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Court Victories Signal Hope for Communities Threatened by Coal Ash

Recent rulings are welcome news for communities like Danville, Illinois, which are stuck living next to toxic coal ash ponds that threaten their lives and livelihoods.

Andrew Rehn looks at toxic coal ash waste seepage on the shore of the Middle Fork of the Vermilion River.

Andrew Rehn looks at toxic coal ash waste seepage on the shore of the Middle Fork of the Vermilion River.

Zbigniew Bzdak / Chicago Tribune / TNS via Getty Images

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 current 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, two recent court victories prompted by Earthjustice litigation offer hope to the Danville community and others near coal ash sites that one day they will no longer be threatened by these toxic messes.

Chicago Tribune video of the Vermilion River threatened by the seepage of toxic waste from coal ash pits.
Watch the video of coal ash waste seepage on the shore of the Middle Fork of the Vermilion River.
Zbigniew Bzdak / Chicago Tribune

The Vermilion River’s plight last summer received front page Chicago Tribune coverage, 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 have spent years trying to get Dynegy, the current owner of the plant and coal ash sites, to clean up its mess. But the company has barely budged, so in May 2018 Earthjustice filed a lawsuit on behalf of Prairie Rivers against Dynegy for violating the Clean Water Act. While that case is on appeal, Earthjustice has 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. Last June, an activist group called Eco-Justice Collaborative put together a “People’s Hearing” in Danville. There, about 100 concerned citizens and scientists spoke to the Illinois EPA about the infeasibility of Dynegy’s preferred 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.

Andrew Rehn of Prairie Rivers Network gives testimony during the EPA’s Public Hearing on the Proposed Amendments to the Regulations for the Disposal of Coal Ash.
Andrew V. Rehn of Prairie Rivers Network, IL, gives testimony during the EPA’s Public Hearing on the Proposed Amendments to the Regulations for the Disposal of Coal Ash.
Matt Roth for Earthjustice

“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 recently submitted comments on Dynegy’s misguided mitigation plan, which would erect a massive rock wall blemishing the river while allowing the pollution to continue. In addition, we’re continuing our longstanding legal efforts to strengthen national regulations on the nearly 1,000 coal ash sites scattered across the country.

And we’re making great progress.

In August 2018, a federal appeals court determined that the EPA improperly exempted coal ash ponds at closed coal-fired power plants like Dynegy from its new coal ash regulations. The court ruled that the EPA must go back to the drawing board on that ill-advised decision.

Less than a year later, a different federal appeals court ordered the EPA in April to strengthen a related rule concerning wastewater at operating power plants. In that ruling, the judge declared that the EPA arbitrarily allowed industry to deal with legacy wastewater, which often contains coal ash leachate and other toxic chemicals, by draining it from unlined ponds without any modern wastewater treatment to prevent pollutants such as arsenic, mercury, and lead from flowing into water bodies downstream of the coal plants.

Says Earthjustice attorney Thom Cmar, who is helping lead efforts to strengthen coal ash regulations both locally and nationally, “Whether coal plants and their ash ponds are in operation or not, these recent court rulings have made clear that it’s the government’s responsibility to protect communities living near these toxic sites.” 

(This piece was originally published in September 2018 and updated to reflect the recent victories.)

Overruling Trump.