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: Statement on EPA’s Failure to Protect Lake County Residents From EtO

EPA map of cancer risk levels associated with ethylene oxide in Lake County, Illinois.
Residents of Lake County, Illinois, face elevated cancer risk levels due to ethylene oxide emissions. [Image: US EPA]

Political appointees in the Trump administration blocked the Environmental Protection Agency (EPA) from investigating ethylene oxide (EtO) polluters and prevented staff from warning Lake County residents about the carcinogen, according to a new report issued by the inspector general for the EPA.  

Clean Power Lake County is deeply troubled to learn of yet another example of Trump’s EPA standing with polluters instead of communities. But we are not surprised. 

Although the EPA was aware of the dangers posed by EtO, it buried this information. EPA’s action put tens of thousands of disproportionately Black and brown Lake County community members in harm’s way. The EPA failed in its mission to protect human health and the natural environment by allowing corporations to continue jeopardizing the well-being of our already overburdened communities and exposing us to highly carcinogenic toxins. 

It should not be radical for us to demand a healthy living environment. 

We will hold the Biden administration to its promise to address these findings and demand continuous, independent, fenceline monitoring for EtO in every impacted community across the nation. 

We applaud the Biden administration for creating the Environmental Justice Advisory Council—and we remind council members that tailored action must follow for each EJ community. 

The EPA must provide the necessary support and proper communications to state EPAs and county health departments. This administration must hold the EPA accountable for communicating with local governments and EJ leaders; supporting state, county, and local priorities; and enforcing federal regulations. 

We look forward to continuing to work with Senators Tammy Duckworth and Dick Durbin of Illinois—two of the four members of Congress who requested an investigation into EPA’s handling of ethylene oxide emissions—and all of our elected officials to hold the EPA accountable and to address the many EJ issues our community members face.

For more information: 

Ethylene Oxide: CPLC Fights Toxic Emissions in Our Community

Diana Burdette
Diana Burdette of Clean Power Lake County discusses community efforts to ban ethylene oxide emissions during an appearance on Adelante.

Tens of thousands of residents in western Waukegan, Gurnee, Park City, North Chicago, Warren Township, and Naval Station Great Lakes, are at risk from ethylene oxide (EtO) emissions — the same cancer-causing chemicals that prompted Gov. J.B. Pritzker to order the shutdown of Sterigenics in DuPage County.

And that is unacceptable!

Clean Power Lake County and Faith in Place have worked actively on this issue since November 2018, when an article about cancer-causing ethylene oxide gas emissions in Waukegan and Gurnee appeared on page 1 of the November 4, 2018, Chicago Tribune.  Our own Celeste Flores and Rev. Eileen Shanley-Roberts were key sources in that article.

That was when we learned that Medline Industries in Waukegan and Vantage Specialty Chemicals in Gurnee posed significant health risks to our communities.

Officials from Lake County, Waukegan and Gurnee knew about the hazards before the Chicago Tribune article was published. However, they did not warn neighbors of the hazards.

  • More than 19,000 people live within areas at risk from ethylene oxide emitted at the Medline Industries plant in Waukegan (near Skokie Highway and Casimir Pulaski Drive—just west of Greenbelt Forest Preserve).
  • More than 23,000 people live within areas at risk from ethylene oxide emitted at the Vantage Specialty Chemicals plant in Gurnee (near Route 41 and Delaney Road).

What’s happening on ethylene oxide in Lake County

February 12, 2019: U.S. Senators Dick Durbin (D-IL) and Tammy Duckworth (D-IL), along with U.S. Representatives Brad Schneider (D-IL-10), Bill Foster (D-IL-11), Dan Lipinski (D-IL-03), and Sean Casten (D-IL-06), introduced bills that would hold the U.S. Environmental Protection Agency accountable for its poor oversight of ethylene oxide emissions.

March 27, 2019: U.S. Senators Tammy Duckworth (D-IL), Dick Durbin (D-IL) and Tom Carper (D-DE) sent a letter to Environmental Protection Agency Administrator Andrew Wheeler seeking information related to the agency’s recent decision to question EPA career staff’s assessment of the health risks and political appointees’ handling of potentially illegal releases of ethylene oxide (EtO). They also requested documents shedding light on the Trump EPA’s enforcement efforts at the Sterigenics Illinois plant and its management of risks posed by EtO at facilities nationwide.

March 27, 2019: Celeste Flores and Diana Burdette testified in Washington, D.C., on the need to protect members of marginalized communities from toxic ethylene oxide emissions.

April 2, 2019: U.S. Senators Tammy Duckworth (D-IL) and Dick Durbin (D-IL) asked the Department of Homeland Security to revise its characterization of ethylene oxide, as required under the Chemical Facility Anti-Terrorism Standard, as both flammable and explosive.

April 8, 2019: The Lake County Health Department and Community Health Center, City of Waukegan, and Village of Gurnee officials announced plans to hire one vendor to collect air quality samples from four sites near Vantage Specialty Chemicals in Gurnee and four sites near Medline Industries in Waukegan. Read more.

April 10, 2019: The Illinois Senate passed SB 1852, requiring facilities to alert nearby property owners and local government of ethylene oxide leaks, and SB 1854, restricting and testing for fugitive emissions of ethylene oxide.

April 12, 2019:  U.S. Representative Brad Schneider (D-IL-10), spoke on the House floor regarding the need for ambient air testing of ethylene oxide in Waukegan and Gurnee so families can have confidence the air they and their children breathe is safe.

What is ethylene oxide?

Ethylene oxide (EtO) is a colorless gas used in the manufacturing of several industrial chemicals and as a sterilizing agent for medical equipment and supplies. People can be exposed to EtO through direct inhalation, ingestion, or contact to the skin, according to the Occupational Safety and Health Administration.

In December 2016, the U.S. EPA updated the risk status of ethylene oxide from “probably carcinogenic to humans” to “carcinogenic to humans.”

Want more info?

 

Lake County Lawmakers Lead Fight Against Climate Change

Hot Steam From Big Chimney ID-10068567
[Photo by Worradmu/Freedigitalphotos.net]
 

Six state assembly members from Lake County were among 53 members of the Illinois House and Senate who last month urged the EPA to set strong limits on carbon pollution from existing power plants, and who pledged support for the Environmental Protection Agency’s Clean Power Plan.

“The EPA limits other dangerous pollutants such as mercury, arsenic, smog and soot pollution from power plants; it is time to do the same for carbon pollution,” said the December 1, 2014, letter to Gina McCarthy, head of the EPA.

The six Lake County officials who signed the letter are:

  • State Senator Julie Morrison, Senate District 29
  • State Senator Melinda Bush, Senate District 31
  • State Representative Elaine Nekritz, Assistant Majority Leader, House District 57
  • State Representative Scott Drury, House District 58
  • State Representative Carol Sente, House District 59
  • State Representative Sam Yingling, House District 62

Tony Award-winning director and Illinois native Anna Shapiro recently narrated a video thanking Illinois lawmakers for leading the fight against climate change—and helping make Illinois a leader in clean energy policy.

Here are some ways in which Illinois is well-positioned to meet the challenge of reducing carbon pollution:

  • Illinois led the nation in the number of communities using renewable energy between 2008 and 2012.
  • Energy efficiency investments have saved Illinois consumers roughly $1 billion since 2008.
  • More than 96,000 Illinoisans currently are employed across the state in clean energy jobs, according to a recent survey by the Clean Energy Trust. That number is roughly equal to the size of the state’s real estate and accounting industries—and it is expected to grow 9 percent this year.

The EPA is slated to finalize new carbon pollution standards by June 2015.