08.18.23

Durbin, Duckworth Lead Letter to EPA Urging the Agency to Protect Communities from Coal Ash

The letter comes as EPA proposes changes to the coal ash rule

SPRINGFIELD – U.S. Senate Majority Whip Dick Durbin (D-IL) and U.S. Senator Tammy Duckworth (D-IL), founder of the Environmental Justice Caucus, today led eight of their colleagues in urging the U.S. Environmental Protection Agency (EPA) to expand the protections in the agency’s newly-proposed rule to safeguard communities and the environment from the dangers of coal combustion residuals (CCR).  In their letter, the Senators express their support forEPA’s move to address the loopholes exempting legacy CCR impoundments from compliance.  

“We write to provide comment on the U.S. Environmental Protection Agency’s (EPA’s) proposed changes to the coal combustion residuals (CCR), or ‘coal ash,’ rule forinactive, or ‘legacy,’ CCR surface impoundments and CCR management units.  We appreciate EPA’s efforts to close the egregious loophole exempting legacy CCR impoundments from compliance,” wrote the Senators.  “While we are pleased with the expanded compliance requirements in this proposal, we remain concerned with aspects of CCR impoundment closures, particularly those sited in or close to frontline communities, and we remain concerned about gaps in regulation of both legacy ponds and legacy landfills.”

In 2015, EPA instituted national standards for the safe disposal of CCR from coal-fired power plants to protect drinking water sources, public health, and the environment.  However, with the climate crisis causing increasingly frequent extreme weather events like flooding and erosion, many CCR impoundments are still threatening water sources and habitats. 

Additionally, hundreds of CCR impoundments continue to be exempt from EPA’s 2015 rule, and 91 percent of coal plants required to monitor groundwater and report data are shown to be contaminating groundwater.  These failures to protect the environment from contamination disproportionately impact low-income areas and communities of color.  The Senators called on EPA to improve environmental monitoring and ensure that all CCR impoundments in or near floodplains are properly encapsulated and regulated.

“We support increased monitoring of water resources, and urge EPA to apply the rule to all CCR impoundments in or near floodplains.   We urge EPA to require, to the maximum extent practicable, CCR closure by removal and, where this is not possible, complete CCR encapsulation to prevent harm to public health and the environment.  EPA also must impose strict constraints on the use of CCR so that only fully encapsulated CCR, such as in concrete, is permitted,” the Senators continued.


The Senators concluded their letter by reiterating that EPA must take additional measures to adequately protect communities from the dangerous impacts of coal ash residuals.

“This proposal is an important step in the right direction, and EPA must take additional steps to strengthen community and environmental protections.  We urge EPA to finalize the rule to cover CCR unit closures and CCR use, including all legacy ponds and landfills, and commit to using enforcement discretion to tackle the worst polluters.  We look forward to working with the agency, the Biden Administration, states, and our constituents to ensure CCR does not pose the threat to future generations that it does today,” the Senators concluded.

Durbin has long been a supporter of expanding regulations forCCR.  In 2018, he led a letter to then-EPA Administrator Scott Pruitt urging him to extend the comment period for a draft CCR disposal rule.  In a follow-up comment letter to Administrator Pruitt, he and his Senate colleagues also expressed concerns that the proposal would weaken disposal standards. Later that year, he and Duckworth again sent Pruitt a letter further highlighting the harms to the environment and communities in Illinois.

In Fiscal Year 2023 (FY23) appropriation bill, Durbin secured an earmark for the University of Illinois Urbana-Champaign’s Prairie Research Institute to support the university’s efforts to conduct a statewide assessment of Illinois’ 72 coal ash impoundments.  The research will gather information about current impoundment status, risk factors, and mitigation options while providing context for prioritizing impoundments with potential to improve the cost, time, or efficacy of pollution mitigation and material beneficiation.  For FY24, Durbin, a member of the Senate Environmental Justice Caucus, advocated for full funding for EPA’s enforcement offices to bolster programs across monitoring, investigations, forensics, and compliance activities, as well as climate and environmental justice initiatives, which would include coal ash regulation enforcement.

Joining Durbin and Duckworth in sending today’s letter were U.S. Senators Richard Blumenthal (D-CT), Ben Cardin (D-MD), Dianne Feinstein (D-CA), Jeff Merkley (D-OR), Bernie Sanders (I-VT), Chris Van Hollen (D-MD), Elizabeth Warren (D-MA), and Sheldon Whitehouse (D-RI).

The full text of the letter is available below:

August 18, 2023

Dear Administrator Regan:

We write to provide comment on the U.S. Environmental Protection Agency’s (EPA’s) proposed changes to the coal combustion residuals (CCR), or “coal ash,” rule forinactive, or “legacy,” CCR surface impoundments and CCR management units.  We appreciate EPA’s efforts to close the egregious loophole exempting legacy CCR impoundments from compliance.  Further, we support EPA’s decision to expand regulations to include CCR management units in this rule.  We urge EPA to expeditiously finalize these regulations and ensure the final rule takes further steps to protect our communities and the environment from CCR.

EPA’s 2015 rule set national standards for the safe disposal of CCR from coal-fired power plants to protect drinking water, human health, and the environment.  When not properly addressed, CCR impoundments threaten groundwater quality, and this risk grows over time.  CCR contamination due to poorly managed and unregulated CCR impoundments is compounded by increasingly frequent and extreme weather events such as flooding and erosion, and many impoundments threaten precious water resources and habitats.  While we are pleased with the expanded compliance requirements in this proposal, we remain concerned with aspects of CCR impoundment closures, particularly those sited in or close to frontline communities, and we remain concerned about gaps in regulation of both legacy ponds and legacy landfills.

Today, hundreds of CCR impoundments are exempt from the 2015 rule, an estimated 500 CCR impoundments still do not have a barrier to protect soil and groundwater quality, and 91 percent of coal plants required to monitor groundwater and report the data under the 2015 rule are contaminating groundwater.   Frontline and overburdened communities are at much greater risk of exposure to the toxins leached into groundwater or spilled into surface water.  This is a serious environmental justice issue, as an estimated 70 percent of CCR impoundments are sited in low-income areas and communities of color.  We support increased monitoring of water resources, and urge EPA to apply the rule to all CCR impoundments in or near floodplains.   We urge EPA to require, to the maximum extent practicable, CCR closure by removal and, where this is not possible, complete CCR encapsulation to prevent harm to public health and the environment.  EPA also must impose strict constraints on the use of CCR so that only fully encapsulated CCR, such as in concrete, is permitted.

Enforcement of this rule must be robust and also should consider communities’ cumulative burdens.  Forexample, Illinoisans living within a mile of legacy CCR impoundments, when compared to the rest of Illinois, are more than three times as likely to have less than a high school education, in addition to living with higher than average exposure to harmful air pollutants, Superfund sites, facilities using extremely hazardous substances, and hazardous waste facilities.  These communities also are the most vulnerable to extreme climate crisis events.  Industry must be put on notice that noncompliance will result in EPA enforcement action.

This proposal is an important step in the right direction, and EPA must take additional steps to strengthen community and environmental protections.  We urge EPA to finalize the rule to cover CCR unit closures and CCR use, including all legacy ponds and landfills, and commit to using enforcement discretion to tackle the worst polluters.  We look forward to working with the agency, the Biden Administration, states, and our constituents to ensure CCR does not pose the threat to future generations that it does today.

-30-