lawsuit

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.

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

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.”

Additional resources
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