Feds rejected Alabama’s toxic waste disposal plan. What that means for Georgia’s coal ash

Caption

Earlier this month, the EPA announced a proposed decision to bar Alabama from allowing the same type of coal ash storage that Georgia Power intends to pursue at the controversial sites, which include Plant S

Credit: File photo

Georgia Power’s plans for disposing of toxic industrial waste at a handful of coal plants across the state have been the subject of a yearslong controversy.

Critics of the utility’s plans have long hoped the Environmental Protection Agency will intervene to require that Georgia Power change its plans to comply with a federal rule barring permanent storage of coal ash — a byproduct of the coal power process — in contact with groundwater, where it could contaminate drinking water with toxic heavy metals.

Earlier this month, the EPA announced a proposed decision to bar Alabama from permitting the same type of coal ash storage, known as “closure in place,” that Georgia Power intends to pursue at the controversial sites, which include Monroe County’s Plant Scherer.

In light of similarities between the neighboring states’ coal ash programs, and their utilities’ common corporate parent in the Southern Company, some in Georgia’s environmental community hope the decision in Alabama portends similar federal intervention in Georgia.

Andrea Goolsby, a resident of Juliette — the community home to Plant Scherer where residents have sued Georgia Power and linked contaminated drinking wells and cancer cases to the coal ash pond — told the Telegraph, “It does give me a lot of hope for us in Georgia. I just hope that it’s an example for our leaders here in Georgia to do the right thing.”

But a key bureaucratic difference may explain why the EPA has not yet taken similar action in Georgia.

ALABAMA WANTS WHAT GEORGIA HAS: ITS OWN PERMIT PROGRAM

In 2015, the EPA issued a landmark rule governing the proper disposal of coal ash. Since then, in most of the country, newly decommissioned coal plants must seek approval from the EPA.

But three states — Georgia, Texas, and Oklahoma — have sought and received permission for their state environmental agencies (in Georgia’s case, the Environmental Protection Division) to administer their own permit programs for coal ash disposal.

This delegated authority was granted to the EPD on the condition that its standards were at least as environmentally protective as the federal rule.

Alabama is seeking to be the fourth state to administer its own coal ash permitting program. The EPA’s proposed decision would reject its application on the basis of the fact that, while seeking delegating permitting authority, Alabama’s Department of Environmental Management (the equivalent to Georgia’s EPD) had already issued a permit for closure in place.

A spokesperson for EPD said in an email that the agency originally applied for delegated permitting authority because “the federal government has long recognized that states are in the best position to craft effective approaches to carry out the requirements of environmental regulations.”

At the controversial coal ash ponds in question — at Georgia’s Plant Hammond, Plant Scherer, Plant Yates, and Plant McDonough — only one draft permit for closure-in-place has yet been issued, for Plant Hammond.

The EPD told the Telegraph it anticipates the completion of the review of Georgia Power’s applications for closure at the other sites in the 2024 calendar year, but noted that this timeline may change if the utility modifies its proposals.

“I haven’t been able to really look at the coal ash decision in Alabama, but I will look at it. We’re still moving forward with our program. It is approved,” said Jeff Cown, who last week became the new director of the EPD.

The state permitting program employs a staff of three engineers and two geologists, EPD said. In 2024, these positions will be partially funded by $411,000 from the EPA; the remainder of their salaries is paid out of the state budget.

WHY THE DELAY?

The proposed action in Alabama is not the first EPA decision in another state that environmental advocates have hoped would set a precedent against Georgia’s plans. Under the Biden administration, the EPA has stepped up enforcement of the coal ash regulations, most notably at a coal plant in Ohio last year.

EPD was officially notified of the divergence between its plans and the EPA’s interpretation of the rule in January 2022, when the federal agency sent EPD a letter requesting that it review the closure plans at Plant Hammond, where a draft permit had been issued, in line with what was then the EPA’s proposed rejection of the Ohio coal plant’s plans.

In the year-and-a-half since this letter was sent, the status of Georgia’s closure-in-place plans has been essentially frozen, with advocates awaiting new permits or a federal action denying the state’s permitting program.

Some advocates believe the state is dragging its feet in order to wait for the election of a Republican president and more lax enforcement of the rule.

“They think that they can do the improper illegal work, then wait for a new presidential administration,” said Fletcher Sams, director of the Altamaha Riverkeeper, citing reporting by the Telegraph in which a member of the Public Service Commission, which approved the closure-in-place plans, said the EPA’s position on coal ash could change “if President Biden doesn’t win reelection.”

GEORGIA’S DISPUTE WITH A 'DICTIONARY DEFINITION'

Emails between the EPA and EPD obtained via public records request show that the state agency seemed to be caught off guard by the federal decision.

In an email sent the day after the EPA’s letter, EPD’s then-director Rick Dunn (now director of Georgia’s Office of Planning and Budget) wrote to Carolyn Hoskinson, an EPA official, that the federal agency had “long been aware of how EPD reads the language” of the coal ash rule.

“Up until this week, it had been our understanding that EPA shared similar views,” Dunn said in the email.

Part of the difference of opinion between the two agencies centers on the definition of the word “infiltration.”

As an investigation by ProPublica later revealed, Georgia Power had heavily lobbied EPD to consider the word “infiltration,” as used in the language of the 2015 rule, to refer only to rainwater seeping into coal ash from above, and not to the intrusion of groundwater from the water table below.

This interpretation allows the utility to justify storage of coal ash without a liner below it to protect nearby water bodies from contamination, as long as a “cap” is in place above the ash to protect it from rainwater.

The dispute resurfaced in the emails obtained by the Telegraph, in which the EPD appeared to acknowledge its use of the word “infiltration” differed from the meaning commonly understood.

On February 10, 2022, the EPD’s director of legal services, Laura Williams, asked an EPA official for “documents setting out EPA’s rationale in applying the dictionary definition of ‘infiltration’ rather than treating it as a term of art.”

Frank Holleman, an attorney at the Southern Environmental Law Center, said coal ash is “like kitchen garbage” in that it must legally be disposed of in a landfill; “you can’t dig a hole next to a river” and bury it there.

“All we’re asking is to put it in a landfill with every other piece of trash in America,” Holleman said.

This story comes to GPB through a reporting partnership with The Telegraph.