A federal appeals court case has opened a new front in the clash over whether Georgia Power and other utilities will be allowed to leave millions of cubic feet of toxic coal ash submerged in groundwater at sites around the country.
A trade group for U.S. utility companies is asking the court to examine whether the federal Environmental Protection Agency (EPA) overstepped its regulatory authority in a recent crackdown on coal ash ponds. After the Trump administration weakened oversight of the facilities, President Joe Biden’s administration has taken a more aggressive approach to enforcement.
In January, the EPA denied permits for three coal ash sites in the Midwest, and granted a conditional approval to a fourth. In each move, the agency cited “deficiencies with groundwater monitoring, cleanup, and closure activities.”
That same day, the director of the EPA’s Office of Resource Conservation and Recovery sent a letter to the Georgia Environmental Protection Division (EPD) asking the agency to review any pending or issued permits for ash pond closures to ensure they meet federal standards.
Coal ash is residue from burning coal to generate electricity. Many utilities store the waste in massive ponds.
The ash can be used to make concrete and other construction materials, but it contains toxic heavy metals like mercury, cadmium and arsenic, according to the EPA.
Georgia Power is seeking to permanently store coal ash from its 29 ponds across the state. At some sites, the company is already excavating ash and transporting it to lined landfills. But at its plants near Smyrna, Rome, Newnan, Carrollton and Juliette, Georgia Power has asked for permission to leave most of the residue in unlined pits. In some cases, the material would be in contact with groundwater.
Last month, the Utility Solid Waste Activities Group (USWAG), a trade group that represents power companies in waste management issues, asked the U.S. Court of Appeals in Washington, D.C., to review the EPA’s actions.
The EPA says it has consistently held that ash ponds cannot be closed when the material is in contact with groundwater. A spokesman for USWAG said his group disagrees.
“We think there’s been a significant shift in policy from longstanding regulation, guidance and past interpretation,” said Dan Chartier, the USWAG’s executive director.
Frank Holleman, a senior attorney with the Southern Environmental Law Center (SELC) — a nonprofit legal advocacy organization — said he sees no change to the EPA’s coal ash rules.
“They are unambiguous, clearly written and anyone who can read the English language knows what they provide,” he said. The SELC has been involved in other coal ash litigation, but it is not currently involved in this case. Holleman said the organization is considering intervening on behalf of Georgia clean water advocacy groups.
Georgia is one of only three states in the country that has been granted permission by the EPA to run its own program for closing coal ash ponds. The other two are Texas and Oklahoma. However, as Georgia Power has acknowledged in filings, the company must adhere to both federal and state regulations.
Georgia Power is not a party to the case, but the company is a member of USWAG through its parent, Southern Company. A Georgia Power spokesman said the company supports the review.
A spokesman for Georgia EPD declined to comment.
Environmental advocates denounced the petition and said Georgia Power should fulfill its duty to clean-up its hazardous waste.
“It’s past time for Georgia Power to make good on their promises and be ‘A citizen wherever we serve’,” Fletcher Sams, executive director of the nonprofit Altamaha Riverkeeper, said in an email, referencing a slogan coined by the company’s first president.
Environmental groups and neighbors fear that leaving ash in ponds without liners could contaminate groundwater. Residents of Juliette, about 25 miles northwest of Macon, have sued Georgia Power, claiming waste from nearby Plant Scherer has poisoned their well water. The utility has denied the allegation.
It’s unclear when the court will rule, but last month the USWAG petition was combined with a similar one filed by individual utilities. The court has asked USWAG to provide more information by May 12.
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