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Court Victory Signals Hope for Communities Threatened by Toxic Coal Ash

A recent court victory means that cities like Danville, Illinois, stuck for years with so-called “legacy” coal ash ponds, may now have a way forward.

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, is a small industrial Midwest city hoping to transform its image from “the cheapest place to live in America” to a popular recreational tourism destination. The centerpiece of that tourism plan is the Vermilion River, a 74-mile-long tributary that runs through the city’s downtown and the nearby Kickapoo State Park. The Middle Fork of the Vermilion is the state’s only National Scenic River, and each year, its clear, fast-moving waters attract thousands of canoers, tubers, and kayakers.

But buried within the floodplain of the Vermilion’s Middle Fork lie toxic waste sites that threaten to tarnish Danville’s hopes for revitalization.

The sites contain 3.3 million cubic yards of coal ash, a byproduct of burning coal. And according to their 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 dangerously close to the Vermilion, the riverbank separating those 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. The reason, according to the Environmental Protection Agency (EPA), is because the coal plants, and the toxic ponds 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.

Now, thanks to a recent court ruling prompted by Earthjustice litigation, the EPA must go back to the drawing board on that ill-advised decision, giving places like Danville hope that one day these toxic messes will no longer loom over their heads.


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 this 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.

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 and protect the river. But the company barely budged, so in May Prairie Rivers followed up with a lawsuit, filed by Earthjustice, against Dynegy for violating the Clean Water Act. The lawsuit alleges that Dynegy has been discharging water pollution without a proper permit and in violation of Illinois environmental and health standards for years. The groups are asking the court to order Dynegy to “take all actions necessary” to stop the illegal pollution being discharged to the Middle Fork, and to pay penalties of up to $53,484 per day for each day over the last five years that Dynegy has broken the law.

“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. “They've left us no choice but to sue.”

While the lawsuit plays out in court, local citizens are keeping up the heat. In June, an activist group called Eco-Justice Collaborative put together a “People’s Hearing” in Danville. There, about 100 people showed up to the hearing to provide expert testimony and public comments to the Illinois EPA concerning the feasibility of Dynegy’s preferred mitigation plan, which 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.

In addition to concerned citizens and scientists, a handful of local politicians attended, including Danville Mayor Scott Eisenhauer. He emphasized the river’s importance to the city’s economic development and called for Dynegy to set aside funding to deal with any emergencies resulting from the coal ash.

At the end of the hearing, several attendees lined up to speak about their connection to the river and concerns over the coal ash. Some were clearly 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.”


Currently, there is no legislation or rule that requires Dynegy to move its coal ash. But with the recent appeals court ruling, which determined that the EPA improperly exempted coal ash ponds at closed coal-fired power plants from regulation, cities like Danville now have some hope that they will not be forever left with toxic threats to their air and water.

Lisa Evans, Earthjustice Senior Administrative Counsel testifies during EPA’s Public Hearing on the Proposed Amendments to the Regulations for the Disposal of Coal Ash.
Lisa Evans, Earthjustice Senior Administrative Counsel testifies during EPA’s Public Hearing on the Proposed Amendments to the Regulations for the Disposal of Coal Ash.
Matt Roth for Earthjustice

But the court ruling goes far beyond Danville, says Earthjustice attorney Lisa Evans, who’s helping lead several lawsuits against the Trump administration for its illegal rollbacks on regulating this toxic waste. The judges’ order also requires the EPA to address unlined ponds before utilities determine they are leaking — a decision with huge implications given that about 95 percent of the nation’s nearly 1000 ash ponds are unlined.

“The winds are shifting for coal ash,” says Evans.


If you're from Illinois and want more information on how to protect the Vermilion river from coal ash, visit our partners Eco-Justice Collaborative.

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