Dynegy’s legal battles over coal ash at its former power station along the Middle Fork River continue piling up, as two environmental groups have joined hands to file another lawsuit, at the state level this time, alleging the company is polluting Illinois’ only Wild and Scenic River.
Earthjustice, on behalf of Prairie Rivers Network, filed the latest complaint March 30 with the Illinois Pollution Control Board, alleging Dynegy has violated Illinois law by allowing toxic pollution from its Vermilion coal-ash pits to leach into ground water and into the Middle Fork of the Vermilion River.
The two nonprofit environmental organizations filed a similar complaint last spring in federal court, alleging violations of the Clean Water Act, although a judge later ruled that act doesn’t apply in this situation. However, another case before the U.S. Supreme Court could change that.
In that case, County of Maui v. Hawaii Wildlife Fund, an appeals court ruled the Clean Water Act does apply to pollution — in this case, from municipal wastewater wells — that’s discharged into ground water and ends up in a navigable waterway — in this case, the Pacific Ocean.
The Supreme Court will decide whether the 9th U.S. Circuit Court of Appeals was correct in its ruling.
“Prairie Rivers Network and Earthjustice are leaving no stone unturned to ensure Illinois’ only National Scenic River and surrounding communities are protected from coal-ash pollution,” said Jeff Kohmstedt with Prairie Rivers, regarding the filing of this latest complaint.
In addition to the lawsuits, it was just two weeks ago that the Illinois Environmental Protection Agency referred Vistra-owned Dynegy to the Illinois Attorney General’s office for enforcement action, asking for the closure of the coal-ash pits as well as Dynegy’s continuation of a riverbank stabilization project and the payment of fines for the company’s past ground water violations at the site.
Dynegy closed the Vermilion Power Station in 2011, but three impoundments containing more than 3 million cubic yards of coal ash remain on the property adjacent to the Middle Fork, filled with waste left over from decades of the coal-burning process. The ash contains contaminants like boron and manganese that can be harmful to the environment.
The same year that the plant closed, sampling from underground monitoring wells on the property detected levels of boron, manganese and sulfate in excess of ground water quality standards.
The IEPA declared Dynegy in violation as a result of that sampling.
But according to Prairie Rivers, the toxic residue that’s seeping from the ash pits is not only contaminating underground water resources, it’s reaching the river as well.
Samples taken from seeps along the Middle Fork by Duke University environmental scientists and analyzed by a private lab, ESC Lab Sciences, identified arsenic, barium, boron, chromium, iron, lead, manganese, molybdenum, nickel and sulfate, according to Prairie Rivers.
Currently, Prairie Rivers and Earthjustice are seeking “relief in state court to press for quick action to prevent further contamination of Illinois’ ground water and only National Scenic River,” according to Kohmstedt.
“This lawsuit highlights the need for permanent, comprehensive protections against toxic coal-ash pollution throughout Illinois,” he said. “Prairie Rivers Network, Earthjustice, and allies are also calling on the Illinois Legislature to address this growing problem before it poisons more of Illinois’ rivers, lakes and ground water.”
State Sen. Scott Bennett, D-Champaign, has introduced legislation — called the Coal Ash Cleanup and Storage Act — that would require owners of coal-ash impoundments in Illinois to remove the coal ash and dispose of it in ways safer for the environment rather than leaving the ash in place and capping the impoundments.
At an IEPA hearing last week, most of the more than 50 people who spoke urged the state agency to force Dynegy to move the coal ash away from the Middle Fork into a properly lined impoundment with a cap, in order to ensure there will never be a massive spill of ash or leaching of contaminants into the river.
IEPA held the hearing as part of the process to authorize Dynegy to do the streambank stabilization project, where about 1,900 feet of bank along the Middle Fork would be reinforced to stop erosion adjacent to the impoundments.
River advocates would rather see a quicker, less obtrusive emergency stabilization to prohibit a major spill so that Dynegy can then spend its time and money removing the pollutants entirely.
But Dynegy has argued that moving all of the coal ash is much more expensive than reinforcing the river bank and capping the existing impoundments.
In a recent statement from the Texas-based Vistra Energy, which acquired Dynegy last year, the company said the plan would be to stabilize about 1,950 feet of riverbank proximate to the Old East Ash Pond and the North Ash Pond, remove ash from one of the existing impoundments to another impoundment farther away from the river and install a slurry wall to provide additional groundwater protection.
“Since taking ownership of the retired power plant in April 2018, the company has been clear in its belief that work is needed — work that has stalled for too long without resolution or action,” said Meranda Cohn, corporate affairs with Vistra Energy.
A precedent of removing coal ash from impoundments to protect water resources seems to be developing.
In Virginia and North Carolina, state officials have recently pushed power companies to remove coal ash from unlined impoundments in their states and dispose of the toxic material in modern, lined landfills, or recycle it into concrete or other safer uses.
In North Carolina, the action there is a result of a 2014 Duke Energy coal-ash spill at a retired plant that released about 39,000 tons of ash into the Dan River.