BUCKS, Ala.—Alabama’s largest electric utility reached a settlement with the U.S. Environmental Protection Agency resolving two of three alleged violations stemming from one of its largest coal ash ponds. 

But the larger question—whether the 21.7 million cubic yards of coal ash in the pond will have to be excavated and moved to a lined landfill—remains unanswered. 

The settlement requires Alabama Power to improve its groundwater monitoring and emergency action planning around the 597-acre coal ash ponds at the James M. Barry Electric Generating Plant in Mobile County, and to pay $278,000 in penalties. Alabama Power reported $1.37 billion in net income in 2023, according to filings with the Securities and Exchange Commission. 

EPA announced the agreement, finalized on Sept. 26, on Wednesday. 

“This settlement requires Alabama Power to implement a more robust groundwater monitoring program and to revise its Emergency Action Plan, both of which will help protect surrounding communities along the Mobile River from potential coal ash contamination,” Jeaneanne Gettle, EPA’s acting Region 4 administrator, said in a news release. 

But the agreement only settled two of the three alleged violations at Plant Barry. The third and most serious potential violation cited by EPA in 2023 involved the issue of allowing those 21.7 million cubic yards of coal ash to remain in contact with groundwater after closure.

That issue was not addressed in this settlement, but has been raised as a point of contention by EPA officials in recent months. Alabama Power had secured a permit from the Alabama Department of Environmental Management in 2021 to close the coal ash pond by covering the ash in place rather than digging out the ash and moving it to a lined landfill. 

However, in May, the EPA rejected Alabama’s state permitting program, saying it was “significantly less protective of people and waterways than federal law requires.” 

“Under federal regulations, coal ash units cannot be closed in a way that allows coal ash to continue to spread contamination in groundwater after closure,” the EPA said, in denying Alabama’s program. “In contrast, Alabama’s permit program does not require that groundwater contamination be adequately addressed during the closure of these coal ash units.”

According to EPA documents, significant portions of the coal ash at Plant Barry would remain in contact with groundwater after closure under the current plan.

On Wednesday, the EPA said it “cannot comment further on other potential enforcement matters at Plant Barry.”

Alyson Tucker, Alabama Power media relations manager, said the agreement ”reaffirms our longstanding commitment to protecting the health and safety of the communities where we proudly live and serve.”

“The settlement resolves the EPA’s concerns about Alabama Power’s groundwater monitoring system and emergency action plan,” Tucker said in an email. “Importantly, nowhere in the agreement does the EPA allege or determine that Alabama Power’s [coal ash] compliance program has affected any source of drinking water, or otherwise endangered human life, animal or aquatic species, or the environment.”

Nationwide Coal Ash Rules

For decades, coal-fired power plants like Barry flushed their ash or coal combustion residuals from the burners into massive lagoons, usually unlined and often on the banks of major rivers.

Coal ash contains potentially harmful contaminants like lead, mercury, arsenic and heavy metals that have been shown to migrate from the unlined ponds into groundwater and surface water. 

That was until 2015, when the EPA finalized nationwide coal ash rules, regulating for the first time the millions of tons of coal ash stored in unlined ponds across the country. Most utilities concluded the wet ash ponds could not meet the requirements of the new standards and converted their plants to use dry coal ash handling. 

Now, instead of being flushed into a lagoon, most coal ash is collected dry and then either sent to a landfill or recycled into products such as concrete or drywall. 

The 2015 rules also required utilities to close their existing ash ponds. The rules technically allowed for two methods—closure in place or excavation to a lined landfill—but only if certain conditions were met. Closure in place is often seen as the cheaper option, while removal to a landfill is more protective of the environment. 

Closure in place is only allowed if it meets the requirements for containing groundwater and surface water pollution laid out in the 2015 rules. 

“It is imperative that companies comply with the national coal ash regulations in order to protect communities and the environment, including vital groundwater resources,” the EPA’s Gettle said. 

Plant Barry Sits Atop “America’s Amazon”

The ash pond at Plant Barry is not the largest by volume, but is likely the most controversial of Alabama Power’s coal ash ponds at six power plants across the state. 

Located about 20 miles north of the port city of Mobile, the pond sits on the banks of the Mobile River, in the heart of the Mobile-Tensaw Delta, a massive, mostly undeveloped wetland area sometimes called America’s Amazon, thanks to its rich biodiversity and ecological importance.  

Environmental groups have long argued that the ash at Barry should be relocated to a lined landfill farther away from the river. 

“It needs to be removed or recycled so that it’s not left sitting on the side of the Mobile River, on the side of the delta,” said Mobile Baykeeper’s Cade Kistler. “It’s a ticking time bomb upstream of the bay in an unlined pit.”

Mobile Baykeeper has long argued that a dam breach akin to the 2008 Kingston, Tennessee, disaster, or the 2014 Dan River coal ash spill in North Carolina would be catastrophic. They also say Barry is at greater risk of flooding from inland or from coastal storm systems, being located on a massive river delta near the coast. 

“Honestly, with what we just saw with Hurricane Helene, I think those folks in the Carolinas are thankful they don’t have another thing to worry about because they’re already dealing with so much,” Kistler said. 

Kistler said the recent settlement agreement was a start but didn’t address the “core problem” of whether the coal ash must be excavated. 

“[The settlement] doesn’t mean the EPA is done,” Kistler said. “They can still take action. They’re not precluded from taking any action to deal with that most important piece of making Alabama Power clean up the coal ash pond, with a plan to actually get it out of groundwater.”

In total, Alabama Power is in the process of closing in place, or has already completed closing, an estimated 76.7 million cubic yards of coal ash at six sites around the state. 

Under the cover in place option, Alabama Power drains the lagoons and compacts the remaining ash waste into a smaller area. The pile is then covered with a landfill-style impermeable liner. There is no bottom liner on the closed pond, leaving the potential for contaminants from the ash to move into groundwater. 

Alabama Power says the process moves the ash material farther away from the river, and the company installs redundant dike systems meant to prevent flooding. 

Frank Holleman, a senior attorney with the Southern Environmental Law Center who deals extensively with coal ash, said that Alabama remains an outlier even from neighboring states in how it handles coal ash. 

“The state of Alabama has stuck out like a sore thumb in the Southeast in how poorly they have handled coal ash and what a poor job they’ve done on protecting the public and communities from coal ash pollution,” Holleman said. “Other states in the Southeast have taken a totally different approach.

“Every site like this in South Carolina either has already been or is being cleaned up and fully excavated,” he said. “Every site in the state of North Carolina, which has a lot more coal ash than Alabama: all being excavated. Every one Duke Energy has in North Carolina either has already been finished and cleaned up or is in the process. Every site Dominion has in Virginia, two thirds of Georgia Power’s coal ash [is being moved to lined landfills]. Whereas in Alabama, not one bit has been cleaned up.”

Tucker, the Alabama Power representative, said the company stands behind its proposal to cover the coal ash in place at Barry. 

“We firmly believe that our operations at the Plant Barry [coal combustion residuals] surface impoundment are legal, safe and environmentally responsible,” Tucker said. “We respectfully disagree with any claims that we’ve violated CCR regulations.”

Holleman and the Southern Environmental Law Center are representing Mobile Baykeeper in a federal lawsuit against Alabama Power related to discharges from Plant Barry. The case was dismissed by a federal judge in Mobile last year, but Baykeeper is appealing that ruling. Holleman said nothing in this settlement impacts their case or prohibits EPA from taking more enforcement action against Alabama Power. 

“What we can only hope is Alabama Power’s experience of having to pay a penalty, having the EPA bring enforcement activities against them, of getting sued, of ADEM getting its application denied because it’s done such a poor job in handling coal ash, that the succession of events will finally convince Alabama Power and ADEM and the other utilities in Alabama to clean up their act, and do what’s been done in South Carolina and North Carolina.”

The post-Nick Saban era at Alabama has already created a remarkable high and an astonishing low. And college football commentator Joel Klatt thinks those types of results are likely to be much more common moving forward.

Appearing on The Next Round Live show, Klatt talked about how Alabama’s defensive struggles and offensive prowess remind him of the Oklahoma Sooners teams under Lincoln Riley. Instead of Saban’s suffocating defenses, the new Crimson Tide model will have to be outscoring their opposition.

“This Bama team is just another version of the Lincoln Riley OU teams,” Klatt said. “Incredible explosive offense, and they’re gonna be in shootouts the rest of the way. I told you that after the South Florida game and that’s what they are.

“We’ve had four straight games of this. To think, all of a sudden, it’s going to get better — Alabama, right now, is just a Big 12 team from 2017. Bama is gonna have to score 45 PPG in conference to win the rest of their games.”

The Alabama Department of Corrections (ADOC) has settled a wrongful death lawsuit against corrections officers who beat a man to death at the William E. Donaldson Correctional Facility in 2019, though the department continues to deny that the officers used excessive force.

A settlement payment of $250,000 was issued on Aug. 16 in the case of Sondra Ray v. Roderick Gadson, et al., according to data from Alabama’s Department of Finance.

Before reaching the settlement, the state paid 11 different attorneys or firms a total of $393,000 to defend the corrections officers named in the lawsuit, the records show.

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Ray filed the lawsuit in 2020 after the October 2019 death of her son, Steven Davis.

The day before he was removed from life support, Davis, 35, was rushed to UAB Hospital with critical injuries after an incident involving multiple officers inside a “behavior modification unit” or “hot bay” at Donaldson prison. A medical examiner classified Davis’ death as a homicide, caused by “blunt force injuries of head sustained during an assault.”

Ray, reached by phone, had no comment on the lawsuit or settlement agreement, but said nothing will ever heal the grief she experienced in losing her son five years ago.

“It never leaves you,” she said. “If they hadn’t killed him, I wonder if he’d be here right now helping me. I wonder if he’d have kids. What they took from me will never go away.”

Alabama Attorney General Steve Marshall declined to press criminal charges against the officers involved, and the department’s internal investigation determined the officers’ use of force against Davis was justified.

The criminal investigation began in the Bessemer district attorney’s office, but in 2020, Bessemer DA Lynneice Washington recused her office when she learned one of the officers involved in Davis’ death was related to an assistant prosecutor in Bessemer. At that point, the criminal investigation was transferred to the attorney general’s office.

Hank Sherrod, an attorney representing Ray, said in a statement that “ADOC and the criminal justice system failed to hold anyone accountable.”

“Sandy would trade every dollar to have her son back or to see the officers who murdered her son go to prison, but she is glad to close this chapter in her life,” the statement said.

Four officers were named in the lawsuit. Two of them were still working for ADOC as of this month, according to payment records available in the Open Alabama checkbook database maintained by the Department of Finance.

ADOC confirmed that the two officers were still employed by the department but did not respond to a request for comment on the lawsuit settlement.

From the beginning, ADOC framed the incident that led to Davis’ death as one in which officers felt threatened by Davis — an account disputed by Ray and some witnesses. She described her son as a follower, not an instigator.

“Stevie was in a confined area,” she said in 2019, shortly after his death. “He wouldn’t create an altercation. He didn’t want to die. He was coming home to take care of me.”

A statement ADOC released two days after Davis’ death said Davis rushed out of his cell brandishing a prison-made weapon in each hand, and refused to comply with officers’ demands to drop his weapons.

“At that time, correctional officers applied physical measures to diffuse the threat in order to remove the weapons from the scene and secure the inmate,” the statement concluded.

But the civil complaint filed by Ray stated that officers “brutally beat Davis, ultimately killing him,” and therefore subjected him to excessive force, violating his constitutional rights. The complaint disputed the account by ADOC, saying Davis dropped the weapons and submitted to officers, but they still beat him, striking him in the head with batons and stomping on his head.

“The blows to Davis’ head are considered deadly force and would have been excessive even if Davis was resisting the officers,” the complaint argued.

The U.S. Department of Justice released a report in July 2020 concluding that officers within ADOC frequently use excessive force on men housed throughout Alabama prisons, giving rise to systemically unconstitutional conditions.

While not naming Davis, the report described his death. It stated that he had initially rushed toward another prisoner, not officers, and that an officer sprayed him with a chemical agent and struck him on the arm, causing him to drop a weapon.

“A second correctional officer responded to the scene and administered palm-heel strikes to the prisoner’s head as well as knee-to-head strikes as he tried to disarm the prisoner,” the report stated. “The prisoner eventually went to the ground face down and officers reported that the prisoner concealed a knife between his upper torso and the floor. Numerous prisoner-witnesses, however, reported that correctional officers continued to strike the prisoner after he dropped any weapons and posed no threat.”

Davis was in prison on a probation violation related to drug possession. In 2009, he pleaded guilty in a fatal robbery in which he drove a vehicle involved in the incident. He was killed several days after ADOC transferred him to Donaldson Prison in Bessemer from Bibb Correctional Facility in Brent, a town in Bibb County.

After her son was killed, Ray spoke to lawmakers about her family’s experience, telling them she had to have a closed casket at his funeral because of the severity of his head and facial injuries. She continued to speak publicly about the lack of transparency by ADOC, generating national media coverage of the incident in the year following Davis’ death.

Legal spending by ADOC spiked in recent years as the embattled department faces hundreds of lawsuits filed by prisoners and their families over excessive force, wrongful death, failure to protect from violence and medical neglect.

The U.S. Department of Justice sued the state in 2020, saying “the state failed or refused to correct the unconstitutional conditions in Alabama’s prisons for men.”

Two class action lawsuits against ADOC are now in their 10th year of litigation: one over the lack of mental health care across the system and the other addressing violence inside St. Clair Correctional Facility.