A legal debate over semantics of the U.S. EPA’s 2015 coal ash rules could decide whether groundwater-soaked coal ash can remain in place next to an Ohio power plant.
In oral arguments before the U.S. Court of Appeals for the District of Columbia last week, power companies argued the rules don’t specifically ban coal ash contact with groundwater, and that as a result the federal agency overstepped its mandate in 2022 when it ordered the closure and cleanup of a coal ash impoundment at the General James M. Gavin Power Plant in Cheshire, Ohio.
Attorneys for the EPA and the environmental organization Earthjustice argued during the March 7 hearing that preventing such groundwater contamination is exactly the point of the federal rules.
“We hope the judges come out with an opinion that’s clear and definitive that the rule says you cannot close when the waste is sitting in groundwater,” Gavin Kearney, deputy managing attorney for Earthjustice’s clean energy program, told the Energy News Network after the hearing. “We think the meaning of those words is clear already. But given what industry is pulling here, let’s just define it in a way that’s super duper clear so we can be done with that issue.”
There’s little debate about the existence of groundwater contamination from the 2,600 MW Gavin plant, one of the largest coal plants in the country. Its former owner, American Electric Power (AEP) bought the entire town of Cheshire in 2002, with most residents and businesses moving out, rather than address residents’ pollution concerns.
Two federal lawsuits, however, argue that the EPA’s recent demands essentially represent the unauthorized promulgation of a new rule, since they don’t believe that coal ash sitting in groundwater is explicitly identified as a violation of the 2015 federal coal ash rules.
“I think it’s clear,” said industry counsel Stephen Gidiere during the oral arguments, “that EPA has issued a new legislative rule,” by demanding in its January 2022 enforcement action that coal ash not sit in groundwater.
One of the lawsuits was filed by utilities that are wholly owned subsidiaries of AEP, which sold the plant to a private equity firm in 2017, but the plant still provides power to the utilities that are plaintiffs in the lawsuit.
The other lawsuit is filed by a group of LLCs and holding companies affiliated with power generators including Vistra Corp., as well as the Utility Solid Waste Activities Group (USWAG), a trade organization representing over 100 utilities, electric cooperatives and related organizations.
The 2015 coal ash rules mandate that at unlined coal ash impoundments that are infiltrated by water or causing contamination, the ash must be removed and placed in a lined landfill; an impermeable liner must be put in the impoundment; or engineering controls like pumps must be used to prevent contamination.
The federal rules set a deadline of April 2021 for unlined impoundments to stop receiving coal ash and begin closing in such a way that they do not cause or present a future risk of contamination. At many sites including Gavin, companies requested extensions to this deadline. The rules offered extensions if closing by that deadline was not feasible, but only if the site was in compliance with other aspects of the rules.
The EPA did little to enforce the rules until January 2022, when it issued a number of extension request denials, including for Gavin’s Bottom Ash Pond. Gavin’s extension request also triggered the EPA to review the site as a whole, and it found problems with contamination and compliance including with the Fly Ash Reservoir, an impoundment which was no longer receiving new coal ash.
The EPA’s decision says that: “taking Gavin’s data at face value EPA estimates that the closed FAR [Fly Ash Reservoir] could be sitting in groundwater as high as 64 feet deep in some locations and that as much as 8.2 million cubic yards (or as much as 40% of CCR in the FAR) could still be saturated — and would remain so indefinitely.” CCR refers to Coal Combustion Residuals.
In the oral arguments, Gidiere argued that the 2015 rules don’t necessarily mean that coal ash sitting in groundwater must be cleaned up.
The oral arguments before a three-judge panel parsed the definition of a “free liquid” that could be separated from coal ash, with the EPA and Earthjustice attorneys arguing that groundwater indeed is a liquid that could and should be separated from toxic coal ash.
“Once it becomes groundwater, it’s not a free liquid any more,” countered Gidiere, arguing that groundwater hence does not need to be kept separate from coal ash.
Kearney emphasized that the coal ash rules say unlined impoundments must be cleaned up if contaminated leachate is found in the groundwater monitoring required under the rules.
“Maybe if groundwater never moves you could have an unlined impoundment and still be okay,” Kearney said. “But at Gavin, this water is flowing through the waste, that’s generally what water does. It doesn’t just sit in the ground, it moves,” carrying leachate out of the impoundment.
Gidiere in the oral arguments said that if an impoundment is covered and rainwater or surface water no longer creates downward pressure on coal ash, the risk of contamination is removed. He argued that the EPA’s 2022 orders that coal ash cannot remain soaked with groundwater go beyond the requirements laid out in the 2015 rules.
“What EPA said in January of 2022, is if there’s an inch of groundwater in the bottom of 100 feet of dry CCR, that you cannot close the unit,” Gidiere said. “If you have basically wet sand in the bottom, you have to remove all that CCR.”
In response to questioning from the court, Gidiere could not identify impoundments that have only an inch of water, or any with less than 10% of coal ash saturated with groundwater.
“There are lots of sites like this one,” Kearney told the Energy News Network. “The Gavin site is a pretty egregious example, but we know there are lots of sites where coal ash is sitting in water.”
Earthjustice, the Environmental Integrity Project and other organizations have released analyses of groundwater monitoring data required under the rules, showing that the vast majority of coal ash impoundments nationwide are causing toxic leakage.
“The whole overarching point (of the federal rules) is that groundwater contamination is a big problem, it’s really unsafe and we have to prevent it,” said Kearney. “You can’t let water in (to a coal ash impoundment), you can’t let water out, you can’t let water just sit inside the impoundment.”