Environmental groups are suing the Environmental Protection Agency to close a gaping loophole in the agency’s rules regulating the management of coal ash dumps that have leached toxic pollutants into rivers and lakes across the country.

The environmental advocates identified buried ash from power plants dumped in open pits in nearly 40 states, often with no liner systems to protect groundwater, or dumped in old landfills—all still unregulated by EPA.

Together, these coal ash pits and landfills and other coal ash disposal sites are among the most costly of long-term legacies from more than a century of burning coal. 

The Obama administration in 2015 took action to require safe management of coal-burning waste but left more than half of the coal ash ever produced—as much a half billion tons—unregulated, according to Earthjustice, which planned to file the lawsuit on Thursday in U.S. District Court in Washington, D.C. 

The 2015 rules applied to existing and new coal ash sites but exempted dumps that had already shut down. The rules also didn’t cover landfills at power plants that had stopped producing power.

Earthjustice filed the suit on behalf of seven environment or civil rights organizations including the Sierra Club, the Environmental Integrity Project, the Hoosier Environmental Council in Indiana, and the LaPorte County (Indiana) Branch of the National Association for Advancement of Colored People. 

In a press release, Mychal Ozaeta, an Earthjustice attorney, called the situation “outrageous” and said that  “the coal power industry is poisoning drinking water sources and the air we breathe while causing global warming.”

The EPA had no immediate response. “Because this is pending litigation, we do not have a comment,” a spokesperson said.

Earthjustice said it has combed through EPA records to find nearly 300 ash dumps without federal protection at 161 coal-fired power plants in 38 states, from New Hampshire to Utah. The dumps, according to Earthjustice, are disproportionately located in low-income communities and communities of color.

One of those dumps was brought to light by Inside Climate News and WMFE, the Orlando public radio station. In December, they reported on how the Orlando Utilities Commission’s Stanton Energy Center’s legacy mountain of coal ash had slipped through the regulatory cracks.

For 28 years, OUC dumped much of its coal-burning waste into its main landfill, covering about 90 acres. 

That dumping stopped on Aug. 28, 2015, just 52 days before the first national regulations on the management of coal-burning wastes went into effect. The maneuver exempted the landfill from the U.S. Environmental Protection Agency’s rules for environmental monitoring and from a requirement to take corrective actions, if contamination were to be found.

Those rules now only apply only to a new, active coal ash “cell” next to the landfill that the utility is now using and any future cells it fills with ash. 

An OUC spokesman said in December that the utility would recognize its long-term obligation for the coal-ash landfill, even as the company was transitioning to gas and solar. “We are going to take that responsibility seriously and continue to do so,” the spokesman said.

Across the nation, “we are in danger of leaving half the ash un-remediated,” Lisa Evans, a senior attorney specializing in hazardous waste law at Earthjustice, told Inside Climate News at the time. “It’s not being monitored and therefore, it’s not triggering corrective action requirements of the rule. So you’re going to have this poisonous legacy, which could last permanently at many, many sites.”

The 2015 rules were the result of a compromise between environmental interests who sought coal ash to be regulated as a toxic waste, and industry representatives who argued that such strict regulation would discourage recycling. EPA adopted them after decades of debate within the agency.

During the Trump administration, environmental groups shifted gears and focused on fending off EPA efforts to weaken the rules. 

But politics have changed. The Biden administration has taken a more forceful stance on coal ash. The EPA in January began to put power plant owners on notice regarding their obligations to comply with rules, and the agency has said it was working on plans for future changes to regulations aimed at making sure coal ash dumps meet strong environmental and safety standards.

Then on Aug. 1, more than 120 environmental groups wrote to EPA Administrator Michael Regan calling for further action on coal-burning waste. 

They urged EPA to “immediately undertake a rulemaking” to strengthen national coal-burning waste rules “to stop toxic pollution from legacy surface impoundments and inactive landfills.”

Ninety-one percent of coal plants have unsafe levels of one or more coal ash constituents in groundwater, even after setting aside contamination that may be naturally occurring or coming from other sources, according to the lawsuit. Chemicals and heavy metals associated with coal ash include those linked to cancer, neurological and psychiatric disorders, and cardiovascular illness, the complaint said.

The health concerns with ash are not limited to groundwater.

Kristina Zierold, associate professor of environmental health sciences at the University of Alabama at Birmingham, has found that children living near coal ash storage sites in Kentucky have a greater incidence of health issues such as asthma and neurobehavioral problems, compared to children living in areas without such sites.

The Edison Electric Institute, a trade group that represents investor-owned utilities, has long maintained that electric companies are managing coal ash “in ways that put safety first, protect the environment, minimize impacts to the community, and manage costs for customers.”

The lawsuit claims that EPA’s “blanket exemption” of hundreds of ash dumps means they will escape safeguards including “monitoring, inspection, closure, cleanup, and reporting requirements.”

The federal Resource Conservation and Recovery Act, which gives EPA the authority to control hazardous waste from cradle to grave, requires the EPA to review and, where necessary, revise each regulation promulgated under the statute at least every three years, the lawsuit claims. 

Since the coal ash rule was adopted in 2015, EPA’s most recent review of the regulation exempting inactive landfills was due in 2018, Earthjustice claims. However, EPA has not once reviewed the regulation exempting inactive coal ash landfills, which means that EPA’s required review is more than four years overdue, the suit claims.

“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,” said Abel Russ, a senior attorney at the Environmental Integrity Project. “Instead, we need comprehensive rules that lead to site-wide corrective action.”