Court Victories Signal Hope for Communities Threatened by Coal Ash

Danville, Illinois, a small industrial Midwest city, wants to transform its image from “the cheapest place to live in America” to a popular recreational tourism destination. The centerpiece of that plan is the Vermilion River, a 74-mile-long tributary that runs through the city’s downtown and the nearby Kickapoo State Park. Each year, the river’s clear, fast-flowing waters attract thousands of canoers, tubers, and kayakers to the Danville area.

But buried within the floodplain of the Vermilion’s Middle Fork lie millions of cubic yards of toxic coal ash — a byproduct of burning coal — that threaten to tarnish city’s hopes for revitalization. According to the coal plant’s owners, the unlined sites are seeping heavy metals like chromium, lead, and arsenic into the riverbank, leaving behind an eerie purplish-orange hue that’s clearly visible to passersby. Worse, because the ponds were built immediately alongside the Middle Fork, the riverbank separating those toxic ponds from the river is eroding at a dangerously fast pace, and a record flood could cause a breach even before then.

Despite these threats, Danville’s coal ash ponds were exempted from the first-ever federal regulations on coal ash in 2015. The same is true for approximately 100 other so-called “legacy ponds” across the country, many of which are unlined. The reason, according to the EPA, is because these coal plants, and the toxic sites they created, stopped operating before the new rule was put in place. Never mind that a full, unused container can still leak, especially if it doesn’t contain a bottom.

Thankfully, ongoing Earthjustice litigation coupled with tireless grassroots advocacy has resulted in several recent victories that offer hope and progress to the Danville community. This work builds on Earthjustice’s broader effort to stop all fossil fuel extraction and burning, so that Danville and other communities near coal ash sites may one day no longer be threatened by these toxic messes.

The Vermilion River’s plight received front page coverage in 2018, but the coal ash ponds have been leaking contaminants into the river for more than a decade.

The source of the coal ash is the nearby Vermilion Power Station, which began operating in the mid-1950s and closed in 2011. For decades, the plant’s operators dumped the waste left over from burning coal into unlined pits that together run approximately a half-mile along the river. In total, the coal plant dumped enough toxic ash to fill the Empire State building almost two and a half times.

Local community groups like Prairie Rivers Network spent years trying to get Dynegy, the current owner of the plant and coal ash sites, to clean up its mess. But the company barely budged, so in May 2018 Earthjustice filed a federal lawsuit on behalf of Prairie Rivers against Dynegy for violating the Clean Water Act. While that case was on appeal, Earthjustice filed a second lawsuit, this time with the Illinois Pollution Control Board, against Dynegy for violating the Illinois Environmental Protection Act. Earthjustice attorneys are asking the board to require Dynegy to stop this illegal pollution and to pay civil penalties for the ongoing contamination.

“Dynegy left a toxic mess on the banks of one of Illinois’ most beautiful rivers and has done nothing to stop it,” says Earthjustice attorney Jenny Cassel. “Dynegy has left us no choice but to sue.”

While both lawsuits play out in court, local citizens are keeping up the heat. In 2018, the activist group Eco-Justice Collaborative put together a “People’s Hearing” in Danville. There, about 100 concerned citizens and scientists spoke to the Illinois EPA about Dynegy’s flawed mitigation plan, which plans to “armor” the banks of the river to limit erosion but does nothing to address the ash leaking into the groundwater below.

“If the forecast is rain and you are standing in a swimming pool, it doesn’t matter if you have an umbrella over your head, you’re still going to get wet,” said Andrew Rehn of Prairie Rivers.

At the end of the hearing, several attendees spoke about their connection to the river and concerns over the coal ash. Some were seasoned orators, while others were, as one person described himself, “reluctant activist[s] who would rather be standing in a pasture swatting mosquitoes than to be standing up here.” All were concerned about being left with Dynegy’s toxic mess:

“They reap the profit while taxpayers and real live people like you see here tonight pay the cost,” said one attendee.

Earthjustice backed up the community’s concerns by submitting formal comments on Dynegy’s misguided mitigation plan, which would erect a massive rock wall blemishing the river while allowing the pollution to continue. At the same time, we’re continuing our longstanding legal efforts to strengthen national regulations on the nearly 1,000 coal ash sites scattered across the country. This multi-pronged strategy has notched several big wins, both nationally and locally, including:

In 2018, in response to our federal coal ash lawsuit, a federal appeals court ruled that the EPA must rework its ill-advised decision to improperly exempt coal ash ponds at closed coal plants like Dynegy’s from its new coal ash regulations.

In 2019, a different federal appeals court ordered the EPA to strengthen a related rule concerning wastewater at operating power plants, which discharge wastewater that can often contain coal ash leachate and other toxic chemicals.

Also in 2019, years of local advocacy and Earthjustice litigation convinced Illinois lawmakers to pass a landmark law to clean up coal ash in the state, with the Vermilion River as the poster child for why these toxic lagoons need to be addressed.

In April 2021, Earthjustice attorneys and other legal professionals from Sierra Club and Little Village Environmental Justice Organization successfully pushed regulators to write strong rules to support the new law. For example, we ensured that the law’s call for “public participation” in the coal ash cleanup process will be robust by pushing regulatory agencies to host multiple public hearings held in both English and Spanish.

Related: What ‘Schoolhouse Rock’ Didn’t Tell You About Lawmaking

Finally, in June 2021, the coalition to clean up coal ash at the Vermilion site got its biggest win yet after the coal plant’s owners agreed to dig up and move to a safer location the nearly three million tons of coal ash buried next to the river. The owner’s decision came in response to a lawsuit by the state of Illinois, which itself came after intense pressure from Earthjustice and our allies in the form of multiple lawsuits and persistent lobbying.

“These wins are the result of the tireless efforts of a coalition determined to clean up this toxic waste that has plagued communities for far too long. They show the possibility for change when community members’ voices are heard,” says Earthjustice’s Cassel. “At the Vermilion site, the ash will finally be moved, and we look forward to engaging in the process to ensure the river is restored to its scenic glory and preserved for future generations.”

This piece was originally published in September 2018 and updated to reflect the latest victories.