MOBILE, Ala.—A federal judge has dismissed a lawsuit against Alabama Power filed by Mobile Baykeepers over the utility’s storage of more than 21 million tons of coal ash, a toxic sludge, in an unlined pit above Mobile Bay.
Mobile Baykeepers, an environmental nonprofit founded in South Alabama, alleges that the state’s largest request is violating federal law by failing to meet environmental needs related to the planned closure of its watershed. coal ash at the Barry plant.
In a 40-page order issued Thursday, a GOP-appointed federal judge dismissed Mobile Baykeeper’s suit without prejudice, writing that the issue is not yet ripe for judicial review.
Thursday’s order also revealed that Alabama Power and the Environmental Protection Agency would begin settlement negotiations on coal ash storage starting this month.
In a statement, Barry Brock, director of the Southern Environmental Law Center’s Alabama office, said that the plaintiffs in the case are considering all options moving forward. Lawyers for SELC represented Mobile Baykeeper in the litigation, which was filed in September 2022.
“We disagree with the court’s ruling and are exploring all features of Baykeeper going forward,” Brock said. “This order ignores the fact that Alabama Power’s coal ash relief allocation at the Barry plant jeopardizes Mobile Bay and meets federal standards. “
Anthony Cook, a representative for Alabama Power, said Thursday afternoon that the company was satisfied with the court’s ruling but had no further comment.
Coal ash is an umbrella term that refers to various wastes generated by the process of burning coal for power generation, technically known as coal combustion residues or RCCs. This waste would possibly include fly ash, residual ash, boiler slag, and desulphurization of combustion fuels. Sludge can contain chemicals that are highly poisonous to humans and animals and destructive to the environment, such as mercury, cadmium and arsenic, according to the EPA.
Often, energy utilities combine these waste materials with water and store them in ponds at or near electrical generating plants, a practice environmental groups have criticized as risking groundwater contamination. Currently, Alabama has nine coal ash disposal sites across the state, most of which are located near waterways.
By 2012, more than 470 coal-fired power plants in 47 states and Puerto Rico had already generated about 110 million coal ash, one of the nation’s largest commercial waste streams, according to the EPA.
In 2015, the company followed a new coal ash standard that offered a number of safe disposal requirements. But a 2019 report by the Environmental Integrity Project and other advocacy teams found that 91% of coal-fired power plants still have ash dumps or waste ponds that leach arsenic, lead, mercury, selenium and other metals into groundwater at harmful levels, threatening waterways. . Arrangement of rivers and drinking water bodies.
Federal law now requires shutdowns of so-called waste coal combustion equipment (RCC) to comply with federal or state requirements that, at a minimum, protect both humans and the environment and federal requirements.
So far, the EPA has approved plans to shut down clusters of CCRs in 3 other states. But EPA officials, after reviewing Alabama’s plan, decided it didn’t even meet the minimum needs set forth in federal law related to groundwater protection, monitoring and cleanup.
In September 2022, Mobile Baykeeper and the Southern Environmental Law Center filed a lawsuit against Alabama Power over its plan to permanently limit coal ash stored at the company’s cellular facility, Plant Barry.
“This citizen enforcement action challenges the unlawful closure plan of Defendant Alabama Power Company to permanently store millions of tons of coal ash and toxic pollutants in an unlined, leaking impoundment at its James M. Barry Electric Generating Plant in Mobile County, Bucks, Alabama,” the suit said. “This plan will continue to impound groundwater and other liquids within the impoundment and will leave coal ash sitting below the water table, where the coal ash will continue to leach pollutants into public waters of the United States and of Alabama indefinitely, all in violation of the Resource Conservation and Recovery Act and the Coal Combustion Residuals Rule, adopted pursuant to the Act.”
Mobile Baykeeper and SELC asked the court to issue a declaratory judgment that Alabama Power is in violation of federal law and order the utility to file a closure plan “that satisfies the requirements of the Act and the Rule by eliminating free liquids from the Plant Barry coal ash; precluding the possibility of future impoundment of water, sediment, or slurry; and eliminating infiltration of groundwater and other liquids into Alabama Power’s coal ash, as required by the CCR Rule.”
Alabama Power has argued in court and at public hearings that its proposed cap complies with federal law.
An executive at Alabama Power, which owns most of the state’s CCR units, told an EPA hearing in September that the company’s garage ponds were “structurally sound. “Susan Comensky, Alabama Power’s vice president of environmental affairs, told EPA officials that allowing the company to “plug” CCR waste on-site, even in unlined pits, will pose significant dangers to human or environmental health.
“Even today, before the closure is complete, we are not experiencing any effects on drinking water resources in or around Alabama Power’s ash ponds,” Comensky said.
However, Alabama Power has been fined several times for dumping coal ash residue into groundwater.
In 2019, the Alabama Department of Environmental Management (ADEM) fined the application $250,000 after groundwater monitoring at a Coosa River landfill in Gadsden revealed increased levels of arsenic and radium, according to regulatory documents.
In 2018, ADEM fined five Alabama power plants a total of $1. 25 million for groundwater contamination, records show. In its fine order, the company cited the utility’s own investigative data on groundwater, which showed elevated levels of arsenic, lead, selenium, and beryllium.
In September 2023, a year after the initial filing of the complaint, U. S. District Judge Sonja Bivins issued a brief and advice to allow the Mobile Baykeeper lawsuit to move forward. Bivins, the first black user to be appointed a justice of the peace, issues judgment in the Southern District of Alabama.
In his report, Bivins particularly rejected Alabama Power’s arguments about adulthood that would later be adopted by a federal ruling.
“As alleged, Baykeeper has alleged damages that depend on hypothetical long-term events,” the report states in part. “Finding Baykeeper’s allegations true, the Court rejects Alabama Power’s maturity argument. “
However, in her ruling Thursday, Judge Kristi DuBose rejected Bivins’ recommendation and sided with the state’s largest app company by ignoring the lawsuit without bias.
Ordering Alabama Power to submit a closure plan that complies with federal law, the judge wrote, “would not make it ‘substantially likely’ that Plant Barry’s coal ash leaching would cease any time soon.”
It wouldn’t be until a date “well in advance of the final touch of the closure project” that Baykeeper’s lawsuit would be ready to be prosecuted in court, the ruling wrote. Alabama Power’s final roofing formula for the Plant Barry ash pond is not expected to be completed until at least August 2030, according to court documents.
DuBose, an appointee of George W. Bush, also served as a senior attorney at the U. S. law firm at the time. Senator Jeff Sessions from 1997 to 1999.
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While Mobile Baykeeper and SELC have said they will explore all options moving forward when it comes to the present litigation, Thursday’s order revealed the forthcoming settlement negotiations and news on other fronts related to Plant Barry’s coal ash site.
A letter submitted to the court sets forth a process for the upcoming settlement negotiations between the EPA and Alabama Power over coal ash storage at Plant Barry.
“During our conversation with Ms. Redleaf Durbin, EPA and Alabama Power agreed that an effective first step in our discussions would be to schedule a meeting as soon as mid- to late January 2024,” a representative of Alabama Power wrote in the letter to the EPA. “As soon as we can finalize a date and time, technical teams from EPA and Alabama Power can meet, analyze EPA’s engineering and geological concerns, and discuss potential methods and approaches to resolve any remaining CCR matters at Plant Barry.”
Cade Kistler, Mobile Baykeeper Bay Warden, said Thursday’s resolution doesn’t replace the sad truth that Alabamans want to worry about the environmental damage caused by the storage of coal ash at the Barry plant.
“Storing millions of tons of ash on the banks of the Mobile River is a catastrophic threat that we cannot address,” Kistler said. “This resolution does not replace the fact that this coal ash is found in groundwater, leaching destructive pollutants and potentially causing a catastrophic spill in the event of hurricanes or flooding. “
Lee Hedgepeth is a reporter for Inside Climate News for Alabama. Raised in Grand Bay, Alabama, a small town on the Gulf Coast, Lee holds a master’s degree in network journalism and political progression from the University of Alabama and Tulane University. founder of Tread, a newsletter about Southern journalism, and has also worked for media outlets throughout Alabama, including CBS 42, Alabama Political Reporter, and Anniston Star. His reporting has focused on issues affecting members of marginalized groups, such as homelessness, poverty, and the death penalty. His award-winning journalism has been published in publications across the country and has been quoted in the New York Times, the Wall Street Journal, and the Washington Post, among others.
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