ELR Citation: 55 ELR 20121
No(s). 2:24-cv-41 (S.D. Ohio Aug 26, 2025)

A district court granted EPA's motion to dismiss a challenge to its 2022 denial of a coal-fired power plant's request to extend the deadline to comply with an amendment to the Agency's 2015 rule that required the plant to stop adding coal ash to unlined impoundments. The 2015 rule prohibited ash from being stored in impoundments where it was likely to contaminate groundwater, and the 2020 amendment required unlined impoundments to either be retrofitted with linings to prevent groundwater contamination or be closed and stop receiving new coal ash. The power plant sought an extension on the closure date for its unlined impoundment. EPA denied the request, finding that the plant's closure of another impoundment violated the 2015 rule's waste-in-place closure requirements. The plant filed suit, arguing the Agency violated the APA by retroactively applying new law to the impoundment's closure, by making erroneous determinations, and by depriving it of procedural due process. The court found the retroactivity claim failed because the newly announced groundwater requirement was not new; the 2015 rule always required units closed with waste-in-place to minimize inflow and outflow of groundwater. It further found the erroneous finding claim failed because EPA applied the correct law to seemingly well-founded facts, and that the due process claim failed because the 2015 rule's plain text notified the plant of the groundwater closure requirement. It granted EPA's motion to dismiss.