Today the State of Illinois and Dynegy Midwest Generation received court approval of a lawsuit settlement requiring Dynegy to clean up coal ash and resolve violations of the Illinois Environmental Protection Act at the former Vermilion Power Station. Under the terms of the consent order, Dynegy agreed to dig up, and move to a safer location onsite, the approximately 3 million cubic yards of coal ash sitting in leaking, unlined impoundments that loom over Illinois’ only national scenic river.

For decades, Dynegy dumped coal ash into unlined ponds at the Vermilion Power Station. Arsenic, barium, boron, chromium, iron, lead, manganese, molybdenum, nickel, and sulfate leached into the Middle Fork of the Vermilion River and groundwater. Concentrations of boron and sulfate — indicators of coal ash contamination — were repeatedly detected in groundwater at the site above levels deemed safe by Illinois Environmental Protection Agency (EPA) and U.S. EPA.

Dynegy’s unlined coal ash ponds at the Vermilion Power Station continued to leach toxic pollutants after the plant closed, tinting the banks of the Middle Fork of the Vermilion River with a purple-orange sheen. For years, Eco-Justice Collaborative and Prairie Rivers Network called attention to the damaging pollution and grave threat at the site, demanding that Dynegy move the toxic coal ash out of the floodplain to avoid a catastrophic collapse as the riverbank continued to erode.

On behalf of Prairie Rivers Network, Earthjustice brought two lawsuits — one in federal court, one before the Illinois Pollution Control Board — to demand that Dynegy comply with environmental laws and stop polluting Illinois’ only National Scenic River. Without the advocacy of these groups, Illinois EPA may never have taken action to protect the river and stop the pollution.

In 2018, Illinois EPA issued Dynegy a violation notice for pollution caused by the coal ash. That violation was referred to the Illinois Attorney General in May 2019, resulting in today’s consent order. Earthjustice intervened in that lawsuit on behalf of Prairie Rivers Network.

The consent order requires Dynegy to excavate the coal ash and move it to a new onsite lined landfill; control dust during demolition of the shuttered power plant; contribute hundreds of thousands of dollars for restoration of the Middle Fork River, including stabilizing the riverbank and funds for nearby parks; and implement a safety and emergency response plan to monitor and mitigate riverbank erosion at the site.

In order to carry out the consent order, Dynegy will still need Illinois EPA approval for its plan to remove the coal ash as well as a permit to discharge the waters stored in the ash ponds. A draft water discharge permit for the site is out for public comment until July 5th.

When the EPA enacted the Coal Combustion Residuals (CCR) rule in 2015, it exempted coal ash stored in older, unlined ponds if the ponds were, like the Vermilion ash ponds, located at power plants that had stopped producing electricity when the rule went into effect. Hundreds of sites were excluded from the law’s monitoring, closure, and cleanup requirements. In 2019, the advocacy efforts of concerned Illinois residents resulted in the passage of Illinois’ Coal Ash Pollution Prevention Act, which ensured that these so-called legacy ash ponds were regulated in Illinois. The EPA recently proposed a new rule to address the hundreds of legacy dumpsites across the country that were previously excluded from safeguards.

Andrew Rehn, Water Resources Engineer with Prairie Rivers Network: “This cements a big victory for the Middle Fork. Today, we lock in some hard-fought wins from over a decade of advocacy. Dynegy will move their coal ash, demolish their power plant, build a landfill onsite, and move their coal ash into that landfill. Additionally, they will pay fines to help restore nearby natural spaces and clean up their leftover gabions and riprap that create an eyesore on the river. This is what proper coal ash cleanup looks like.”

Jenny Cassel, Senior Attorney at Earthjustice: “The Vermilion Power Station became emblematic of how the 2015 EPA coal ash rule failed to adequately address coal ash, even when the threat was as obvious as the brightly-colored toxic pollutants seeping through the riverbank. The local community fought for years to draw attention to the unsafe storage of coal ash by the scenic river as the threat of catastrophic collapse grew. Today’s agreement means Dynegy will finally remove coal ash from the banks of the Middle Fork and restore the river, modeling the type of protections so desperately needed at unlined legacy coal ash ponds and other sites where coal ash threatens nearby waters and communities.”

Lan Richart, Co-Director of Eco-Justice Collaborative: “The approval of the Consent Order marks an important milestone in the long campaign calling for the clean-up of toxic coal ash along the Middle Fork. What seemed impossible five years ago is now coming to fruition, as the process moves beyond litigation and into the important work of restoring the natural integrity of Illinois’ only National Scenic River. This is a victory for all who worked so hard to protect this valuable resource.”