The EPA considers closing a loophole that could have huge benefits for Indiana

February 14, 2023

The Environmental Protection Agency’s plans to possibly close a loophole in pollution regulations could have huge benefits for the state in the fight against toxic coal ash.

Currently, based on the 2015 Federal Coal Ash Rule, a loophole exempts billions of tons of coal ash in landfills from federal oversight. The EPA published its intent to consider closing the loophole as part of a proposed settlement between the agency and public interest groups, including the Indiana State Conference and LaPorte County Branch of the NAACP and the Hoosier Environmental Council, which sued the agency in August 2022.

Earthjustice represented the plaintiffs in the case and found there are 297 unregulated landfills in 38 states, including Indiana. It said the amount of unregulated coal ash could fill freight train cars that could stretch around the world twice.

According this map by Earthjustice, Indiana has 21 known unregulated landfills. The Gallagher plant in New Albany contains the most, with 11 landfills. In Gallagher, the plant sits on the Ohio River in an area prone to flooding.

Courtesy of Earthjustice

“We are glad to see the EPA take the first step to close a loophole that effectively permitted coal plants to evade cleaning up their toxic coal ash,” said Mychal Ozaeta, the plaintiffs’ attorney from Earthjustice. “As coal plants continue to close, it is critical that operators address decades of toxic waste left in unlined pits and prevent contamination.”

Coal ash is the toxic substance that is left over after burning coal for electricity. The EPA has noted that exposure to coal ash is linked to neurological and psychiatric effects, damage to blood vessels, many types of cancer and cardiovascular effects.

Before 2015, there were no federal rules to regulate where utilities were allowed to put coal ash or how it was stored. The agency excluded coal
ash in landfills where utilities had stopped producing power, and waste piles that hadn’t been receiving ash before the law went into effect. These exempted landfills are disproportionately located in communities of color and low-income communities.

“You find toxic, polluting facilities like coal power plants disproportionately located in communities of color and low-income communities. As such, we have continually borne the health disparities and economic challenges,” said Barbara Bolling-Williams, president of the Indiana State Conference of the NAACP. “The EPA needs to hold plant owners accountable. As these coal plants close, Black and Brown communities cannot be left with unregulated toxic waste. They put that coal ash right by Lake Michigan, they put it in our cities. We stand up for our community, our health, and the millions of people who depend on Lake Michigan for drinking water.”

The 2015 rule previously exempted inactive landfills from all monitoring, maintenance, inspection, closure and reporting requirements.

A 2022 Earthjustice and Environmental Integrity Project study found that coal ash was contaminating the groundwater in 91 percent of U.S. coal fired power plants with arsenic, mercury, lead, molybdenum and other heavy metals.

The Michigan City Generating Station has five coal ash ponds that sit beside Lake Michigan.

Groundwater contamination from coal ash ponds has been found at every utility in Indiana.

This settlement could also bring good news to the people and groups in Michigan City fighting to have Northern Indiana Public Service Co. remove an estimated 2 million tons of coal ash fill on Lake Michigan that currently isn’t being addressed in its closure plan.

Just Transition NWI executive director Ashley Williams, also a formal declarant in the suit filed last August, said, “This ruling is a historic stride for environmental justice communities that have long endured the detrimental impacts of these toxic unregulated landfills."

The EPA will accept public comments until March 6. If the EPA decides to address this issue, a draft rule will be published in May. Another public comment period will be held, along with public hearings, before a final rule would be issued. If this does happen, the final rule would go into effect in May 2024.

The EPA considers closing a loophole that could have huge benefits for Indiana