July 22, 2024

Across America, millions of tons of toxic waste sit in pits next to coal plants. But whether they would be cleared came down to a legal debate over the definitions of words.

In 2015, after a pair of disastrous spills at coal plants in North Carolina and Tennessee, the Environmental Protection Agency issued a rule requiring power companies to safely dispose of toxic waste at coal plants. The EPA’s rule required that coal ash, a byproduct of the coal power process that contains heavy metals such as arsenic and mercury, cannot be left in contact with a “free fluid” — one that can move in and out of the ash itself – and it had to be stored in a way that prevented “infiltration” by a liquid.

A group of utilities sued the EPA, arguing that the rule’s ban on “infiltration” of a coal ash impoundment refers only to infiltration from above, by rainwater. They also claimed that the rule did not classify groundwater as a “free liquid” — although they acknowledged in their opening brief that “it may be true in a simplistic sense that ‘groundwater’ is a ‘liquid.’ By enforcing the rule. by using the common sense definitions of these terms, the utilities argued, the EPA was effectively changing the rule itself.

To Gavin Kearney, an attorney at Earthjustice who argued in the case as an intervenor on the side of EPA, these arguments were “ridiculous.” “These words are clear in their meaning. A liquid is a liquid, in any sense of the word, and infiltration means water coming in from any direction,” Kearney told Grist.

On June 28, the DC Circuit Court of Appeals agreed with him, finds no daylight between the letter of the 2015 rule and the EPA’s recent enforcement actions. The judge who wrote the decision, Cornelia Pillard, specifically rejected the arguments about the contested meanings of “infiltration” and “free fluids.”

Before 2015 the pollution of ground water by coal ash was long undervalued among the many and varied dangers that coal plants pose to human health and the natural environment. Following the landmark rule, if a power company wants to close a coal plant, which many companies do because of their declining profitability, it will have to ensure that no coal ash is left in contact with surrounding groundwater or open to rain from above not off .

However, in the years immediately following the rule’s passage, under the Trump administration — a period during which the EPA was briefly run by a coal lobbyist — the agency didn’t really enforce the rule. Power companies across the country have been quietly making plans to retire coal plants and in many cases have simply ignored the rule that prohibits the permanent storage of coal ash in contact with groundwater. Under President Biden, the agency began enforcing the coal ash rule. There is more than 100 sites nationwide where utilities plan to permanently bury coal ash where it has either been in direct contact with groundwater or is at imminent risk of contaminating it.

In 2019, the Georgia Department of Environmental Protection received authorization to issue its own coal aspermites. The state’s main power company, Georgia Power, has plans to close ash ponds in contact with groundwater at a number of sites across Georgia. One is in the rural town of Juliette, Georgia, where the energy company plans to leave 16 million tons of coal ash in unlined pits at Plant Scherer, once the nation’s largest coal plant. Some of the town’s residents are suing Georgia Power, claiming that the plant’s contamination of their drinking water was responsible for illness and death in the community. In 2022, the EPA notified Georgia regulators that their plans to approve a permit for Georgia Power to store as permanently in contact with groundwater at its North Georgia facility Plant Hammond violated the 2015 rule.

That permit was issued nonetheless, in open defiance of the EPA — and the legal arguments Georgia regulators cited to justify the approval mirror that of the utility industry in its federal lawsuit.

The DC Circuit Court’s decision raises the question of whether the EPA will intervene in Georgia (as it recently did in Alabama) and revokes the state’s authority to issue coal ash permits. “Georgia right now is a bellwether as to whether the EPA is going to do what it needs to do to defend the viability of the entire state. [coal ash] program architecture,” said Chris Bowers, an attorney with the Southern Environmental Law Center.

Angela Hackel, an EPA spokeswoman, did not respond to a question about whether they would close Georgia’s coal ash permit program, but said in an email that the EPA and Georgia’s environmental agency are “in dialogue about closure strategies involved.” The Georgia Department of Environmental Protection, for its part, is still reviewing the decision, spokeswoman Sara Lips told Grist in an email.

Until the EPA does step in, Georgia Power has no plans to change its plans, as it has already received a green light from the state at one of its plants. The power company told Grist, “It is important to note that EPA previously approved Georgia’s state CCR program with oversight from Georgia EPD. Georgia EPD evaluated our site-specific plans at Plant Hammond and issued the final permit in November 2023 .”

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