Coal Combustion Residue/Citizen Suit Enforcement: Mobile Baykeeper, Inc.: U.S. District Court Complaint Filed Addressing Alabama Power Company Electric Generating Plant Impoundment | Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Download PDF

The Southern Environmental Law Center (“SELC”), on behalf of Mobile Baykeeper, Inc., filed a lawsuit in the United States District Court (Southern District of Alabama) against the Alabama Power Company (“APC”) alleging coal combustion residue (“CCR”) at the James M. Barry Electric Generating Plant (“Plant”) in Mobile County, Alabama.

The civil lawsuit alleges violations of the Resource Conservation and Recovery Act (“RCRA”) and the Coal Combustion Residuals Rule (“CCR Rule”) found at 40 CFR § 257.50, et. seq.

The complaint alleges that APC’s plan to permanently store CCR in the facility’s impound facility constitutes an unlawful closure.

The concerns raised in the complaint state, in part, that APC:

. . . plans to leave over 21 million tonnes of coal ash in place within the footprint of its existing uncased reservoir constructed on a Mobile River tributary, Sisters Creek, and located in wetlands adjacent to the Mobile River. This plan leaves large amounts of coal ash in contact with water, including groundwater, and in a reservoir, in violation of the CCR Rule and RCRA. In fact, the plan even allows coal ash to be stored below sea level. The capped reservoir will be nearly surrounded by the Mobile River and will be at the river’s floodplain. Because the surrounding water affects the rise of groundwater in the ash, the water level in the reservoir rises and further saturates the ash during floods, storms, and with rising water levels in the Mobile River and floodplain.

The aforementioned plan is said to violate the CCR Rule because it is said to be open dumping that violates the terms of the Rule. It cites 40 CFR § 257.1(a)(2), which states:

Practices that do not meet any of the criteria in . . . Sections 257.50 through 257.107 set forth open dumping, which is prohibited under Section 4005 of the Act.

The complaint states that a civil suit may be filed because more than 60 days have passed since SELC served a notice regarding the alleged violations and the EPA has not commenced and/or a civil or criminal action to remedy the alleged violations the law has not instituted and/or pursued and rule.

The complaint asks the court:

  • Entering a Declaratory Judgment that APC violates the CCR and RCRA by failing to comply with the requirements of the Decommissioning Plan and that APC violates the Open Disposal Prohibition
  • Take appropriate preliminary and permanent injunctive relief to prevent APC from implementing a so-called illegal closure plan
  • Take appropriate interim and permanent injunctive relief to ensure that APC files a coal ash storage facility decommissioning plan that meets legal and regulatory requirements by eliminating free liquids and eliminating the possibility of future water, sediment or sludge storage ; Elimination of infiltration of groundwater and other liquids into APC’s coal ash
  • Award the costs of the action, including reasonable attorneys’ and experts’ fees and any other relief the court finds equitable

A copy of the complaint can be downloaded here.