NEWTOWN — It's not yet clear whether this week's legislation making Illinois the third state in the nation to require significant coal-ash protections beyond federal requirements will actually apply at the the former Vermilion Power Station property where toxic coal ash sits along the Middle Fork River, threatening that National Wild and Scenic waterway.
There's no simple "yes" or "no," according to those who have been most involved in writing and supporting the legislation, which currently sits on Gov. J.B. Pritzker's desk awaiting his signature.
"We don't know," said Andrew Rehn, director of the Prairie Rivers Network, one of the nonprofit organizations fighting for the removal of coal ash at the Vermilion County site.
"It isn't a slam dunk," said Lan Richart with Eco-Justice, a nonprofit that has also advocated for years for complete removal of the coal ash impounded upstream of Kickapoo State Park.
Basically, it depends on many things, according to Jennifer Cassel, an attorney with Earthjustice, a national nonprofit environmental law organization that has been pursuing protection of the Middle Fork through federal legal channels.
"It is the poster child for problems coal ash poses," Cassel said of the Dynegy site, adding that it was a major motivator for the legislation sponsored by state Sen. Scott Bennett, D-Champaign, and supported in the House by state Rep. Carol Ammons, D-Urbana.
The reason there is no simple answer, at this point, is the legislation goes into effect immediately upon the governor signing it, which is fully expected to happen, according to Bennett, but there are dates in the bill regarding which sites will fall subject to it.
The idea, according to Cassel, was to be fair to property owners who are already in the midst of cleaning up and closing coal-ash sites around the state.
"So they wouldn't have to start over," she said.
So the bill contains language providing exceptions for those that have submitted a closure plan to the state by May 1, which Dynegy has done for the Vermilion site. But property owners must also finish their closure plan within 24 months of the effective date of the legislation for them to fall under the exception.
That second part is the unknown for Dynegy, which has not yet started executing a closure plan at the Middle Fork site.
"Will this squeeze into that small window?" Rehn asked, adding that he doesn't believe Dynegy is likely to have a closure plan accepted and executed within that two-year window. "So I think in the end, it will end up covering Vermilion."
And other factors likely will affect whether Dynegy makes the window.
In March, the Illinois Environmental Protection Agency referred the Dynegy site to the state attorney general for enforcement action, asking that office to enforce three actions — closure of the coal-ash pits, stabilization of the eroding riverbank separating the pits from the waterway, and payment of a fine for past violations at the site.
Later that month, Earthjustice, on behalf of Prairie Rivers Network, filed a complaint 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 groundwater and the river.
Both legal matters are ongoing.
Richart said that even if the Dynegy site doesn't fall under the new legislation, he believes the Illinois Attorney General's office and courts may apply the same principles spelled out in it to the property.
Rehn agreed, saying the courts will likely be aware of SB 9, so they wouldn't move forward with orders that are not compliant with the legislation.
Richart said that in his opinion, he expects the IEPA and attorney general's office would apply the legislation's basic principles, including public input on the closure plan, financial assurances from Dynegy to pay for cleanup and closure, and serious consideration given in the closure plan to removal of the coal ash from the three pits along the Middle Fork, rather than capping them and leaving the ash in place.
"I think the act is still a great victory," Richart said, adding that it lays out some solid principles in regard to coal ash and will establish some rules for the state that will apply to a number of site closures in the future.