Update (11/19/18): A judge has dismissed the lawsuit against Dynegy that states that its coal ash pits along the Vermilion River violate the Clean Water Act. Judge Colin Bruce ruled that although contaminants in the waterway are a serious problem, the Clean Water Act applies only to surface water, not to groundwater. Groundwater regulation, he said, is up to the state.
Jenny Cassel, an attorney for Earthjustice, which filed the suit on behalf of the Prairie Rivers Network, says the fight is not over, stating, “We hope Illinois will take that obligation very seriously and protect the Vermilion River and communities downstream.”
To walk to the Middle Fork of Illinois’s Vermilion River, you pass through fields, plants as high as your shoulders, and stands of trees whose branches are laced with spiderwebs. When Andrew Rehn, a water resources engineer for Prairie Rivers Network, and I finally arrive at the shore on a steamy July day, the current lethargically rolls over the sandy bottom. The Middle Fork’s water is clear. It’s also low—the reason we decided to walk rather than paddle there.
Flowing south from the town of Oglesby to Danville, this 17-mile stretch is the state’s only National Wild and Scenic River, a National Park Service designation that protects the waterway’s water quality and ability to flow freely. The Middle Fork of the Vermilion earned this special status because of its flora and fauna, a unique blend of endangered blue-breasted darters and silvery salamanders, as well as kingfishers, bald eagles, prairie shooting stars, and black and white oak trees, to name a few. A marsh once drained into the river, but now protected state land surrounds the waterway—a riverine oasis at the center of a corn and soybean sea.
As we trudge through the warm, knee-deep water, my gym shoes filling with sand, fish turn this way and that ahead of my feet. Then Rehn points to a section of shoreline colored an unnatural orange and purple. Water drips from the sandstone shore, its vibrant rivulets joining with the clear currents we’re walking in. This spot is the only land along the river’s designated stretch that’s privately owned. The newest owner is Vistra Energy, and its massive coal ash pits, filled with 3.3 million cubic yards of power plant waste, taint the groundwater that passes through them with chromium, lead, boron, and other heavy metals before it enters the Vermilion.
The pollution seems to never stop dribbling into the river, Rehn says. He’s visited the site eight times this year, and the pollution has been flowing each time. “It’s like keeping the faucet on,” he says of Vistra as he looks down the bank. Farther along the shore, rocks held in cages, known as gabions, once held the shoreline in place, but over time they’ve broken and spilled their stones down the bank. As a result, the river now meanders closer to the coal ash pits. A report produced for the energy company last year shows that the river is eroding more than two feet of its bank each year, and it’s currently just 19 feet from one of the pits.
A 2014 report written by the Illinois Natural History Survey for Prairie Rivers Network showed elevated levels of boron and manganese in samples of the Vermilion taken close to the coal ash ponds. Boron can affect growth and reproduction in sensitive organisms, while manganese can cause neurological harm in humans and wildlife. Not good news for the river’s celebrated ecosystem.
Thanks to recent moves by the Trump administration, no federal law currently requires companies to do anything special with their coal ash, but that hasn’t stopped Illinoisans from standing up for their one-and-only designated scenic river. To hold Vistra accountable for its toxic metals seeping into the waterway, the nonprofits Prairie Rivers Network and Earthjustice filed a lawsuit in May to force the energy company to clean up its mess and keep the river—a canoeing and kayaking destination for up to 10,000 people a year—clean.
Under the Clean Water Act, individuals can sue polluters for violating the law, but they first must file intent to sue and give the company 60 days to respond. (Vistra, which did not respond to a request for comment, is currently in that waiting period.)
The Illinois EPA also cited Vistra last month for violating the Clean Water Act and Illinois Pollution Control Board standards. (The agency did not respond to a request for comment either.) Vistra, which merged with the site’s former owner, Dynegy, earlier this year, could take a number of actions to address both the citizens’ and the state’s concerns, including sealing currently unsealed impoundments and moving the waste elsewhere. So far, Vistra has only proposed adding gabions to the site to prevent further erosion. Conveniently, those additional gabions might also keep onlookers from seeing the company’s psychedelic pollution trickle from the riverbank.
After two coal ash disasters—one in Tennessee in 2008 (where 1.1 billion gallons of coal ash slurry flowed into the Emory River) and another in North Carolina in 2014 (in which up to 39,000 tons of Duke Energy’s waste contaminated the Dan River)—the Obama administration began regulating coal ash impoundments. Acting EPA administrator Andrew Wheeler has since rolled back those rules, putting oversight back in the hands of those who have already proved incapable of safely storing these toxic messes (or unwilling to). But in either case, since the plant closed before the Obama-era rules went into effect, Vistra’s pits were grandfathered in and have remained under the company’s control.
The Vermilion Power Plant’s three coal ash sites are “a poster child for the very serious gaps that remain in federal regulation addressing these legacy coal ash sites,” says Thom Cmar, an Earthjustice lawyer working on the lawsuit.
Prairie Rivers Network reports that Illinois alone has two dozen sites where coal ash sits near riverbanks, threatening drinking water supplies. But with the Vermilion snaking ever closer to Vistra’s pits, Rehn and other advocates worry that it could become the site of the next disaster.
Pam and Lan Richart, longtime Vermilion River paddlers and founders of the grassroots nonprofit Eco-Justice Collaborative, have been working to bring attention to the issue for the past 11 years. The pair eventually got congressmen on both sides of the aisle involved in the fight, as well as local mayors. In nearby Danville, conservative Mayor Scott Eisenhauer now advocates for a clean river, and the town recently completed a riverfront redevelopment plan.
“A coal ash–contaminated river would end any hopes of boosting tourism through water recreation, and also challenge any financial benefit the river can provide our community,” Eisenhauer says.
As we walk through the water near the coal ash, a defunct smokestack peeking out from behind a hill, we churn up sand that brings a red hue to the surface. Clambering up the bank for the trek back, I steal one last look at the lazy, beautiful river. It’s a world away from Washington and the statehouses, but the Vermilion—and all that it sustains on the Illinois plains—certainly deserves its day in court.
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