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

The nonprofit legal group Earthjustice filed the federal lawsuit on Aug. 25 in U.S. District Court for the District of Columbia. The plaintiffs in the case are Statewide Organizing for Community eMpowerment in Tennessee, the Indiana State Conference and LaPorte County Branch of the NAACP, Hoosier Environmental Council in Indiana, Clean Power Lake County in 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 waste left after burning coal for power and contains toxic substances including arsenic, lead, mercury, and radium. The EPA has acknowledged that the risks to humans associated with coal ash exposure include cancers, neurological and psychiatric problems, cardiovascular damage, and anemia.

The EPA regulated coal ash in 2015 following public outcry over the massive 2008 coal ash spill from a Tennessee Valley Authority (TVA) power plant near Kingston, Tennessee. But when Earthjustice studied databases it found in EPA archives, it discovered that the agency exempted from regulation 292 coal ash landfills at 161 plants in 38 states, including 12 of the 13 Southern states.* 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.

EPA excluded from its oversight those coal ash dumps that stopped receiving new waste before the regulation when into effect, as well as those at power plants that had already stopped producing electricity. Earthjustice says the exempted landfills are located disproportionately in low-income communities and communities 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 the Environmental Integrity Project studied industry data and found groundwater contamination exceeding federal health-based standards at 76% of regulated coal ash landfills, which tend to be newer and are more likely to have protective liners than the older, inactive landfills that EPA exempted from its rule. That means the inactive coal ash dumps are even more likely to be releasing toxic contaminants 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 tallied a total of 97 unregulated coal ash dumps at 57 power plant sites across the region. Texas has the most, with 27 unregulated dumps at 11 sites, followed by West Virginia, with 13 dumps at seven sites. Click here for a map and complete list.

These are among the coal ash dumps that the EPA has exempted from regulation:

  • TVA's Kingston plant in Tennessee, where a 2008 impoundment failure sent over 1 billion gallons of coal ash into the Clinch and Emory rivers, has one unregulated landfill. 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 in Clinton, Tennessee, has two unregulated, unlined, and leaking landfills that are contaminating groundwater with dangerous levels of arsenic, boron, cobalt, manganese, and molybdenum. The plant sits about 35 miles from the Kingston plant, also along the Clinch River.

  • The Stanton Energy Center in Orlando, Florida, has a 90-acre coal ash landfill known to be contaminating 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 in Stokes County, North Carolina, has one inactive coal ash landfill exempted from federal regulation, according to Earthjustice. Residents of the nearby community of Belews Creek 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, regional, and grassroots public interest groups and tribal communities from 30 states, the District of Columbia, and Puerto Rico wrote a letter to EPA Administrator Regan asking him to immediately take action to close the loopholes in the coal ash rule. Regan formerly served as the top environmental regulator in North Carolina, where a 2014 spill from a coal ash landfill at a Duke Energy plant near the city of Eden contaminated the Dan River. Regan was not a state regulator at the time but worked for the Environmental Defense Fund, focusing on clean energy. Duke Energy later pleaded guilty to criminal negligence for its handling of coal ash at the plant and 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. Once in our bodies, these chemicals can cause permanent damage. Please protect us and our children now, not when it's too late."

* Facing South counts among the Southern states Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia, and West Virginia. The only Southern state without a coal ash landfill on Earthjustice's list of exempted facilities is Arkansas.