August 5, 2019
Via U.S. Mail and email
Hon. Richard E. Dunn
Director
Environmental Protection Division
Georgia Dept. of Natural Resources
2 Martin Luther King Jr. Drive, SE
Floyd Towers EastSuite 1456
Atlanta, GA 30334-9000
c/o
Dir. of Legal Services, Laura Williams, Esq.,
laura.williams@dnr.ga.gov
RE:

Mr. Chuck Mueller
Branch Chief
Land Protection Branch
Environmental Protection Division
Georgia Dept. of Natural Resources
2 Martin Luther King Jr. Drive, SE
Suite 1054 East Floyd Tower
Atlanta, GA 30334-9000
chuck.mueller@dnr.ga.gov

Georgia Power Company’s applications for solid waste handling permits for
closure of coal ash ponds at Plant Scherer (AP-1), Plant Wansley (AP-1), Plant
Yates (AP-B’ and AP-3 “Ash Management Area” and R6 landfill), Plant
McDonough (AP-1, AP-3, AP-4), and Plant Hammond (AP-3)

Dear Director Dunn and Branch Chief Mueller:
On our own behalf and on behalf of the Altamaha Riverkeeper, Chattahoochee
Riverkeeper, Inc., and Coosa River Basin Initiative, the Southern Environmental Law Center
writes to request that EPD deny Georgia Power Company’s solid waste permit applications to
dispose of coal combustion residuals (CCR or coal ash) in place at the above five plants. Denial
of these permits is required for numerous reasons, the most glaring of which is that Georgia
Power’s closure plans are illegal under both Georgia and federal solid waste laws.
In exercising permitting authority over coal ash disposal for the first time in Georgia,
EPD has a historic opportunity, and a duty, to assure that coal ash handling and disposal in
Georgia “does not adversely affect the health, safety, and well-being of the public” and that such
practices “do not degrade the quality of the environment by reason of their location, design,
method of operation, or other means ….” O.C.G.A. § 12-8-21(a).
EPD must fulfill this mandate by rejecting the current permit applications and closure
plans, because they propose disposal of coal ash in crude unlined impoundments that fail to meet
requirements of Georgia and federal solid waste laws. This letter explains in detail how Georgia
Power’s CCR permit applications and closure plans fail to meet these requirements. We also
submit for your consideration the written reports of Mark Hutson, P.G., one of the nation’s most

 Georgia EPD
August 5, 2019
Page 2
experienced technical experts on the subject of coal ash disposal. In the enclosed reports,
Attachment 1 through Attachment 5, Mr. Hutson identifies and explains the flaws in Georgia
Power’s closure-in-place plans at Plants Scherer, Wansley, Yates, McDonough, and Hammond.
Critical takeaways from the application materials, the available science, and publiclyavailable evidence include the following:
•

The evidence disproves Georgia Power’s misleading characterizations that the
proposed closure of these coal ash ponds will be protective of groundwater, and
disproves the safety and effectiveness of so-called “advanced engineering” to protect
the environment and achieve required state and federal standards.

•

All of these close-in-place impoundments are unlined, and the company proposes to
leave them submerged beneath the groundwater table, up to more than 80 feet deep in
Georgia’s aquifers, forever.

•

These waste sites were originally selected for the convenience of the company, not
for suitability for permanent waste disposal – as a result, they are in some of the least
suitable locations imaginable: flood zones, state-designated “most significant groundwater recharge areas,” and populated areas.

•

These unlined impoundments will continue leaching toxic metals after closure, and
placing a cap on top won’t change that: the waste is fed by buried streams and
springs, flows that become polluted as they infiltrate the waste and then exit the basin.

•

The science concerning human health risks and environmental pollution caused by
unlined coal ash impoundments is now impossible to ignore or credibly downplay.
EPD must consider these risks; the growing consensus from states in our region is
that excavation to lined disposal is the only viable option to protect human health and
the environment.

•

The known evidence warrants denial of the permits, yet despite what’s known
concerning pollution that’s already occurring, Georgia Power has failed to form a
true picture of the extent of environmental contamination caused by its coal ash
dumps, instead performing selective groundwater monitoring and analysis tailored to
explain away detected pollution. These flaws prevent EPD from performing a
meaningful human health and environmental impacts analysis, warranting denial of
the applications.

 Georgia EPD
August 5, 2019
Page 3
I.

Introduction and background.
a. Coal ash toxins and Georgia Power’s permit applications.

Coal ash is the waste byproduct left behind when coal-fired power plants burn coal. This
waste contains a host of carcinogens and neurotoxins, such as arsenic, barium, boron, beryllium,
cadmium, chromium, lead, mercury, nickel, selenium, and silver. See Hazardous and Solid
Waste Mgmt. Sys.; Identification and Listing of Special Wastes; Disposal of Coal Combustion
Residuals from Elec. Utils. (“Proposed CCR Rule”), 75 Fed. Reg. 35,128, 35,153, 35,168–69
(U.S. Envtl. Prot. Agency June 21, 2010). 1 Each of these toxic pollutants has been detected near
Georgia Power’s coal ash ponds, among others. (See, e.g., Attachments 1 – 5, identifying
detected pollutants, and discussion pp. 21–22, infra, detailing additional toxic metals detected
polluting the environment at and from Georgia Power’s coal ash disposal sites).
Arsenic causes cancer, including lung cancer, skin tumors, and internal organ tumors, and
is connected to heart problems, nervous system disorders, and stomach pain. EPA estimates that
nearly 140,000 people per year experience increased cancer risk due to arsenic from coal-fired
power plants that accumulates in fish. 2
Mercury is a highly toxic compound and dangerous even in small concentrations, as it
bioaccumulates and impairs brain development in children and causes nervous system and
kidney damage in adults. EPA estimates that almost 2,000 children per year are born with lower
IQs because of mercury in fish that their mothers have eaten. 3
Even at low concentrations, nickel can inhibit the growth of microorganisms and algae;
and depending on exposure, can damage the kidney, lungs, immune system, liver and kidneys of
1

Available at https://www.federalregister.gov/documents/2010/06/21/2010-12286/hazardousand-solid-waste-management-system-identification-and-listing-of-special-wastes-disposal-of.
2

U.S. ENVTL. PROT. AGENCY, BENEFIT AND COST ANALYSIS FOR THE PROPOSED EFFLUENT
LIMITATIONS GUIDELINES AND STANDARDS FOR THE STEAM ELEC. POWER GENERATING POINT
SOURCE CATEGORY, Docket No. EPA-HQ-OW-2009-0819-2238 at 3-6 (Apr. 2013) (“2013 EPA
ELG Benefits and Costs Analysis”),
https://nepis.epa.gov/Exe/ZyNET.exe/P100MZC1.TXT?ZyActionD=ZyDocument&Client=EPA
&Index=2011+Thru+2015&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestri
ct=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp
=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C11thru15%
5CTxt%5C00000016%5CP100MZC1.txt&User=ANONYMOUS&Password=anonymous&Sort
Method=h%7C&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&D
isplay=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results
%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL.
3

See id. at 3-13.

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August 5, 2019
Page 4
aquatic life. 4 Human exposure to high concentrations can cause gastrointestinal and kidney
damage. 5
The harmful effects of lead exposure are well-known. As to coal ash contamination, EPA
concludes that “[e]xposure to lead can cause a variety of adverse health effects in adults and
children,” noting peer-reviewed scientific studies that suggest “a decrease of 0.25 IQ points can
be expected for every 1 [parts per billion] increase” in lead exposure to a modeled childhood
population used in EPA’s calculations. 6 Sufficiently high human exposure via drinking water can
cause serious damage to the brain, kidneys, nervous system, and red blood cells. 7
Boron can be toxic to vegetation and wildlife at certain aquatic concentrations and when
ingested. Human exposure to high concentrations of boron can cause nausea, vomiting, and
diarrhea. 8
“EPA determined that cadmium is a probable human carcinogen.” 9 “Cadmium tends to
bioaccumulate readily” in studied aquatic species. Id. “In humans, chronic, low-level exposure to
cadmium from contaminated air, drinking water, or food can cause kidney failure. Chronic lowlevel exposure from contaminated drinking water or food can also lead to fragile bones.” Id.
Selenium readily moves up the food chain (bioaccumulation). 10 Short-term human
exposure to selenium can cause hair and fingernail changes, damage to the peripheral nervous
system, and fatigue and irritability, whereas long-term exposure can damage the kidneys, liver,
and nervous and circulatory systems. 11 Selenium is acutely poisonous to fish and aquatic life in
even small doses; concentrations below 3 to 8 micrograms per liter (that is, 3 to 8 parts per
4

See U.S. ENVTL. PROT. AGENCY, ENVTL. ASSESSMENT FOR THE EFFLUENT LIMITATIONS
GUIDELINES AND STANDARDS FOR THE STEAM ELEC. POWER GENERATING POINT SOURCE
CATEGORY, Docket No. EPA-821-R-15-006 at 3-4 (Sept. 2015) (“2015 ELG Environmental
Assessment”), https://www.epa.gov/sites/production/files/2015-10/documents/steam-electricenvir_10-20-15.pdf. EPA’s 2015 Environmental Assessment of coal power plant pollution
“evaluated the threats to human health and the environment associated with pollutants leaching
into ground water from surface impoundments and landfills containing combustion residuals,”
id. at 2-3 n.6, the very wastes that Georgia Power would leave submerged in Georgia’s aquifers.
5

Id.

6

2013 EPA ELG Benefits and Costs Analysis at 3-6 – 3-7.

7

See 2015 ELG Environmental Assessment at 3-3.

8

See id. at 3-8.

9

Id. at 3-7.

10

See id. at 3-4.

11

Id. at 3-4.

 Georgia EPD
August 5, 2019
Page 5
billion in water) can kill fish, and lower concentrations can leave fish deformed or sterile. 12
Selenium can impair ecosystems by interfering with fish reproduction. EPA has concluded that
pollutants commonly released to the environment from coal power plants “cause environmental
harm by contaminating surface water and ground water (e.g., selenium concentrations from
steam electric power plants have resulted in fish kills). 13 After being released into the
environment, pollutants can reside for a long time in the receiving waters, bioaccumulating and
binding with the sediment. There is documented evidence of slow ecological recovery as a result
of these pollutant discharges . . . Some impacts might not be realized for years due to the
persistent and bioaccumulative nature of the pollutants released.” 14
Despite the known presence of these and many other toxins in coal ash, Georgia Power
has for decades employed “wet-handling” to manage and dispose of this waste. As opposed to
“dry handling” – an approach that does not involve the addition of water as a means of
transporting this waste from the boiler 15 – wet-handling is a crude and vastly more harmful
affair, whereby soils are merely dug up or a region diked to form a pond (or lagoon) to hold the
wastes which are sluiced there via gravity. 40 C.F.R. § 257.2 (definition of surface
impoundment); History of Construction, Hammond AP-3 at pp. 2-3. 16
Burning coal to generate electricity does not have to result in any pollution of water
resources from coal ash. The dry remnants of burning (coal ash) could have been transported to a
safe, lined landfill for disposal. In other words, the problem Georgia and EPD now face is one
that Georgia Power voluntarily created for its own convenience and to save short-term, marginal
dollars. It is now for EPD to decide whether the public and Georgia’s natural resources will bear
the consequences for Georgia Power’s short-sighted, poorly-conceived decisions.

12

Id. at 3-5.

13

Id.

14

Id. at 3-1.

15

Georgia Power has only recently opted to convert to dry handling at all of its operating coal
plants following federal regulation of CCRs, stating that “[i]n 2016, the company committed that
all ash ponds will stop receiving coal ash within three years and the significant construction work
necessary to accommodate the dry-handling of ash at each plant is expected to be completed by
2019.” Georgia Power, Environmental Compliance; CCR Management & Ash Pond Closures
(last updated 2018), https://www.georgiapower.com/company/research-conservation-andstewardship/management-closures.html.
16

Available at https://www.georgiapower.com/content/dam/georgia-power/pdfs/companypdfs/plant-hammond/20180417_constrhist_ham_ap3.pdf.

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August 5, 2019
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i.

Georgia Power’s ongoing pollution unearthed by 2015 Federal CCR
disclosure rules.

It was inevitable that these unlined pits would pollute Georgia’s environment with toxic
metals that are contained within the ash. Georgia Power’s own evidence now confirms the
magnitude and pervasiveness of its pollution.
Requirements imposed by EPA’s 2015 Coal Combustion Residuals Rule, 40 C.F.R.
§§ 257 et seq. (“Federal CCR Rule”), 17 and Georgia EPD’s adoption of a state counterpart, the
Georgia Rules for Solid Waste Management, Ga. Comp. R. & Regs. (hereinafter “State Rule”)
391-3-4-.10 Coal Combustion Residuals (“Georgia CCR Rule”), have prompted Georgia Power
for the first time to disclose an alarming state of affairs concerning its coal ash ponds in Georgia.
Mark Hutson is a geologist and hydrogeologist with over 38 years of experience in a
range of environmental matters, including regulatory permitting, site environmental
characterization, groundwater remediation, and directing human health and ecological risk
assessments. Mr. Hutson is one of the nation’s most experienced technical experts on the subject
of coal ash disposal, groundwater and surface water impacts, and remediation. For the past 13
years, Mr. Hutson has been engaged as an expert consultant in permitting, site investigation and
remediation at coal ash sites across the United States, including neighboring Alabama, South
Carolina, and North Carolina, as well as Virginia, Mississippi, Maryland, Arizona, Colorado,
Illinois, Indiana, Kansas, Minnesota, Montana, New Mexico, Nevada, Pennsylvania, and
Wisconsin.
As noted above, Attachment 1 – Attachment 5 are expert reports of Mr. Hutson, detailing
preliminary findings from his technical review of Georgia Power’s permit applications, as well
as other documents and information related to Georgia Power’s proposed closure of unlined coal
ash impoundments at Plant Scherer, Plant Wansley, Plant Yates, Plant McDonough, and Plant

17

Effective October 19, 2015, EPA published its final rule to regulate the disposal and storage of
CCR as solid waste under Subtitle D of the Federal Resource Conservation and Recovery Act, or
RCRA. Hazardous and Solid Waste Mgmt. Sys.; Disposal of Coal Combustion Residuals From
Elec. Utils.; Final Rule, 80 Fed. Reg. 21,302, 21,312 (Apr. 17, 2015) (“Final Rule”) (codified at
40 C.F.R. Parts 257 and 261), as amended by Technical Amendments to the Hazardous and Solid
Waste Mgmt. Sys., Disposal of Coal Combustion Residuals from Elec. Utils. – Correction of the
Effective Date, 80 Fed. Reg. 37,988 (July 2, 2015), available at
https://www.federalregister.gov/documents/2015/04/17/2015-00257/hazardous-and-solid-wastemanagement-system-disposal-of-coal-combustion-residuals-from-electric and
https://www.federalregister.gov/documents/2015/07/02/2015-15913/technical-amendments-tothe-hazardous-and-solid-waste-management-system-disposal-of-coal-combustion.

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August 5, 2019
Page 7
Hammond (respectively, the “Scherer Report,” “Wansley Report,” “Yates Report,”
“McDonough Report,” and “Hammond Report”). 18
As Mr. Hutson details in these reports and as discussed below, Georgia Power’s closure
plans entail leaving a massive, indisputable source of toxic metals in unlined impoundments,
submerged in Georgia’s groundwater at depths up to more than 85 feet, which the proposed
closure plans confirm will remain submerged post-closure. (See Attachments 1 – 5). As Mr.
Hutson explains, unlike other forms of waste such as municipal solid waste (or “MSW”),
“inorganic coal combustion residuals and the metals they contain do not biodegrade. Coal ash
that is left in unlined basins will be capable of leaching toxic metals into Georgia’s groundwater
at any time in the present, the near, or distant future for as long as soluble metals in the ash are
allowed to come into contact with water.” (E.g., Wansley Report at 1, Attachment 2; Yates
Report at 1, Attachment 3).
Despite the rosy picture painted by Georgia Power’s various press statements concerning
the safety and effectiveness of its so-called “advanced engineering methods” 19 tied to its

18

To date, Mr. Hutson has not undertaken a review of all of Georgia Power’s waste permit
applications in the State. For instance, Mr. Hutson’s accompanying expert letter report
addressing Plant McDonough Ash Ponds AP-3 and AP-4 does not specifically address
McDonough’s AP-1, another unlined basin sited next to the Chattahoochee River. Nevertheless,
the litany of technical failures addressed herein and in the accompanying expert reports suggest
that Georgia Power’s waste handling and disposal permit applications for impoundments not
specifically addressed in this letter are plagued by similar flaws and material omissions. We
reserve the right to address them separately in the future.
19

Georgia Power Company, Ash Pond Closure Efforts Continue Across Georgia (Mar. 2, 2018),
https://www.georgiapower.com/company/news-center/2018-articles/ash-pond-closureefforts.html (Company references to so-called “advanced engineering methods” to close its
unlined impoundments); see also Russell Grantham, Arsenic, Other Toxins Found at Three
Georgia Power Plants, THE ATLANTA-JOURNAL CONSTITUTION (June 29, 2016),
https://www.ajc.com/business/arsenic-other-toxins-found-three-georgia-powerplants/2OaqtJ2k28iM4DhWyC4v7L/ (Georgia Power spokesperson statements that detected
contaminants were located “all on the utility company’s property”). As Mr. Hutson notes,
however, none of the permit applications are supported by sufficient on-site or downgradient
well data or analysis, nor is there any modeling performed to assess or predict the extent of
current or future downgradient contamination of groundwater and surface waters attributable to
the known source of pollutants at any of these waste sites – although the evidence does indicate
that the contamination is occurring, and will continue post-closure. (Scherer Report at 6-10,
Attachment 1; Wansley Report at 7, 9–10, Attachment 2; Yates Report at 7–9, Attachment 3;
McDonough Report at 2–3, 11–12, Attachment 4; Hammond Report at 8–9, Attachment 5).
Georgia Power’s statements are likewise disproven by a published, peer-reviewed scientific
study concluding that its coal plants at Arkwright and Branch are leaking toxic metals to both

 Georgia EPD
August 5, 2019
Page 8
proposed coal ash closure efforts throughout the State of Georgia, the evidence now proves
otherwise. As Mr. Hutson details in the accompanying expert reports, the permit applications and
available information reveal:
•

The bottoms of the ash impoundments will remain unlined post-closure;

•

Coal ash within these impoundments is submerged in and degrading groundwater
quality and the environment, which will continue post-closure – that is, a massive
volume of Georgia Power’s coal ash lies beneath the groundwater table saturating the
ash, and the closure plans call for leaving it there, forever;

•

When placed in contact with water, either from percolation from above, or from the
sides / from beneath by infiltration, coal ash generates “leachate” in an amount that is
greater than the equivalent toxic-weighted water pollution from the entire coal mining
industry; it is this leachate that is polluting Georgia’s groundwater from these unlined
basins, which will continue post-closure;

•

The ash basins are fed by perennial or intermittent streams and creeks, providing
continual flows of water that infiltrate the unlined waste basins; the closure plans will
not preclude infiltration of water into the waste, and the ash basins will continue to
release contaminants from the waste post-closure, yet the plans do not take these
facts into account – a critical, obvious omission that must be fully disclosed;

•

For the same reasons, the closure plans will not preclude the probability of future
impoundment of water, sediment or slurry, nor eliminate free liquids in the waste,
given that, among other factors, coal ash will remain unlined and submerged in
groundwater in a porous media – the coal ash itself;

•

Flawed as they are, the existing groundwater monitoring systems have detected
elevated concentrations of common ash-related contaminants, yet the company has
not determined the extent and nature of the plume of contamination migrating from
the waste impoundments, which will continue post-closure; and

•

In light of the company’s failure to delineate the true magnitude and extent of current
and foreseeable post-closure releases of contaminants from these unlined basins, there
is insufficient information upon which EPD can evaluate actual or potential impacts
to human health and the environment from the proposed closures.

groundwater and the adjacent surface waters. See infra, page 22 (citing J. Harkness et al. Duke
University study, Attachment 6).

 Georgia EPD
August 5, 2019
Page 9
As the accompanying reports detail, it is in no sense “advanced engineering” 20 to leave
millions of tons of industrial waste containing toxic metals in unlined pits submerged in
groundwater, buried on top of Georgia’s streams and creeks, and sitting beside lakes and rivers.
Georgia Power’s invented public relations terminology simply does not square with the
overwhelming evidence to the contrary.
EPD’s solid waste permit decisions governing the means by which Georgia Power is
allowed to permanently close its coal ash waste dumps are enormously consequential for
Georgians and the State’s natural resources. Figure 1 below depicts the location of the nearly 50million tons of coal ash waste that Georgia Power proposes to “close in place” unlined at its
various coal plants addressed herein:
[see next page]

20

Georgia Power Company, Ash Pond Closure Efforts Continue Across Georgia (March 2,
2018), https://www.georgiapower.com/company/news-center/2018-articles/ash-pond-closureefforts.html.

 Georgia EPD
August 5, 2019
Page 10

Figure 1

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Georgia EPD
August 5, 2019
Page 11
ii.

The closure sites are unsuitable for unlined disposal.

Further compounding the threat posed by Georgia Power’s closure plans is that the
location of these pits can scarcely be less suitable for unlined waste disposal. Many of these
waste basins lie in residential areas, floodplains, and in state-designated significant groundwater
recharge areas, factors that EPD has to consider in its permitting determinations. State Rule 3913-4-.02(8) (EPD must review “such other information” “necessary to ascertain the effect of such
solid waste handling upon air, water, and land resources and human health.”).
1. Threat to residential areas – Plant McDonough
Plant McDonough’s closure plan proposes to combine two ash ponds (AP-3 and AP-4)
totaling nearly five million tons, and leave their ash directly adjacent to the Chattahoochee River.
(McDonough Report at 5–7, Attachment 4). Located in Cobb County in the City of Smyrna,
Plant McDonough lies within densely populated metropolitan Atlanta, alongside a critical
waterway serving millions of Georgians, the state’s agricultural industry, and neighboring
Alabama and Florida. As proposed, the combined ash disposal area (AP-3/4) would remain
unlined, leaving a substantial volume of ash submerged in groundwater. See id. at 2–3, 7–8. As
Mr. Hutson concludes, Georgia Power has not disclosed the thickness of coal ash that will
remain saturated in groundwater post-closure in the combined waste disposal area, or the extent
of post-closure releases of pollutants from the ash – critical omissions if EPD is to properly
evaluate post-closure impacts to human health and the environment. See id. at 3, 6–7. 21
But the serious flaws with Georgia Power’s proposed closure of McDonough’s ash ponds
hardly end there. As Mr. Hutson details, Georgia Power’s closure plans propose leaving a 1970sera fiberglass-lined corrugated metal pipe in place to route the flow of a buried perennial stream
that runs just 50 feet from the combined unlined disposal area, from across a former portion of
Ash Pond 4 (to be removed and dumped nearby in the unlined disposal area) discharging to the
Chattahoochee River. See id. at 5–6. A perennial stream is a waterway that flows continuously
year-round under normal rainfall conditions. Id. at 5 n. 11. According to Mr. Hutson, the
perennial stream right next to the proposed closure area (combined AP-3/4) will exist forever – it
predates the time when Georgia Power appropriated that area as a waste dump – and so that flow
shall “continue” “in perpetuity” under the proposed plan. See id. at 6. Referring to a cross-section
provided in the application materials, Mr. Hutson notes that the pipe had been buried by about 90
21

As discussed below, pp. 41–43, Georgia Power has misclassified McDonough’s AP-1 and AP3, which appears to be a reason for why it has failed to disclose critical information concerning
the volume of saturated ash it proposes to leave at the site, as well as the depth of ash it proposes
to leave submerged beneath the groundwater table. Yet, given EPD’s obligation to review “such
other information” “necessary to ascertain the effect of such solid waste handling upon air,
water, and land resources and human health,” granting a permit without disclosure of this critical
information would be arbitrary and capricious. State Rule 391-3-4-.02(8).

 Georgia EPD
August 5, 2019
Page 12
feet of coal ash, id. at 5, and that given site conditions, “it is clear that Georgia Power has for
decades allowed ash-related contaminants to discharge into the buried stream, and eventually
into the Chattahoochee River.” Id. at 6.
According to Mr. Hutson, “[t]he importance of having a perennial stream routed beneath
a coal ash waste disposal facility cannot be overstated,” having “significant ramifications for
current and future environmental impacts and maintenance costs of AP-3/4.” Id. As proposed,
Mr. Hutson concludes that this buried, 1,500 foot long pipe “will require regular maintenance
and replacement in perpetuity in order to avoid potential flooding and/or undermining of the toe
of the ash landfill. In the event that a future breach in the pipes develops without being detected,
the soil and waste that overlies the pipes could be eroded and carried downstream with stream
flow. Erosion of the soil in the vicinity of the breach in the pipes could eventually remove
enough material to undermine the foundation of the soil buttress and/or bottom of AP-3/4.” Id.
These concerns with respect to the long-term structural stability of this enormous toxicmetals-containing waste disposal site in Smyrna, metropolitan Atlanta, are far from unfounded.
Mr. Hutson observes that the area in which Plant McDonough’s ash ponds are located may be
more prone to corroding underground pipes. Just recently, in June 2019, a seven-year old water
main owned by Cobb County located just across the street from Plant McDonough’s ash basins
ruptured. See id. at 6–7. 22 The failed, buried water line in Cobb County had been replaced twice
over just the past 20 years, using materials that are rated to last a century. See id.
While the cause of Cobb County’s water main rupture remains undetermined as of the
date of Mr. Hutson’s report, it “does raise unanswered questions about the expected longevity of
the pipes that transmit water below the McDonough site.” Id. at 7. As Mr. Hutson observes,
“[o]nce the 30-year post-closure period [under the CCR Rule] has ended at Plant McDonough
AP-3/4 it is unclear who would be left with the task and expense of maintaining the subterranean
drainage system, in perpetuity.” Id.
Georgia Power’s proposed closure plan at Plant McDonough, and its reliance on the
permanent structural integrity of a buried pipe is reminiscent of a coal ash disposal configuration
at the Duke Energy Dan River Steam station, which in 2014 ended in disaster. In that buried pipe
failure, over 20 million gallons of coal ash polluted water and 39,000 tons of coal ash to the Dan

22

The June 11, 2019 water main break near the intersection of Maner Road and Plant Atkinson
Road in Smyrna, Georgia, directly next to Plant McDonough, resulted in a rapid decrease in
water pressure for residents in the region and a boil water advisory. Tim Darnell, Water Pressure
Main Break Causes Low Pressure, Outages in Cobb, PATCH.COM (June 11, 2019, 8:04 AM),
https://patch.com/georgia/smyrna/water-outages-reported-throughout-cobb-county.

 Georgia EPD
August 5, 2019
Page 13
River when a corrugated metal pipe running beneath the ash pond ruptured due to corrosion. 23
Noting the critical implications for public safety raised by Georgia Power’s proposed closure
plan for Plant McDonough’s combined AP-3/4, Mr. Hutson concludes that “[a]lthough all coal
ash disposal sites are site specific, the well documented failure of a buried pipe at an unlined coal
ash impoundment at Duke Energy’s Dan River Steam Station in 2014 serves as an illustration of
how a poorly conceived disposal configuration relying on the long term structural integrity of
buried pipes can lead to potentially disastrous results.” Id. at 7.
Georgia Power has known that it had buried a fiberglass-lined corrugated metal pipe
routing a stream deep underneath AP-4 at Plant McDonough for years. Recently-available
documents show that the company now proposes to remove ash from above that pipe and dispose
of it nearby in an unlined ash pit. Thus, aside from groundwater pollution beneath and
downgradient from AP-3/4 caused by the unlined basin sitting right next to this nearly halfcentury old pipe, Mr. Hutson concludes that given the risks detailed in his report, this closure
configuration “is exactly the type of short-sighted closure scenario that a properly functioning
regulatory oversight and permitting system should prevent.” Id.
2. Threat to Georgia’s designated Significant Ground-Water Recharge Areas
– Plants Scherer and Yates
In another example of how unsuitable these sites are for unlined waste disposal, both
Plant Scherer’s AP-1 and Plant Yates’s R6 Landfill and its “Ash Management Area” (or
“AMA”) sit within regions whose groundwater purity is so critical to Georgia state law bans
unlined household garbage landfills in these designated areas – yet Georgia Power seeks a permit
from EPD to leave a massive volume of waste known to contain toxic metals, unlined and
submerged in groundwater, in the same protected areas.
According to Georgia’s Department of Natural Resources, the regions designated as the
Most Significant Ground-Water Recharge Areas of Georgia are “those recharge areas where the
State of Georgia should direct ground-water protection efforts.” 24 As Mr. Hutson explains in his
report for Plant Scherer and Plant Yates, the proposed waste disposal areas are within these
protected areas. (Scherer Report at 5, Attachment 1; Yates Report at 3, 7, Attachment 3). The
following depicts the location of Scherer’s AP-1, Yates’s AMA and the R6 landfill totaling over
20 million tons of ash submerged in unlined disposal pits within these state-designated areas:

23

A more detailed discussion of the 2014 Dan River coal ash disaster is presented below, pp. 18–
20 and footnotes 35 and 38.
24

Kenneth R. Davis et al., Most Significant Ground-Water Recharge Areas of Georgia, GA.
DEP’T OF NATURAL RES, GA. ENVTL. PROT. DIV., GA. GEOLOGIC SURVEY, HYDROLOGIC ATLAS
18 (1989), https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/HA-18.pdf.

 Georgia EPD
August 5, 2019
Page 14

Location of Georgia Power Coal Ash Panda
within Groundwater Recharge Areas

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Georgia EPD
August 5, 2019
Page 15
Municipal solid waste (MSW) landfills are prohibited by Georgia’s Comprehensive Solid
Waste Management Act within this same “significant ground-water recharge area,” unless such
MSW landfill features a liner and leachate collection system. O.C.G.A. § 12-8-25.2. Given that,
unlike municipal solid waste, coal ash contains heavy metals and other toxic substances that
persist, do not biodegrade, and that will continue to leach into groundwater, the very purpose
underlying Georgia’s ban on unlined household garbage landfills in these regions – protection of
these protected zones from water pollution “applies with at least equal force to the pollutants
contained in coal ash” – “it shouldn’t be allowed to pollute Georgia’s sensitive groundwaters in
perpetuity.” (Yates Report at 7, Attachment 3; Scherer Report at 5, Attachment 1) (italics in
original).
3. Threats from siting in flood zones – Plants Wansley, Scherer, and
Hammond
Georgia Power’s impoundments at three sites are subject to flooding – an untenable
situation given that they will remain unlined under these closure plans. As Mr. Hutson details,
the ash ponds at Plant Wansley, Plant Scherer, and Plant Hammond are each on the 100-year
flood plain. (Wansley Report at 5–6, Attachment 2; Scherer Report at 5–6, Attachment 1;
Hammond Report at 5, Attachment 5). As such, water will infiltrate the ash basins anew by the
rising waters accompanying even “relatively minor” flood events, resulting in additional
groundwater pollution as the floodwaters enter and leave the basins, carrying mobilized
pollutants with them. See id.
Additionally, as Mr. Hutson explains, such flood events will increase the danger of
enhanced erosion and catastrophic releases from the basin, as exemplified just last year when
floodwaters caused by Hurricane Florence breached the ash landfill at Duke Energy’s retired
L.V. Sutton plant in North Carolina, releasing an unknown amount of ash to nearby waters. (See
Wansley Report at 5-6, Attachment 2; Scherer Report at 5-6, Attachment 1). The following is a
photograph of the breach of an embankment at Duke Energy’s L.V. Sutton plant soon after
Florence in 2018, in a scenario whose possibility will always exist for Plants Scherer and
Wansley under the current closure plans, given that they too will remain unlined in flood
zones: 25
[next page]

25

Photograph of a portion of a coal ash landfill in the aftermath of Hurricane Florence, Valarie
Bauerlein & Russell Gold, Florence Washes Away Portion of Coal-Ash Landfill in North
Carolina: Duke Energy, Owner of the Landfill, Says Some of the Coal Ash Escaped into a
Nearby Lake, WSJ.COM (Sept. 16, 2018), https://www.wsj.com/articles/florence-washes-awayportion-of-coal-ash-landfill-in-north-carolina-1537137771.

 Georgia EPD
August 5, 2019
Page 16

Georgia Power appears to recognize these risks … to its closure plan for Plant Scherer
AP-1. Rather than propose a closure plan that will adequately safeguard the unlined ash basins
from a 100-year flood event, Georgia Power instead has requested that the Federal Emergency
Management Agency (FEMA) simply redraw the floodplain in the region, to carve out Scherer’s
AP-1. 26 It is unjustified. The ash basin will remain unlined under the closure plan; rising
floodwaters, rewetting of the porous ash, erosion, and possibly sudden breaches will remain
perpetual risks. (Scherer Report at 3, 5-6, Attachment 1). This remains true, notwithstanding the
results of Georgia Power’s efforts to convince a federal agency charged with protection of the
public from natural disasters 27 to redraw its map to suit the company’s closure plans.
As the following discussion and Mr. Hutson’s reports detail, Georgia Power proposes to
cover up decades of accumulated coal ash waste that will perpetuate pollution, rather than
26

HODGES, HARBIN, NEWBERRY, & TRIBBLE, PLANT SCHERER COAL COMBUSTION RESIDUALS
(CCR) LANDFILL PERMIT APPLICATION, PART B, SECTION 1 (Nov. 2018), Appendix B, “Schnabel
Engineering, LLC – Conditional Letter of Map Revision combined with FEMA Forms 086-0-27,
-27A, and -27B (Dec. 21, 2017) (attached as Attachment 7) (excerpted).
27

FEMA’s mission is “to lead America to prepare for, prevent, respond to and recover from
disasters with a vision of ‘A Nation Prepared.’” See https://www.fema.gov/about-agency.

 Georgia EPD
August 5, 2019
Page 17
correct and prevent it. Because the evidence demonstrates that these closure plans fail to satisfy
the requirements of Georgia’s solid waste laws, the applications must be rejected until they do. 28
b. Unlined coal ash impoundments adversely affect the health, safety, and well-being
of the public, and degrade the environment.
About one and a half million Georgians (15% of the population) rely on self-supplied
groundwater for drinking, cooking, bathing, washing clothes and other domestic uses, according
to the U.S. Geological Survey and U.S. Department of the Interior. 29 As noted above, several of
Georgia Power’s coal ash ponds are located in residential areas, including Plant McDonough,
Plant Wansley, and Plant Scherer, the latter of which lies in a neighborhood where residents
obtain their drinking water from groundwater wells. 30 Likewise, agriculture – Georgia’s largest
industry – relies on the quality of Georgia’s waters to thrive. 31

28

The closure plans likewise entail open dumping barred by the Federal Resource Conservation
and Recovery Act, 42 U.S.C. §§ 6901 et seq. (“RCRA”). The Federal CCR Rule states that
“[p]ractices failing to satisfy any of the criteria in … §§ 257.50 through 257.107 constitute open
dumping, which is prohibited under section 4005 of the [RCRA].” 40 C.F.R. § 257.1(a)(2).
These criteria include the performance standards governing closure in place under § 257.102(d).
These Federal criteria, adopted in Georgia via the Georgia CCR Rule, likewise prohibit the
manner in which Georgia Power seeks to leave its waste in these unlined pits.
29

U.S. GEOLOGICAL SURVEY, WATER AVAILABILITY AND USE SCIENCE PROGRAM, ESTIMATED
USE OF WATER IN THE UNITED STATES IN 2015 23, Table 6 (hereinafter, “2015 USGS Report”),
https://pubs.usgs.gov/circ/1441/circ1441.pdf.
30

E.g., Samantha Max, Residents Worried Coal Ash Was Contaminating Their Water. New Data
Suggests It Might Be, MACON TELEGRAPH (Dec. 15, 2018, 3:42 PM) (detailing health impacts
and concerns voiced by “many residents who live near the plant” who rely on well water for
domestic use), https://www.macon.com/news/local/article223110165.html; S. Heather Duncan,
Regulation of Coal Ash Ponds Like Plant Scherer’s is Minimal, MACON TELEGRAPH (updated
Apr. 30, 2012 1:36 PM) (“Although Monroe County commissioners are considering extending
water lines to some neighborhoods with uranium contamination in their wells, those areas are
generally south of the plant, whose immediate neighbors also rely on well water.”),
https://www.macon.com/news/article28648366.html.
31

“Despite all the changes in society, farming remains the foundation of the state's economic
well-being. Approximately one in seven Georgians works in agriculture, forestry, or a related
field.” GA. FARM BUREAU, https://www.gfb.org/education-and-outreach/about-gaagriculture.cms; “With over $75 billion in economic impact every year, agribusiness is Georgia’s
leading industry.” GA. DEP’T OF ECON. DEV., https://www.georgia.org/industries/agribusiness.

 Georgia EPD
August 5, 2019
Page 18
EPD recognizes “prevention of contamination as an important tool in the protection of
public water supplies.” 32 As Mr. Hutson explains, “[a] central tenet of responsible waste
management is that it be prevention-based. … ‘Ground water is … used extensively for
agricultural, industrial, and recreational purposes. Landfills can contribute to the contamination
of this valuable resource if they are not designed to prevent waste releases into ground water …
Cleaning up contaminated ground water is a long and costly process and in some cases may not
be totally successful.’” (Scherer Report at 1, Attachment 1) (citing U.S. ENVTL. PROT. AGENCY,
CRITERIA FOR SOLID WASTE DISPOSAL FACILITIES, A GUIDE FOR OWNERS/OPERATORS 3
(EPA/530-SW-91-089, Mar. 1993) (emphasis added). 33
Reflecting this central tenet, Georgia’s solid waste rules expressly prohibit “solid waste
handling in a manner which will … impair the quality of the ground or surface waters; impair the
quality of the environment; or likely create other hazards to the public health, safety, or wellbeing ….” State Rule 391-3-4-.04(1). Issuing solid waste permits that enable the perpetuation of
pollution, rather than prevention of it, would fundamentally violate these principles, which form
the bedrock of Georgia’s Comprehensive Solid Waste Management Act. O.C.G.A. §§ 12-821(a), (d) (state policy prohibiting solid waste practices that degrade the environment and
adversely affect public health, safety, or well-being, and directing EPD to “conform to” and
“implement” such policy and express intent of the law in exercising its permitting duties).
The mishandling of coal ash serves as a prime example of where owners/operators and
agencies charged to police them have failed to prevent pollution, resulting in irreparable harm to
both human health and the environment. EPA Region 4 (encompassing the southeastern U.S.,
including Georgia), has seen two of the largest coal ash catastrophes in our nation’s history due
to mismanagement by coal-fired electric utilities – at the Tennessee Valley Authority’s (TVA)
Kingston Fossil Plant in 2008 34 and Duke Energy’s Dan River Steam Station in 2014. 35
32

GA. ENVTL. PROT. DIV., SOURCE WATER ASSESSMENT AND PROTECTION IMPLEMENTATION
PLAN 8 (Mar. 28, 2000),
https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/swapfinal.pdf
33

Available at https://www.epa.gov/sites/production/files/2016-03/documents/landbig.pdf.

34

About 5.4 million tons of coal ash and over one billion gallons of slurry spilled into the Emory
River channel from TVA’s Kingston Fossil Plant in Roane County, Tennessee just before
Christmas in 2008, caused by a sudden failure of an earthen dike used to hold back the massive
waste pile. See U.S. ENVTL. PROT. AGENCY, EPA RESPONSE TO KINGSTON TVA COAL ASH SPILL
(last updated Dec. 23, 2016), https://www.epa.gov/tn/epa-response-kingston-tva-coal-ash-spill;
Final Rule, 80 Fed. Reg. at 21,313.
35

About 39,000 tons of coal ash spilled into the Dan River near Eden, North Carolina in
February 2014, discoloring the Kerr Reservoir located 80 miles downstream with ash and visibly
polluting the water. See U.S. ENVTL. PROT. AGENCY, DUKE ENERGY COAL ASH SPILL IN EDEN,

 Georgia EPD
August 5, 2019
Page 19
The Kingston disaster is the largest industrial pollution spill in U.S. history, covering
about 300 acres with coal ash waste when an earthen dam used to impound an immense coal ash
storage facility at the waterfront site suddenly collapsed. 36 In its aftermath, about 40 workers
hired to clean up the coal ash have died from various ailments including brain cancer, lung
cancer, leukemia and other ailments, and 400 have been severely sickened, all caused by
exposure to coal ash, according to allegations in at least two lawsuits against a contractor hired
by TVA to remediate the spill. 37
In another illustration of utility cost-cutting that ended in disaster, Duke Energy engineers
at the Dan River Plant twice requested $20,000 from company headquarters to inspect the aging
drainage pipe running beneath the waste impoundment that later collapsed from corrosion. 38
Those requests were denied both times by Duke executives. Id. Duke Energy subsequently pled
guilty to nine criminal violations of the Clean Water Act, following federal enforcement that
held the utility “responsible for violating federal environmental requirements.” 39
In a baffling proposal given its similarity to Dan River, as set forth above, Georgia Power
proposes to leave a massive unlined coal ash basin 50 feet from a continuously flowing stream
routed through a buried 1,500 foot fiberglass-lined corrugated metal pipe along the banks of the
Chattahoochee River in densely populated Cobb County – a closure configuration that
NC: HISTORY AND RESPONSE TIMELINE (last updated Mar. 14, 2017),
https://www.epa.gov/dukeenergy-coalash/history-and-response-timeline.
36

The Kingston disaster was over 40 times bigger than the 1989 Exxon Valdez oil spill in Alaska
and 10 times bigger than the Deepwater Horizon oil spill in the Gulf of Mexico. Coal Ash: 130
Million Tons of Waste: 60 Minutes Investigates a Potentially Harmful Waste Byproduct that
Inundated a Tenn. Town, CBSNEWS.COM (Oct. 1, 2009), https://www.cbsnews.com/news/coalash-130-million-tons-of-waste-01-10-2009/.
37

See Joel K. Bourne, Jr., Coal’s Other Dark Side: Toxic Ash That Can Poison Water and
People, NAT’L GEOGRAPHIC (Feb. 19, 2019),
https://www.nationalgeographic.com/environment/2019/02/coal-other-dark-side-toxic-ash/;
Jamie Satterfield, TVA Contractor Jacobs Faces Another Worker Lawsuit Over Coal Ash
Cleanup, KNOXNEWS.COM (May 20, 2019, 6:00 AM),
https://www.knoxnews.com/story/news/local/tennessee/tvacoalash/2019/05/20/tva-contractorjacobs-faces-another-lawsuit-over-coal-ash-cleanup/1193943001/.
38

Prosecutors: Duke Energy Could have Avoided Dan River Spill in North Carolina,
NBCNEWS.COM (May 14, 2015, 10:11 PM), https://www.nbcnews.com/news/usnews/prosecutors-duke-energy-could-have-avoided-dan-river-spill-north-n359301.
39

Press Release, U.S. Dep’t. of Justice, Duke Energy Subsidiaries Plead Guilty and Sentenced to
Pay $102 Million for Clean Water Act Crimes (May 14, 2015),
https://www.justice.gov/opa/pr/duke-energy-subsidiaries-plead-guilty-and-sentenced-pay-102million-clean-water-act-crimes.

 Georgia EPD
August 5, 2019
Page 20
guarantees the need for continual inspection and maintenance to prevent failure, in a
neighborhood that has seen two buried pipe failures in recent history. (See McDonough Report at
5–7, Attachment 4). Neither the citizens of Cobb County nor the downstream public should bear
the risks posed by such a “short-sighted” closure plan. See id. 7. Such a proposal is the very
example of one that “adversely affect[s] the health, safety, and well-being of the public” that
must be rejected by EPD in its permit decisions. O.C.G.A. § 12-8-21(a).
Notwithstanding Georgia Power’s repeated public statements to the contrary,
company’s coal ash impoundments are plagued by a history of failure:
•

40

the

Plant Hammond’s Ash Pond 3 suffered from a substantial breach soon after being placed
in operation in the 1970s. A subsequent investigation reported that AP-3 was leaking
approximately one million gallons per day of coal ash wastewater onto adjacent property.
(Hammond Report, Attachment 5, Enclosure 1 thereto at 6). 41 A “subsurface
investigation” found “low to very high permeability measurements in materials below the
dike” at Hammond’s AP-3, “including solution cavities” beneath the pond. Id. A sinkhole
investigation was conducted at AP-3 in March 1980, but “[n]o documentation related to
subsequent sinkhole repair or final disposition of the sinkhole issue was found” – leaving
unresolved critical questions concerning the long term integrity of the soils beneath
Hammond’s AP-3, which is unlined. Id. Notwithstanding the leak and the significant lack

40

In its 2016 “Coal Combustion Residuals” brochure, Georgia Power’s parent company,
Southern Company, maintains that “Some metals such as arsenic, mercury and lead that occur
naturally in coal in trace amounts remain in the ash. By using appropriate procedures, the metals
are contained within the ash management facilities on site at the power plants.” (Attachment 8, at
p. 2, https://www.southerncompany.com/content/dam/southerncompany/pdf/reports/CoalCombustionResiduals2016.pdf.) As detailed herein, any
characterization that these toxic metals “are contained” within Georgia Power’s unlined
impoundments is flatly belied by the evidence. Likewise, in press statements, Georgia Power has
characterized its closure plans, including those that it proposes to cap and close in place, as
“exceeding federal CCR Rule requirements and complying with the more stringent state rule,” –
a conclusion that simply cannot square with the numerous, manifest failures to meet the closure
performance standards imposed under both the Georgia CCR Rule and its Federal analogue, as
set forth herein. Compare Georgia Power Company, Ash Pond Closure Efforts Continue Across
Georgia (March 2, 2018), https://www.georgiapower.com/company/news-center/2018articles/ash-pond-closure-efforts.html with discussion and citations therein, Section II.b.ii-iii.
infra, and the expert reports of Mark Hutson, Attachments 1 – 5 (detailing failures).
41

The Hammond Report cites to AMEC Earth & Envtl. Inc., Report of Safety Assessment Coal
Combustion Surface Impoundments, Plant Hammond, .pdf p. 62 (Dec, 10, 2010) (prepared for
the U.S. EPA),
https://archive.epa.gov/epawaste/nonhaz/industrial/special/fossil/web/pdf/gp_hammond_final.pd
f.

 Georgia EPD
August 5, 2019
Page 21
of information concerning the results of the 1980s-era sinkhole investigation, in Georgia
Power’s public disclosures required by the Federal (and now Georgia) CCR Rule
concerning the History of Construction of AP-3, a consultant to the company reports that,
as to the “Known record of structural instability,” that “No structural instability issues
have been observed for AP-3.” 42 To say the least, it is difficult to square this denial of a
known record of structural instability with the information reported to EPA in 2010,
detailing a leak on the order of 1 million gallons per day from AP-3, prompting a
sinkhole investigation whose outcome remains undocumented. (See Hammond Report at
5–6, Attachment 5, and Enclosure 1 thereto).
•

On July 28, 2002, a 4-acre wide, 30-foot deep sinkhole developed under Plant Bowen’s
1960s-era surface impoundment, dumping 2.25 million gallons of coal ash slurry
containing 281 tons of ash into Euharlee Creek near Cartersville. See Proposed CCR Rule
75 Fed. Reg. 35,128, 35,237 (June 21, 2010) (Table of EPA’s Proven Damage Cases). 43

•

Also in 2002, an environmental investigation at Plant Branch revealed that zinc, silver,
selenium, mercury, nickel, copper, lead, chromium, beryllium, cadmium, barium, and
arsenic were detected in groundwater in the vicinity of the plant’s coal ash waste ponds
above their naturally-occurring background concentrations. (See, e.g., Ga. Dep’t of
Natural Res. Admin. Order No. EPD-HSR-317 (Aug. 19, 2002) (“2002 Administrative
Order”), Attachment 9; see also Ga. Envtl. Prot. Div. Hazardous Sites Response Program
Release Notification (Mar. 22, 1994) (“1994 Release Notification”) (identifying soil and
groundwater pollution attributable to “coal or coal ash storage”), Attachment 10).

•

In its preamble to the proposed Federal CCR Rule, EPA detailed published, peerreviewed scientific literature that “observed deformities and reproductive effects in
amphibians living on or near CCR disposal sites in Georgia.” Proposed CCR Rule, 75
Fed. Reg. at 35,171 (citing Hopkins, W.A. et al., Reproduction, embryonic development,
and maternal transfer of contaminants in the amphibian Gastrophryne carolinensis,
ENVIRONMENTAL HEALTH PERSPECTIVES. 114:(5):661-666 (2006)).

•

In 2016, a team of Duke University researchers performed seep, 44 groundwater and
surface water sampling at 15 coal ash sites in 5 states, including unlined impoundments at

42

STANTEC, HISTORY OF CONSTR., 40 C.F.R. 257.100(e)(3)(iv) PLANT HAMMOND ASH POND 3
(AP-3), GA. POWER CO. 4, https://www.georgiapower.com/content/dam/georgiapower/pdfs/company-pdfs/plant-hammond/20180417_constrhist_ham_ap3.pdf.
43
44

Available at https://www.govinfo.gov/content/pkg/FR-2010-06-21/pdf/2010-12286.pdf.

As Mr. Hutson explains, “seeps” refer to locations in earthen dams where leaks are prone to
occur. (E.g., Scherer Report at 4, Attachment 1).

 Georgia EPD
August 5, 2019
Page 22
Georgia Power’s Plant Branch and Plant Arkwright. (See Jennifer Harkness, Barry Sulkin
and Avner Vengosh, Evidence for Coal Ash Ponds Leaking in Southeastern United
States, ENVTL. SCIENCE AND TECH., (June 10, 2016) (“CCR Leak Study”) Attachment
6). 45 This published, peer-reviewed study concluded that there was “strong evidence for
the leaking of coal ash ponds to adjacent surface water and shallow groundwater” –
“systemic evidence” of toxic pollution at “levels above drinking water and ecological
standards...” See id. at 6583 (Abstract). The CCR Leak Study concluded that unlined
impoundments at Georgia Power’s Plant Branch was polluting nearby Lake Sinclair with
boron and strontium. See id. at 6587. At Georgia Power’s Plant Arkwright, the CCR Leak
Study concluded that the unlined impoundment there – one that had been “closed” for 13
years – was “still” leaking CCR pollutants to the adjacent surface waterbody, including
“high” concentrations of boron. See id. at 6588.
•

Beginning in 2018 Georgia Power confirmed largely for the first time in disclosures
required by the Federal CCR Rule that nearly all of its coal ash pond sites for which it
published data (10 of 11) were contaminating groundwater with one or more toxic
pollutants at levels exceeding the groundwater protection standard or other health-based
standards, at Plant Bowen (boron and antimony); Plant Branch (cobalt); Plant Hammond
(arsenic and molybdenum); Plant McIntosh (arsenic and lithium); Plant Scherer (cobalt);
Plant Wansley (cobalt, boron, lithium, radium, and sulfate); and Plant Yates (beryllium,
boron, and cobalt). 46

45

See also Tim Lucas, Coal Ash Ponds Found to Leak Toxic Chemicals: Long-lasting
contamination won't be cleaned up by ash removal alone, DUKE TODAY (June 10, 2016),
https://today.duke.edu/2016/06/ashpondleaks (summarizing CCR Pond Leaking Study, reporting
that “In all of the investigated sites, we saw evidence of leaking” and “high levels of
contaminants” in polluted surface waters, according to Duke geochemistry and water quality
professor Avner Vengosh).
46

Groundwater monitoring reports and data for Plants Bowen, Hammond, McDonough,
McIntosh, Scherer, Wansley, and Yates are available on Georgia Power’s CCR Rule Compliance
Plant Specific Data website at https://www.georgiapower.com/company/environmentalcompliance/ccr-rule-compliance-data/ccr-rule-compliance-plant-list.html; see also Abel Russ,
Envtl. Integrity Project, Lisa Evans, Earthjustice, Report: Georgia at a Crossroads –
Groundwater contamination from coal ash threatens the Peach State (Dec. 13, 2018),
https://assets.documentcloud.org/documents/5625742/GA-RPT-FINAL-1.pdf (reporting and
summarizing groundwater contamination at Georgia Power’s coal ash impoundments). Yet as
Mr. Hutson details in the enclosed expert reports, these reported contaminants tell only part of
the story concerning the extent of environmental contamination occurring at these sites – the true
magnitude of pollution caused by these unlined impoundments is far more extensive.

 Georgia EPD
August 5, 2019
Page 23
•

In November 2018, Georgia Power submitted its solid waste permit applications to EPD,
providing largely for the first time evidence detailing the extent and nature of the
environmental pollution inflicted by the company’s unlined coal ash impoundments, as
detailed in the accompanying expert reports of Mr. Hutson and discussed herein.
i. Coal ash and leachate degrade and impair water quality, degrade the
environment, and adversely affect human health.

Georgia Power’s coal ash impoundments generate leachate as water passes through the
waste and leaks to the surrounding environment – a continual state of affairs given that all of the
closure plans addressed herein propose leaving coal ash waste unlined and submerged under the
groundwater table. As Mr. Hutson explains, “‘leachate’ ‘includes liquid, including any
suspended or dissolved constituents in the liquid, that has percolated through or drained from
waste or other materials placed in a landfill, or that passes through the containment structure
(e.g., bottom, dikes, berms) of a surface impoundment.’” (E.g., Scherer Report at 1-2,
Attachment 1) (citing Effluent Limitations Guidelines and Standards for the Steam Electric
Power Generating Point Source Category, 80 Fed. Reg. 67,838, 67,847 (U.S. Envtl. Prot. Agency
Nov. 3, 2015) (codified at 40 C.F.R. Part 423) (“ELG Rule”)); see also 40 C.F.R. § 257.2
(definition of leachate). 47
But unlike lined landfills that are designed to capture and collect leachate before it
escapes to the environment, e.g. O.C.G.A. § 12-8-22(15) (definition of leachate collection
system), unlined coal ash impoundments simply “allow the leachate to potentially migrate to
nearby ground waters, drinking water wells, or surface waters,” given that unlined
impoundments simply have no bottom liner to prevent it. ELG Rule, 80 Fed. Reg. at 67,847.
As Mr. Hutson observes, EPA has calculated the startling magnitude of toxic pollution
inflicted by coal ash leachate from unlined coal ash impoundments: 70,300 toxic-weighted
pound equivalents per year – more pollution from toxic metals than the entire coal mining
industry. (E.g., Scherer Report at 2, Attachment 1 (citing U.S. ENVTL. PROT. AGENCY, TECH.
DEV. DOCUMENT FOR THE EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS FOR THE STEAM
ELEC. POWER GENERATING POINT SOURCE CATEGORY, EPA-821-R-15-007 (Sept. 2015), at 1039 (Table 10-18)); 48 U.S. ENVTL. PROT. AGENCY, 2015 ANNUAL EFFLUENT GUIDELINES REVIEW
REPORT, EPA-821-R-16-002 (June 2016), at 2-26 (listing equivalent pollution from other
industries, including coal mining); 49 see also Southwestern Elec. Power Co. v. EPA, 920 F.3d
47

Available at https://www.govinfo.gov/content/pkg/FR-2015-11-03/pdf/2015-25663.pdf.
Available at
https://nepis.epa.gov/Exe/ZyPDF.cgi/P100NTDT.PDF?Dockey=P100NTDT.PDF.
48

49

Available at https://www.epa.gov/sites/production/files/2016-06/documents/2015-annual-egreview-report_june-2016.pdf.

 Georgia EPD
August 5, 2019
Page 24
999, 1012 (5th Cir. 2019) (federal appeals court decision striking down overly-weak federal
regulation of leachate pollution treatment regulations at coal-fired plants under the Clean Water
Act, given EPA’s own scientific studies acknowledging “ground water contamination from
surface impoundments” “threatens drinking water, as evidenced by more than 30 documented
cases.”) (citing ELG Rule, 80 Fed. Reg. at 67,840)).
Consequently, as discussed in further detail below, it would be arbitrary and capricious to
simply rely on a groundwater monitoring network, no matter how well designed, 50 to detect
further contamination at some point in the future, rather than impose a closure method that
ceases and prevents further water quality impairments and degradation, which is already
demonstrated by Georgia Power’s application materials and the public disclosures now required
by the Federal and Georgia CCR Rule.
II.

The permit applications violate Georgia’s solid waste laws, and must be rejected.

Georgia’s solid waste laws are intended to prevent and clean up pollution. The recentlyadopted Georgia CCR Rule further these goals, imposing additional technical requirements on
the means by which coal ash may be disposed of in the State. Both sets of requirements bar
Georgia Power’s proposed closure plans, for the reasons detailed below. EPD must therefore
reject the applications.
And while this letter and the accompanying expert reports address unlined coal ash
disposal at the above-captioned sites, the flaws detailed herein, and the reasons for why EPD
must deny the applications, apply with equal force to all of Georgia Power’s unlined closures,
including those sites, such as at Plant Arkwright, that have already been closed, but for which
EPD has not rendered a solid waste permit decision governing those closures. As a representative
of Georgia Power recently admitted, “[i]n our minds, if we were to do something less and not
meet the [CCR Rule closure] performance standards, then EPD would force us to go back and
redo what we . . . did not do right the first time.” (Integrated Res. Plan Hearing Transcript before
the Ga. Pub. Serv. Comm’n, Testimony of Mark Berry, Vice President of Envtl. and Natural
Res., Ga. Power Co., Tr. 834 (Apr. 9, 2019) (“2019 IRP Testimony”), Attachment 11 (excerpted
transcript) (emphasis added)).
That is precisely what EPD must do for these unlined disposal sites.

50

As Mr. Hutson details in the accompanying reports, “the nature and extent of current
groundwater contamination” at these sites have “not been adequately characterized.” (Wansley
Report at 9, Attachment 2; see also “Groundwater Quality Monitoring” sections in Attachments
1 through 5). Hence, the current groundwater monitoring network at these sites, and the selfserving interpretation of the data, are deeply flawed and paint an inadequate picture of the true
extent of contamination that these waste pits have inflicted in these regions of the State.

 Georgia EPD
August 5, 2019
Page 25
a. EPD’s authority and responsibility to enforce Georgia’s solid waste laws.
To engage in solid waste handling and disposal in the state, Georgia Power must apply
for and obtain a permit issued by the Director of EPD that complies with Georgia’s solid waste
laws. O.C.G.A. § 12-8-24(a); State Rules 391-3-4-.02(1) and 391-3-4-.04(1), (2). This
requirement specifically encompasses coal ash disposal. State Rule 391-3-4-.10(9)(a).
Importantly, the EPD Director has the authority to issue permits, impose conditions, or deny
permits that do not comply with state law, including federal requirements adopted into state law
via federally- delegated programs. O.C.G.A. §§ 12-8-23.1(a)(1), (a)(3)(A); State Rules 391-3-4.04(1), (4)(c); 391-3-4-.10(9)(a). In reviewing Georgia Power Company’s permit applications,
Georgia EPD must impose those conditions necessary to implement the requirements,
restrictions, standards, and conditions that will ensure that Georgia’s solid waste laws are met.
O.C.G.A. § 12-8-21(d). 51
b. Georgia’s Solid Waste Management Act and the state’s solid waste rules prohibit
Georgia Power’s proposed closure plans for its unlined coal ash disposal sites.
It is the express policy and legislative intent of the Georgia Comprehensive Solid Waste
Management Act to “assure that solid waste does not adversely affect the health, safety, and
well-being of the public[,] and that solid waste facilities [including coal ash disposal sites] … do
not degrade the quality of the environment by reason of their location, design, method of
operation, or other means….” O.C.G.A. § 12-8-21(a). Georgia EPD “shall conform to and
implement” these policies in its permitting decisions. Id. at (d). In doing so, EPD must perform a
rigorous examination of the evidence supporting Georgia Power’s proposed closure of its ash
basins. Georgia Power’s waste permit applications “will be reviewed” by EPD “together with
such other information as may be necessary to ascertain the effect of such solid waste handling
upon air, water, and land resources and human health.” State Rule 391-3-4-.02(8).
i.

USWAG v. EPA: landmark federal appeals court CCR Rule ruling and a
roadmap for EPD’s proper coal ash permit decisions.

Last summer, the D.C. Circuit Court of Appeals handed down a unanimous per curium
decision striking down overly-weak provisions of the Federal CCR Rule in a decision whose
51

Once again, Georgia Power does not dispute EPD’s authority to demand compliance with
Georgia’s solid waste laws, including those governing closure of its coal ash impoundments.
(See 2019 IRP Testimony, Attachment 11). In this regard, it is noteworthy that Georgia Power
began the process of “closing” many of its waste pits, such as Plant McDonough’s Ash Pond 1,
combined AP-3/4 and Plant Hammond’s ash ponds, without first receiving a permit from EPD
approving the methods used – an approach akin to self-regulation and permitting after-the-fact to
which EPD owes no deference in its permit decisions. This is particularly so, since it is the
public who will bear the consequences of the inherently flawed methods proposed for closure of
these ash dumps.

 Georgia EPD
August 5, 2019
Page 26
reasoning, and the evidence upon which it is based, hold significant implications for EPD’s
permitting decisions concerning the proper method to close Georgia Power’s coal ash ponds. The
federal appeals court decision is USWAG v. EPA, 901 F.3d 414 (D.C. Cir. 2018) (Attachment
12). The losing party in that case was the Utility Solid Waste Activities Group, a trade group that
represents and has represented numerous power companies, including Southern Company
(Georgia Power’s corporate parent) and Georgia Power itself in solid waste and coal ash issues.
This case decided a number of challenges to EPA’s 2015 CCR Rule and ordered EPA to
strengthen the rule in a number of key respects. Among other things, the Court of Appeals
required EPA to strengthen the Rule’s provisions governing unlined coal ash impoundments,
based on the exhaustive administrative record establishing the extent to which they adversely
affect both human health and the environment. Importantly, a federal appeals court will overturn
portions of an EPA rule established under the federal Resource Conservation and Recovery Act
(such as the Federal CCR Rule) only if the EPA was arbitrary and capricious in its failure to
establish criteria for disposal of coal ash sufficient to meet RCRA’s baseline requirement that
solid waste disposal pose “no reasonable probability of adverse effects on health or the
environment.” RCRA, 42 U.S.C. § 6944(a).
Under Georgia’s Solid Waste Management Act, O.C.G.A. § 12-8-20 et seq., the standard
under which EPD must make its permitting decisions here is even stronger: EPD cannot lawfully
issue a solid waste permit approving a coal ash impoundment closure unless it “[1] does not
adversely affect the health, safety and well-being of the public and [2] that such solid waste
facilities … do not degrade the quality of the environment by reason of their location, design,
method of operation, or other means,” O.C.G.A. § 12-8-21(a) (emphasis added). The “director,
in exercising any authority” granted to issue or deny such permits, “shall conform to and
implement” Georgia’s express policies and legislative intent, O.C.G.A. § 12-8-21(d). This
mandate is mirrored in Georgia’s solid waste rules, flatly prohibiting “solid waste handling in a
manner which will … impair the quality of the ground or surface waters; impair the quality of
the environment; or likely create other hazards to the public health, safety, or well-being …”
State Rule 391-3-4-.04(1) (emphasis added).
Before being partially struck down, the 2015 Federal CCR Rule allowed unlined
impoundments to continue to operate (i.e., receive more waste) until groundwater contamination
was established – enabling, essentially “one free leak” until the federal rule required remedial
action. USWAG v. EPA, 901 F.3d at 433. As compared with the situation here, the challenged
provisions of the federal rule relied on future groundwater monitoring to detect migrating
pollution from unlined coal ash basins before imposing more stringent measures. After reviewing
evidence concerning coal ash handling and disposal, the D.C. Circuit unanimously concluded
that EPA acted arbitrarily and capriciously by allowing unlined impoundments to continue
operating at all, when measured against the RCRA standard of eliminating the “reasonable
probability of adverse effects on health or the environment” as a result of waste storage practices.
Id. at 433–34. In the face of the “considerable dangers” posed by unlined impoundments given
the scientific evidence presented, the Court found that “EPA’s decision to shrug off preventative

 Georgia EPD
August 5, 2019
Page 27
regulation makes no sense.” Id. 52 (See also Scherer Report at 1, Attachment 1 (detailing the
“central tenet” of prevention-based waste management)).
The EPA’s record for the Federal CCR Rule is the most comprehensive data collection
regarding the handling and disposal of coal ash in the United States.
The D.C. Circuit reviewed the extensive scientific and technical record, noting EPA’s
unambiguous conclusion “that unlined impoundments are dangerous” and that among the studied
disposal methods, putting CCR “in unlined surface impoundments and landfills presents the
greatest risks to human health and the environment.” Id. at 427 (citing Final Rule, 80 Fed. Reg.
at 21,451) (emphasis added). The Appeals Court observed based on EPA scientific studies “that
unlined impoundments have a 36.2 to 57 percent chance of leakage at a harmfully contaminating
level during their foreseeable use” and “‘generally will be considered to pose a substantial
present or potential hazard to human health and the environment.’” Id. (citation omitted).
The evidence presented to the D.C. Circuit also established without doubt that composite
lined coal ash storage is protective of public health, safety, and welfare, the environment, and
natural resources, while unlined storage is not: “The record evidence shows that an
impoundment with composite lining, which the Rule requires of all new impoundments, has a
0.1 per cent chance of contaminating groundwater at drinking-water wells a mile distant from the
impoundment perimeter over the course of a 100-year period,” while an “unlined impoundment,
in contrast, has a 36.2 percent chance of contaminating groundwater at such a distance.” Id. at
428. Moreover, “the probability of contamination is higher at distances closer to the
impoundment site.” Id.
53

Importantly, the Court of Appeals recognized that based on EPA’s own risk assessments,
leakages are not only more likely for unlined coal ash impoundments, but they “pose substantial
risks to humans and the environment.” Id. Even groundwater that is not currently used as a

52

The 2016 Water Infrastructure Improvements for the Nation Act (“WIIN Act”) enables the
EPA Administrator to approve qualified state CCR solid waste permit programs to “operate in
lieu of [EPA] regulation” in the state. 42 U.S.C. 6945(d)(1)(A). But, as the Court of Appeals
explained, EPA “may only approve a state plan if its standards ‘are at least as protective as the
criteria’ set out by EPA in its corresponding [Federal CCR Rule].” USWAG v. EPA, 901 F.3d at
426 (concluding that the WIIN Act “provides that a Coal Residuals disposal site can only qualify
as a ‘sanitary landfill’ if it is in full compliance with, among other things, the EPA’s extant (or
successor) regulations governing Coal Residuals waste sites” – the Federal CCR Rule) (citing 42
U.S.C. § 6945(d)). Consequently, should EPD issue a permit under Georgia’s CCR permit
program in a manner that is not at least as protective as the criteria set forth in the Federal CCR
Rule, EPA cannot lawfully approve Georgia’s state CCR program.
53

A composite liner is a liner system consisting of two components – a geomembrane and a twofoot layer of compacted soil – installed in direct and uniform contact with one another. See, e.g.,
Final Rule, 80 Fed. Reg. at 21,304. None of Georgia Power’s coal ash ponds addressed herein
feature a bottom liner – composite or otherwise. (See Hutson reports, Attachments 1 to 5).

 Georgia EPD
August 5, 2019
Page 28
source of drinking water raises concerns, because “[s]ources of drinking water are finite, and
future users’ interests must also be protected.” Id. (citing Final Rule, 80 Fed. Reg. at 21,452).
The D.C. Circuit compared leakage at lined and unlined impoundments based on the
voluminous technical record evidence before it, concluding that “[l]eakage from unlined
impoundments is typically quicker, more pervasive, and at larger volumes than from lined
impoundments,” and that “leakage from unlined impoundments is more pervasive and less
amenable to any quick, localized fix.” Id. at 429.
After reviewing the entire voluminous technical and scientific record before it, and
considering the arguments presented by both EPA and the Utility Solid Waste Activities Group
seeking to defend the weaker portions of the Federal CCR Rule at issue, the Court of Appeals
found that unlined impoundments failed so badly to prevent a “reasonable probability of adverse
effects on health or the environment” that allowing them to continue under the Federal CCR
Rule was arbitrary and capricious.
1. EPD’s permit decisions based on standards even more stringent than
those in USWAG v. EPA.
The evidence set out herein and in the accompanying Hutson expert reports shows that a
decision by EPD to issue solid waste handling permits allowing Georgia Power to close its
unlined impoundments in place at Plants Scherer, Wansley, McDonough, Yates, and Hammond
would be, if anything, even more arbitrary and capricious than the provisions of the 2015 Federal
CCR Rule struck down by the D.C. Circuit in USWAG v. EPA. The court in that case found that
the EPA’s decision to simply exempt the older, leakier unlined impoundments from the
requirements of the Federal CCR Rule was unlawful under RCRA’s standard of “no reasonable
probability of adverse effects on health or the environment from disposal of solid waste.” 42
U.S.C. § 6944(a). In part, the court rendered its decision because of the propensity of unlined
impoundments to leak at harmful levels, violating RCRA’s baseline requirement for “sanitary
landfills” under § 6944(a).
Here, the evidence establishes not only that Georgia Power’s waste pits are unlined and
therefore prone to the very leaks at issue in USWAG v. EPA, but that the waste itself is occupying
Georgia’s groundwater to a massive extent – a situation that is simply untenable under Georgia’s
solid waste laws. If even leaks from a known source of toxic metals fail RCRA’s baseline
requirement of “no reasonable probability of adverse effects on health or the environment from
disposal of solid waste” as the D.C. Circuit held, based on the most comprehensive scientific
data collection and analysis on the subject in the nation, the wholesale appropriation of Georgia’s
ground water as a permanent waste dump at depths up to 85 feet is obviously unlawful.
We trust that EPD will make the same conclusion.

 Georgia EPD
August 5, 2019
Page 29
Here, EPD cannot lawfully issue a solid waste permit approving a coal ash pond closure
plan unless it:
1. Does not adversely affect the health, safety and well-being of the public, O.C.G.A.
§§ 12-8-21(a), (d);
2. Does not degrade the quality of the environment by reason of their location, design,
method of operation, or other means, id.; and
3. Does not impair the quality of the ground or surface waters; impair the quality of the
environment; or likely creates other hazards to the public health, safety, or wellbeing, State Rule 391-3-4-.04(1).
Simply put, Georgia Power’s closure plans do not, and cannot satisfy these requirements.
As Mr. Hutson details in his expert reports, the evidence establishes that each of these unlined
impoundments are adversely affecting public health, safety and well-being; degrading the quality
of the Georgia’s waters, and impairing the environment, despite the Company’s flawed sampling
and implausible attempts to attribute detected contamination to sources other than its immense
coal ash pits.
For example:
At Plant Scherer
(776-acres, 15.7
million tons of
ash):

•

The closure plan proposes leaving from 75-85 feet of coal ash in AP-1
(more than an 8-story building occupying a decently-sized downtown
metropolitan region) submerged beneath the groundwater table, within
an ash delta fed by Berry Creek, a perennial stream that will continue
to infiltrate the unlined basin “in perpetuity” post-closure, which “will
in turn promote the generation of leachate that will eventually
discharge into the creek, carrying mobilized ash pollutants with it”
(Scherer Report at 7–8, Attachment 1). “Minimizing the potential for
leachate generation and subsequent migration out of the containment
are key goals of permanent waste site closure that are not achieved
under the Georgia Power Closure Plan.” Id. at 6 (emphasis added).

•

The ash basin sits within a state designated “significant groundwaterrecharge area” requiring a liner and leachate collection system by state
law for MSW landfills. Id. at 5. “The logic behind that law flatly
barring unlined MSW applies with at least equal force to the pollutants
contained in coal ash as it does for household garbage – it shouldn’t be
allowed to pollute Georgia’s sensitive groundwaters in perpetuity.” Id.
(italics in original).

•

The extent of pollution is almost certainly worse than currently
reported, yet Georgia Power has not even attempted to fully delineate
current or future impacts. Downgradient on-site Monitoring Well
SGWC-18 southeast of the pond reports concentrations of cobalt,
boron, sulfate and total dissolved solids. But rather than perform a
“comprehensive sampling protocol” “necessary to render an accurate

 Georgia EPD
August 5, 2019
Page 30
picture of the sources of contamination,” … “Georgia Power has made
no apparent effort to determine the magnitude and extent of ash-related
groundwater contamination caused by AP-1. The Company appears
more interested in attributing away the detected pollution to sources
other than its massive coal ash waste disposal unit than in providing an
accurate picture of site contamination” for example by failing to
disclose sample depths used to report its well data – a critical omission
given the “commonly understood” reality that samples collected from
upper layers of an ash basin often report relatively lower contaminant
concentrations in comparison with samples collected lower in the ash
column at the same location, given settling by gravity – the very
mechanism that these ash ponds were originally designed to employ.
(See Scherer Report at 9–10, Attachment 1).
At Plant
McDonough (23
acres and 41 acres,
for a total 4.9
million tons)

•

The closure plan proposes to combine AP-3 and AP-4 into a single
disposal area. 2018 potentiometric data shows that groundwater
“continues to flow through the ash toward discharge areas along the
unnamed creeks to the southwest and east.” (McDonough Report at
10). The higher upgradient groundwater elevations along the
northwestern side of the combined disposal area are up to 50-feet
higher than those along the eastern creek. The data shows that
groundwater will flow from the higher elevations on the northwest
towards discharge areas along the unnamed streams, or directly to the
Chattahoochee. As Mr. Hutson concludes based on the evidence,
“[t]his fact in itself is enough to make the continued existence of
saturated waste following capping of AP-3/4 a probable outcome.” Id.

•

Georgia Power has failed to disclose essential information sufficient to
fully evaluate the extent of its contamination, or how its coal ash
pollution will continue post-closure. As Mr. Hutson explains, “Other
generation facilities that have proposed similar Cap-In-Place closure
scenarios for ash impoundments have typically conducted multiple
phases of groundwater flow and transport monitoring in at least an
attempt to predict how much of the buried waste will remain saturated,
and to further predict how far downstream water quality impacts may
persist after waste consolidation and capping. Here, no such predictive
modeling effort has been conducted in support of the AP-3/4 Closure
Permit Application. This omission results in the lack of important
data. Nevertheless, currently available information supports the
findings set forth above concerning present and future groundwater
degradation, future impoundment and release of leachate, and
contamination of the unnamed creek by post-closure discharge of
leachate from AP-3/4.” Id. at 10–11 (italics in original).

•

Yet again, the extent of the Company’s coal ash pollution is almost
certainly worse than it has reported to EPD (and the public). Despite

 Georgia EPD
August 5, 2019
Page 31
detections of common coal ash contaminants arsenic, beryllium,
cadmium, sulfate, selenium, and total dissolved solids above health
standards near combined AP-3/4 “Georgia Power has made no
apparent effort to determine the magnitude and extent of the ashrelated groundwater contamination caused by AP-3/4.” Id. at 11. “The
proposed groundwater monitoring system is completely inadequate.
There are no groundwater monitoring points proposed to be located
between the newly excavated cut face of AP-3/4 and the buried
unnamed stream. Monitoring groundwater quality downgradient of the
ash and upgradient of the local discharge area is a basic necessity of
any monitoring plan.” Id. at 3.
•

At Plant Yates
•
(285 acres
combined; about 12
million tons):
•

•

Well DGWC-12 located downgradient of the combined ash disposal
area that the company proposes to leave in place is the “most highly
impacted” groundwater well, situated immediately adjacent to the
discharge area of the unnamed perennial creek at Plant McDonough.
Id. at 11. The relatively high concentrations of boron – a common coal
ash tracer toxic metal reported at Well DGWC-12 and the picture of
contamination provided by relative reported concentrations at Wells
DGWC-20 and DGWC-21 “confirmation, in the form of chemical data,
that the eastern unnamed creek and associated backfill was and may
still be functioning as a linear groundwater /leachate drain, and that
flow toward the southwest was transporting ash Under this proposed
closure, ash-related groundwater contaminants will continue to be
transported toward offsite discharge areas” to the Chattahoochee
River. See id. at 11-12 (emphasis added).
Georgia Power proposes to close the R6 Landfill and a consolidated
“Ash Management Area” (“AMA”) at Plant Yates, unlined, and
submerged in groundwater. (Yates Report at 3, Attachment 3).
Both the R6 Landfill and AMA are within a Georgia-designated
“Significant Ground-Water Recharge Area” – a protected region that
bars the siting of a MSW landfill without a liner and leachate
collection system under Georgia law. Id. at 3, 7. It is contrary to the
science, the evidence, and the very purpose of the significant groundwater recharge designation to ban unlined household garbage landfills
in these regions under Georgia law, yet issue a permit for unlined toxic
coal ash disposal in the same protected regions. See id. at 7.
The R6 Landfill permit application is supported by insufficient
information: Georgia Power has failed to evaluate the thickness or
amount of saturated ash in the landfill (a critical omission endemic to
all of the applications); groundwater flow beneath the landfill has not
been adequately defined; and no groundwater monitoring results have
been reported for the landfill. (See id. at 3, 5, 10).

 Georgia EPD
August 5, 2019
Page 32

At Plant
Hammond (25
acres, 1.1 million
tons):

•

The company proposes to cover the R6 landfill with a final cover
system whose specifications are grossly insufficient to minimize
rainwater from entering the waste in violation of legal requirements:
standards imposed for capping an MSW landfill would require a top
cover providing over two orders of magnitude more protection from
infiltration than Georgia Power has proposed as final cover for the R6
Landfill. See id. at 8. “There is no technical or logical explanation for
how GAEPD could approve closure of an unlined landfill holding
7,000,000 cubic yards of coal ash waste, covered with only a soil
cover, directly over a designated significant ground-water recharge
area.” Id.

•

Neither the R6 Landfill nor the Ash Management Area features a
bottom liner or leachate collection system. There is no subsurface
confining layer below either the landfill or the AMA, so water will
continue to infiltrate the submerged waste, driving further
contamination from the disposal area post-closure. See id. at 10. There
is insufficient groundwater monitoring to map out the full extent of
contamination caused by these storage areas, or to predict
contamination that will continue post-closure. See id.

•

Monitoring Well SGWC-33S is the most highly impacted at the site,
reporting higher concentrations of beryllium, boron, sulfate, and total
dissolved solids than other wells; beryllium concentrations actually
increased in 2018. See id. at 11. The location of this well leaves open
the possibility that the detected contamination is coming from the R6
Landfill, the proposed Ash Management Area, or both sources. A
proper monitoring system must be implemented to identify
contamination sources, and the true nature and extent of site
contamination by all pollutants caused by the immense coal ash
deposited at the site. But “[r]ather than take actions to correct this
problem, Georgia Power proceeded to develop closure plans that will
leave coal ash in the impoundments submerged below the water table
and allow continued release of contaminants.” Id. at 12.

•

Hammond’s AP-3 is partially submerged in groundwater and is
unlined, with groundwater flowing within and through the ash and
underlying unconsolidated soils “toward discharge areas in the
adjacent wetlands and/or creek.” (Hammond Report at 8, Attachment
5). Placing a cap over the disposed coal ash “will have minimal impact
on the thickness of saturated ash within AP-3” given groundwater
elevation data and the nature of the unconsolidated subsurface. See id.
“Groundwater will continue to flow from west to east across AP-3
regardless of the presence of a cap over the disposed waste.” Id.

 Georgia EPD
August 5, 2019
Page 33
•

•

At Plant Wansley
(343 acres, about
14.2 million tons):

•

•

•

•

Georgia Power has not even attempted to determine the amount of ash
that will remain submerged in groundwater post-closure, nor has the
company attempted to predict how far downstream water quality may
be impacted after closure – both of which are material omissions in the
application. Id. at 8.
Hammond’s AP-3 is located on the 100-year floodplain of Cabin Creek
and the Coosa River, subjecting the unlined impoundment to rewetting
during flood events, even where the entire footprint is not within the
area of inundation. Id. at 5.
Plant Wansley’s AP-1 is massive, with coal ash waste burying a creek
“under 97-feet of saturated coal ash” … or more. (Wansley Report at
5). The proposed closure plan is woefully inadequate to protect the
environment from current pollution and future pollution. Among the
litany of poorly-conceived failures to achieve the fundamental purpose
of responsible solid waste disposal practices, the proposed plan would
leave a mountain of coal ash waste submerged 80 feet deep into
Georgia’s groundwater table. See id. at 7.
Plant Wansley’s AP-1 is located on the 100-year floodplain, which will
result in the risk of “damage and/or catastrophic releases of coal ash”
and infiltration of water at levels even higher than normal elevation
during flood events. Id. at 5.
Georgia Power proposes to cover up its ash dump and leave its waste
to steep in the groundwater table without submitting any modeling of
site hydrology “to predict the directions of groundwater flow following
closure, nor to predict the extent of current or future water
contaminants.” Id. at 7. These and other endemic failures “illustrate the
fact that Georgia Power is asking GAEPD to approve a closure plan
without a complete understanding of the human health and
environmental consequences” of the proposed closure plan. Id.
Georgia Power has failed to adequately characterize the nature and
extent of its groundwater pollution at Plant Wansley. For example, no
monitoring wells are placed in the shallow soil units (saprolite or
partially weathered rock) located downgradient of the ash delta “where
contaminant migration from the ash pond can reasonably be expected
to exist, given the existing data.” Id. at 9. Rather, Georgia Power
completed groundwater wells only in bedrock downgradient of the ash
basin – an obvious ploy to avoid detection of migrating pollution,
while at the same time claiming that downgradient wells have been

 Georgia EPD
August 5, 2019
Page 34

•

placed at the site. See id. As Mr. Hutson explains, “[t]he lack of
shallow overburden monitoring wells in this critical location should be
explained or additional wells should be installed and sampled” “to
accurately evaluate the nature and extent of groundwater contamination
that is occurring as a result of the unlined impoundment located
upgradient of this area.” Id.
In keeping with its attempts at other sites to address detected pollution
by seeking to point the finger to sources other than its immense waste
dump, Georgia Power seeks to attribute the common coal ash
contaminant Lithium reported at Well WGWC-19 off the southeast
corner of the impoundment to natural site conditions via an “Alternate
Source Demonstration.” See id. Once again, the company’s fingerpointing exercise is belied by the fact that other wells where migrating
pollution near the impoundment that reasonably can be expected to
detect coal ash pollution at Wansley – are detecting coal ash pollution
at Wansley. In other words, multiple downgradient wells near
WGWC-19, save for one well, report common coal ash contaminants
in addition to Lithium at significant concentrations, yet the company
“has not attempted to explain how these common coal ash
contaminants could be attributable to another source nor made any
apparent effort to determine the magnitude and extent of ash-related
groundwater contamination caused by AP-1.” Id. at 10.

The location, design, method of operation, and the impacts on human health and the
environment that will continue under the proposed closure plans, as detailed in Mr. Hutson’s
reports, cannot meet the requirements imposed on them by Georgia’s solid waste permit laws.
The evidence detailed in the accompanying reports establishes that Georgia Power’s unlined
impoundments are not only leaking toxic pollutants and leachate into Georgia’s groundwater and
will continue to do so post-closure, the waste itself is occupying the groundwater. As Mr. Hutson
explains, the proposed closures seek to perpetuate this environmental pollution – that is, Georgia
Power’s closure plans seek to appropriate vast swaths of Georgia’s groundwater aquifer – an
indisputably public resource – as a permanent waste dump occupying hundreds of acres
throughout Georgia. And the Company is asking EPD for a permit to do so, which would be an
unprecedented giveaway of Georgia’s natural resources to a single company.
Placing a cap on top of these waste pits at best only reduces the amount of additional
rainwater that would fall directly into the lagoon; it does nothing to eliminate the groundwater
contained in the impoundment or to stop the continued flow of groundwater through their
unlined bottom and sides. As Mr. Hutson explains, these sites all include creeks, streams,
springs, or other continuing flows of water that will serve as recharge, perpetuating infiltration,

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impoundment of water, and water pollution from the coal ash. (See, e.g., “Impoundment Site
Geology” and “Hydrology” sections, Attachments 1 – 5).
The fact that Georgia Power seeks permits in order to regulatorily “close” them
(sometimes, as with Plants McDonough and Hammond, after the fact) makes no difference to
Georgia’s environment, if coal ash is allowed to remain in these unlined impoundments.
Although Georgia Power will add no more ash to the waste ponds, nearly fifty million tons of
coal ash will remain, continuing to degrade and occupy the aquifer, and continuing to leak coal
ash and its pollutant-laden leachate into the environment and surrounding public waters. Under
Georgia Power’s closure plans, these “closed” or “capped” impoundments will cause the same
environmental and public harm that they caused when they operated (i.e., when they continued
receiving more waste): they will continue to occupy the groundwater and leak coal ash and coal
ash leachate pollutants into the environment. This truth was confirmed recently at two of
Georgia Power’s shuttered coal power plants – at Plant Branch and Plant Arkwright, in which a
2016 Duke University peer-reviewed study confirmed that the ash ponds at those plants – a filthy
remnant of the past, were still leaking toxic metals above health standards into the surrounding
groundwater and surface waters. (See CCR Leak Study, Attachment 6). The unlined
impoundments at Arkwright had been “closed” for 13 years. Id. It is virtually certain that the
leaks continue, given that the impoundments have no liner to prevent it.
For purposes of comparison Figure 2 is a conceptual design of a modern MSW landfill
featuring a composite liner and leachate collection system, and a final cover system:
Figure 2

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As explained in detail by Mr. Hutson in the enclosed expert reports, Georgia Power’s
proposed closure plans bear no resemblance to the above conceptual design.
In a typically egregious example, Figure 3 below illustrates a cross section of how
Georgia Power proposes to “close” its 343-acre coal ash pond at Plant Wansley’s AP-1 – placing
a partial wall atop the porous soil next to the deepest portions of the ash, dumping relatively
thinner layers of the ash within the consolidated footprint, placing a cover on top, then leaving
nearly 80 feet of ash to sit submerged in groundwater that will continue to leak after closure:
Figure 3 [compare with Annotated Closure Drawing appended to Hutson’s Wansley Report]

As Mr. Hutson details, in the proposed closure illustrated in Figure 3, the concrete secant
pile wall depicted above (shaded dark gray, labeled “Concrete Barrier”) “does not act as a lateral
barrier to the further infiltration of water into the ash basin, or migration of contaminants out of
the ash basin post closure” because, among other reasons, the “Barrier” extends no further
downward than part way, resulting in “no control of groundwater flow through native soils
beneath, within, or adjacent to the so-called ‘containment’ structure within the consolidated ash
footprint…” (Wansley Report at 6, Attachment 2 and annotated closure drawing appended
thereto). For these and “many” other reasons, Mr. Hutson concludes Wansley’s AP-1 closure
plan “to be one of the most poorly conceived Closure Plans that I have ever reviewed.” Id. at 10
(emphasis added).

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August 5, 2019
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In a feeble attempt to persuade EPD to disbelieve the reality of what is depicted in Figure
3 and shown in the closure plan materials, Georgia Power submits with its application a
“Professional Engineer Certification” in purported compliance with State Rule 391-3-410(9)(b)5 (requiring a “qualified professional engineer’s certification that all application
requirements have been met”). The one-page letter amounts to little more than parroting the
Georgia CCR Rule’s certification language to the effect that the CCR Rule’s “closure
performance standards” adopting the Federal standards “have been met.” The applications for the
other waste permits for Hammond, Yates, Scherer, and McDonough are likewise accompanied
with perfunctory certifications, despite the overwhelming evidence to the contrary.
But Georgia’s solid waste rules require more than simply accepting an applicant’s word
for it. EPD must review “such other information as may be necessary to ascertain the effect of”
Georgia Power’s solid waste handing that these closure sites might impose “upon air, water, and
land resources and human health,” State Rule 391-3-4-.02(8) (emphasis added). It would be
arbitrary and capricious decision-making that is both unsupported by and contrary to the
evidence to accept such a self-serving “certification” given the evidence detailed herein.
Georgia’s solid waste laws simply do not countenance these proposed closures, if EPD is
to assure “that solid waste does not adversely affect the health, safety, and well-being of the
public” and that “solid waste facilities … do not degrade the quality of the environment by
reason of their location, design, method of operation, or other means” in its permitting decisions.
O.C.G.A. 12-8-21(a), (d). As the D.C. Circuit recognized in USWAG v. EPA, “the threat of
contamination from unlined units exceeds the EPA’s cancer risk criteria and thus ‘generally will
be considered to pose a substantial present or potential hazard to human health and the
environment.’” 901 F.3d at 427 (citing Final Rule 80 Fed. Reg. at 21,449–50; EPA, Human &
Ecological Risk Assessment of Coal Combustion Residuals, 4-8 to 4-9).
The D.C. Circuit Court of Appeals in USWAG v. EPA heard all the arguments of the trade
association that represents Georgia Power and its parent, Southern Company. It unanimously
rejected those arguments (and USWAG did not appeal). Instead, after reviewing all of the facts
and an extensive record, the Court of Appeals found that it was arbitrary and capricious to allow
unlined coal ash impoundments. That is precisely what Georgia Power is asking EPD to do here
under the guise of its solid waste permit applications – to allow unlined impoundments to
continue polluting Georgia’s environment in perpetuity.
But Georgia’s waters and the environment belongs to the citizens of Georgia, and cannot
be lawfully coopted as a permanent dumping ground for Georgia Power’s coal ash waste.
Georgia’s Department of Natural Resources is entrusted with, and charged by law, to safeguard
these resources. Likewise, the D.C. Circuit held that the 2015 Federal Rule’s “approach of
relying on leak detection followed by closure” for unlined coal ash impoundments violated
RCRA’s “no reasonable probability of adverse effects on health or the environment” standard

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because such reliance “does not address the identified health and environmental harms” that the
extensive scientific record established. USWAG v. EPA, 901 F.3d at 429.
Just as it is arbitrary and capricious for EPA to allow unlined coal ash impoundments to
continue and instead rely on subsequent groundwater monitoring to uncover more problems
later, so it would be arbitrary and capricious for EPD to allow unlined coal ash impoundments to
continue in existence in Georgia and perpetuate the same harms, only covered by a “cap” that
allows coal ash to remain in groundwater and that does nothing to stop lagoons from leaking
from their sides and bottoms.
2. The era of allowing these crude waste dumps to continue polluting is
ending; Georgia EPD’s permit decisions should comply with the law
and recognize the evidence and science.
There is a growing consensus in our region that coal ash cannot remain in unlined
impoundments if human health and the environment are to be properly safeguarded. With the
fate of many sites still undecided, over 70 per cent of the unlined coal ash lagoons in the
Southeast (including Georgia) have been excavated or are now required to be excavated in the
future – not capped in place.
On April 1 of this year, the North Carolina Department of Environmental Quality
announced its decision to order the excavation of nine active and retired ash basins located at the
last six coal ash sites operated by Duke Energy that had not already been slated for excavation to
lined storage. 54 As with the unlined impoundments that Georgia Power proposes to close in
place here in Georgia, all of Duke Energy’s coal ash impoundments are submerged in
groundwater, between 20 and 81 feet deep. 55 In its permitting decision turning on facts that are
similar to those that EPD now has before it, North Carolina’s DEQ concluded that “science
points us clearly to excavation as the only way to protect public health and the environment.” 56
The statewide coal ash cleanups in North Carolina have already created 4,000 jobs between

54

Press Release, N.C. Dep’t of Envtl. Quality, DEQ Orders Duke Energy to Excavate Coal Ash
at Six Remaining Sites (Apr. 1, 2019), https://deq.nc.gov/news/press-releases/2019/04/01/deqorders-duke-energy-excavate-coal-ash-six-remaining-sites.
55

See N.C. DEP’T OF ENVTL. QUALITY, CLOSURE OPTIONS EVALUATION: SATURATED ASH
CONSIDERATIONS (last visited Aug. 1, 2019), https://files.nc.gov/ncdeq/Coal%20Ash/2019-aprildecision/Saturated-Ash.pdf, Attachment 13. It is noteworthy that no such summary is provided
by Georgia Power in support of its various permit applications, despite the enormous
environmental consequences that will follow from its proposed disposal of nearly 50 million tons
of coal ash in unlined basins throughout the state.
56

See N.C. DEQ Excavation Order Announcement, supra note 54.

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October 2017 and September 2018 for the 8 of 14 coal ash disposal sites that had already been
slated for excavation to lined storage. 57
Virginia came to the same conclusion. On March 20 2019, Virginia passed a law
requiring Dominion Virginia Energy to excavate all its unlined coal ash lagoons and to move the
coal ash into lined landfills or recycle it for beneficial use, given that the potential human health
and water quality impairment from unlined coal ash ponds is “far too great” … “continue with
business as usual.” 58
All the utilities in South Carolina are safely excavating all the coal ash from all their coal
ash lagoons. Predictably, pollution source removal resulted in plummeting contamination near
the waste sites, 59 rendering unnecessary the sort of “cat and mouse” groundwater (non)sampling
and data cherry-picking exercise that Georgia Power appears to be engaged in at its proposed
close-in-place sites. (See, e.g., Scherer Report at 8–10, Attachment 1; Wansley Report at 9–10,
Attachment 2).
In June 2019, the Tennessee Valley Authority announced an agreement to remove 12
million tons of coal ash at its Gallatin Fossil Plant in middle Tennessee, following suit by the
Tennessee Department of Environmental Quality and environmental groups, seeking to cease
coal ash pollution that had plagued the region for decades. 60 Previously, TVA had agreed also
to excavate coal ash in an unlined pit near Memphis.
Georgia’s environment and its citizens deserve the same protections as its neighbors. The
Georgia Comprehensive Solid Waste Management Act requires it. For these reasons, and as set
forth in the accompanying reports from Mark Hutson, Georgia EPD must deny all of Georgia
Power’s waste handling permit applications seeking to close its unlined coal ash basins in place,
because they violate Georgia’s solid waste laws.
57

See Duke Energy Carolinas, LLC’s and Duke Energy Progress, LLC’s Resp. to Comm’n
Order Req. Additional Information, Appl. of Duke Energy Progress for Adjustment of Rates and
Charges Applicable to Elec. Util. Serv. in N.C. & Appl. of Duke Energy Carolinas for
Adjustment of Rates and Charges Applicable to Elec. Util. Serv. in N.C., Docket Nos. E-2, Sub
1142 & E-7, Sub 1146 (N.C. Util. Comm’n Jan. 22, 2019), Attachment 14.
58

Press Release, Commonwealth of Va. Office of Gov. Ralph S. Northam, Gov. Northam Signs
Historic Coal Ash Clean Up Legislation (Mar. 20, 2019),
https://www.governor.virginia.gov/newsroom/all-releases/2019/march/headline-839594-en.html.
59

David Wren, South Carolina Utilities Lead the Region in Efforts to Clean Up Coal Ash
Pollution, THE POST & COURIER (July 15, 2017),
https://www.postandcourier.com/business/south-carolina-utilities-lead-the-region-in-efforts-toclean/article_bcfb1eec-670a-11e7-a2ea-e778e26af132.html.
60

Jamie Satterfield, TVA Agrees to Remove 12 Million Tons of Coal Ash from Gallatin Plant,
Clean Contamination, KNOXNEWS.COM (June 13, 2019, 7:33 PM),
https://www.knoxnews.com/story/news/crime/2019/06/13/tva-agrees-dig-up-12-million-tonscoal-ash-gallatin-plant/1443294001/

 Georgia EPD
August 5, 2019
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3. Georgia’s CCR Rule bars Georgia Power’s proposed closure plans.
Georgia Power’s closure plans also fail to satisfy Georgia’s CCR Rule, providing
additional, independent grounds for denial of these permit applications.
Following EPA’s adoption of the first ever federal minimum criteria governing the
handling and disposal of CCR in October 2015, Georgia’s DNR Board in October 2016 amended
Georgia’s solid waste laws, incorporating the requirements and standards set forth in the Federal
CCR Rule and in part expanding upon it 61 as the Georgia CCR Rule, State Rule 391-3-4.-10. As
such, the Georgia CCR Rule supplements, but does not supplant, Georgia’s pre-existing solid
waste laws which apply with equal force to EPD’s permitting decisions and enforcement
responsibilities discussed above, e.g., O.C.G.A. § 12-8-21(a), (d); State Rule 391-3-4-.04(1).
In any event, the Georgia CCR Rule also bars the Company’s proposed methods for
simply covering up its unlined waste dumps.
ii. The closure plans do not entail “remedial” or “corrective” action under
the CCR Rule, but rather perpetuation of pollution.
Upon detection of groundwater contamination in excess of background concentrations or
maximum contaminant levels (MCLs), the owner of an unlined surface impoundment must begin
work on two, distinct remedial obligations. State Rule 391-3-4.-10(6)(a) (incorporating the
corrective action requirements of the Federal CCR Rule, including 40 C.F.R. §257.95(g)). First,
the owner must begin the process for remediating groundwater contamination: assessment of
corrective measures, selection of remedy, and implementation of a corrective action plan. 40
C.F.R. §§ 257.95(g)(3)(i), 257.96-98. Second, within six months of the detection, the owner must
stop all discharges of waste into the impoundment and begin closing or retrofitting the
impoundment. Id. §§ 257.95(g)(5) and 257.101(a)(1). As the preamble to the Federal CCR Rule
explains, the closure or retrofit requirement must be completed “in addition to complying with
all of the corrective action requirements.” Final Rule, 80 Fed. Reg. 21,301, 21,406. It is not
enough to satisfy only the CCR Rule’s closure requirements – the owner must separately meet
standards for remedying groundwater contamination under §§ 257.97–98, State Rule 391-3-4.10(6)(a).
The remedial action requirement is as clear as it is logical – one could hardly expect to
properly close a coal ash impoundment contaminating the environment before cleaning up the
contamination it caused. Indeed, the cleanup requirements triggered by the remedial action
provisions of the Georgia CCR Rule would naturally explain Georgia Power’s efforts to posit a
61

For instance, the Georgia CCR Rule applies to CCR surface impoundments at inactive power
plants, defined as a “NPDES -CCR Surface Impoundment.” State Rules 391-3-4.-10(2)(a)2 and
(9)(c)7.

 Georgia EPD
August 5, 2019
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dubious “Alternate Source Demonstration” for detected cobalt at Plant Scherer, and for detected
lithium at Wansley, each an attempt to point the finger to supposed “natural” site conditions,
rather than the upgradient, massive coal ash waste disposal pits. (Scherer Report at 8–10
“Groundwater Quality Monitoring,” Attachment 1; Wansley Report at 9–10, Attachment 2). It
would also explain Georgia Power’s failure to disclose complete groundwater data. (E.g., Yates
Report at 10–12, Attachment 3).
Nevertheless, as detailed in Mr. Hutson’s reports, the groundwater data that Georgia
Power has disclosed confirms that closure-in-place will not and cannot satisfy the Georgia CCR
Rule’s requirements for remedial action. Among other things, the selected groundwater remedy
must “[b]e protective of human health and the environment,” “[a]ttain the groundwater
protection standard” (the higher of the MCL or the background concentration), “[c]ontrol the
source(s) of releases so as to reduce or eliminate, to the maximum extent feasible, further
releases of constituents in appendix IV,” and “[r]emove from the environment as much of the
contaminated material that was released from the CCR unit as is feasible.” 40 C.F.R.
257.97(b)(1)–(4); State Rule 391-3-4.-10(6)(a) (adopting these requirements). The selected
remedy will not be considered complete until groundwater protection standards are met at the
waste boundary for three consecutive years. 40 C.F.R. § 257.98(c)(2); State Rule 391-3-4.10(6)(a) (adopting these requirements). Remedies must be selected based on their “long- and
short-term effectiveness and protectiveness,” the “[m]agnitude of residual risks in terms of
likelihood of further releases,” and the “[t]ime until full protection is achieved,” among other
factors. See id. § 257.97(c)(1)(i)–(viii). Notably, the Georgia CCR Rule does not employ riskbased remedial standards; Georgia Power must restore groundwater quality to the standard at the
waste boundary.
None of these remedial criteria will be achieved by Georgia Power’s current closure
plans. Closing the waste in place, without liners, submerged in Georgia’s groundwater and
continually fed by the springs, perennial and intermittent creeks that Georgia Power had buried
for use as a waste dump long ago will not be protective of human health or the environment, for
the reasons detailed above. The Company’s proposed closures in place likewise will not control
the sources of releases of leachate and coal ash pollutants to the environment, nor will the plans
reduce or eliminate future releases, or remove from the environment contaminated material, as
detailed in each of Mr. Hutson’s reports. Instead, Georgia Power proposes to leave coal ash
forever buried beneath the groundwater table in primitive unlined pits, submerged at depths of as
much as 85 feet. (E.g., Scherer Report at 5 (75 to 85 feet deep), Attachment 1; Wansley Report at
7 (80 feet deep), Attachment 2; McDonough Report at 3, Attachment 4).
Indeed, rather than propose remedial action complying with the Georgia CCR Rule,
Georgia Power’s closure plans do just the opposite – seeking a permit authorizing the perpetual
contamination and degradation of Georgia’s groundwater and neighboring surface waters in

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August 5, 2019
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violation of the CCR Rule’s fundamental remedial action requirements. State Rule 391-3-4.10(6)(a) (adopting 40 C.F.R. § 257.97(b)). EPD must reject these applications to the extent they
purport to propose any “remedial action” concerning these waste sites.
iii. The proposed closure plans do not meet the CCR Rule closure
performance standards.
Both the Georgia and Federal CCR Rule contemplate two options for closure of an ash
pond for these impoundments – either removal of the ash, also described as clean closure /
closure by removal, or leaving the ash in place, sometimes called “closure in place,” as Georgia
Power refers to it in its permit applications. E.g., State Rule 391-3-4.-10(7), (9)(c)5–7; 40 C.F.R.
§ 257.102. But the circumstances under which placement of a cap over the waste and leaving it
in place are limited and specific. Georgia Power’s closure plans fail to meet those circumstances;
stated differently, ash ponds submerged in groundwater are ineligible for the closure in place
option at the outset. EPD must therefore reject the permit applications.
1. Closure Performance Standards governing “existing surface
impoundments.”
Under the Georgia CCR Rule, by no later than November 2018, owners/operators of all
coal ash impoundments or landfills in the state had to apply for a permit from EPD meeting the
requirements of Georgia’s CCR Rule. See State Rule 391-3-4.-10(9)(a)2. Permit application
requirements vary depending on the type of coal ash “impoundment” or “landfill” at issue.
For so-called “Existing Surface Impoundments,” (ponds that received coal ash both
before and after October 19, 2015) the application must include, among other things, a “location
restriction demonstration” under the federal rule (40 C.F.R. §§ 257.60–.64), and an “explanation
of how closure and post-closure care requirements” imposed by the federal rule, including how
the closure performance standards imposed by 40 C.F.R. § 257.102 will be met. State Rule 3913-4.-10(9)(c)5(i), (v). Georgia’s CCR rule likewise imposes the federal substantive closure
standards on existing surface impoundments, including those governing close-in-place
impoundments under 40 C.F.R. § 257.102. State Rule 391-3-4.-10(7)(b).
A. Misclassification of McDonough’s AP-1 and AP-3.
As an initial matter, Georgia Power has misclassified each of Plant McDonough’s Ash
Ponds 1 and 3 as “inactive CCR Surface Impoundment” in an apparent attempt to sidestep the
more rigorous Closure Performance Standards and disclosure timelines imposed on “existing
surface impoundments.” While it appears from Georgia Power’s permit application materials that
it contends that McDonough AP-1 and AP-3 no longer received CCR on or after October 19,
2015, its own submissions to EPD prove otherwise. For example, in its November 2018 permit
application for McDonough’s ponds, Georgia Power admits:

 Georgia EPD
August 5, 2019
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Closure activities in accordance with 40 CFR 251.100 were initiated in January
2016 for AP-2 and AP-3/4 ahead of the promulgation of the Georgia CCR permit
program. … AP-2 closure activities consisted of closure by removal of CCR,
where CCR removed from AP-2 was placed in the adjacent Plant McDonough
units AP-1 and AP-3.
(GOLDER ASSOCS. INC., PLANT MCDONOUGH-ATKINSON CCR SURFACE IMPOUNDMENTS (CCR
UNIT AP-2, COMBINED CCR UNIT AP-3/4), COBB CNTY., GA., PART A: PERMIT DOCUMENTS,
Section 1 – Page 2) (Nov. 2018) (emphasis added), Attachment 15 (excerpted)).
Thus, both McDonough AP-1 and AP-3 “receive[d] CCR both before and after October
19, 2015” for purposes of the Federal and Georgia’s CCR Rule, 40 C.F.R. 257.53, State Rule
391-3-4.-10(2)(a) (definition of Existing CCR Surface impoundments). McDonough AP-1 and
combined AP-3/4 are therefore each subject to the CCR Rule’s Closure Performance Standards.
The subjective intent behind the physical placement of ash in the waste impoundment is
irrelevant– what matters is whether the impoundments “receives CCR” after October 19, 2015,
for the simple reason that this is what the language says. The inquiry concerning whether these
impoundments “receive[d] CCR” after the date in question is answered by Georgia Power in its
permit applications – beginning January 2016. (See Attachment 15). Manifestly self-serving
assertions to the contrary cannot be accepted by EPD, given this evidence. As EPA explains, for
example, “the rule does not distinguish between placement that might be considered beneficial
use and placement that might be considered disposal.” 62 By further example, according to EPA,
in a situation “when CCR from an existing impoundment at an active power plant is dredged
(i.e., pursuant to state legislation or other legal requirement) and the CCR is moved to a
different unlined impoundment at the same site…” then, “both units would be defined as existing
CCR surface impoundments subject to all the applicable provisions of the rule. …” 63 Once
again, the reason for deposit of the ash is not the salient inquiry – it is when the storage feature in
question “receives CCR” – since that is what the CCR Rule’s language says.
Therefore, McDonough AP-1 and combined AP-3/4 are each subject to the CCR Rule’s
Closure Performance Standards for “Existing” impoundments. Likewise, and undisputed by
Georgia Power, Plant Scherer’s AP-1, Yates’s combined Ash Management Area, and Wansley’s
62

Hazardous and Solid Waste Mgmt. Sys.: Disposal of Coal Combustion Residuals From Elec.
Utils.; Amendments to the Nat’l Minimum Criteria (Phase One); Proposed Rule, 83 Fed. Reg.
11,584, 11,605 (Mar. 15, 2018), https://www.govinfo.gov/content/pkg/FR-2018-03-15/pdf/201804941.pdf.
63

U.S. ENVTL. PROT. AGENCY, FREQUENT QUESTIONS ABOUT SCOPE AND PURPOSE AND
IMPLEMENTING THE FINAL RULE REGULATING THE DISPOSAL OF COAL COMBUSTION RESIDUALS
(CCR) (accessed July 24, 2019), https://www.epa.gov/coalash/frequent-questions-about-scopeand-purpose-and-implementing-final-rule-regulating-disposal.

 Georgia EPD
August 5, 2019
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AP-1 fall within the definition of “Existing Surface Impoundment” under State Rule 391-3-4.10(2)(a) (incorporating the Federal definitions under 40 C.F.R. § 257.53). In sum, all of Georgia
Power’s proposed closure-in-place sites must meet the CCR Rule’s Closure Performance
standards for such impoundments imposed by State Rule 391-3-4.-10(7)(b), (9)(a), (9)(c)5.
B. The existing impoundments at Scherer, Yates, Wansley, and
McDonough do not meet the Georgia CCR Rule’s Closure
Performance Standards.
Adopting the Federal CCR Rule’s closure criteria in full, the Georgia CCR Rule requires
that if the ash is to be closed in place, the closure plan must demonstrate it will achieve the
following performance standards (“Closure Performance Standards”) to:
(a) “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…” 40 C.F.R. § 257.102(d)(1)(i);
(b) “Preclude the probability of future impoundment of water, sediment, or slurry;” Id.
§ 257.102(d)(1)(ii);
(c) “Minimize the need for further maintenance of the CCR unit;” Id.§ 257.102(d)(1)(iv);
and the requirement that
(d) “Free liquids must be eliminated by removing liquid wastes or solidifying the
remaining wastes and waste residues.” Id. § 257.102(d)(2)(i).
State Rule 391-3-4.-10(7)(b) (adopting and incorporating 40 C.F.R. § 257.102).
Likewise, to comply with the Georgia CCR Rule, the solid waste permit applications
themselves, which include the proposed closure plans, must “meet the requirements of [the
Georgia CCR] Rule,” State Rule 391-3-4.-10(9)(a), including an explanation of “how closure
and post-closure care requirements” imposed by the Closure Performance Standards “will be
met.” State Rule 391-3-4.-10(9)(c)5(v).
The post-closure standards are identified below, along with the reasons Georgia Power’s
proposed closure plans do not, and cannot comply with them.
(a) The closure plans fail the prohibition against postclosure infiltration, or release of leachate, CCR, or
contaminated run-off to ground or surface waters.
Georgia Power must demonstrate that groundwater will not interact with and flow
through the coal ash at Yates, Scherer, Wansley, and McDonough’s existing impoundments, to
meet the Performance Standard that the closure must “[c]ontrol, minimize or eliminate, to the
maximum extent feasible, post-closure infiltration of liquids into the waste and releases of CCR,

 Georgia EPD
August 5, 2019
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leachate, or contaminated run-off to the ground or surface waters.” 40 C.F.R. § 257.102(d)(1)(i)
(incorporated into Georgia law by State Rules 391-3-4.-10(7)(b) and 391-3-4.-10(9)(a), (c)5(v).
For the same reason, for a pond located in a flood plain, the closure plan must demonstrate that
the floodwaters will not inundate or rewet the basin, infiltrate the waste, cause such inundation or
infiltration, or cause further releases of coal ash and pollutants.
Post-closure “infiltration” of “liquids into the waste” will occur post-closure at these sites
by definition, since groundwater will not only have “infiltrated” the ash waste basins even after a
cover is placed on top of these impoundments – they will be left sitting in and submerged under
tens of feet of it. (E.g., Wansley Report at 1–2, 7, Attachment 2; Scherer Report at 2–3, 5–6,
Attachment 1; Yates Report at 3–4, 9–12, Attachment 3; McDonough Report at 2–3, 7–8,
Attachment 4). As these waste pits are fed by buried perennial and intermittent streams, the
liquids infiltration will continue through the unlined bottoms, generating recharge and leachate,
to perpetually pollute Georgia’s environment for as long as the conditions exist. See id. The
Closure Performance Standards require a method that controls, minimizes, and eliminates liquid
infiltration and leachate/contaminant releases from the closed pit “to the maximum extent
feasible” 40 C.F.R. § 257.102(d)(1)(i) (incorporated into Georgia law by State Rules 391-3-4.10(7)(b) and 391-3-4.-10(9)(a), (c)5(v)). The proposed closure plans do nothing of the sort, as
Hutson details in his reports.
Finally, as set forth above, a rote “engineer’s certification” that post-closure infiltration or
releases will be minimized, much less controlled in the slightest in the face of the overwhelming
evidence to the contrary is simply not credible, where EPD will review “[a]pplications for
permits” “together with such other information as may be necessary to ascertain” the human
health and environmental impacts that form the very basis for the Closure Performance
Standards in the first place. State Rule 391-3-4-.02(8).
(b) The closure plans fail the prohibition against postclosure impoundment of water, sediment, or slurry.
To comply with the law, the closure plan must also “[p]reclude the probability of future
impoundment of water, sediment, or slurry.” 40 C.F.R. § 257.102(d)(1)(ii) (incorporated into
Georgia law by State Rules 391-3-4.-10(7)(b) and 391-3-4.-10(9)(a), (c)5(v)). “[I]mpoundment
means a natural topographic depression, man-made excavation, or diked area, which is designed
to hold an accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR.” 40
C.F.R. § 257.53 (incorporated into Georgia law by State Rule 391-3-4.-10(2)(a); see also State
Rule 391-3-4-.01(10) (definition of “CCR Surface Impoundment”, which includes within that
definition “both active and inactive surface impoundments, … dewatered surface impoundments,
and NPDES-CCR surface impoundments.”). If groundwater will remain in the coal ash pond, the
pond remains an impoundment that stores an accumulation of CCR and liquids within the
meaning of Georgia’s solid waste rules. Further, if the closure plan features the coal ash pond’s

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dam or other lateral barrier entailing a man-made excavation, diked area or other feature
designed to hold an accumulation of CCR and liquids, in whole or in part, then the closure plan
likewise fails to preclude the impoundment of water.
By the same token, a closure plan that leaves coal ash saturated with groundwater within
the pond leaves the wet coal ash impounded behind the dam or other lateral barrier of the ash
pond, and thus fails to “preclude” the impoundment of coal ash sediments and slurry as required
by both the Georgia CCR Rule and the Federal Rule. State Rule 391-3-4.-10(7)(b) (incorporating
the federal closure performance standards, 40 C.F.R. § 257.102(d)(1)(ii)). To “preclude” an
impoundment means “to make impossible by necessary consequence: rule out in advance.” 64
Post-closure conditions entailing an “accumulation of [both] CCR and liquids” within
these impoundments, whose very purpose is to “dispose[]” of CCR, 40 C.F.R. § 257.53, is by
very definition impoundment of water, sediment, or slurry, given that all of them would be
closed in place partially submerged in groundwater – the very state of affairs that the Closure
Performance Standard says cannot happen to comply with the CCR Rule if a unit is to be closed
in place. 40 C.F.R. § 257.102(d)(1)(ii) (incorporated into Georgia law by State Rule 391-3-4.10(7)(b); State Rule 391-3-4.-10(9)(a), (c)5(v). Yet, the ash pond closure plans for Scherer,
Yates, McDonough, and Wansley each propose leaving coal ash submerged in massive, liquidsaturated pits in Georgia’s groundwater aquifer – rendering it impossible to “preclude” that
which by design will be an absolute certainty post-closure: Scherer AP-1, Yates Ash
Management Area, McDonough AP-1 / AP-3/4, and Wansley AP-1 will continue to “hold an
accumulation of CCR and liquids” to “store[] or dispose[]” CCR. 40 C.F.R. § 257.53
(incorporated into Georgia law by State Rule 391-3-4.-10(2)(a). No engineering “certification”
to the contrary can change that state of affairs, and it would be arbitrary and capricious for EPD
to accept such a “certification” in the face of such evidence.
(c) The closure plans fail the requirement that closure
minimize the need for further maintenance.
To lawfully close an impoundment in place, the closure plan must “[m]inimize the need
for further maintenance…”, reflecting the need for a viable long term disposal method for waste
that contains a host of toxic metals that do not degrade over time. 40 C.F.R. § 257.102(d)(1)(iv).
Leaving ash exposed to, in contact with, and submerged in groundwater merely
perpetuates pollution of the aquifer and downgradient waters, rather than maintaining an actual
remedy. Hence, these closure plans fail the “minimize” the “need for further maintenance”
64

MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/preclude (last visited Aug.
1, 2019). Similarly, to “preclude” as defined by the Cambridge Dictionary means “to prevent
something or make it impossible.” CAMBRIDGE ACADEMIC CONTENT DICTIONARY (Cambridge
Univ. Press, 2019), https://dictionary.cambridge.org/us/dictionary/english/preclude.

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Closure Performance Standard at the outset. (McDonough Report at 3, 5–6, Attachment 4;
Wansley Report at 2, Attachment 2; Scherer Report at 3, Attachment 1; Yates Report at 3, 8–9,
Attachment 3). As Yates AP-1 and Scherer AP-1 reside on a floodplain continually at risk for
erosion or even catastrophic failure following even “relatively minor” high water events (or
major ones, as recently exemplified by the Duke L.V. Sutton dam failure following Hurricane
Florence in 2018), the need for further maintenance at those unlined impoundments is anything
but “minimized” – rendering the need for inspection and maintenance a seasonal affair well past
the 30-year post closure inspection period for these sites. (Yates Report at 3, Attachment 3;
Scherer Report at 3, 5–6, Attachment 1).
Of course, the “need for further maintenance” is likewise anything but “minimized” at
Plant McDonough. Rather, further maintenance of the aging pipe used to route a buried perennial
stream adjacent to Georgia Power’s nearly 5 million ton ash pit in Smyrna, metropolitan Atlanta,
will be an absolute necessity for perpetuity. (See McDonough Report at 2–3, 6–7, Attachment 4).
Furthermore, while the proposed AP-3/4 closure will feature no bottom liner, the McDonough
closure plan specifies placement of an “under slope drain” feature along the eastern cut slope of
the waste dump, “designed to collect leachate that would otherwise discharge to the surface from
the saturated lower portions of the impounded coal ash.” Id. at 8. 65 Modeled (but unverified)
leachate flow through this collection system purportedly predicts a “steady state flow” of 7
gallons of this highly polluted waste per minute. See id. 66As Mr. Hutson observes, however, if
this system is to operate as intended, the collection and treatment systems must be maintained for
perpetuity. See id.
(d) The closure plans fail the requirement that closure must
eliminate free liquids.
Finally, if groundwater continues to saturate coal ash within the proposed “close-inplace” disposal area, then the closure plan cannot satisfy the requirements that “[f]ree liquids
65

Georgia Power proposes no collection system for other portions of the unlined disposal area,
including groundwater flowing through the ash along the west side, or either of the flows through
the ash “toward discharge areas along either of the unnamed creeks or the Chattahoochee River.”
Id. As Mr. Hutson wryly observes, “[i]t appears that collection and treatment of coal ash leachate
is only being considered for implementation in locations where leachate is likely to discharge to
the surface and be observed.” Id.
66

It bears noting that if a partial leachate collection system at McDonough is predicted to flow at
a “long term steady state flow” of 7 gallons per minute, McDonough Report at 8, the remaining
unlined portions of the AP-3/4 waste pit will almost certainly be leaking a massive amount of uncollected leachate to the groundwater post-closure. Georgia Power’s application materials
notably omit this obvious conclusion, and EPD must require such information prior to rendering
its permit decision as to Plant McDonough’s ash pond closure plans to properly evaluate
environmental and human health impacts.

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August 5, 2019
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must be eliminated by removing liquid wastes or solidifying the remaining wastes and waste
residues.” 40 C.F.R. § 257.102(d)(2)(i) (incorporated into Georgia law by State Rule 391-3-4.10(7)(b)). Such failure likewise dooms the solid waste permit applications themselves. Under the
Georgia CCR Rule, solid waste handling permit applications require a written closure plan
providing an “[e]xplanation of how closure … requirements” requiring elimination of free
liquids will be met. State Rule 391-3-4.-10(9)(c)5.
“Free liquids” are defined as “liquids that readily separate from the solid portion of a
waste under ambient temperature and pressure.” 40 C.F.R. § 257.53 (incorporated into Georgia
law by State Rule 391-3-4.-10(2)(a)). Groundwater that saturates coal ash in an unlined
impoundment readily separates from the solid portion of the waste, thereby falling squarely
within the “free liquids” definition. For example, utilities regularly separate the water that
saturates their impoundment coal ash by “stacking” the ash, e.g., by piling up the ash on dry land
to let the free liquids within the ash drain out via gravity. In addition, groundwater readily
separates from coal ash because it flows through the coal ash, as shown by the movement of
pollutants out of unlined coal ash basins into the surrounding groundwater; it does not remain in
the coal ash indefinitely, but rather flows out of the ash and is replaced by new groundwater
infiltrating into the basin. For this reason, a solid waste permit application and closure plan that
fails to stop the ongoing flow of groundwater into an unlined impoundment violates the Georgia
CCR Rule, because such plans do not, and cannot, eliminate free liquids, and fail to solidify the
wastes in the impoundment. 40 C.F.R. § 257.102(d)(2)(i) (incorporated into Georgia law by State
Rule 391-3-4.-10(7)(b)); State Rule 391-3-4.-10(9)(c)5 (regulating Existing Surface
Impoundments).
As discussed above and detailed in Mr. Hutson’s reports, these ash pond closure plans
plainly fail the “elimination of free liquids” Closure Performance Standard – liquids will
continue to enter the waste basins through their unlined bottoms and sides, recharged by springs,
buried creeks and streams, seasonal floods, and the obvious fact that the plans specifically
contemplate leaving massive volumes of ash below the groundwater table, submerging the waste
in the aquifer. “Elimination” of free liquids is simply an impossible state of affairs under the
proposed closure plans, yet it is required by the Georgia CCR Rule if Georgia Power is to legally
close in place these ash dumps. An engineer’s “certification” to the contrary simply cannot
square with this evidence.
In light of these failures, EPD must reject the applications for solid waste handling
permits for each of Scherer AP-1, Yates Ash Management Area and R6 Landfill, McDonough
AP-1 and combined AP-3/4, and Wansley’s AP-1.

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(e) The final cover system for Plant Yates’s R6 Landfill is
grossly inferior to other available methods.
Lastly, the Yates R6 Landfill deserves special mention. As Georgia Power proposes a
final cover system for the R6 Landfill that is vastly inferior to other readily available methods,
and the closure plan therefore fails the Closure Performance Standards for this additional,
independent reason. Georgia’s CCR Rule requires that a closure plan describe “how the final
cover system will achieve the performance standards specified in paragraph (d)” of the Federal
Rule. 40 C.F.R. § 257.102(b)(1)(iii) (incorporated into Georgia law by State Rule 391-3-4.10(7)(b) (“Closure … of existing, new, and lateral expansions of CCR units shall be conducted
in accordance with … 40 CFR § 257.102 …”). This is a critical requirement, since rainwater
entering the ash through a cap will percolate through the porous ash, driving further pollution as
the water transports mobilized pollutants from within the ash to the underlying aquifer and
beyond – a condition that Mr. Hutson’s report concludes is occurring and will continue under the
proposed closure of the landfill. (See, e.g., Yates Report at 9–10, Attachment 3).
As noted above, the Closure Performance Standards require that owners “ensure that, at a
minimum,” the disposal area “is closed in a manner that will:” “Control, minimize or eliminate,
to the maximum extent feasible, post-closure infiltration of liquids into the waste…” among
other requirements. 40 CFR § 257.102(d)(1)(i), incorporated by State Rule 391-3-4.-10(7)(b).
Yet, as Mr. Hutson details in his expert report, Georgia Power’s closure plan specifies a final
cover system with a “hydraulic conductivity of 1 X 10-5 cm/sec or less” – equivalent to that
which “would be expected from a silt or silty sand cover.” (Yates Report at 7–8, Attachment 3).
This specification is grossly inferior to other available techniques, and therefore plainly fails the
Closure Performance Standards, calling for the “Control,” minimization or elimination, “to the
maximum extent feasible, post-closure infiltration of liquids into the waste” as well as postclosure leaks. 40 CFR § 257.102(d)(1)(i) (emphasis added).
Rather than propose a final cover arguably even approaching this standard, Mr. Hutson
observes that the proposed final cover specifications for the R6 Landfill would allow rainwater
penetration with a “hydraulic conductivity … two orders of magnitude higher than what would
be required of a MSW landfill in the same location.” (Yates Report at 7, Attachment 3). That is,
the final cover system specified for the Yates R6 Landfill would allow rainwater to enter the
waste through the “cap” by a factor of 100 times more than a final cover system required for a
MSW landfill.
Plainly, given that a household garbage landfill would require a final cover that is two
orders of magnitude more protective than that specified by Georgia Power at the landfill, the
proposed closure plan fails to ‘minimize’ or ‘eliminate’ post-closure infiltration of liquids
through the cap to the “maximum extent feasible” – on the contrary, the method proposed by

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Georgia Power is grossly inferior to other available methods. Yet again, a “certification” to the
contrary is simply not credible in light of these facts.
EPD must reject the permit application for the R6 Landfill for this additional,
independent reason.
2. Georgia Power’s applications fail the CCR Rule’s closure
performance standards governing inactive surface impoundments.
For so-called “inactive surface impoundments,” (ponds that no longer received coal ash
on or after October 19, 2015) that had not completed closure by April 2018, a solid waste permit
application is likewise required. State Rule 391-3-4.-10(9)(a), (c)6. For these waste
impoundments – entailing the older, leakier waste dumps addressed by the D.C. Circuit Court of
Appeals in USWAG v. EPA discussed above, the Georgia CCR Rule doesn’t let them off the
hook – free liquids cannot remain in the waste post-closure, nor can they later infiltrate the
waste. This requirement is critical and must be stringently enforced by EPD if Georgia’s waters
and human health is to be properly safeguarded as Georgia law requires.
As Mr. Hutson explains, “[a]n effective closure of coal ash storage sites requires that the
coal ash waste be securely and permanently isolated from water: including precipitation, surface
water, and groundwater. Failure to isolate coal ash waste from water will result in leaching of
contaminants, i.e. formation of leachate.” (Hammond Report at 2, Attachment 5). Once again, it
is this leachate – equivalent to more toxic water pollution than that generated by the coal mining
industry nationally, that stands to pollute Georgia’s waters for perpetuity if the “free liquids” ban
is not properly enforced by EPD in its permit decisions as to Hammond and McDonough.
Here, Georgia Power appears to contend that Plant Hammond’s AP-3 and Plant
McDonough’s AP-1 and AP-3 fall within Georgia’s definition of “Inactive Surface
Impoundment” based on their applications. Setting aside for purposes of argument that
McDonough’s AP-1 and AP-3 are misclassified as set forth above, these applications
nevertheless must be rejected as inactive surface impoundments.
For inactive surface impoundments, State Rule 391-3-4.-10(9)(c)6(v)(I) requires a written
closure plan setting forth one of two options: closure through removal (excavation), or a
“[n]arrative describing how the CCR unit will be closed including the elimination of free liquids
and stabilization of remaining waste…” Plainly, “elimination of free liquids” from these
unlined, submerged ash pits cannot be achieved by the proposed closures for the reasons
exhaustively set out above and in Mr. Hutson’s accompanying reports (Hammond Report at 2–3,
6–8, Attachment 5; McDonough Report 2–3, 6–8, Attachment 4). And given the mandate
imposed on EPD to review these applications “together with such other information” necessary
to ascertain the effect of this waste on the environment and human health, State Rule 391-3-4.02(8), accepting a rote engineer’s certification that “free liquids” will be eliminated simply does

 Georgia EPD
August 5, 2019
Page 51

not square with the evidence that these basins will remain under water post-closure in unlined
basins. EPD must consider this evidence in its permit decisions, and should reject the
applications given the Georgia CCR Rule?s unambiguous prohibition banning the existence. of
free liquids in the waste.

111. Conclusion.

The intent of this letter is to identify issues that should be of great interest and concern to
EPD. For the reasons detailed herein, it is clear that EPD must deny Georgia PoWer?s solid waste
permit applications for these unlined coal ash waste sites.

In light of the systemic, substantial pollution. established by the evidence, EPD should
exercise its permit authority, and incidental'powers under O.C.G.A. to: (1)
order the company. to immediately halt all closure in place activities at these sites; and (2) order
the company to immediately withdraw its pending permit applications, to develop closure plans
that will comply with the requirements of the Georgia Solid Waste Management Act, and the,
Georgia CCR Rule, which will not be achieved under the current applications.

We request that this letter and its attachments be placed in the permit ?le for each of the
identi?ed waste disposal sites. Should you wish to discuss these matters, we would be eager to
address them with you in further detail.

Sincerely,
. 1

iristopher J. Bowers

Southern Environmental Law Center
cbowers-?Qiselcgaorg

Enclosures

cc:
Via email (w/encl.)

Laura Williams, Esq.

Director of Legal Services

Georgia Environmental Protection Division
2 Martin Luther King, Jr. Drive SE

Suite 1456 East Tower

Atlanta, Georgia 30334

laura.williamsr til-dnr. 11a. gov

Georgia EPD
August 5, 2019
Page 52

Mary S. Walker
Regional Administrator
USEPA REGION 4
61 Forsyth Street, S.W.
Mail Code: 9T25
Atlanta, GA 30303-8960
Walker.mary@Epa.gov