Protecting the White River from Coal Ash Pollution

Hoosier Environmental Council v. IDEM, AES/Eagle Valley Generating Station

Case No: Indiana Office of Environmental Adjudication (OEA) No. 23-W-J-5247

Client:

Hoosier Environmental Council

CLC Attorneys:

Kim Ferraro

Forum / Posture:

CLC first challenged the permit in the Office of Environmental Adjudication (“OEA”) which later transferred the case to the Office of Administrative Law Proceedings (“OALP”). After 3 adverse rulings by the OALP, HEC petitioned for judicial review in the Morgan County Superior Court. After the final ruling by the Morgan County Superior Court, HEC appealed to the Indiana Court of Appeals.

Background:

The Eagle Valley Generating Station in Martinsville is one of many former coal-fired power plants in Indiana that has leaking, unlined waste impoundments or “ponds” with millions of tons of coal combustion waste or “coal ash” dumped there over decades. Eagle Valley’s coal ash ponds are carved deep into the floodplain and bank of the West Fork of the White River and have long been leaching hazardous chemicals and heavy metals into the underlying aquifer. On at least two occasions over the years, coal ash has overflowed from the waste ponds and spilled directly into the White River, killing fish.

Under the federal coal ash rule promulgated by the US EPA in 2015, this leaching and spilling must stop. Eagle Valley’s owner, AES Indiana, must take corrective measures to stop the ongoing coal ash contamination of groundwater and prevent releases to the river. But remarkably, AES’ plan for doing so is to leave the dumped coal ash sitting in the river’s floodplain forever while claiming that the ongoing contamination of groundwater will be “hydraulically contained” as part of a corrective measure. It turns out that AES’s plan is far from a corrective measure and is, instead, a scheme to continue hydraulically pumping and dumping coal ash-contaminated groundwater into the river under the guise of a Clean Water Act permit. What’s worse, Indiana’s environmental agency, IDEM, is allowing this to occur.

In March of 2023, IDEM renewed Eagle Valley’s Clean Water Act permit with provisions that allow the utility to continuously pump groundwater contaminated with coal ash, use it for processing and cooling water in the plant, and then discharge the contaminated groundwater as untreated wastewater, directly into the White River. In effect, IDEM’s permit legitimizes AES’ claim that it is complying with the federal coal rule by “hydraulically containing” the contaminated groundwater under an “approved” CWA permit. To address this dangerous shell game, CLC is representing the Hoosier Environmental Council (HEC) in an administrative appeal of the permit for containing provisions that violate both the CWA and EPA’s coal ash rule. We are also monitoring IDEM’s review of AES’ proposed closure and corrective measures plans—and if IDEM approves those plans without putting an end to AES’ “hydraulic pump and dump” scheme, we will pursue legal action on that front as well.

Current Status:

In April of 2023, CLC filed suit on behalf of HEC in the Office of Environmental Adjudication (“OEA”) challenging the IDEM-issued permit. The case was then transferred to the Office of Administrative Law Proceedings (“OALP”) in 2024. Despite the evidence and extensive legal authorities presented, the OEA/OALP issued 3 rulings upholding IDEM’s unlawful permit—and, alarmingly, ruled that neither HEC nor its members living in Martinsville have standing to challenge the permit.

In March 2025, we sought judicial review in Morgan County Superior Court to reverse OALP’s final ruling, which finalized all three agency rulings and disposed of the administrative proceeding. Briefing before the Morgan County Superior Court ensued, and the court issued its ruling in August of this year. That ruling upheld the OALP’s final ruling in all respects except associational standing. We have appealed the trial court’s order to the Indiana Court of Appeals, seeking reversal of the trial court’s order on all issues except associational standing. But even on that issue, we are asking the appellate court to affirm on proper legal grounds.

The appeal is now moving forward, with AES and IDEM expected to file their response briefs in the coming months, after which we will have an opportunity to reply.