Lawsuit: Unregulated coal ash poses a buried, brewing threat to Lake Michigan and beyond

The Record is republishing this story in coordination with the Energy News Network. This story is part of a 12-part investigation by the Chicago Investigative Project in the graduate program at the Medill School at Northwestern University.

At almost 300 sites on the Great Lakes and coast to coast, unregulated buried and landfilled coal ash is putting water supplies at risk, alleges a federal lawsuit filed Aug. 25. 

This threat is in addition to contamination from up to 700 coal ash repositories that are covered by 2015 federal coal ash rules. The Environmental Protection Agency this year began enforcing these rules after years of inaction, but environmental groups in Illinois, Indiana, California, Tennessee and Washington, D.C., that filed the new lawsuit are demanding the agency close the loophole that exempts inactive landfills and buried coal ash from the rules. 

They note that data reported by companies themselves shows that three-quarters of active coal ash landfills covered by the regulations are polluting groundwater with toxic compounds like arsenic and lithium. The lawsuit notes that inactive landfills are much less likely to be lined, hence the risk of contamination is likely even higher. 

The lawsuit is based in part on analysis of a trove of documents that companies filed with the EPA’s Office of Water in 2010. Earthjustice, the law firm representing the plaintiffs, says that along with pits constructed specifically to store ash, ash scattered or mixed with soil should legally qualify as a landfill and should be regulated. 

They say such ash produced from burning coal for power in decades past poses a serious risk to groundwater and water bodies at places like Waukegan, on the shores of Lake Michigan in northern Illinois, and Michigan City, Indiana, on the lake’s southern shore. 

“Before there were any regulations whatsoever for this stuff, they just kind of dumped it anywhere,” said Jenny Cassel, an attorney at Earthjustice. “Near the coal plants, particularly next to the rivers, they would just find depressions in the ground or dig them and throw coal ash in.” 

The lawsuit, filed in federal district court in Washington, D.C., demands that the EPA review the federal rules on coal ash, and add regulation of inactive landfills. Currently, coal ash ponds at coal plants that closed before 2015 are also exempt from the federal rules, but a 2018 federal appeals court decision means the EPA is mandated to draft regulations for such “legacy ash” ponds. 

The EPA anticipates releasing proposed rules for these legacy ponds later this year, according to an EPA spokesperson, and the agency has received public comment on the rule-making. Earthjustice attorney Lisa Evans said advocates want the EPA to move more quickly on regulating legacy coal ash ponds, and they hope the lawsuit will force the agency to add inactive landfills to regulations as well. 

“Coal ash stored on the shores of the Great Lakes poses unreasonable risks to the drinking water of millions and to the health of our irreplaceable water resources,” Evans said. “For decades these companies knew that hazardous chemicals were leaking out of their unlined dumps, but they did nothing to stop it and everything to hide the damage.” 

A beach foregone

Children and dogs ran across the sprawling municipal beach in Waukegan on an overcast Saturday morning in April. A kite sailed through the sky, wind generated breaking waves, and just north of the beach, visitors could catch a clear glimpse of the three looming towers of the coal-powered Waukegan Generating Station.

Community members regularly head to the beach in the summer to cool off and spend time with their families somewhere that’s free, Waukegan resident Dulce Ortiz said. Yet she rarely visits the beach and won’t allow her children to go in the lake because she’s worried about pollution from the area’s heavy industry, including the tons of coal ash stored near the power plant owned by Midwest Generatio, a subsidiary of NRG Energy.

“It’s sad because [the lake] is something that we can see, but we can’t touch,” said Ortiz, co-chairperson of Waukegan-based environmental justice organization Clean Power Lake County. “I just don’t want to risk it. I don’t want my kids playing in that water.”

Waukegan is one of more than 700 sites nationwide — and the only identified in the northern suburbs — where toxic coal ash from coal-fired power plants poses a serious contamination risk to groundwater, lakes and rivers. Coal ash contains heavy metals such as arsenic and lead that can leach or spill into water. A federal rule adopted in 2015 mandates that companies monitor groundwater around coal ash ponds and develop plans for their safe closure. 

But the 2015 rule doesn’t cover coal ash ponds closed before that year or ash that was scattered throughout coal plant sites, often mixed with dirt or sand and used to build up lakeside land — as at Waukegan. Advocates fear such “legacy” or historic ash causes a particular risk to the Great Lakes and other water sources, but currently there are no federal regulations governing it. 

In 2018, a federal appeals court ordered the Environmental Protection Agency to add legacy ash impoundments to the rules; it is not clear how much progress the agency has made or how it will define ash that is covered. In May, national and local environmental groups, including the Waukegan-area organization Clean Power Lake County, filed a notice of intent to sue the EPA. They say the agency has failed to manage the risk posed by legacy coal ash at sites — including Waukegan — owned by Midwest Generation and by the Tennessee Valley Authority. 

The notice estimates approximately 140 legacy ash ponds have escaped regulation because of the exemption.

The EPA anticipates releasing proposed rules for legacy surface impoundments later this year, according to an EPA spokesperson, and the agency has received public comment on the rule-making.

In addition to those legacy coal ash ponds, experts figure that many coal plant sites have tons of coal ash scattered and piled in the ground, deposited in decades past with little documentation or oversight. It’s unlikely the rule updates the EPA is currently working on will cover such scattered historic coal ash. 

Erosion and contamination

The Waukegan coal plant is scheduled to close this year, the latest of many coal plants in Illinois and nationwide that have become uneconomical. Many residents and activists have cheered the closure, but they fear the coal ash will make it hard to revitalize the lakefront. 

The plant’s current units have been operating since 1958 and 1962, and two ponds onsite hold coal ash deposited over the decades. It appears coal ash was also scattered across a nearby area, according to an expert report and NRG’s own filings, and that ash is not covered by the federal rules. 

A strip of land just over 1,000 feet wide separates the Waukegan station’s active coal ash ponds from Lake Michigan. According to a 2018 NRG report, the groundwater is flowing southeast toward the lake, which provides drinking water to Waukegan residents and over 10 million people in the Midwest. Advocates fear coal ash pollution could be flowing into the lake. 

Groundwater monitoring required by the federal rules has shown contamination around the Waukegan coal plant — almost 400 times since 2010, according to the notice of intent to sue.

“Groundwater contamination has been happening at these sites for over a decade, the agency has been involved, but no regulatory body has put an end to it,” said Christine Nannicelli, who leads the Sierra Club’s Beyond Coal Campaign in Illinois.

Coal ash scattered throughout a coal plant site can actually relieve companies of dealing with pollution from even the coal ash ponds that are covered by federal rules, environmental experts say, since companies often argue that groundwater contamination is due to the historic ash and hence not their responsibility. 

NRG made this argument about contamination found at the Waukegan site, noting in documents filed under the federal rules that there likely was coal ash mixed into the elevated berms around the ponds, and ash was found in the ground when groundwater monitoring wells were dug.

The Illinois Pollution Control Board determined in 2019 that the historic scattered ash was indeed “more likely than not” a cause or contributor to the site’s groundwater contamination. In some places, the ash used as fill was found as deep as 22 feet below the surface.

While experts think the historic ash at Waukegan is contaminating groundwater, some also worry that erosion could eventually put land laced with coal ash at risk of collapsing directly into the lake. The ash is a “ticking bomb,” Ortiz said. 

“It’s too close for comfort. I’ve seen the erosion happen in the last 10 years, which has been pretty dramatic.”

North of Waukegan, the lake’s shoreline erodes as much as nearly 10 feet a year, according to the U.S. Geological Survey. Increasingly extreme lake levels and storms exacerbated by climate change could also lead to a spill, according to a report from the Environmental Law and Policy Center, which identified Waukegan as a hotspot for flooding and erosion risk. 

Coal ash is just one of numerous environmental justice issues facing Waukegan, about 40 miles north of Chicago. Within a 2-mile stretch of the Waukegan shoreline, there are four federally recognized Superfund toxic waste sites with ongoing cleanup efforts by the EPA.

Just across a two-lane road from the coal plant, chain-link fences block off a field contaminated with asbestos. A fifth Superfund site is located in the middle of the city directly next to a nursing home, multiple apartment complexes, a church, and small businesses. Community leaders want NRG to clean up all the coal ash, not just the ponds covered by the federal rules, so that it doesn’t become another environmental liability for years into the future.  

“We just don’t want to be left with another Superfund site,” said Eduardo Flores, a Waukegan resident and co-chairperson of Clean Power Lake County.

More than 70 percent of Waukegan residents are Latino or Black, and almost 30 precent are immigrants, according to U.S. Census data. More than 15 percent of households live below the poverty line.

Indiana: Legacy ash in a coal state 

One hundred miles down Lake Michigan’s coast from Waukegan sits the Michigan City Generating Station in Northwest Indiana. Its cooling tower — resembling a nuclear plant rather than a typical coal plant — releases billowing plumes of steam over homes and local churches.

Like Waukegan, Michigan City is a working-class industrial community where a coal plant has long caused pollution, and coal ash poses a threat that could last long after the coal plant closes. Thirty percent of residents are Black and poverty rates are 12 percent higher than the national average, according to U.S. Census data. 

The station’s coal ash ponds are covered by the federal rule and the ash is currently being removed.

But in years after the plant opened in 1931, a mixture of coal ash, sand and soil was used to fill in the space behind steel walls buffering the site from Lake Michigan. In all, about 2 million cubic yards of coal ash sit below the coal plant in a mixture of sand and soil up to 40 feet deep in places, according to an export report and company documents. In documents, NIPSCO calls this “made land.” To activists and environmental organizations, it’s a disaster waiting to happen. 

Indra Frank, the environmental health and water policy director at Hoosier Environmental Council, said the steel seawalls holding the ash-laden land back from the lake have a finite lifespan. The seawalls, which sit in a flood plain, are at least 70 years old. 

“Service life span for steel brake-wall piling can be 50 years or more,” NIPSCO wrote in response to public comments on its proposal for closing ash ponds.

A study by Kirk Engineering and Natural Resources commissioned by Earthjustice confirms the steel is “aging” and that the coal ash fill is “at risk of catastrophic release” if the seawall continues to deteriorate or a flood occurs. 

“It’s only a matter of time before that sea wall will fail and we’ll have a spill,” Frank said. “And once there’s a spill, it’s basically impossible to recover.”

NIPSCO spokesperson Nick Meyer said the company is keeping tabs on the situation.

“Those walls are regularly monitored and inspected both by NIPSCO and third-party professional engineers,” he said by email. “If recommendations are made based on inspection from either our internal professionals or our third-party partners, NIPSCO would schedule mitigation measures.” 

In addition to the aging seawall, residents are concerned with groundwater contamination caused by coal ash. Data shows contaminants like arsenic are migrating toward Trail Creek stream and Lake Michigan. Contaminated water and sediment can work their way up the food chain and accumulate to dangerous levels in fish. Ashley Williams, executive director at Just Transition Northwest Indiana, said the contamination presents a risk to the many people who fish near the plant and along Trail Creek. 

Williams is intimately familiar with living in a town with untouchable water. She grew up in Ottawa, Illinois. 

Nicknamed Radium City, Ottawa was home to two radium dial painting companies, which employed women to paint watch dials using radioactive paint. Designated as a Superfund site, the city uses reverse osmosis to remove radium from its groundwater. 

Now a resident in Michigan City, Williams said she is determined to protect the water of Lake Michigan and its tributaries.

“We have a sacred duty to protect it at all costs — certainly for us, as well as for future generations,” she said. 

In April, NIPSCO began excavating and removing the plant’s five coal ash ponds that are covered by the federal rule. NIPSCO does not intend to remove the scattered legacy ash from the site. 

The plant is set to retire between 2026 and 2028. NIPSCO has yet to announce plans for the space following the plant’s retirement, but Ashley Williams hopes residents have a say. She envisions a community space filled with nature for the local youth — “a beacon of hope.” But if the removal does not include legacy ash, residents wonder whether it will be safe to use the space. 

A cautionary tale

To highlight the dangers of historic coal ash, advocates point to the Indiana beachfront community Town of Pines, where coal ash from the Michigan City plant five miles away has wreaked havoc on residents’ lives and property.

Cathi Murray moved to the Town of Pines from the Rogers Park neighborhood of Chicago in 1990 with her husband to start a family. They loved the proximity to Lake Michigan and the Indiana Dunes, later named a national park. 

They didn’t know that NIPSCO had been dumping coal ash for decades into a nearby landfill, or that coal ash was used as fill in residential yards and roads right in town. Toxins, including high levels of boron and molybdenum, leached into the aquifer, a frightening development since the residents relied entirely on private wells tapping groundwater. 

In 2004, the EPA declared the Town of Pines a Superfund site because of groundwater and soil contamination. 

“We thought we found our dream place to live, and it turned out to be our worst nightmare,” Murray said.  

After the contamination was discovered, residents began drinking bottled water but had to continue using well water to wash their dishes and shower. Years later, NIPSCO connected homes to Michigan City municipal water.  

“It was pretty stressful because you’re worried,” Murray said. “I have two daughters — one had a rare bowel disorder and one is hearing impaired. Did me drinking water when I was pregnant with them, when I was nursing them, did that cause any of this?”  

Murray, who served on the town council for 16 years, said she has observed disproportionate levels of thyroid and respiratory issues among residents; Murray herself has had a thyroid tumor removed. 

In March, NIPSCO began an $11.8 million cleanup in accordance with a federal consent decree, which calls for the utility to dig up and replace contaminated soil near homes and businesses. NIPSCO must also monitor nearby groundwater and wells to ensure contamination does not spread. 

But Murray said NIPSCO is replacing only three feet of topsoil, which she believes is not enough. To this day, according to Murray, 38 homes in a town of fewer than 600 residents are still on private wells. And in a town with a median property value of $100,400 and a median income of $47,000, Murray said residents don’t have the means to move away, especially since the Superfund designation would make their homes hard to sell. 

Meyer said by email that groundwater monitoring has shown no additional homes need to be connected to municipal water, and the company will continue monitoring. 

“They’re not cleaning it up,” Murray said of the utility. “They’re covering it up.” 

Fighting and hoping for change  

On the Middle Fork of the Vermilion River, Illinois’ only National Scenic River, the banks are stained orange. Three unlined, eroding impoundments hold coal ash equivalent in volume to two and a half Empire State buildings. This legacy coal ash is not covered by the federal rules, since the coal plant closed in 2011. 

Last year, the Illinois attorney general filed suit against Dynegy Midwest Generation, now owned by Vistra Corp., alleging seeps from the ash were contaminating the river. As a result, Vistra proposed to remove its 3.3 million cubic yards of legacy ash from the riverbank, the largest ever coal ash removal project in the state. 

The state government took action after years of activism and lawsuits from local residents and organizations, a sign that public pressure can eventually pay off. 

“This is a solution that we’ve been advocating for a really, really long time, and we got it,” said Andrew Rehn, water resources engineer at the Prairie Rivers Network. “So in many ways, this is just a huge win.”

The Vermilion example and advocacy by the Prairie Rivers Network and other downstate Illinois groups were crucial to the state legislature ultimately including legacy ash impoundments in the state’s coal ash law, passed last year. But the law doesn’t cover historic ash scattered around sites. 

The Illinois Pollution Control Board has opened a sub-docket wherein comments were submitted this summer about adding historic, scattered ash to the state rules.

“Frankly, how protective [is] this agency going to be?” Nannicelli asked. “How much do they listen to community voices?”

Locals in Waukegan have grand plans for what their lakefront could become if the historic coal ash is removed and the site fully cleaned up.

“One of the things you will hear when you talk to people about Waukegan is the word ‘potential,’” said David Villalobos, a former alderman in Waukegan who made the coal plant central to his campaign and work. 

Once the plant closes and the site is cleaned, Villalobos envisions a community space with a restaurant and brewery where patrons can grab a locally crafted beer. He sees bike and dog trails snaking through the open land, and possibly a baseball diamond.

Flores similarly wants to “reclaim that land and have it for the community.”

He imagines creating a wildlife reserve for birds.

“I do have hope that someday in the future, hopefully sooner rather than later, we are able to live in a coal ash-free community,” Flores said.

Reporter Kari Lydersen contributed breaking news reporting to this article, which was written prior to the announcement of the August 25 lawsuit.

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