Attorneys for several organizations filed a lawsuit Thursday against the Environmental Protection Agency seeking to close a regulatory loophole that left about half of the coal ash waste in the U.S. exempt from federal health protections.

The nonprofit environmental law organization Earthjustice reviewed Environmental Protection Agency archives and found the EPA exempted at least half a billion tons of coal ash in nearly 300 landfills across 38 states from standards intended to protect people from cancer-causing chemicals.

Many of those landfills are disproportionately located in low-income communities and communities of color, including Michigan City, according to Earthjustice. Two unregulated coal ash landfills also remain at NIPSCO's Bailly Generating Station in Burns Harbor.

Attorney Mychal Ozaeta, of Earthjustice, said his organization's findings were outrageous.

"The coal-power industry is poisoning drinking water sources and the air we breath while causing global warming," Ozaeta said.

Coal ash poses health risks

Coal ash, also known as coal combustion residuals, is the material left behind after coal is burned to produce energy.

It's one of the largest toxic waste streams in the U.S. and contains heavy metals and metal compounds such as arsenic, boron, cadmium, chromium, cobalt, lead, lithium, mercury, molybdenum, radium, selenium and thallium.

Energy companies store coal ash that cannot be reused in retention ponds, some of which are unlined. Over time, contaminants from coal ash can leak out of landfills into groundwater, blow into the air as dust and release to surface waters and land due to structural failures.

The toxic chemicals in coal ash can cause cancer and result in reproductive, neurological, respiratory and developmental conditions, according to the lawsuit.

EPA has noted risks 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, Earthjustice said.

EPA first adopted rules in 2015 regarding toxic ash generated when burning coal. However, the Coal Combustion Residuals Rule exempted landfills that stopped accepting coal ash before Oct. 19, 2015, and didn't cover landfills at power plants that already had stopped producing power.

"EPA's blanket exemption of inactive CCR 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 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."

The suit was filed in U.S. District Court in Washington, D.C., on behalf of the Hoosier Environmental Council, the Indiana NAACP and LaPorte County branch of the NAACP, the Sierra Club, the Environmental Integrity Project and other organizations.

A study by Earthjustice and Environmental Integrity Project found groundwater contamination exceeding federal health standards at 66% of regulated coal ash landfills.

Regulated landfills are newer and more likely to be lined than older landfills exempted from EPA regulations, the organization said.

"Thus, the exempted inactive CCR landfills are likely to be releasing even higher levels of toxic contaminants," Earthjustice said.

Residents, activists push for total cleanup of coal ash ponds

Groups: Legacy ash must be removed

At NIPSCO's Michigan City Generating Station, 2 million tons of fill containing coal ash are currently exempted from regulation, the lawsuit says.

"The coal ash fill sits precariously behind corroding steel pilings on the shore of Lake Michigan," Earthjustice attorneys wrote. "The toxic fill is leaking arsenic and other hazardous chemicals into the lake as well as into an adjacent creek that is commonly used for fishing and boating."

NIPSCO started its Michigan City coal-fired power plant in 1931, creating areas of "made land" by building steel sheet pile walls and backfilling with a combination of coal ash, soil and sand. Buildings and parking lots were constructed atop the land.

Last spring, NIPSCO began removing coal ash from five active landfills at the Michigan City facility and transporting it to the R.M. Schahfer Generating Station in Wheatfield for final disposal. NIPSCO plans to retire the Michigan City station by 2028.

Just Transition Northwest Indiana and other groups have been pushing for the utility to remove more material than currently planned, including areas of "made land" behind the seawall.

The groups fear toxic chemicals could leak into Lake Michigan and nearby Trail Creek and that the aging seawall could fail.

"The coal ash sitting on Lake Michigan at the NIPSCO Michigan City Generating Station is contaminating our groundwater and putting Lake Michigan at risk of a catastrophic spill into the lake," Just Transition Northwest Indiana said in a statement. "We are hopeful that this lawsuit will move the EPA to fully enforce existing laws against polluting industries and compel NIPSCO to complete the cleanup of the MCGS rather than leave a toxic brownfield behind for generations to come."

NIPSCO said the Michigan City facility poses no imminent threat, nor any risk to human health or the environment.

"The integrity of the seawall structure, which is inspected by leading outside experts on a more frequent basis than industry standards, continues to remain stable," NIPSCO spokesman Nick Meyer said. "EPA and IDEM regulate the entire property and define what actions are needed to ensure the health and safety of the environment and the community. The removal work currently underway follows every aspect of the requirements they’ve outlined, and addresses the primary known source of the groundwater issue at the site."

EPA extends deadline for comments on Bailly cleanup plan

Groups: Law requires review

The Resource Conservation and Recovery Act requires EPA to review certain regulations at least every three years, but the agency has not revisited the regulation exempting inactive coal ash landfills since it was adopted.

The plaintiffs are asking a judge to find EPA violated the law by failing to review the CCR Rule and order the agency to take action.

Members of the plaintiff organizations live, work, travel or play near inactive coal ash disposal facilities.

They use the rivers, lakes, landscapes, aquifers and watersheds, and the recreational, health, economic and aesthetic benefits they enjoy as a result of the use of such places has been and will continue to be harmed by EPA's failure to regulate inactive coal ash landfills, the lawsuit states.

Barbara Bolling-Williams, president of the Indiana State Conference of the NAACP, said utilities have been allowed to pollute communities for decades with little oversight or regulation.

"When the government fails to do its job to hold this industry responsible for the harm that is caused, once again, black and brown communities are left holding the proverbial ash bag with a ticking bomb inside," she said.

Sierra Club attorney Bridget Lee said EPA "must act now to close this dangerous loophole."

"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," Lee said.

Indra Frank, environmental health and water policy director for the Hoosier Environmental Council, said NIPSCO's Michigan City disposal site is a threat to Lake Michigan.

"Indiana's many inactive coal ash landfills need to meet the same standards as the active ones in order to protect the state's water resources," she said.

Abel Russ, senior attorney at the Environmental Integrity Project, said comprehensive rules that lead to sitewide correction action are needed.

"The goal here — EPA's goal and our goal — is to restore groundwater quality, but you can't really do that with rules that only apply to some of the coal ash dumps at each site," Russ said.

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