May 30–With the Trump and Rauner administrations rolling back enforcement of environmental laws, advocates urged a federal court Wednesday to step in and order Texas-based Dynegy Inc. to stop polluting Illinois’ only national scenic river with toxic coal ash.
A lawsuit filed in U.S. District Court in Urbana accuses Dynegy of repeatedly violating the Clean Water Act by failing to protect the Middle Fork of the Vermilion River from waste dumped for nearly 60 years into the floodplain near a shuttered coal-fired power plant.
Dynegy’s own reports show the orange- and purple-hued muck seeping into the otherwise clear river is concentrated with arsenic, chromium, lead, manganese and other heavy metals found in coal ash. Advocates fear that steady erosion of the riverbank could trigger a catastrophic spill, similar to disasters at coal plants in Tennessee and North Carolina where ash impoundments ruptured and caused millions of dollars in damage.
Attorneys for two nonprofit groups, Prairie Rivers Network and Earthjustice, said they decided to challenge Dynegy on their own because federal and state regulators have failed to address widely known hazards at the former Vermilion Power Station, about 120 miles south of Chicago near Oakwood, Ill.
Before the plant closed in 2011, Dynegy and Illinois Power, the plant’s original owner, pumped more than 3.3 million cubic yards of coal ash mixed with water into unlined pits next to the river — enough to fill the Empire State Building nearly 2 1/2 times.
“Dynegy left a toxic mess on the banks of one of Illinois’ most beautiful rivers and has done nothing to stop the dangerous, illegal pollution from fouling waters enjoyed by countless families who kayak, tube, canoe and even swim in the river,” said Jenny Cassel, an Earthjustice attorney who drafted the lawsuit.
About 17 miles of the Middle Fork are protected under the federal National Wild and Scenic Rivers Act, including the stretch that meanders past the Vermilion plant’s ash pits. Last month another nonprofit group, American Rivers, cited the ongoing threats to recreation and wildlife when it named the Middle Fork one of the nation’s most endangered waterways.
In November, Dynegy consultants estimated it could cost up to $192 million to transfer its coal ash to a licensed landfill. The company had suggested it could cap the pits to prevent rain and snowmelt from washing coal ash into the water, but another Dynegy report estimated the normal flow of the Middle Fork is eroding the river banks by up to 3 feet a year, making it more likely the toxic slurry will be exposed if left in place.
Dynegy has since been absorbed by another Texas-based company, Vistra Energy, which reported earnings of $1.4 billion in 2017. Neither company immediately responded to requests for comment about the lawsuit.
Because the Vermilion plant closed years ago, the ash pits are exempt from federal regulations enacted by the Obama administration in 2015 in response to the Tennessee and North Carolina spills. Opposition from Dynegy and other energy companies prompted the Trump administration last year to reconsider the safeguards; a separate proposal in Illinois also has been sidetracked.
Enforcement actions against the owners of coal ash pits also have stalled. The Illinois Environmental Protection Agency cited Dynegy in 2012 with violations of state water quality standards but has yet to resolve the case. Federal environmental regulators have not responded to requests for them to intervene.
The Tribune reported in February that since Rauner took office in 2015, penalties sought from Illinois polluters have dropped to $6.1 million — about two-thirds less than the inflation-adjusted amount demanded during the first three years under the Republican governor’s two predecessors, Democrats Pat Quinn and Rod Blagojevich.
At the federal level, Trump’s EPA administrator, Scott Pruitt, has slowed enforcement and restricted the agency’s staff from filing new cases. Several recently announced legal settlements with polluters were prompted by citizen lawsuits similar to the one filed Wednesday against Dynegy.
Illinois’ only national scenic river named one of the most threatened waterways in U.S. Â»Toxic waste from coal ash pits leaching into Illinois’ only National Scenic River Â»