As EPA Looks Toward Negotiations Over Mobile, Alabama, Coal Ash Site, Federal Judge Dismisses Environmental Lawsuit on Technical Grounds

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 based in south Alabama, alleges that the state’s largest utility is violating federal law by failing to comply with environmental requirements around the planned closure of its coal ash pit at Plant Barry. 

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 will enter into settlement negotiations over coal ash storage at the site as soon as 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 decision and are exploring all of Baykeeper’s options going forward,” said Brock. “This order does not address the fact that Alabama Power’s coal ash plan at Plant Barry endangers Mobile Bay and does not meet the federal standards.”

Anthony Cook, a representative of Alabama Power, said Thursday afternoon that the company was pleased with the court’s ruling but had no further comment. 

What Is Coal Ash?

Coal ash is an umbrella term that refers to several waste materials generated by the process of burning coal for electricity production, which technically are known as coal combustion residuals, or CCR. These waste materials can include fly ash, bottom ash, boiler slag and flue gas desulfurization sludge. The waste can contain chemicals that are highly toxic to humans and animals and harmful to the environment, including 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.

As of 2012, more than 470 coal-fired electric utilities in 47 states and Puerto Rico had already generated about 110 million tons of coal ash, one of the nation’s largest industrial waste streams, according to the EPA. 

In 2015, the agency adopted a new Coal Ash Rule, providing a series of safe disposal requirements. But a 2019 report by the Environmental Integrity Project and other advocacy groups found that 91 percent of coal-fired plants still had ash landfills or waste ponds that leak arsenic, lead, mercury, selenium and other metals into groundwater at dangerous levels, often threatening streams, rivers and drinking water aquifers. 

Federal law now requires that closures of so-called coal combustion residual (CCR) units either comply with federal regulations or with state-adopted regulations that, at a minimum, are as protective of humans and the environment as the federal requirements. 

So far, the EPA has approved three other states’ plans for CCR unit closure. But EPA officials, in reviewing Alabama’s plan, determined that it does not meet even those minimal requirements laid out in federal law regarding groundwater protection, monitoring and cleanup. 

Mobile Baykeeper Files Suit

In September 2022, Mobile Baykeeper and the Southern Environmental Law Center filed suit against Alabama Power over its plans to permanently cap-in-place the coal ash stored at the utility’s Mobile-area 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 repeatedly argued in court and public hearings that its plan to cap-in-place complies with federal law. 

An executive of Alabama Power, which owns most of the state’s CCR units, claimed at a September EPA hearing that the utility’s storage ponds are “structurally sound.” Susan Comensky, Alabama Power’s vice president of environmental affairs, told EPA officials that allowing the company to “cap” CCR waste in place, even in unlined pits, will not present significant risks to human or environmental health.

“Even today, before closure is complete, we know of no impact to any source of drinking water at or around any Alabama Power ash pond,” Comensky said. 

However, Alabama Power has been repeatedly fined for leaking coal ash waste into groundwater.

In 2019, the Alabama Department of Environmental Management (ADEM) fined the utility $250,000 after groundwater monitoring at a disposal site on the Coosa River in Gadsden showed elevated 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 order issuing the fine, the agency cited the utility’s own groundwater testing data, which showed elevated levels of arsenic, lead, selenium and beryllium.

Magistrate Judge Recommends Allowing Suit to Move Forward, But Federal Judge Reverses Course

In September 2023, a year after the complaint was initially filed, U.S. Magistrate Judge Sonja Bivins issued a report and recommendation that Mobile Baykeeper’s lawsuit be allowed to move forward. Bivins was the first person of color to be appointed magistrate judge in the Southern District of Alabama. 

In her report, Bivins specifically rejected Alabama Power’s ripeness arguments that a federal judge would later embrace. 

“As pled, Baykeeper has alleged harm that is not contingent on hypothetical future events,” the report said in part. “Taking Baykeeper’s allegations as true, the Court rejects Alabama Power’s ripeness argument.”

In her Thursday ruling, however, Judge Kristi DuBose rejected Bivins’ recommendation, instead siding with the state’s largest utility company in dismissing the suit without prejudice. 

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.” 

Only at a date “much sooner to closure project completion” would Baykeeper’s suit be ripe for action by a court, the judge wrote. Alabama Power’s final cover system for the Plant Barry ash pond is not scheduled to be completed until at least August 2030, according to court documents. 

DuBose, a George W. Bush appointee, also served as chief counsel to then-U.S. Senator Jeff Sessions from 1997 to 1999. 

What Comes Next? 

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, a baykeeper at Mobile Baykeeper, said that Thursday’s ruling doesn’t change the grim reality that Alabamians need to be concerned about the environmental harms imposed by coal ash storage at Plant Barry. 

“Storing millions of tons of ash on the banks of the Mobile River is a catastrophic risk we can’t afford to take,” Kistler said. “This decision doesn’t change the fact that this coal ash is sitting in groundwater, leaching harmful pollutants, and risks a catastrophic spill from hurricanes or floods.”