Federal Court Blocks Attempt by Coal Power Plants to Evade Cleaning Up Coal Ash Contaminating Water

In a new ruling, the U.S. Court of Appeals in Washington, D.C., today blocked the coal power industry’s attempt to get out of the requirement that they prevent toxic coal ash from contaminating groundwater. The Court affirmed that the Environmental Protection Agency (EPA) regulations established in 2015 already prohibit closing coal ash dumps with ash sitting in groundwater. Industry filed two lawsuits challenging this prohibition which was part of the first-ever coal ash regulations adopted in 2015. These cases, Electric Energy, Inc. et. al. v. EPA (I) and Electric Energy, Inc. et. al. v. EPA (II) were argued together and both are addressed by today’s opinion.

A large number of coal ash dump sites across the country are sitting in groundwater, leaching toxic pollution into groundwater where it can migrate to drinking water and nearby rivers, lakes, and streams.

Gavin Kearney, deputy managing attorney of Earthjustice’s Clean Energy Program, who argued before the court on behalf of three organizations who intervened in the lawsuit (Sierra Club, Hoosier Environmental Council, and Comité Dialogo Ambiental in Puerto Rico), said, “The decision is a major victory. This ruling puts to rest polluters’ claim that they are free to poison our water. Industry has gone to great lengths to avoid responsibility. They need to stop the delay tactics and finally do the right thing.”

Laurie Williams, Director of the Beyond Coal Campaign, Sierra Club, said, “We are pleased the D.C. Circuit recognized EPA’s steps toward enforcing these long-standing deadlines for what they are: a common-sense application of long-standing rules requiring coal plants to protect groundwater from toxic waste. The time is long past for coal plant operators, including Gavin’s private equity owners, to clean up their mess.”

During the course of this litigation, some were taken aback by industry arguments, including their claim that groundwater isn’t a “liquid,” and this doesn’t need to be protected from contamination and their claim that they only have to prevent rainwater from saturating coal ash ponds, and are free to allow water from other sources to flow in and out of dumps.

Earlier this year, EPA thankfully announced it would expand the 2015 rule on coal ash disposal by covering many older dumpsites that they had previously exempted from any regulations. One utility has already challenged the 2024 expansion in court and more challenges are expected. Those cases are unlikely to challenge the ban on closing ash in groundwater which was upheld today.

Today the court affirmed EPA’s prohibition on closing coal ash dumps with ash sitting in groundwater, calling it a “straightforward application” of the 2015 rule and rejecting industry’s strained efforts to construe it as something else. It also provides a clear directive to the states that have their own coal ash permitting programs (Georgia, Texas, and Oklahoma) that they must uphold the ban on closing in groundwater. In fact, the EPA has previously requested that Georgia review permit applications it approved for plants that appear to be closing ash ponds in groundwater.

The ruling affirms the requirement that all sites must eliminate any contact between ash and groundwater. Power plants must also ensure that there won’t be future contact, ideally by removing the waste and placing it in safely constructed landfills. Because water levels fluctuate over time, and there is a risk of flooding at many places, leaving ash in unlined dumps creates significant risk of future water infiltration even if the dump is dried out now.

The decision today was in response to two industry lawsuits that raise the same legal question. The lawsuits allege that EPA adopted a new policy banning closing ponds where coal ash sits in groundwater, even though this is prohibited by EPA’s coal ash rules enacted in 2015.

One lawsuit challenged concerns raised by EPA about plants in Ohio, Indiana, Puerto Rico, Kentucky, Kansas, Iowa, and Georgia. The other lawsuit was focused on Gavin Power in Ohio, where EPA found that a massive 300-acre coal ash pond is sitting in up to 64 feet of groundwater.

Because the remaining issues raised by the Gavin plant that weren’t dismissed today are site-specific and not a question of rulemaking, the D.C. court determined that they are properly heard in the local district court, the Southern District of Ohio. These issues relate to other ways in which EPA determined that the Gavin plant was out of compliance with its coal ash rule.

A 2022 report by Earthjustice and the Environmental Integrity Project found that ash at 91% of coal plants is contaminating groundwater above federal safety standards. When the report was written, a whopping 96% of power plants with ash contaminating groundwater were not proposing any groundwater treatment. Only one plant out of 292 was planning a comprehensive cleanup. In December of 2023, the EPA issued an enforcement alert that found “widespread noncompliance” with the law.

Coal ash remains one of our nation’s largest toxic industrial waste streams. U.S. coal plants continue to produce approximately 70 million tons every year. Coal ash is a toxic mix of hazardous pollutants, metals, carcinogens, and neurotoxins, including arsenic, boron, cobalt, chromium, lead, mercury, radium, and selenium. These have been linked to cancer, heart and thyroid disease, reproductive failure, and neurological harm. Coal ash is disproportionately located in low-income communities and communities of color.

The plaintiffs in the cases include Utility Solid Waste Activities Group; Electric Energy, Inc.; Luminant Generation Company LLC; Coleto Creek Power, LLC; Miami Fort Power Company LLC; Zimmer Power Company LLC; Dynegy Midwest Generation, LLC; Illinois Power Generating Company; Illinois Power Resources Generating, LLC; Kincaid Generation, LLC; Gavin Power, LLC; Appalachian Power Company; Indiana Michigan Power Company; Kentucky Power Company; Public Service Company of Oklahoma; Southwest Electric Power Company; and Wheeling Power Company. The State of Texas intervened in the case in support of the industry petitioners.

Comité Dialogo Ambiental, Sierra Club, and Hoosier Environmental Council (represented by Earthjustice), and Altamaha Riverkeeper, Chattahoochee Riverkeeper, and Coosa River Basin Initiative (represented by the Southern Environmental Law Center) intervened in support of EPA.