Sarah Fritz

Associate Editor

Loyola University Chicago School of Law, JD 2025

On May 18, 2023, the Environmental Protection Agency (EPA) proposed a new rule to address the concern of a previous loophole that allowed pits of coal ash to sit inactive and unmonitored. The new proposed rule was created in response to the August 21, 2018 opinion by the U.S. Court of Appeals for the District of Columbia Circuit in Utility Solid Waste Activities v. EPA. 

The D.C. Circuit of Appeals’ opinion held that the EPA acted “arbitrarily and capriciously” in exempting inactive surface impoundments such as coal ash pits from regulation, allowing them to sit inactive. The court removed the provisions creating the loophole and remanded back to the agency to create a new rule. The new rule is not only important but is necessary in preventing further environmental degradation from harming people. 

Why are coal ash pits harmful?

The risks posed by pits of coal ash are substantial. Coal ash is the toxic byproduct of burning coal to generate electricity. It contains heavy metals that can contaminate lakes and groundwater. Coal ash tends to leak into soil and groundwater, posing both cancerous and non-cancerous health risks to nearby populations. Toxins in coal ash can cause cancer, heart disease, reproductive failure, stroke, and additionally, can lead to lasting brain damage in children. 

Coal ash pits are commonly located within one to three miles of economically vulnerable communities. The population living within one mile of a coal ash pit site is over three times as likely to have less than a high school education in comparison to the average Illinois resident. The communities that the sites are affecting are more vulnerable and therefore may be less able to protect themselves from harm caused by groundwater contamination.

The new rule proposed by the EPA comes after a report published by the Environmental Law and Policy Center finding that Lake Michigan has 12 toxic waste sites that are at risk of spillage. The report calls for the EPA to clean up toxic sites along Lake Michigan, including coal ash ponds. The report also asks for funding to address drinking water, wastewater, and stormwater threats emanating from these waste sites. 

The lack of current infrastructure that prevents coal ash from going into Lake Michigan needs to be addressed in order to prevent toxic pollution. According to the Energy News Network, the seawall site contains approximately two million cubic yards of coal ash. The sea wall location is likely one that would be regulated under the new rule proposed by the EPA, as coal ash ponds stored on the Great Lakes pose an insurmountable risk to safe drinking water for nearby communities. 

What will the new rule regulate?

The new proposed EPA rule would close the aforementioned loophole and would require owners and operators of coal ash pits to comply with the existing requirements. These include groundwater monitoring, closure and post-closure care, and publicly accessible internet site requirements. The EPA is also proposing different compliance deadlines for the new regulatory requirements present in the rule. 

The proposed deadlines allot three months for coal ash pit operators to complete an initial safety factor assessment and identify potential hazards. The deadlines also give coal ash pit operators six months to install and develop the groundwater monitoring system. After a year, coal ash pit operators are required to initiate a closure of the site.

Once a pollution site has completed closure by removal of waste, the EPA is proposing that coal ash pit operators post a certificate of closure by a qualified professional engineer on their website. By requiring a certification process, the EPA ensures that the regulated community understands and implements the regulation. If owners and operators do not comply with the new rule, they can be held liable through citizen suit or through an EPA enforcement action. 

The new rule will force the energy companies and owners of coal ash pits to clean up inactive sites and maintain records that show an effort to clean up the site. By doing so, the proposed rule closes a loophole that has allowed toxic waste to sit idle, with a great potential to cause harm to nearby communities. Should the new regulation come into effect, it would be extremely effective at preventing energy companies from polluting without consequences making it not only necessary but imperative in reducing harm caused to vulnerable areas by environmental degradation.