Case 1:22-cv-00382-KD-MU Document 1 Filed 09/26/22 Page 1 of 18 PageID #: 1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ALABAMA
`SOUTHERN DIVISION
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`MOBILE BAYKEEPER, INC.,
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`Plaintiff,
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`v.
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`ALABAMA POWER COMPANY,
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`Defendant.
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`CASE NO.:
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`COMPLAINT
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`Plaintiff, Mobile Baykeeper, Inc. (“Baykeeper”), by and through its counsel, hereby files
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`this Complaint and alleges as follows:
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`NATURE OF THE CASE
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`1. This citizen enforcement action challenges the unlawful closure plan of Defendant
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`Alabama Power Company (“Alabama Power”), to permanently store millions of tons of
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`coal ash and toxic pollutants in an unlined, leaking impoundment at its James M. Barry
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`Electric Generating Plant (“Plant Barry”) in Mobile County, Bucks, Alabama. This plan
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`will continue to impound groundwater and other liquids within the impoundment and will
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`leave coal ash sitting below the water table, where the coal ash will continue to leach
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`pollutants into public waters of the United States and of Alabama indefinitely, all in
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`violation of the Resource Conservation and Recovery Act (“the Act”) and the Coal
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`Combustion Residuals Rule (“the CCR Rule” or “the Rule”), 40 C.F.R. § 257.50 et seq.,
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`adopted pursuant to the Act.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF ALABAMA
`SOUTHERN DIVISION
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`MOBILE BAYKEEPER, INC.,
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`Plaintiff,
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`v.
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`ALABAMA POWER COMPANY,
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`Defendant.
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`CASE NO.:
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`COMPLAINT
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`Plaintiff, Mobile Baykeeper, Inc. (“Baykeeper”), by and through its counsel, hereby files
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`this Complaint and alleges as follows:
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`NATURE OF THE CASE
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`1. This citizen enforcement action challenges the unlawful closure plan of Defendant
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`Alabama Power Company (“Alabama Power”), to permanently store millions of tons of
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`coal ash and toxic pollutants in an unlined, leaking impoundment at its James M. Barry
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`Electric Generating Plant (“Plant Barry”) in Mobile County, Bucks, Alabama. This plan
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`will continue to impound groundwater and other liquids within the impoundment and will
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`leave coal ash sitting below the water table, where the coal ash will continue to leach
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`pollutants into public waters of the United States and of Alabama indefinitely, all in
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`violation of the Resource Conservation and Recovery Act (“the Act”) and the Coal
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`Combustion Residuals Rule (“the CCR Rule” or “the Rule”), 40 C.F.R. § 257.50 et seq.,
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`adopted pursuant to the Act.
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`2. The CCR Rule requires Alabama Power to post its closure plan for the unlined coal ash
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`impoundment at Plant Barry on a publicly available website.1 Based on the publicly
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`posted plan, Alabama Power plans to leave over 21 million tons of coal ash capped in
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`place within the footprint of its existing unlined impoundment, which is built on top of a
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`tributary of the Mobile River, Sisters Creek, and is in wetlands adjacent to the Mobile
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`River. This plan leaves large quantities of coal ash in contact with water, including
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`groundwater, and in an impoundment, in violation of the CCR Rule and RCRA. In fact,
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`the plan even leaves coal ash stored below sea level. The capped impoundment will be
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`almost surrounded by the Mobile River and within the river’s floodplain. Because the
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`surrounding waters affect the elevation of the groundwater within the ash, the water level
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`in the impoundment will rise and further saturate the ash when there are floods, storms,
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`and with the rise in water level in the Mobile River and the floodplain.
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`3. This plan violates the CCR Rule and therefore is open dumping in violation of the
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`requirements of the Rule and the Act. 40 C.F.R. § 257.1(a)(2) (“Practices failing to
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`satisfy any of the criteria in . . . §§ 257.50 through 257.107 constitute open dumping,
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`which is prohibited under section 4005 of the Act.”). Alabama Power cannot be allowed
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`to violate the CCR Rule and leave an illegal open dump at its Plant Barry coal ash
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`disposal site in perpetuity.
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`1 Alabama Power Company, Amended Closure Plan for Ash Pond – Plant Barry (Apr. 1, 2020),
`https://www.alabamapower.com/content/dam/alabama-power/pdfs-docs/company/how-we-
`operate/ccr/plant-barry/ash-pond/closure-and-post-
`closure/Barry%20Ash%20Pond%20Amended%20Closure%20Plan%20Rev%201%20April%20
`2020.pdf.
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`JURISDICTION, VENUE, AND NOTICE
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`4. Mobile Baykeeper, Inc. (“Baykeeper”) brings this enforcement action under the citizens’
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`suit provision of the Act. 42 U.S.C. § 6972(a)(1)(A). This Court has jurisdiction over
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`this action pursuant to 42 U.S.C. § 6972(a) and 28 U.S.C. § 1331 and has jurisdiction
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`over the parties.
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`5. Venue is proper in this court pursuant to 42 U.S.C. § 6972(a). The Plant Barry coal ash
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`impoundment that is the subject of Alabama Power’s unlawful closure plan is located in
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`Mobile County, in the Southern District of Alabama.
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`6. In compliance with 42 U.S.C. § 6972(b) and 40 C.F.R. § 254.2, on July 20, 2022,
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`Baykeeper sent a letter giving Alabama Power, the United States Environmental
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`Protection Agency (“EPA”), and the Alabama Department of Environmental
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`Management (“ADEM”) notice of the violations specified in this complaint and of
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`Mobile Baykeeper’s intent to file suit after sixty days should those violations continue. A
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`copy of the notice letter with documentation of its receipt is attached as Exhibit 1.
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`7. More than sixty days have passed since the notice was served pursuant to law and
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`regulation, and the violations identified in the notice letter are continuing at this time and
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`reasonably likely to continue in the future.
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`8. EPA has not commenced and is not diligently prosecuting a civil or criminal action to
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`redress the violations of the Act and the Rule asserted in this citizen enforcement action.
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`9. Alabama Power has obtained a state permit from ADEM to cap the Plant Barry coal ash
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`in place. Accordingly, its closure plan is not preliminary, speculative, or contingent on
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`some additional approval. The plan has been finalized and approved by the state, and this
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`action to enforce the separate, additional federal requirements of the CCR Rule is ripe.
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`10. ADEM’s approval does not shield Alabama Power from compliance with the
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`requirements of the federal CCR Rule. ADEM’s solid waste permitting program, which
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`authorized Alabama Power’s plan for Plant Barry, has not been approved as a federal
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`CCR Rule state permitting program by the EPA. Alabama Power must comply with
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`federal rules as promulgated under 40 C.F.R. §§ 257.102(b) and (d) and RCRA.
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`PARTIES AND STANDING
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`The Association and Its Members
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`11. Baykeeper is a § 501(c)(3) non-profit public interest organization with members in
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`Alabama and the Mobile area and operating in the watersheds of the Mobile River and
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`the Mobile-Tensaw Delta.
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`12. Baykeeper and its members have been harmed by Alabama Power’s violations of RCRA
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`and the CCR Rule. They recreate, fish, and own property in these watersheds, including
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`in the vicinity of and downstream from Plant Barry. They fear contamination of drinking
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`water, wildlife, and river water, by ground and surface water contamination and by
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`discharges and pollution from coal ash in groundwater, wetlands, and a creek in Alabama
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`Power’s Plant Barry coal ash impoundment. They also fear and are concerned by
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`Alabama Power’s plans to store millions of tons of coal ash on the banks of the Mobile
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`River and the Mobile-Tensaw Delta, where the storage will be subject to the risks of
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`flooding, storms, water level rise, and hurricanes, thus exposing Baykeeper and its
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`members and these water resources to the risk of catastrophic failure and a spill of coal
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`ash into the Mobile River and the Delta. Alabama Power’s storage of coal ash in
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`groundwater, wetlands, and a creek; its storage on the banks of the Mobile River and the
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`Mobile-Tensaw Delta; its contamination, discharges, and pollution from coal ash in
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`groundwater, wetlands, and a creek; and the risks and dangers created by the location of
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`this storage site, and Alabama Power’s plan to continue doing so in perpetuity, are
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`reducing the use and enjoyment by Baykeeper and its members of the Mobile River, the
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`Mobile-Tensaw Delta, and their watersheds. Declarations showing standing are attached
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`as Exhibit 2.
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`13. Alabama Power has received a permit from ADEM to cap in place its coal ash at Plant
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`Barry, leaving the coal ash impounded and saturated in groundwater and on the banks of
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`the Mobile River and the Mobile-Tensaw Delta, where it will continue to leach out
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`pollutants into the surrounding waters, as well as remaining subject to increased
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`saturation and catastrophic failure and spills from regular flooding, storms, water level
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`rise, and hurricanes. Because Alabama Power has received state approval for its cap-in-
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`place plan, there is no question that this dangerous and defective plan will be
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`implemented—causing continued pollution and perpetuating the risks to Baykeeper and
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`its members, as well as the water resources of the Mobile-Tensaw Delta that they depend
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`on—unless the closure requirements of the federal CCR Rule are enforced at Plant Barry.
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`Upon information and belief, Alabama Power is moving forward at Plant Barry with
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`preliminary work to implement this plan.
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`14. Alabama Power is proceeding with its plan to cap its Plant Barry coal ash within the
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`existing impoundment, continuing the ongoing pollution of the water resources of the
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`Mobile-Tensaw Delta and creating a continuing danger and threat of catastrophic failure
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`for Baykeeper and its members who own property and/or use and enjoy the waterways
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`downstream. The CCR Rule, however, forbids this result, by the plain terms of its
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`closure standards. Accordingly, the injuries to Baykeeper and its members are directly
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`related to Alabama Power’s failure to comply with the plain terms of the CCR Rule’s
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`closure standards.
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`15. The injuries of Baykeeper and its members will not be redressed except by an order from
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`this Court declaring that Alabama Power’s Plant Barry closure plan violates the Act and
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`the CCR Rule, and requiring Alabama Power to file and comply with a closure plan for
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`Plant Barry that satisfies the requirements of the Act and the Rule by eliminating free
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`liquids from the Plant Barry coal ash impoundment; precluding the future impoundment
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`of water, sediment, or slurry; eliminating infiltration of groundwater and other liquids
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`into the coal ash at Plant Barry; and to comply with other relief sought in this action.
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`Defendant
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`16. Alabama Power Company is a corporation with its principal place of business in
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`Alabama. It is a subsidiary of the Southern Company. Alabama Power is engaged in the
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`generation, transmission, distribution, and sale of electricity. Alabama Power owns and
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`operates Plant Barry and its coal ash impoundment, which is the subject of the closure
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`plan violations that give rise to this action.
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`17. Alabama Power is a “person” within the meaning of § 1004(15) of the Act, 42 U.S.C. §
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`6903(15).
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`STATUTORY AND REGULATORY BACKGROUND
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`18. Effective October 19, 2015, the EPA published a final rule to regulate the disposal and
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`storage of CCR as a solid waste under subtitle D of the Act. U.S. EPA, Hazardous and
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`Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric
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`Utilities; Final Rule, 80 Fed. Reg. 21,302, 21,312 (Apr. 17, 2015); as amended by
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`Technical Amendments to the Hazardous and Solid Waste Management System,
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`Disposal of Coal Combustion Residuals from Electric Utilities—Correction of the
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`Effective Date, 80 Fed. Reg. 37,988 (July 2, 2015); 40 C.F.R. § 257.50 et seq.
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`19. Under the Act, any violation of the requirements of the Rule constitutes illegal open
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`dumping: “Practices failing to satisfy any of the criteria in . . . §§ 257.50 through 257.107
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`constitute open dumping, which is prohibited under section 4005 of the Act.” 40 C.F.R.
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`§ 257.1(a)(2) (emphasis added); see 40 C.F.R. § 257.2 (“Open dump means a facility for
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`the disposal of solid waste which does not comply with this part.”).
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`20. Under the Rule, by no later than October 17, 2016, Alabama Power was required to
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`“prepare an initial written closure plan consistent with the requirements specified in
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`paragraph (b)(1) of [40 C.F.R. § 257.102]” for coal ash impoundments like the one at
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`Plant Barry. 40 C.F.R. § 257.102(b)(2). The Rule authorizes closure by removal of the
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`ash, also described as clean closure. The Rule allows coal ash to be left in place, a
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`method sometimes called “cap in place,” but only under certain prescribed conditions.
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`Alabama Power has proposed to cap the Plant Barry coal ash impoundment in place, and
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`it has obtained a state solid waste permit from ADEM (issued July 1, 2021) for such a
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`plan.
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`21. Under the CCR Rule, coal ash impoundments can be capped in place only if they satisfy
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`several clearly defined criteria designed to keep the coal ash out of contact with
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`groundwater and other water flows. The Rule requires that a closure plan in which ash
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`will be left in an unlined impoundment must describe “how the final cover system will
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`achieve the performance standards specified in paragraph (d) of this section.” Id. §
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`257.102(b)(1)(iii).
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`22. In particular, the closure plan must demonstrate that if the ash is left in place, it will
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`achieve each and all of the following performance standard requirements:
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`a. “Free liquids must be eliminated by removing liquid wastes or solidifying the
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`remaining wastes and waste residues.” Id. § 257.102(d)(2)(i).
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`b. The plan must “[p]reclude the probability of future impoundment of water,
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`sediment, or slurry.” Id. § 257.102(d)(1)(i); and
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`c. The plan must “[c]ontrol, minimize or eliminate, to the maximum extent
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`feasible, post-closure infiltration of liquids into the waste and releases of
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`CCR, leachate, or contaminated run-off to the ground or surface waters.” Id.
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`§257.102(d)(1)(i).
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`23. Under each of these three requirements, a coal ash impoundment cannot be capped in
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`place with coal ash in contact with groundwater, much less with large quantities of coal
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`ash sitting feet deep in groundwater, as at Plant Barry. EPA has underscored that under
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`the CCR Rule, “surface impoundments or landfills cannot be closed with coal ash in
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`contact with groundwater. Limiting the contact between coal ash and groundwater after
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`closure is critical to minimizing releases of contaminants into the environment and will
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`help ensure communities near these facilities have access to safe water for drinking and
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`recreation.” U.S. EPA, EPA Takes Key Steps to Protect Groundwater from Coal Ash
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`Contamination (Jan. 11, 2022).2
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`24. Yet, Alabama Power is proceeding to cap the unlined Plant Barry coal ash impoundment
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`in place, even though coal ash is in contact with groundwater and will remain in contact
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`2 https://www.epa.gov/newsreleases/epa-takes-key-steps-protect-groundwater-coal-ash-
`contamination.
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`with groundwater after Alabama Power’s closure plan is fully implemented—in direct
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`violation of all three key provisions of the CCR Rule.
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`25. Each of these standards is a separate and independent requirement that must be satisfied
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`before a coal ash impoundment can be capped in place. A failure to satisfy any one of
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`them requires that coal ash be excavated from the impoundment and not capped in place.
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`Free Liquids
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`26. The Rule provides:
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`The owner or operator of a CCR surface impoundment or any lateral
`expansion of a CCR surface impoundment must meet the requirements of
`paragraphs (d)(2)(i) and (ii) of this section prior to installing the final
`cover system required under paragraph (d)(3) of this section.
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`(i) Free liquids must be eliminated by removing liquid wastes or
`solidifying the remaining wastes and waste residues.
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`40 C.F.R. § 257.102(d)(2).
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`27. The CCR Rule defines “free liquids” to be “liquids that readily separate from the solid
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`portion of a waste under ambient temperature and pressure.” 40 C.F.R. § 257.53.
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`28. “Free liquids” are not limited to the so-called “free water” that exists above the surface of
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`the coal ash in the impoundment but include all the water throughout the saturated ash.
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`Simply “decanting or dewatering” that so-called “free water” does not eliminate the “free
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`liquids” – water, including groundwater – that saturates the ash below the top surface of
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`the coal ash.
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`29. Water – which readily separates from coal ash under ambient temperature and pressure –
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`is a free liquid that saturates the ash below the top surface of the coal ash in the
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`impoundment.
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`30. This provision on its face prevents a coal ash impoundment from being capped and
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`closed in place if coal ash is in groundwater or mixed with water of any kind.3 Liquid
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`wastes have not been removed from the impoundment if groundwater or any other
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`category of water is in the impoundment, or if the coal ash disposed of in the
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`impoundment is in contact with water. Groundwater and any other category of water are
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`“free liquids” because water readily separates from coal ash under ambient temperature
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`and pressure.
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`31. The Rule also makes clear that a coal ash impoundment cannot be capped in place based
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`on the hope, the prediction, or the modelling that at some point in the future the
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`groundwater table may recede. This requirement must be met “prior to installing the
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`final cover system.”
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`32. In short, under this provision alone, a coal ash impoundment cannot be capped in place
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`when ash is in contact with groundwater, or any other category of water.
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`Future Impoundment of Water, Sediment, or Slurry
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`33. A second provision by itself also forbids capping a coal ash impoundment in place when
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`the coal ash is in contact with water. The Rule provides:
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`The owner or operator of a CCR unit must ensure that, at a minimum,
`the CCR unit is closed in a manner that will:
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`(ii) Preclude the probability of future impoundment of water, sediment, or
`slurry.
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`40 C.F.R. § 257.102(d)(1).
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`3 The Rule does allow for capping in place if the remaining wastes and waste residues are
`solidified. Alabama Power has not suggested that solution at Plant Barry.
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`34. The CCR Rule defines an impoundment to be “a natural topographic depression, man-
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`made excavation, or diked area, which is designed to hold an accumulation of CCR and
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`liquids, and the unit treats, stores, or disposes of CCR.” 40 C.F.R. § 257.53. As
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`explained above and below, Alabama Power’s closure plan would violate this provision
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`by causing future impoundment of water, sediment and slurry.
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`Post-Closure Infiltration and Releases
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`35. The Rule contains a third provision that also independently bars the capping in place of
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`an unlined coal ash impoundment when ash is in contact with groundwater or any other
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`water:
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`The owner or operator of a CCR unit must ensure that, at a minimum,
`the CCR unit is closed in a manner that will:
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`(i) Control, minimize or eliminate, to the maximum extent feasible, post-
`closure infiltration of liquids into the waste and releases of CCR, leachate,
`or contaminated run-off to the ground or surface waters or to the
`atmosphere.
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`40 C.F.R. § 257.102(d)(1).
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`36. If groundwater or any other water is in a coal ash impoundment and/or if coal ash is in
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`contact with water, capping the impoundment in place will not control, minimize, or
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`eliminate, to the maximum extent feasible, post-closure infiltration of liquids into the
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`waste or releases of CCR pollution to ground or surface waters. And likewise, even if all
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`or some water is temporarily pumped down within the ash, closure in place will violate
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`this standard where the natural hydrology will cause groundwater to continue flowing
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`into the ash basin and infiltrating into the waste following closure.
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`37. Other utilities in the Southeast are in fact excavating coal ash from waterfront unlined
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`impoundments. All such utility-owned coal ash impoundments in South and North
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`Carolina have been or are being excavated; Dominion Energy is excavating all its unlined
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`waterfront coal ash impoundments in Virginia; and Georgia Power is excavating over 60
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`million tons of coal ash from unlined waterfront impoundments in Georgia.
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`38. It is feasible for Alabama Power to remove the coal ash from the Plant Barry unlined
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`impoundment on the banks of the Mobile River.
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`39. Violations of the Act and the Rule are enforceable by citizen suit. 42 U.S.C. § 6972.
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`FACTS
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`Alabama Power’s Polluting Coal Ash in Groundwater and an Unlined Impoundment at
`Plant Barry
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`40. Alabama Power stores over 21 million tons of coal ash in the unlined impoundment at
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`Plant Barry, which sits in groundwater. The unlined Plant Barry Ash Pond was built to
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`receive wet-sluiced coal ash from Plant Barry in 1965, with the construction of earthen
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`dikes within a meander loop of the Mobile River. The unlined impoundment is almost
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`entirely surrounded by the Mobile River and a cooling canal from the facility. The
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`impoundment sits within the 100-year floodplain of the Mobile River in the Mobile-
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`Tensaw Delta, and it was built in wetlands and on top of a tributary of the Mobile River,
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`Sisters Creek.
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`41. The coal ash at Plant Barry is saturated in water several feet deep and will be so after
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`closure by capping. After capping, even more of the ash will be in contact with water,
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`including groundwater, during high water events and floods. Further, after the proposed
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`capping, the groundwater will continue to be in hydraulic connection with the Mobile
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`River and a regional surface aquifer. River levels of fifteen to sixteen feet in the Mobile
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`River at Plant Barry are considered just under “moderate” flood stage, meaning that the
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`water levels in the area of Plant Barry are subject to substantial rises with floods, storms,
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`and hurricanes.
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`42. It is undisputed that the unlined Plant Barry coal ash impoundment has been
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`contaminating water for decades. A 1991 site assessment for a possible Superfund listing
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`at Plant Barry found that
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`[a]rsenic was found in groundwater, surface and subsurface soil, and
`sediment samples in amounts up to 80 times background. The presence of
`these inorganic constituents can be traced to coal, the fuel for the power
`plant, which contains many metallic elements like beryllium, mercury, and
`arsenic. These metallic elements, which are not readily combustible,
`remain in higher concentrations in the fly ash waste.4
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`43. This contamination continues today, as ADEM set out in a 2018 Administrative Order
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`citing Alabama Power for contaminating state waters. In the Matter of Alabama Power
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`Company James M. Barry Electric Generating Plant, Order No. 18-094-GW at 1-3, 8-10
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`(ADEM Aug. 15, 2018). In 2018, Alabama Power reported exceedances of groundwater
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`standards for arsenic and cobalt at Plant Barry. More recently, Alabama Power’s 2020
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`Groundwater Monitoring and Corrective Action Reports, required by federal CCR
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`regulations, show statistically significant increases for many of the 20 monitoring wells at
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`the unlined impoundment for the following contaminants: arsenic (at 12 wells), boron
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`(five wells), calcium (13), chloride (12), cobalt (one), fluoride (one), pH (two), sulfate
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`(nine), and TDS (12).
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`Alabama Power’s Plan to Leave Coal Ash in Groundwater at Plant Barry
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`44. Alabama Power is required to close this old, leaking coal ash impoundment. Alabama
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`Power wants to leave the ash within the existing unlined impoundment and cap it in
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`4 NUS Corporation, 1991, Screening Site Inspection, Phase II, Alabama Power Company – Barry
`Steam Plant, Bucks, Mobile County, Alabama, EPA ID#: ALD082148800 at ES-1.
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`place. On July 1, 2021, Alabama Power obtained a state permit from ADEM to allow the
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`impoundment to be capped in place under state solid waste rules. But this plan is
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`governed by and violates separate federal standards set out in the CCR Rule and RCRA.
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`45. Under its closure plan now set out in the state permit, Alabama Power plans to leave over
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`21 million tons of coal ash capped in place in the old impoundment within the floodplain
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`of the Mobile River, on top of wetlands and Sisters Creek. Alabama Power will attempt
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`to remove the surface water in the ash pond, consolidate the ash, construct new berms
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`and a version of a barrier wall around the newly consolidated ash, install an internal toe
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`drain, grade the ash, and install a cap. The impoundment will still be unlined and in the
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`footprint of the old impoundment, and Alabama Power seeks a variance from slope
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`requirements due to the steepness of the coal ash slope within the impoundment.
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`Alabama Power will monitor the site for 30 years, but it makes no commitment to
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`continue maintenance of the site after the 30-year requirement.
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`46. This plan leaves large quantities of coal ash in contact with water, including groundwater,
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`and in an impoundment in violation of the CCR Rule and RCRA.
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`47. There is no layer beneath the coal ash impoundment that will prevent the coal ash from
`
`being in contact with water. The lack of such a layer is evidenced by the fact that
`
`Alabama Power’s groundwater testing shows coal ash contamination has flowed from the
`
`coal ash to the aquifer and groundwater below the mixed clay formations under the coal
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`ash impoundment. Alabama Power’s consultant describes the materials under the coal
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`ash impoundment as “leaky” and has determined that a barrier wall to prevent the flow of
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`groundwater will not be effective or feasible to control groundwater contamination, and
`
`in fact would increase contact between coal ash and groundwater.
`
`
`
`14
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`
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`Case 1:22-cv-00382-KD-MU Document 1 Filed 09/26/22 Page 15 of 18 PageID #: 15
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`48. The unlined impoundment both before and after capping impounds coal ash, water,
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`sediment, and slurry within one or more depressions and dikes. As set out above, the
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`impoundment was constructed through the building of dikes, and dikes will remain
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`around the capped impoundment. When the impoundment is capped in place, another
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`berm will be built to contain coal ash, slurry, water, and sediment. The impoundment
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`contains natural and/or man-made depressions that impound water, coal ash, slurry, and
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`sediment.
`
`49. As set out above, Alabama Power’s coal ash in the Plant Barry impoundment has
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`contaminated groundwater, and under Alabama Power’s current Closure Plans and the
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`state permit issued by ADEM, contamination will continue indefinitely into the future.
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`CLAIMS FOR RELIEF
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`50. The allegations of all preceding paragraphs are incorporated by reference as if repeated
`
`and set forth herein.
`
`
`
`Alabama Power’s Violations of the CCR Rule and RCRA
`
`51. Alabama Power is violating 40 C.F.R. §§ 257.102(b) and (d) and RCRA. Alabama
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`Power has prepared and published a CCR Rule closure plan that fails to meet the
`
`minimum requirements for closure plans and violates the federal CCR Rule by leaving
`
`coal ash at Plant Barry in and in contact with water and by not eliminating free liquids;
`
`by impounding slurry, sediment, and/or water; and by failing to control, minimize or
`
`eliminate, to the maximum extent feasible, post-closure infiltration of liquids into the
`
`waste and releases of CCR, leachate, or contaminated run-off to the ground or surface
`
`waters. Upon information and belief, Alabama Power is proceeding to implement this
`
`illegal plan.
`
`
`
`15
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`
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`Case 1:22-cv-00382-KD-MU Document 1 Filed 09/26/22 Page 16 of 18 PageID #: 16
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`52. Alabama Power’s cap-in-place closure plan for Plant Barry violates the three independent
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`standards of the federal CCR Rule discussed above, and therefore violates RCRA also, in
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`three separate and independent ways.
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`COUNT 1
`VIOLATION OF 40 C.F.R. § 257.102(d)(2) and RCRA
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`53. In violation of 40 C.F.R. § 257.102(d)(2) and RCRA, Alabama Power’s closure plan for
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`the Plant Barry coal ash impoundment fails to satisfy the CCR Rule’s standard to
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`eliminate free liquids prior to capping in place. In violation of the CCR Rule and RCRA,
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`the coal ash in the Plant Barry unlined impoundment is in contact with groundwater and
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`will be in contact with groundwater, saturated in water, and located in water when the
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`final cover system is installed. Alabama Power has not eliminated and will not eliminate
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`free liquids before the final cover system is installed.
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`COUNT 2
`VIOLATION OF 40 C.F.R. § 257.102(d)(1)(ii) and RCRA
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`54. In violation of 40 C.F.R. § 257.102(d)(1)(ii) and RCRA, Alabama Power’s closure plan
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`for the Plant Barry coal ash will result in the continued impoundment of water, sediment,
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`or slurry, and fails to preclude the probability of future impoundment of water, sediment,
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`or slurry.
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`COUNT 3
`VIOLATION OF 40 C.F.R. §257.102(d)(1)(i) and RCRA
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`55. In violation of 40 C.F.R. §257.102(d)(1)(i) and RCRA, Alabama Power’s cap-in-place
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`closure plan does not control, minimize, or eliminate, to the maximum extent feasible,
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`post-closure infiltration of liquids into the waste or releases of CCR pollution to ground
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`or surface waters.
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`56. These violations occurred before and on July 1, 2021, and are ongoing.
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`
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`16
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`Case 1:22-cv-00382-KD-MU Document 1 Filed 09/26/22 Page 17 of 18 PageID #: 17
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`57. Under the CCR Rule and RCRA, Alabama Power cannot close the coal ash impoundment
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`at Plant Barry by carrying out its plan for capping in place and by implementing the plan
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`that is the subject of the Alabama state solid waste permit.
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`PRAYER FOR RELIEF
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`WHEREFORE, Baykeeper respectfully requests that this Court:
`
`A.
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`Issue a declaratory judgment that Alabama Power is violating the Coal
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`Combustion Residuals Rule and the Resource Conservation and Recovery Act by failing to
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`comply with the closure plan requirements of the Rule, and that Alabama Power is violating the
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`open dumping prohibition of the Act;
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`B.
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`Enter appropriate preliminary and permanent injunctive relief to prevent Alabama
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`Power from implementing this illegal closure plan;
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`C.
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`Enter appropriate preliminary and permanent injunctive relief to ensure that
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`Alabama Power files a closure plan for its Plant Barry coal ash impoundment that satisfies the
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`requirements of the Act and the Rule by eliminating free liquids from the Plant Barry coal
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`ash; precluding the possibility of future impoundment of water, sediment, or slurry; and
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`eliminating infiltration of groundwater and other liquids into Alabama Power’s coal ash, as
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`required by the CCR Rule;
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`D.
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`Award Baykeeper the costs of this action, including reasonable attorney and
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`expert fees, as authorized by 42 U.S.C. § 6972(e); and
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`E.
`
`Grant Baykeeper such further and additional relief as the Court deems just and
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`proper.
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`
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`
`
`
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`17
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`Case 1:22-cv-00382-KD-MU Document 1 Filed 09/26/22 Page 18 of 18 PageID #: 18
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`Respectfully submitted this 26th day of September, 2022.
`
`
`
`
`
`
`Barry Brock (ASB-9137-B61B)
`Christina Tidwell (ASB-9696-D10R)
`Southern Environmental Law Center
`2829 Second Avenue S., Ste. 282
`Birmingham, AL 35233
`Tel: (205) 745-3060
`bbrock@selcal.org
`ctidwell@selcal.org
`Attorneys for Plaintiff
`
`
`
`
`Richard Moore (ASB-5730-M55R)
`450C Government Street
`Mobile, AL 36602
`Tel: (865) 300-1206
`richardmooreig@hotmail.com
`Attorney for Plaintiff
`
`
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`With copies, via U.S. Mail to:
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`The Hon. Michael Regan, Administrator, U.S. EPA
`The Hon. Daniel Blackman, Regional Administrator, U.S. EPA, Region 4
`Mr. Lance LeFleur, Director, ADEM
`Mr. Stephen Cobb, Chief, Land Division, ADEM
`The Hon. Sean P. Costello, U.S. Attorney, Southern District of Alabama
`
`
`
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`18
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