Judge to decide if PSC must revisit Georgia Power’s coal ash cleanup tab

A Fulton County judge will decide whether state regulators should rethink their decision to let Georgia Power pass along $525 million in coal ash cleanup costs to its customers over the next few years.

Attorneys for the Sierra Club’s Georgia chapter argued in a court hearing Monday that Georgia Power – and not ratepayers – should shoulder the burden because the group says the utility mishandled the toxic waste at its coal-fired power plants for decades. The grassroots environmental group also says the utility did not provide specifics for how the money would be spent.

Judge Shukura Millender said during Monday’s virtual hearing that she would issue a written opinion, but she did not indicate when.

“For decades, Georgia Power has dumped its coal ash into unlined, water-filled pits and ponds at its power plants,” said Sierra Club’s attorney, Robert Jackson.

“Georgia Power’s decades-long imprudent, unreasonable and unlawful handling of coal ash has polluted waters of the state with the coal ash itself and with the toxic heavy metals and other pollutants that leak into the water out of the coal ash, like arsenic, beryllium, chromium, cobalt and others,” he added.

Coal ash is the toxic remains created by the process of burning coal for energy. The public utility is in the process of shuttering 29 coal ash waste pits across the state and intends to cap in place 10 of those ponds where they sit in unlined pits.

Proposals to leave coal ash in unlined pits are particularly controversial where the coal ash is in contact with the groundwater, such as at Plant Scherer in Juliette. Frustrated residents from the rural middle Georgia community advocated at the state Capitol this year for bills that would require the utility to move toxic coal ash to lined landfills.

Georgia Power is in the middle of acquiring permits from the state Environmental Protection Division to carry out its coal ash disposal plans.

But when it comes to the cost, the state Public Service Commission is standing behind its decision to let Georgia Power pass along the $525 million cost to ratepayers. Dan Walsh, an attorney for the commission, said the Sierra Club was asking the judge to “second guess” the evidence the regulatory panel relied on when making its decision.

“Everyone who is aggrieved by an agency’s factual determination believes exactly what Sierra Club argues here, that the other side’s evidence doesn’t show what they say it shows,” Walsh said.

An attorney for Georgia Power, Tom Reilly with Atlanta-based Troutman Pepper, countered the environmentalists’ allegations with an overview of the reams of information provided to the commission – and under a confidentiality agreement, to the Sierra Club – and the lengthiness of last year’s hearing process.

“So, the argument that there’s three years of rates that have been locked in based on insufficient data is contrary to the record in this case,” Reilly told the judge.

Reilly also pushed back on claims that the utility had unlawfully handled its coal ash over the years. He said the utility’s permits for coal ash have so far not been denied and pointed to the utility’s record on coal ash waste with the state Environmental Protection Division and the U.S. Environmental Protection Agency.

Jackson retorted: “If you’re driving down the road at 90 miles per hour in a 25 zone and you’re not stopped or ticketed, that doesn’t mean you weren’t acting unlawfully just because you weren’t stopped or ticketed.”

The Sierra Club filed its petition for judicial review in March appealing the commission’s decision. The coal ash cleanup costs were included in a $1.8 billion rate hike plan for Georgia Power that was approved last December.