On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.
According to the complaint, the primary defendant, Hilco Redevelopment, purchased the coal plant in 2017, five years after the plant was shut down. Hilco planned to redevelop the as a warehouse, hired contractors to demolish the smokestack, and obtained a demolition permit from the city. Its contractors developed a demolition plan, and Hilco set a date of April 11, 2020 for bringing down the stack. It circulated a community notice of the demolition two days prior to demolition, with assurances that Hilco would have dust control and mitigation measures in place.
The Illinois Attorney General now has alleged that Hilco and its contractors did not, in fact, take measures needed to prevent the demolition from spreading a cloud of dust across the local community which already was a state-designated area of concern for environmental justice. Although the city had separately cited the defendants for violating demolition ordinances, the Attorney General asserted its own claim for violating the State’s broad prohibition on “air pollution,” defined as emissions that can injure health, damage property, or unreasonably interfere with property use. Ill. Adm. Code tit. 35, §§ 201.102, 201.141.
The basis of the Attorney General’s claim is the impact of particulate matter/dust on human health. Of note to utilities and other companies planning demolition projects, the complaint also cites “historic exposure” to stack emissions as an aggravating aspect of the dust, as well as the fear of hazardous constituents being present in the dust cloud. Also, in a sign of the times, the complaint contends that the impact of the demolition was exacerbated by the need for the public to shelter in place during the current pandemic.
The complaint seeks an order requiring Hilco and its contractors to undertake all necessary corrective action to remediate any contamination caused by its. It also seeks a civil penalty of up to $50,000, plus up to $10,000 for each day until corrective action occurs.
This action illustrates the significant compliance scrutiny that stack/plant demolitions may face, especially in urban areas. Practically speaking, it is impossible to avoid generating some amount of fugitive dust during large-scale demolition activities, but companies should ensure that: (1) a detailed and effective dust suppression plan is in place prior to any planned demolition; (2) regulators and the public are given advance notice of significant demolition activities before they occur; and (3) compliance with the dust control plan is carefully documented during demolition activities and can be provided to regulators if requested.