EPA Administrator Faces Lawsuit for Exempting Coal Ash Dumps From Regulation

Environmental, civil rights and community groups are suing Administrator Michael Regan of the U.S. Environmental Protection Agency for exempting hundreds more toxic coal ash dumps from a rule that was meant to protect the environment as well as public health.

Earthjustice, a non-profit legal group, filed the federal lawsuitAugust 25, in the U.S. District Court of the District of Columbia. The plaintiffs in this case are Statewide Organizing for Community eMpowerment (Tennessee), the Indiana State Conference Branch and LaPorte County Branch, the NAACP, Hoosier Environmental Council, Indiana, Clean Power Lake County, Illinois, the Sierra Club and the Environmental Integrity Project.

“Power plant records reveal that about half of the toxic coal ash waste in the U.S. is entirely exempt from any federal health protections,” said plaintiffs’ attorney Mychal Ozeta with Earthjustice. “This is outrageous. The coal power industry is poisoning drinking water sources and the air we breathe while causing global warming.”

Coal Ash is the product of burning coal for power. It contains toxic substances like arsenic. Lead, mercury, and radioactivity. The EPA acknowledges that coal ash exposure can pose risks to human health, including cancers, neurological and psychiatric disorders, cardiovascular damage, and anemia.

After public outrage over the 2008 coal ash disaster at a Tennessee Valley Authority power plant near Kingston (Tennessee), the EPA regulated coal ash in 2015. Earthjustice examined EPA archives and discovered that 292 coal ash landfills were exempted by the agency. This included 161 plants in 38 US states, 12 of which are in the Southern region.* The group says its count of inactive landfills is likely an underestimation, but it’s also possible that its interpretation of industry data may have resulted in an overcount at particular facilities.

The EPA exempted from its oversight coal ash dumps that have stopped receiving new waste prior to the regulation’s implementation, as well power plants that have stopped producing electricity. Earthjustice states that the landfills exempted are located in a large number of low-income communities and communities with a high percentage of people of color.

But just because a coal ash landfill isn’t taking new waste doesn’t mean what’s in it isn’t contaminating the environment. Earthjustice and Environmental Integrity Project analyzed data from the industry and found groundwater contamination exceeding federal standards at 76%. These landfills are typically newer and more likely to have protective liners that older, inactive landfills. Inactive coal ash dumps have a higher risk of releasing toxic substances to groundwater.

“EPA’s blanket exemption of inactive [coal combustion residual] landfills allows hundreds of dangerous and leaking toxic dumps to escape critical safeguards, including monitoring, inspection, closure, cleanup, and reporting requirements,” the lawsuit states. “Data reveal that the toxic heavy metals leaking from inactive CCR landfills located throughout the U.S. pose an unabated and significant threat to human health and the environment.

‘Please protect us’

A third of the nation’s unregulated coal ash dumps are in the South. Earthjustice has compiled a list of 97 unregulated coal Ash dumps at 57 power station sites across the region. Texas has the highest number of unregulated dumps, with 27 at 11 locations. West Virginia is next with 13 dumps located at seven sites. Click hereGet a map and a complete listing.

These are just a few of the coal ash mines that the EPA has removed from regulation.

    • TVA’s Tennessee Kingston plantUnregulated landfills are available in areas like Clinch and Emory, where an impoundment error in 2008 led to over 1 billion gallons worth of coal ash entering the Emory and Clinch rivers. In addition, cleanup workers are now in court fighting contractor Jacobs Engineering for damages, saying they have been sickened — and some of their colleagues killed — by their exposure to the spilled ash.
    • The TVA’s Bull Run Fossil Plant, Clinton, TennesseeGroundwater is being contaminated by dangerous levels of arsenic boron and cobalt. The plant is approximately 35 miles away from the Kingston plant, which is also located along the Clinch River.
    • The Stanton Energy Center in Orlando FloridaThe 90-acre coal-ash landfill is located in the city of Orlando, which has been known to pollute groundwater. The landfill evades federal regulation because the plant’s owner, the Orlando Utilities Commission, stopped dumping in it 52 days before the EPA’s 2015 rule took effect.
    • Duke Energy’s Belews Creek Steam Station is located in Stokes County North CarolinaAccording to Earthjustice, there is one inactive coal-ash landfill in the area that is exempt from federal regulation. Belews Creek residents are nearby. have long reported what seem to be unusual patterns of cancer around the plant that they suspect are connected to the facility’s pollution.

On Aug. 1, 121 national and regional public interest groups, as well as tribal communities, from 30 US states, the District of Columbia and Puerto Rico, convened. wrote a letterRegan asked the EPA Administrator to immediately close the loopholes in its coal ash rule. Regan was the North Carolina’s top environmental regulator. The Dan River was contaminated in 2014 by a coal ash landfill at the Duke Energy plant near Eden. Regan was not a state regulatory official at the time, but worked for the Environmental Defense Fund. They were primarily focused on clean energy. Duke Energy later pleaded guilty for criminal negligence in its handling of coal-ash at the plant. paid a $6 million fine.

The lawsuit notes that the Resource Conservation and Recovery Act, the federal law that governs the disposal of hazardous waste, commands the EPA to review each regulation set forth under the statute — which includes the coal ash regulation — at least once every three years. The EPA has not yet carried out that process for the coal ash rule, so the plaintiffs are asking the court to compel the agency to do so “with an expeditious deadline.”

“I’ve seen friends poisoned by cleaning up the Kingston coal ash spill suffer and die, and felt the grief of their friends and families,” said Todd Waterman of Tennessee’s Statewide Organizing for Community eMpowerment. “The Bull Run coal plant’s fly ash contaminates the lovely reservoir that supplies the drinking water to my house and much of Knoxville. These chemicals can cause permanent harm once they reach our bodies. Please protect us and our children now, not when it’s too late.”

* South facingAlabama, Arkansas, Florida and Georgia are all included in the Southern States. The only Southern state without a coal ash landfill on Earthjustice’s list of exempted facilities is Arkansas.