods used to properly sterilize a medical device. [Image: Robertprzybysz/Canva]

Earlier this month, the Environmental Protection Agency (EPA) released results of a study identifying 100 communities impacted by exposure to ethylene oxide (EtO) released from sterilizing facilities. The EPA named 23 high-risk ethylene oxide sterilizer facilities that have a cancer risk rate above EPA’s 100-in-a-million unacceptable risk rate. Waukegan was not among the named communities. This is great news for our community. We are grateful for this small, positive sign that our local sterilizing facility has followed through on its promise to Clean Power Lake County to install additional pollution controls.

We stand in solidarity with the named communities and urge the EPA to do more than simply engage communities about the dangers of EtO. It is essential that at-risk communities be supported through continuous fenceline monitoring for accurate emissions data. 

Moreover, we challenge the EPA to recognize that distribution and storage facilities also pose a potential risk for EtO emissions. They should be monitored as well so that all potential sources of exposure to EtO used for sterilization can be identified. 

Clean Power Lake County also recognizes that the study applies to a very specific industry. In Illinois, medical sterilization facilities are regulated by strict controls.

However, the communities of Waukegan and Gurnee are impacted by a less regulated source of EtO emissions—Vantage Specialty Chemical, which uses ethylene oxide in the manufacture of other products. This industry is currently exempt from many EPA regulations. We urge EPA to close those loopholes and undertake monitoring of the neighborhoods surrounding that facility as well. 

The EPA statement is a positive step in the fight to end EtO emissions. There are many more steps to take before all communities impacted by EtO exposure—especially those at greatest risk of negative health outcomes—can feel safe in their own homes. 

EPA must do more to hold corporate polluters responsible and require them to use the most effective emissions controls possible or develop new technologies that replace the use of EtO for sterilization. 

Read more about the EPA’s EtO risk assessments and list of high-risk communities. 

CPLC: 2021 highlights

  • Clipping of Chicago Tribune front page
  • Volunteers in Zoom room
  • Volunteers with rainbow "Love Wins" sign
  • Youths with signs at Illinois statehouse
  • Volunteers with trash bags at park
  • Youths at desk in CPLC office
  • Governor Pritzker at Chicago lakefront
  • Dulce Ortiz of Clean Power Lake County
  • CPLC leaders at Chicago lakefront
  • Man with award at Brushwood Center
  • Dulce Ortiz on beach by coal plant

As we reflect on the events of 2021, we feel grateful for—and empowered by—our community and our shared vision to make our world a better place. Clean Power Lake County (CPLC) is proud to highlight some of our recent accomplishments.

February

  • February 7: CPLC co-chair Dulce Ortiz joined the Illinois Environmental Justice Commission as a voting member. The commission advises the Governor and state entities on environmental justice and related community issues.
  • February 8: Four members of CPLC’s steering committee joined a one-day hunger strike to protest the move of General Iron Industries’ metal shredding facility from Chicago’s affluent, predominantly white Lincoln Park neighborhood to Chicago’s predominantly Latino Southeast Side.

April

  • April 15: The Illinois Pollution Control Board adopted rules for closing more than 70 coal ash ponds across the state—including two on Waukegan’s lakefront. CPLC members worked hard to make this happen!
  • April 18: CPLC demanded that President Joe Biden’s administration address the Environmental Protection Agency’s failure to investigate ethylene oxide (EtO) polluters in Lake County—or to warn residents about the carcinogen.

May

  • May 17: “Transparency is key,” said CPLC co-chair Celeste Flores in a Chicago Tribune front-page story about Medline’s failure to report toxic ethylene oxide emissions to the Environmental Protection Agency.
  • May 24: CPLC organized one of several phone banking events supporting the Clean Energy Jobs Act (CEJA).

June

  • June 2: CPLC participated in the Waukegan Pride Drive for the second consecutive year to help celebrate LGBTQ Pride Month. 
  • June 14: CPLC and allies told the Chicago Tribune that toxic waste left behind by coal-fired power plants could endanger drinking water for years to come.
  • June 15: CPLC volunteers journeyed to Springfield to advocate for passage of Gov. J.B. Pritzker’s comprehensive, equitable climate bill.
  • June 17: NRG announced plans to close the coal-fired power plant in Waukegan. “Hundreds of volunteers, thousands of hours, helped make this day a reality,” said CPLC co-chair Dulce Ortiz. 

July

August 

  • August 2: Big win! After meeting with CPLC, the Environmental Protection Agency decided to revise rules for how coal-fired power plants—including the one in Waukegan—can dispose of contaminated wastewater.
  • August 7: CPLC partnered with Illinois Sen. Adrianne Johnson to organize a clean-up at North Chicago’s Foss Park. 

September 

October

  • October 2: CPLC steering committee member Eddie Flores received the Environmental Youth Leadership Award from Brushwood Center at Ryerson Woods. 

December 

  • December 5: CPLC’s fight for clean air, clean water, and healthy soil in Waukegan was the subject of the front-page story in the Sunday edition of the Chicago Tribune. CPLC co-chair Dulce Ortiz and steering committee members Eddie Flores and Karen Long MacLeod were interviewed.
  • December 15-16: CPLC volunteers asked dozens of questions during Midwest Generation’s public meetings on proposed plans to close coal ash ponds on the Waukegan lakefront.  

2022 vision 

This year, we feel all the more energized to accomplish our mission: ensuring clean air, clean water, and healthy soil for every Lake County community member and achieving the self-determination of those disproportionately impacted by environmental pollution.

Priorities for 2022: 

  • Continue pursuing a just transition for the Waukegan coal plant. This means ensuring that coal ash is removed so it cannot contaminate Lake Michigan, the source of drinking water for 6 million people in four states. It also means ensuring proper notification and public engagement if and when the company plans any demolition at the site. 
  • Monitoring efforts to implement the Coal Ash Pollution Prevention Act (signed into law in 2019) to hold coal plant owners accountable for clean-ups.
  • Serving in key working groups to ensure effective implementation of the Climate and Equitable Jobs Act (signed into law in 2021).

CPLC Works to Prevent Weakening of EtO Standards

[Geralt/Pixabay photo]
Clean Power Lake County is working to prevent the US Environmental Protection Agency (EPA) from increasing the amount of ethylene oxide (EtO) chemical facilities can emit—and we need your help.

The Texas Commission on Environmental Quality (TCEQ) recently proposed a number that is 1,000 times worse for public health than national standards, according to environmental groups.

Unfortunately, what happens in Texas doesn’t necessarily stay in Texas.

We’re concerned that the EPA may adopt the weaker TCEQ model instead of keeping the current Integrated Risk Information System (IRIS) guidelines.

Now is the time to stop the EPA from weakening EtO standards. Will you contact your member of Congress and ask them to demand the EPA reject the TCEQ risk assessment?

Feel free to write your own letter or copy our letter.

Then:

Or go to GovTrack to find your senator or representative.

CPLC Submits Formal Comments on Toxic Ethylene Oxide to EPA

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On March 27, 2019, Celeste Flores and Diana Burdette went to EPA headquarters in Washington, DC, to testify on the need to protect members of marginalized communities from toxic ethylene oxide (EtO) emissions. They spoke against the reversal of EPA’s Integrated Risk Information Systems data and urged EPA to follow its mandate to protect human health and the environment.

On April 26, they added their voices to those of many other environmental justice advocates by submitting their formal comment on behalf of Clean Power Lake County.

Key points in the comment:

  • EPA is using this rulemaking about hydrochloric acid production facilities to attempt to undercut the independent, scientific standard for ethylene oxide (which is causing extremely high cancer risk in many communities across the country), and EPA must abandon this attempt
  • Communities of color and low-income communities are disproportionately exposed to pollution from hydrochloric acid facilities
  • EPA is basing its proposal for little or no regulation of hydrochloric acid facility emissions on underreported and underestimated data
  • EPA claims that hydrochloric acid facility emissions are “acceptable” but is ignoring many emissions and risks that would demonstrate greater harm that requires reduction
  • EPA must consider and address the multiple and cumulative impacts that many communities face

Celeste Flores is Lake County Outreach Director for Faith in Place and co-chair of Clean Power Lake County. Diana Burdette is a member of Clean Power Lake County’s EtO team.

Read our comments to the EPA.