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Groups seek ‘overdue’ review of coal ash monitoring exemption

Landfills that no longer accept coal ash but are still full of toxic waste don’t have to submit to federal monitoring. More often than not, these sites are in and around communities of color.

WASHINGTON (CN) — Six groups of civil and environmental activists brought a federal complaint Thursday to force reconsideration of a rule that lets the government turn a blind eye to half a billion tons of landfilled toxic coal ash.

“This is outrageous,” Mychal Ozaeta, an attorney with the nonprofit environmental litigation group Earthjustice, said in a statement after submitting the 20-page federal complaint in Washington for the plaintiffs. “The coal power industry is poisoning drinking water sources and the air we breathe while causing global warming.”

The Environmental Protection Agency adopted the rule on so-called coal combustion residuals during former President Barack Obama's second term in 2015. Because the exemption applies to any landfill that stopped accepting coal ash before October that year, around half of the toxic coal ash waste in the U.S. is fully exempt from federal oversight. The consequence of this, according to the complaint, is that some landfill facilities are never inspected, closed, cleaned up or subject to reporting rules.

Earthjustice and its collaborators have been monitoring 265 coal plants and disposal areas and 4,600 nearby wells across 38 states.

“After comparing groundwater monitoring data to health-based EPA standards and advisories, the ... analysis confirmed that groundwater beneath virtually all coal plants is contaminated,” the suit states.

The study by Earthjustice and the Environmental Integrity Project, a co-plaintiff behind the Thursday action, found that 91% of coal plants have unsafe levels of one or more coal ash constituents in groundwater, with 52% showing unsafe levels of the known carcinogen arsenic and 60% showing high levels of the neurotoxin lithium.

Earthjustice details the link between toxic waste from coal-fired power plants and water contaminated with heavy metals like arsenic, lead, mercury and cadmium, saying the result can crop up as cancer or reproductive, neurological, respiratory and developmental problems.

The Knoxville, Tennessee-based group Statewide Organizing for Community eMpowerment is the lead plaintiff behind Thursday's suit. One of its members, Todd Waterman, of Clinton, is quoted in a statement about how he blames the Kingston coal ash spill for causing his friends to become poisoned, suffer and die.

Waterman lives beside the Tennessee Valley Authority’s Bull Run Fossil Plant, which the complaint notes “has two unregulated, unlined and leaking landfills that are contaminating groundwater with toxic levels of arsenic, boron, cobalt, manganese and molybdenum."

“Once in our bodies, these chemicals can cause permanent damage,” said Waterman. "Please protect us and our children now, not when it’s too late.”

Federal conservation law requires a review of regulations every three years, but Earthjustice and the other challengers note that no such review has occurred for the coal ash exemption.

“Had Defendants performed their mandatory duty ... and revised the CCR Rule, 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,” the suit argues.

No representative for the EPA returned a request for comment Thursday, but the EPA typically declines to comment on pending legislation as a matter of policy. The agency's website states that proper management of coal ash is needed since its contaminants can “pollute waterways, ground water, drinking water, and the air.”

The Indiana State Conference and the LaPorte County Branch of the NAACP are plaintiffs in the suit, as are the Hoosier Environmental Council, the Sierra Club and Clean Power Lake County.

Barbara Bolling-Williams, president of the Indiana State Conference of the NAACP, points out that cost coal ash landfills are mostly in low-income communities and communities of color, making their monitoring an environmental justice issue.

“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 in a statement.

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