News
A Gallia County coal plant sues the EPA, alleging the agency improperly adopted a new environmental rule
By: David Forster
Posted on:
ATHENS, Ohio (WOUB) — The owner of a coal-fired power plant in Gallia County argues in a lawsuit that the federal government improperly adopted new environmental rules that could result in substantial penalties.
The case involves the closure of a storage pond where the plant deposited coal ash, a byproduct of burning coal.
Coal ash contains toxic elements like mercury, cadmium and arsenic and can pollute waterways, ground water, drinking water and the air if not properly contained, according to the U.S. Environmental Protection Agency, which regulates its disposal.
The closure plan developed by the plant was based on federal EPA rules in place at the time that, according to the lawsuit, allowed storage ponds to be sealed with a cover without first removing the coal ash.
The pond closure was completed in July 2021. Meanwhile, in 2020 the EPA issued a new rule prohibiting disposal of coal ash into unlined ponds after April 11, 2021, and requiring that these ponds be closed.
This meant the second pond at the Gavin plant would have to be closed. The plant asked for a deadline extension, which the EPA could allow if a plant could show it had no other way to dispose of all the coal ash.
In January 2022, the EPA announced its intention to deny the request. And at the same time, the agency said that ponds in which coal ash is in contact with groundwater cannot be closed by covering them with the ash in place. Instead, the ash must be removed.
The EPA said its decision to deny the Gavin plant an extension was based in part on the fact that the plant’s closure of the first pond was improper because the ash was in contact with groundwater.
The Gavin plant argues in its lawsuit, filed last week in federal court, that the EPA is trying to retroactively apply a new rule.
When the EPA issued rules in 2015 governing closure of ash ponds, it made clear that sealing off the coal ash in place or removing it were both acceptable options, according to the lawsuit. This was the understanding when the first pond was closed. But now, the lawsuit argues, the EPA is trying to apply an interpretation of its 2015 rule that it didn’t announce until six months after closure of the pond was completed.
The EPA had access to the plans for closing the pond back when they were proposed, when the Ohio EPA approved them and issued a permit and throughout the closure process as the plant detailed its progress, according to the lawsuit.
“EPA could have informed — but did not inform — the Facility at any point during the five-year, multi-million-dollar closure process that the way in which” the pond was being closed did not meet its interpretation of the rule, the lawsuit alleges.
Application of this interpretation now could render the closure void and subject the plant to significant penalties, the lawsuit argues.
The Gavin plant also argues that the EPA’s January 2022 guideline on when coal ash must be removed from a storage pond — and not just covered in place — amounted to a new rule, and this required going through a formal rulemaking process, which requires public notice and opportunity for public comment.
A similar argument is raised in two other lawsuits against the agency now before a federal appeals court.
The Gavin plant is asking the court to set aside the EPA’s determinations regarding the pond closure and prevent the agency from taking any enforcement actions based on these determinations.
A spokesperson for the EPA said the agency could not comment on pending litigation.
Editor’s note (1/9/24 4:12 p.m.): This story has been corrected to reflect that the Gen. James Gavin Power Plant is located in Gallia County, not Meigs County.