USA – ALABAMA Trends and Developments Contributed by: John M. Johnson, Brian P. Kappel, Mary Parrish McCracken and M. Elizabeth Harrison, Lightfoot, Franklin & White, LLC
ligence, wantonness and public nuisance claims, not- ing that the plaintiff had failed to connect the PFAS in its water supply to any specific duty owed to it by the defendants that the defendants had violated. The City of Mobile court flatly rejected the plaintiff’s position in that case that the defendants’ alleged conduct was the source of its injuries. Other courts have not gone as far. In particular, negligence and public nuisance claims have survived motions to dismiss in WMEL, Tuskegee and Albertville, leaving what appears to be a significant split in authority on questions of how and when chemical producers may be held liable for con- tamination caused by customer or user’s disposal of PFAS waste. This split is likely to require resolution by the Alabama Supreme Court. Coal ash Other significant environmental litigation in Alabama has involved coal ash and CCR disposal sites. Fed- eral legislation (like the Resource Conversation and Recovery Act (RCRA)) and EPA regulations (such as the Coal Combustion Residuals rule) set minimal national standards for landfills, lagoons and other sites where coal ash has been stored or disposed. Under that rubric, states, including Alabama, must propose CCR management plans to the EPA and, upon approval, implement those plans for specified locations within their borders. ADEM’s proposed plan has been challenged in multiple cases. Two lawsuits in particular challenge ADEM’s approval of specific CCR disposal efforts. Both involve unlined disposal ponds adjacent to large waterways. Plaintiffs allege that ADEM has improperly approved plans that do not meet the RCRA standard. They argue that mere capping of the disposal sites continues to allow sig- nificant amounts of arsenic and other toxins to enter groundwater. In one case, Mobile Baykeeper , a conservancy group, sued over alleged releases from an Alabama Power pond into the Mobile River near the Alabama Coast. The group seeks injunctive relief requiring Alabama Power to remove coal ash from the pond. Alabama Power opposed the suit, asserting that its efforts to cap the pond were compliant with ADEM’s CCR plan. EPA disagreed and issued a notice of violation on the grounds that ADEM’s overall CCR plan was incompat- ible with RCRA (which has led to a separate suit by
ADEM against the EPA). After hearing argument, the District Court for the Southern District of Alabama dis- missed the lawsuit, holding that the specific injunction requested would not eliminate the alleged releases because it would only require Alabama Power to pro- pose a new remedial plan as opposed to taking any specific action to remove coal ash from that location. Mobile Baykeeper’s appeal of that decision is cur- rently pending, and the Eleventh Circuit will be asked to decide the limits of a federal district court’s power to require CCR disposal sites to take certain actions beyond those previously approved by ADEM. A second, similar lawsuit was filed on behalf of Coosa Riverkeeper regarding a CCR lagoon in the middle of the state, near Gadsden. That case, filed in July 2025, will present many of the same issues currently on appeal. Again, the major issue will be the scope of relief available to conservancy groups when ADEM has approved a plan, but EPA or local groups believe the plan is insufficient to protect the local waterways. Parties will need to closely watch the results of these cases for the answer to that question. Air Regulation In addition to the previously mentioned water revi- sions, major updates to Alabama’s Air Pollution Con- trol Program were enacted in October 2024. Regula- tory standards were revised for granting air permits (Alabama Administrative Code 335-3-14-.03) and significant New Source Review permit rules were issued (335-3-14-.04 and 335-14-.05). Among other changes, these new standards force power plants to reduce emissions of mercury, hazardous metals and other substances. Power plants and other air emit- ters should consider the likelihood that they may face additional costs to remove additional contaminants in the future. These changes harmonize Alabama’s air regulation programmes with EPA guidance. However, as men- tioned before, the EPA at the same time rejected Alabama’s application to run its own coal combus- tion residuals permit programme based on a finding that Alabama’s CCR programme was less protective of ground and surface waters than federal regula- tions require. ADEM has held several public meetings recently and more regulatory changes are likely.
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