When a power plant burns coal to create energy, it produces coal combustion residue (CCR), often referred to as coal ash. Dry coal ash can go to a landfill, but wet coal ash is typically directed to an on-site impoundment often known as a coal ash pond. CCR contains contaminants such as mercury, arsenic, and cadmium, and may contain other chemicals such as lead, lithium, chromium, and radium. Therefore, there is a risk that the contaminants in coal ash ponds will end up in soil, surface water, or groundwater near power plants if the ponds are not properly managed. Consequently, in 2019, the Illinois General Assembly directed the Illinois Pollution Control Board to adopt rules regulating coal ash ponds. 415 ILCS 5/22.59.
The Board adopted rules establishing requirements for the construction, design, operation, and closure of coal ash surface impoundments in April 2021 (35 Ill. Adm. Code 845). Three utility companies challenged portions of the rules, arguing that the Board exceeded its authority or acted arbitrarily and capriciously—the very deferential standard of review when the Board’s rules are challenged.
On March 13, 2024, the Illinois Appellate Court for the Fourth District issued a ruling upholding the rules governing coal ash ponds. The appellate court disagreed with the challengers and affirmed the Board’s adoption of the first set of statewide standards regulating the storage and disposal of coal ash in surface impoundments.
In affirming the Board’s action, the Court found that the challengers failed to show that the Board did not consider important aspects surrounding the coal ash issues. Further, the Court found that the Board provided sufficient justification for the adoption of the rules. Moreover, the Court ruled that the Board adequately considered the technical feasibility and economic reasonableness of the coal ash regulations before adopting them. Accordingly, the Fourth District upheld the coal ash rules. The utility companies may petition the Supreme Court of Illinois for review, but for now the rules stand.
PartnerMichael P. Murphy is an experienced litigator who focuses on helping clients with environmental issues, both before and after a lawsuit is filed.
He often initially assists clients in their interactions with regulators (such as ...
