December 12, 2013
CHICAGO – U.S. Bankruptcy Court Judge Jacqueline P. Cox ruled that the Environmental Law & Policy Center’s groundwater contamination case against coal plant operator Midwest Generation can continue and “has a reasonable likelihood of prevailing on the merits.” In the order issued late Wednesday, Judge Cox lifted the bankruptcy court’s stay and held that public health concerns necessitate advancing the case now, rather than waiting until the company’s bankruptcy is fully sorted out.
The Illinois Pollution Control Board should now determine Midwest Generation’s responsibility and liability for cleaning up any groundwater contamination caused by the coal plants.
“This decision makes clear that Midwest Generation is responsible for paying the costs for cleaning up its groundwater pollution and shouldn’t stick taxpayers with the harm and the bill,” said Howard A. Learner, Executive Director of the Environmental Law & Policy Center (ELPC).
In a case before the Illinois Pollution Control Board, ELPC and co-plaintiff environmental groups contend that coal ash ponds at Midwest Generation’s Waukegan, Joliet, Pekin and Romeoville plants polluted surrounding groundwater with dangerous pollutants, including arsenic, lead, mercury and selenium. The case was originally filed on October 3, 2012, before the Pollution Control Board. Two months later, an automatic stay was imposed when Midwest Generation declared bankruptcy.
Judge Jacqueline P. Cox of the U.S. Bankruptcy Court for the Northern District of Illinois found that ELPC has standing in the bankruptcy case, ordered that the stay be lifted, and concluded that “ELPC has a reasonable likelihood of prevailing on the merits” in the case before the Pollution Control Board.
ELPC Senior Attorney Faith Bugel welcomed the news: “For the communities that are impacted by the pollution, this decision is a tremendous victory because it takes the brakes off of this case. The Illinois Pollution Control Board should to hear this case sooner rather than later.”
The case demonstrates the growing importance of non-governmental environmental groups in bankruptcy proceedings.
“This order recognizes the important role of environmental advocacy groups such as ELPC in enforcing environmental standards when polluters go bankrupt,” said Katherine Stadler, bankruptcy attorney with Godfrey & Kahn, which represented ELPC in the case.