Biden’s EPA Has Resolved Only One Civil Rights Complaint Brought Since 2021

The Environmental Protection Agency’s recent dismissals of three cases that would fix some of the problems in “Cancer Alley” underscores a difficult complaint process that works against Black communities’ best interests. They fall in line with a history of neglecting marginalized residents and failing to fully realize the legal power of the Civil Rights Act […]

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At rules hearing, U.S. EPA hears human toll of unaddressed coal ash pollution

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U.S. Environmental Protection Agency officials were met with photos and tearful stories of deceased loved ones at a national hearing in Chicago on Wednesday regarding the agency’s proposed new rules regulating coal ash. 

The proposed rules, released in May, would subject hundreds more coal ash dumps to federal regulations adopted in 2015. But scores of coal ash dumps would remain unregulated, leading residents and advocates to plead with the EPA to further expand the proposed rules and step up enforcement of existing rules. 

The environmental injustice of coal ash was clear at the hearing, as residents testified from Native American communities in New Mexico and Nevada, Latino communities in Midwestern cities, and Black communities in Alabama and Tennessee, among others. Multiple people told the EPA officials about their friends and family who had died or suffered from cancer or other illnesses they attribute to coal ash. 

The proposed rules would, for the first time, regulate coal ash ponds that were inactive as of 2015. But the rules would still exempt categories of dumps that speakers at the hearing called “arbitrary,” including repositories not in contact with water as of 2015, coal ash dumps at plants closed before 2015 that don’t have a currently regulated pond at the same site, and scattered coal ash used as structural fill. 

“Anecdotally we know such sites include playgrounds, schools, roads and other uses that humans regularly come into contact with,” Earthjustice deputy managing attorney Gavin Kearney said of sites where coal ash fill was used. 

He noted that there is no comprehensive data regarding coal ash ponds supposedly not in contact with liquid, but experts are sure companies will invoke that exception. Earthjustice and its partners, meanwhile, have identified more than 100 dumps on at least 48 sites that would meet the exception for closed ponds at active power plants without another regulated coal ash impoundment.   

“Creating these distinctions undermines confidence in the rule and also gives industry cover, in good faith or bad faith, that they are trying to implement the rule but aren’t sure how it applies to their sites,” Kearney told the EPA representatives. 

Frank Holleman, senior attorney for the Southern Environmental Law Center, likewise warned that it “undercuts the credibility of EPA and our government to have to say, ‘See, that over there is not protected because of some highly technical reason that’s not connected to common sense.’” 

Attorney Faith Bugel testified that regulating all coal ash on a site without exceptions is critical to avoid companies saying that contamination is from an “alternate source,” including coal ash not covered by the regulations, and hence avoiding responsibility for cleaning it up. “So often (alternative source arguments) have been used as an escape valve from the 2015 rules,” Bugel said. 

Drinking water fears

Unregulated coal ash is of particular concern to people who get their water from private wells, as numerous people noted at the hearing. 

Environmental groups’ analysis of company data reported under the 2015 rules shows that groundwater is being contaminated at 91% of those coal plant sites. No testing is required around ash not covered by the regulations. But experts say it is even more likely to be contaminating groundwater, since it was dumped when standards around liners and other protections were even lower. 

Private water wells are only tested if the owner pays for the testing, which is inaccessible for many. Paul Kysel told the EPA about testing his own well water for contaminants associated with farming and getting clean results. He said he didn’t realize that a partially unlined coal ash pond less than a mile from his home in Pines Township, Indiana, could be contaminating his water with chemicals not detected in that test. 

Nearby Town of Pines, Indiana, became a Superfund site due to tons of coal ash from NIPSCO’s Michigan City plant that was used as fill throughout the town. Kysel had moved to the bucolic area from Michigan City, where he was sick of “coal dust, nasty odors, (coal dust) deposits on our vehicles and homes.” 

“We thought we were safe,” after moving to Pines Township, Kysel said. “We weren’t safe.” 

He and other locals are upset that the proposed new rules would still not cover coal ash mixed with dune sand to build up land on the lakefront coal plant’s site. A lawsuit filed by environmental groups in Indiana, Illinois and Tennessee alleges that Lake Michigan is at serious risk of coal ash contamination if erosion and increasing storms cause the land to collapse, as happened near We Energies’ Oak Creek coal plant in Wisconsin in 2011. Lake Michigan provides drinking water for millions of people in Chicago, Northwest Indiana and Southeast Wisconsin, where multiple coal plants line the shores.

The settlement of that lawsuit spurred the EPA to release the proposed new rules, though the rules don’t address ash used as fill at sites like the Michigan City plant. 

“This coal ash is ultimately going to rupture into the lake and cause another catastrophe,” Ashley Williams, executive director of Just Transition Northwest Indiana, said at a rally during the hearing. The owner of a Northwest Indiana microbrewery that relies on Lake Michigan water was among other locals who testified at the hearing. 

Earthjustice senior counsel Lisa Evans noted that the new proposed rules would not have covered the ash in Town of Pines nor the ash that spilled into Lake Michigan at Oak Creek. 

“The EPA should have prevented this damage decades ago,” Evans testified. “It is irrational and illegal to regulate some leaking dumps and not others.” 

Ash was used to build up land and was scattered across plant sites in decades past without record-keeping or regulation. This practice essentially continues in the form of beneficial reuse, where coal ash is legally used as “unencapsulated” structural fill. Advocates have also called for stricter regulation of such reuse, including in Wisconsin, where a vast majority of coal ash is reused and groundwater contamination has been shown as a result. 

Chicago has no coal ash ponds or landfills covered by the existing or new proposed rules. But residents worry that as in Michigan City, coal ash was scattered and dumped across the sites of two coal plants that closed in 2012.

Little Village Environmental Justice Organization Executive Director Kim Wasserman noted that the Chicago neighborhood is densely populated by working-class and Latino residents. She echoed demands that new EPA rules require companies to test for historic coal ash scattered around their sites and clean up any they find. 

There is not “sufficient information about the risk the site still poses to surrounding communities,” Wasserman said. She added that the community does not trust the current site owner given its botched implosion of the coal plant in 2020, sending a toxic dust cloud across the community in an “environmental catastrophe,” as Little Village resident Edith Tovar called it at the hearing.

A moving problem

Enforcement and expansion of the federal rules will ultimately mean many millions of tons of coal ash will be removed and transported to safer locations. Such transport has already caused environmental injustices, even as it mitigates other risks.

Activists from around the country rallied in downtown Chicago on June 28, 2023 after testifying at the EPA’s hearing on proposed new coal ash rules. (Kari Lydersen / Energy News Network) 

Carlos Torrealba, an organizer with the Climate Justice Alliance in Florida, lamented how coal ash from Puerto Rico is being disposed of in Florida, including in a private landfill in a community home to a large and growing Puerto Rican population. The Energy News Network documented how the ash from Puerto Rico poses risks to multiple communities on its route in the Southeast.

“It’s really mind-boggling because that coal ash site was put next to the homes of Puerto Ricans who had been displaced from Puerto Rico by Hurricane Maria,” Torrealba said. “And now they have the double impact of being displaced, seeking refuge and having coal ash dumped next to you.” 

Cerissa A. Brown of the People’s Justice Council in Birmingham, Alabama, decried how coal ash from the infamous 2008 Kingston, Tennessee, spill was delivered to a landfill in the largely Black community of Uniontown, Alabama. The Energy News Network reported last year that Uniontown residents have been unable to get answers from the private landfill company about its coal ash management procedures and whether it still accepts coal ash.

“Exposure to environmental pollution such as coal ash in Uniontown has resulted in residents suffering physical harm and an escalating mental health crisis,” Brown said. “This reveals systemic racism rooted in our communities.”

Handling and moving coal ash can pose serious risks to workers if adequate protections aren’t in place. 

Betty Johnson’s husband, Tommy, was among the first responders cleaning up the 2008 Kingston spill. She broke down into tears testifying about how he and other workers labored without adequate protective gear. She blames his death last month on his exposure to coal ash. Johnson is among workers who have filed lawsuits against the contractor responsible for the cleanup, citing multiple deaths and serious illnesses. Advocates argue that disasters similar to Kingston could happen if regulations do not require the full cleanup of all coal ash dumps.

“My husband and I had plans when I retired to travel; now he’s in the graveyard,” Johnson said. “And I’m here fighting for my husband and all the workers, everyone who has been hurt by you, because you are not doing your job.”

Julie Bledsoe’s husband also worked on the Kingston cleanup, and would come home blowing coal ash out of his nose, coughing up coal ash, and cleaning coal ash out of his ears with Q-tips. 

“Her husband is a hero,” she said of Tommy Johnson. “My husband is a hero. But they were treated like they were trash.”

Enforcement crucial 

While the existing federal rules took effect in 2015, the EPA did very little to enforce them until last year, when it issued a number of findings and decisions. Among these, the EPA denied some companies’ requests for extensions to an April 2021 deadline for unlined ponds covered by the rules to stop accepting waste. 

The evening before the Chicago hearing, Waukegan residents testified on the EPA’s proposal to deny a request to extend that deadline from plant owner Midwest Generation, a subsidiary of NRG.

While residents support the proposed denial of the extension, they are frustrated that the company has already been allowed to dump for more than two years beyond the deadline. The coal plant closed last summer, but a diesel peaker plant still operates on the site, and residents are concerned that waste from that plant is going into the unlined pond. 

NRG spokesperson Dave Schrader said in a statement: “Midwest Generation remains committed to operating its Waukegan facility safely and in compliance with federal and State of Illinois CCR (coal combustion residual) rules and regulations. Midwest Generation disagrees with the U.S. EPA’s recent proposed determination. The mitigation efforts Midwest Generation has implemented at its Waukegan facility were certified compliant by outside experts and are approved methods of monitoring and protecting groundwater. Midwest Generation has ceased burning coal to generate electricity at Waukegan but continues to manage stormwater. Further, Midwest Generation ceased placing CCR in the East Pond when it ceased burning coal. The pond is only used for stormwater and process water unrelated to CCR.”

Waukegan residents testifying at the Chicago hearing noted that they have been demanding a “just transition” including coal ash removal for a decade, with little response from EPA or NRG.

“Publicly available tests conducted independently confirm there is no risk to human health or the environment from the ash ponds or historic ash area,” Schrader said. “Removing the coal ash, however, would pose unnecessary safety and environmental risks to the community, create significant traffic disruptions, and could take far longer than closing in place.”

Advocates say the EPA needs to not only expand the rules to cover all coal ash dumps, but aggressively enforce its rules.

“Rules are awesome, but without enforcement, companies will keep doing what they’ve been doing,” Waukegan resident Eddie Flores, co-chair of Clean Power Lake County, told the Energy News Network. “If the EPA doesn’t act, companies will just ignore what the EPA says.”

Kari Lydersen has written for the Energy News Network since January 2011. She is an author and journalist who worked for the Washington Post’s Midwest bureau from 1997 through 2009. Her work has also appeared in the New York Times, Chicago News Cooperative, Chicago Reader and other publications. Based in Chicago, Kari covers Illinois, Wisconsin and Indiana as well as environmental justice topics.

At rules hearing, U.S. EPA hears human toll of unaddressed coal ash pollution is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.