SELC, Mobile Baykeeper statement on Plant Barry coal ash pollution lawsuit dismissal 

MOBILE, Ala.— Today the US District Court for the Southern District of Alabama dismissed a lawsuit filed by the Southern Environmental Law Center, on behalf of Mobile Baykeeper, challenging Alabama Power’s plan to permanently leave more than 21 million tons of toxic coal ash in its unlined pit at Plant Barry on the banks of the Mobile River.  

The Court ruled on narrow, technical grounds relating to Baykeeper’s standing to enforce federal law controlling closure of coal ash impoundments and the timing of the filing. The Court  did not reach the merits or determine if Alabama Power’s plan to cap toxic coal ash in place at Plant Barry violates the EPA’s Coal Combustion Residuals (CCR) rules.  

Last March, EPA issued a Notice of Potential Violation as to the Plant Barry coal ash impoundment, stating Alabama Power’s plan to leave the ash in place  “potentially violated” federal standards.  EPA’s investigation continues and in December EPA informed Alabama Power that its opinion on the potential violations had not changed.  

In August, EPA proposed denying Alabama’s coal ash permitting plan because permits issued under the Alabama scheme would allow coal ash to remain saturated in water in unlined pits.  

“We disagree with the Court’s decision and are exploring all of Baykeeper’s options going forward,” said Barry Brock, Director of SELC’s Alabama office. “This order does not address the fact that Alabama Power’s coal ash plan at Plant Barry endangers Mobile Bay and does not meet the federal standards.” 

Located in the Mobile-Tensaw River Delta, Plant Barry’s unlined coal ash pit was built on wetlands and sits within the floodplain of the Mobile River. For decades, coal ash at Plant Barry has been polluting groundwater with high levels of arsenic and other coal ash pollutants. Alabama Power’s decision to store millions of tons of coal ash on the banks of the Mobile River and Delta ensures continued pollution. 

“Storing millions of tons of ash on the banks of the Mobile River is a catastrophic risk we can’t afford to take,” said Cade Kistler, Baykeeper at Mobile Baykeeper. “This decision doesn’t change the fact that this coal ash is sitting in groundwater, leaching harmful pollutants, and risks a catastrophic spill from hurricanes or floods.” 

The Mobile region is one of the rainiest areas by volume in the United States. When the Delta floods, it sends water across the Delta down the Mobile and Tensaw rivers and into Mobile Bay. In recent years, there have been two major coal ash disasters when riverfront coal ash storage sites failed in Kingston, Tennessee (2008), and on the Dan River in North Carolina and Virginia (2014). Alabama Power’s sister company, Georgia Power, voluntarily agreed to remove coal ash from every one of the utility’s 19 coastal coal ash pits.