Power plants fight federal coal ash storage rules at DC Circuit

WASHINGTON (CN) — A D.C. Circuit panel heard oral arguments Thursday in a pair of consolidated cases between coal-fired power plants and the U.S. Environmental Protection Agency over a new set of rules meant to govern the storage and disposal of coal ash waste.

The power plant companies, from states like Ohio, Illinois, Texas and Georgia, run some of the largest coal-fired power plants in the country, and claim the EPA wrongfully reversed course on a 2015 rule that allowed the plants to store the waste in “coal combustion residuals” or CCRs, such as enclosed ponds. The waste, usually in form of ash or sludge, is left over from burning coal in boilers. 

According to the power plant companies, the 2015 rule seemed to provide two acceptable methods of storing the waste: either install a cover system over the pond to keep the ash in place, or remove the ash and decontaminate the pond of any remaining waste. 

In 2020, the EPA set an April 11, 2021, deadline for the disposal of all coal ash into unlined ponds, requiring these ponds be closed. 

At the time, the General James M. Gavin plaint in Ohio — the sixth-largest plant in the country by CO2 emissions with 14.7 million tons released in 2021 — was in the process of closing its first pond. The new deadline required the plant to close a second pond, for which it requested an extension. 

But in January 2022, the agency announced that it would deny certain requested extensions such as at the Gavin plant to seal unlined storage ponds and said that ponds where the coal ash is in contact with groundwater cannot be closed. Instead, the agency said, the ash must be removed. 

The EPA justified its denial of the Gavin extension because it had determined the plant’s closure of the first pond was improper due to the ash being in contact with groundwater. 

Gavin Power LLC, the plant’s operator, sued the EPA, arguing that the 2022 announcement failed to follow the proper procedure for a new legislative stance and therefore the rule should be vacated. 

A three-judge panel, made up of U.S. Circuit Court Judges Patricia Millett, Cornelia Pillard and A. Raymond Randolph, spent much of Thursday's arguments seeking clarification from either party about potential contamination risks posed by using storage ponds. 

Pillard, a Barack Obama appointee, said that is seems like common sense that the toxic chemicals stored in the ponds could leak and contaminate nearby drinking water, particularly because unlined ponds have no additional measure to prevent leakage like clay lining. 

According to the Department of Health and Human Services, coal ash can cause nausea, vomiting and diarrhea when inhaled, while long-term exposure can cause cancer.

Stephen Gidere, an attorney with Balch Bingham representing a coalition of plant companies who also challenged the EPA rule, argued that storing the waste poses less risk than transporting the waste elsewhere. 

He said the EPA’s definition of infiltration in the enclosed ponds was too broad, as a single inch of water or even wet sand in the pond would require the plant to remove the waste entirely. Further, the EPA’s decision marked a stark shift from suggesting plants remove a contaminated pond to requiring removal. 

Millett, a Barack Obama appointee, noted that Gidere and the plants’ position would require there to be contamination before the ash should be removed, which seemed counterproductive when dealing with drinking water. 

David Mitchell, a Justice Department attorney representing the EPA, said the appeals court both did and did not have jurisdiction in the two cases. In the suit brought by Gavin Power, the court has jurisdiction to review the agency’s decisions, in part because they had been published in the Federal Register. 

But in the case brought by the power plant companies, the 2022 announcement was not a final agency actions and therefore not subject to judicial review. 

In the power plant’s view, there are two appropriate outcomes from the cases. First, the court should vacate the 2022 rule and dismiss protective petitions. Second, if the court finds it lacks the jurisdiction in the Gavin suit, it should review the EPA’s rule blocking ponds below the water table. 

Gavin Kearney, a Sierra Club attorney speaking as an intervenor for the EPA, urged the panel to affirm the agency’s decisions and end the debate over waste storage.

“Lay to rest an issue that’s delaying proper closure of surface impoundments that are polluting environments around the country,” Kearney said. 

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