Illinois Passes Landmark Coal Ash Legislation

Illinois on May 27 became the third state in the nation to pass legislation requiring coal ash protections beyond federal requirements. 

The state’s House passed the Coal Ash Pollution Prevention Act (SB 9) in a 77-36 vote on Monday, only weeks after Senate passage of the bill in a 39-9 vote on May 9. The bill, sponsored by State Sen. Scott Bennett (D-Champaign) and State Rep. Carol Ammons (D-Champaign), now proceeds to Gov. J.B. Pritzker’s (D) desk, where it will likely be signed into law. 

SB 9, which environmental groups lauded as a “groundbreaking bill,” amends the Illinois Environmental Protection Act by acknowledging that “[Coal combustion residuals (CCR)] generated by the electric generating industry has caused groundwater contamination and other forms of pollution at active and inactive plants throughout this [s]tate.” 

Though it outlines some exceptions, the bill essentially prohibits the discharge, directly or indirectly, of any contaminants from a CCR surface impoundment into the environment. Under the bill, generators also cannot construct, install, modify, operator, or shutter any CCR surface impoundments without a permit from the Illinois Environmental Protection Agency (ILEPA). Permits must comply with the federal Resource Conservation and Recovery Act (RCRA). 

The bill also specifies that before closing a CCR surface impoundment, generators must submit a “closure alternatives analysis” that surveys all closure methods considered. However, generators who have submitted closure plans to the agency before May 1, 2019, or completed closure two years before that date, won’t need a construction permit, it says. 

It also stipulates that for-profit generators must post an agency-approved “performance bond” or other security to ensure companies have the funds to close and maintain CCR surface impoundments, or remediate releases from the impoundments. Meanwhile, the bill also sets hefty fees of $50,000 for each closed CCR surface impoundment and $75,000 for each CCR surface impoundment that hasn’t yet closed—as well as annual fees ranging from $15,000 to $25,000 per impoundment. The fees will be deposited into the state’s “Environmental Protection Permit and Inspection Fund.”

Finally, the bill also calls on ILEPA to propose—within eight months after the bill’s enactment—rules establishing construction and operating permit requirements, and design standards. 

The bill’s passage was hailed as an environmental victory by the Sierra Club. The group on Tuesday noted that Illinois has the highest concentration of coal ash impoundments in the country, pointing to a recent report from the Environmental Integrity Project (EIP) that found 22 of 24 coal ash sites in the state have unsafe levels of toxic pollutants in groundwater. The EIP report, which surveyed thousands of individual power company results from initial groundwater monitoring (as required by the federal coal ash rule), estimated that 91% of coal power plants that submitted data had unsafe levels of contaminants. 

When the bill is signed, Illinois will join Virginia and North Carolina in addressing coal ash through state-level legislation. North Carolina enacted the nation’s first comprehensive coal ash management law in September 2014. This April, North Carolina officials ordered Duke Energy to excavate all its coal ash storage ponds in the state, saying the utility’s current plan for its coal ash sites does not sufficiently protect groundwater. Meanwhile, in January 2019, legislators from both sides of the aisle passed a law to require the complete excavation of more than 28 million tons of coal ash at Dominion power plants in Virginia. 

[For more on utility efforts to meet state and federal coal ash regulations, see: “Cleanup and Closure Projects on a Massive Scale,” in POWER’s December 2018 issue.]

Since its introduction in January 2019, Illinois’ SB 9 has gained several proponents, among them a bevy of environmental and citizen groups. It has also been opposed by a long list of businesses, including power companies like Vistra Energy, NRG Energy, City Water Light & Power, and Prairie State Generating Co. Other opponents include the Illinois Energy Association, the International Brotherhood of Electrical Workers, the Illinois Manufacturers’ Association, a handful of waste and recycling groups, cement and concrete promotion groups, and the Illinois Coal Association. 

Some opponents argued that new regulations for coal generators could further dent coal plant economics, as well as demand for the state’s vast coal resources. While coal from the Illinois Basin underlies 65% of the state, and the state had 34 coal-fired power generating units at the end of 2018, it must compete with low-sulfur Powder River Basin coal, which is much cheaper.   

However, NRG Energy, which owns three coal plants in Illinois—the 1.5-GW Powerton plant, two units at Waukegan with a total 682 MW, and the 510-MW Will County plant—noted more action on coal ash regulation was likely. “We are reviewing what was passed in the House [on May 27] and understand that there is expected to be a trailer bill developed this summer in anticipation of the veto session to address outstanding items raised during the deliberation about the bill,” David Knox, NRG spokesman, told POWER on May 28. “As always, we intend to comply with all applicable rules and regulations.”

Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine).