On August 13 the Illinois Pollution Control Board (“IPCB”) held the first of two scheduled hearings on the Illinois Environmental Protection Agency’s (“IEPA”) proposed rule for mitigating and remediating coal ash ponds throughout the state.[1]

Coal combustion residual surface impoundments, known commonly as coal ash ponds, are repositories for the potentially harmful byproducts of coal-powered electric generation facilities.[2] Absent proper mitigation efforts, pollutants that collect in coal ash ponds can seep into and contaminate the surrounding groundwater.[3]

The hearings mark the final stage of a years-long process to change how industry and state regulators manage coal ash ponds. A 2018 report by a coalition of environmental organizations found that 22 of the 24 coal ash ponds in Illinois have released toxic pollutants, including arsenic, cobalt, and lithium, into the groundwater.[4]  In the wake of these findings, Illinois Governor J.B. Pritzker signed the Coal Ash Pollution Prevention Act (“Act”) into law.[5] The Act prohibits the discharge of coal ash into the environment and directs IEPA to propose a rule for the design, operation, and—when necessary—closure of coal ash ponds.[6] IEPA solicited public comments on the rulemaking during fall 2019 and submitted its draft rule to IPCB on December 11, 2019.[7] After receiving written comments on the draft rule, IEPA released the proposed rule on March 20.[8]

The proposed rule creates a new Part 845 in Title 35 of the Illinois Administrative Code, and is, at a baseline, at least as protective as U.S. EPA’s federal regulations governing coal ash ponds.[9] But stakeholders and environmental experts called for more comprehensive oversight and regulation in the proposed rule.[10] Specifically, the Environmental Law & Policy Center, Prairie Rivers Network, and Sierra Club argued that the proposed rule should contain a clear policy that coal ash ponds cannot come into contact with other water sources.[11]

Citing the danger posed by the cross-contamination of water sources, the environmental groups proposed the following revisions: (1) that the base of a surface impoundment be no less than five feet above the highest groundwater elevation, (2) the addition of a new section that prohibits new or existing impoundments in floodplains, and (3) a prohibition of intermittent, recurring, or sustained hydraulic connection between the coal ash ponds and ground or surface water.[12]

Industry representatives, on the other hand, claim that the proposed rule is “substantially and unnecessarily more restrictive than the [federal Coal Combustion Residuals] rule”[13] and warn that additional regulations could imposes significant costs on owners and operators of coal ash ponds.[14] Industry comments may prove particularly timely, as the U.S. EPA announced on August 31 it is rolling back federal coal ash regulations by extending compliance deadlines and allowing certain generators to opt out of the requirements entirely, among other regulatory relaxations.[15] IPCB will hold the second virtual hearing on September 29, 30, and October 1,and must adopt the proposed rule by March 30, 2021.[16]

[1] Kari Lydersen, Illinoisans demand stricter coal ash rules, denounce state proposal, Energy News Network (Aug. 14, 2020), https://energynews.us/2020/08/14/midwest/illinoisans-demand-stricter-coal-ash-rules-denounce-state-proposal/.

[2] Coal Combustion Residual Surface Impoundments, Ill. Envtl. Prot. Agency, https://www2.illinois.gov/epa/topics/water-quality/watershed-management/ccr-surface-impoundments/Pages/default.aspx (last visited Sept. 2, 2020).

[3] Earthjustice, Prairie Rivers Network, Environmental Integrity Project & Sierra Club, Cap and Run: Toxic Coal Ash Left Behind by Big Polluters Threatens Illinois Water (Nov. 27, 2018), https://illinoiscoalash.files.wordpress.com/2018/12/ilcoalashreport_capandrun.pdf.

[4] Id. at 3.

[5] Alex Ruppenthal, Illinois Becomes Latest State to Crack Down on Coal Ash Pollution, WTTW (July 31, 2019), https://news.wttw.com/2019/07/31/illinois-becomes-latest-state-crack-down-coal-ash-pollution.

[6] See 415 ILCS 5/22.59 (2019).

[7] Ill. Envtl. Prot. Agency, supra note 2.

[8] Id.

[9] Id.; see 40 C.F.R. § 257.50-107 (2020).

[10] Initial Public Comments of Environmental Law & Policy Center, Prairie Rivers Network, and Sierra Club at 6–7, In re Standards for the Disposal of Coal Combustion Residuals in Surface Impoundments: Proposed New 35 Ill. Adm. Code 845, R20-19 (filed June 15, 2020), https://pcb.illinois.gov/documents/dsweb/Get/Document-102410.

[11] Id.

[12] Id.

[13] Dynegy’s Prefiled Testimony at 11, In re Standards for the Disposal of Coal Combustion Residuals in Surface Impoundments: Proposed New 35 Ill. Adm. Code 845, R20-19 (filed Aug. 27, 2020), https://pcb.illinois.gov/documents/dsweb/Get/Document-102866.

[14] Id.

[15] Lisa Friedman, E.P.A. Relaxes Rules Limiting Toxic Waste From Coal Plants, N.Y. Times (Aug. 31, 2020), https://www.nytimes.com/2020/08/31/climate/trump-coal-plants.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Issue:%202020-09-01%20Utility%20Dive%20Newsletter%20%5Bissue:29407%5D&utm_term=Utility%20Dive.

[16] Ill. Envtl. Prot. Agency, supra note 2.