Getting rid of the legacy coal ash deposits from the NRG Generating Station power plant along Lake Michigan in Waukegan got a little more likely with a recent U.S. Supreme Court decision keeping the green light illuminated for enforcement of a federal regulation mandating such a cleanup.
Since the U.S. Environmental Protection Agency (EPA) issued a rule earlier this year requiring decommissioned coal-burning power plants like the one in Waukegan to dispose of the coal ash, power companies have tried to block enforcement of the measure.
With lawsuits pending around the country trying to stop the EPA from enforcing the rule, Eastern Kentucky Power Cooperative asked a federal court to prevent the EPA from enforcing the rule until the lawsuit was decided. The U.S. Court of Appeals for the D.C. Circuit said no.
The U.S. Supreme Court issued a one-sentence order Wednesday denying Eastern Kentucky’s request to stay enforcement of the rule, as it did in a similar case in October giving the EPA the ability to enforce the requirement while the litigation continues in the lower courts.
When the EPA first issued a rule governing coal ash in 2015, it left unregulated dump sites in unlined ponds and landfills which stopped receiving coal ash before 2015, according to a press release from Earth Justice, a public interest legal organization seeking environmental justice.
Earth Justice is working with a number of other organizations, including the Southern Poverty Law Center and the Sierra Club, to remove coal ash from the legacy sites. Clean Power Lake County is a plaintiff in some of the litigation.
Dulce Ortiz, a co-founder of Clean Power Lake County and a Waukegan Township trustee, said Friday she is happy with the Supreme Court decision and hopes it will lead to the removal of legacy coal ash from the NRG property.
“I’m wonderfully surprised by the decision,” Ortiz said. “The corporation has used loophole after loophole, and it has still not cleaned up its mess. I’m pleased the Supreme Court allowed the rule to stay in place. It was good news.”
Waukegan Mayor Ann Taylor also criticized the delay tactics used by NRG and other power companies that operate coal-burning generation stations. She said in an email Friday they are avoiding their responsibility, “to clean up their mess.”
“Meanwhile our Waukegan community continues to suffer and Lake Michigan continues to be threatened while awaiting these much-needed federal protections,” Taylor said. “We hope today’s Supreme Court denial of stalling by the coal industry will lead to the cleanup that our public deserves.”
Ortiz said since NRG acquired the Waukegan plant after the 2015 rule was put in place, it claimed it was not bound by the rule. She believes the company is required to remove the legacy coal ash since it knew it was there at the time.
“They don’t feel they are responsible,” Ortiz said.
Ann Duhon, a senior manager of generation communications for NRG said in a text Friday the company chose not to comment.
The Eastern Kentucky case will be decided by the United States Court of Appeals for the District of Columbia Circuit.
Though the EPA rule governs the legacy coal ash deposits in Waukegan, Ortiz said it does not control the remediation of two coal ash ponds on the NRG property, which are currently under the governance of the Illinois Environmental Protection Agency.
Currently, NRG proposes to cover the ponds but not remove them as environmental groups, Taylor, state Sen. Adriane Johnson, D-Buffalo Grove, and state Rep. Rita Mayfield, D-Waukegan, want.
Mayfield has legislation pending in the state legislature requiring the removal of all coal ash ponds along Lake Michigan. She said she is five votes shy of a majority. She hoped to get it passed in the closing days of the 103rd Illinois General Assembly, but it is not likely.
“Everyone is worried about what’s going to happen at the federal level,” Mayfield said. “I’m already getting ready to introduce it in the next session.”
