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EarthJustice v. Gulf Power Moves Forward


A lawsuit against Gulf Power Company filed by the environmental group EarthJustice will move forward, after a judge’s refusal to dismiss the case.

In a 19-page order issued last Friday, U.S. District Judge Mark Walker rejected most of the arguments raised by the utility, which was seeking to quash the lawsuit filed in June by the legal firm EarthJustice, on behalf of three environmental groups, regarding Gulf Power’s coal-fired Herbert Scholz Generating Plant in Jackson County.

“This is the first obstacle in moving ahead,” said Alisa Coe, the lead plaintiff attorney. “We are excited to be able to pursue the case, and the judge saw that we had a broad, meritorious claim.”

Coe’s clients are Apalachicola Riverkeeper, the Southern Alliance for Clean Energy, and Waterkeeper Alliance.

“What Gulf (Power) wanted to do here, was to dismiss the case and suppress evidence of their leaking pond,” said Coe. “Largely on the theory that the environmentalists taking samples was undistinguishable from the government kicking down the door to your house without a warrant. And the judge said ‘no’ to that argument.”

The plaintiffs allege that harmful pollutants leaked into the Apalachicola River from impoundments holding coal ash -- a byproduct of burning coal to generate electricity. The lawsuit also claims that Gulf Power violated the Clean Water Act and an environmental permit. The river flows into the Apalachicola Bay, which supports a multi billion-dollar seafood industry.

Calls to Gulf Power for comment on this latest development have not been returned as of late Tuesday. Spokeswoman Natalie Smith, speaking in June, said they received word from EarthJustice last February, informing them of the law firm’s intent to file the suit.

“After receiving the EarthJustice letter of intent Gulf Power, as well as the (Florida) Department of Environmental Protection, actually conducted follow-up site inspections and sampling tests,” said Smith. “All test results were determined to be in compliance, and didn’t support any of the allegations that EarthJustice is making.”

Last month Gulf Power filed the motion to dismiss. Among the arguments was that there were flaws in what is known as a "60-day notice letter," which is required to be submitted before such a lawsuit is filed. Gulf Power also claims the plaintiffs trespassed on the power-plant site to get information before submitting the letter.

“We actually referred them to the DEP test results, and conveyed that our testing results also supported that the DEP findings,” Smith said.

The Scholz plant began operating in 1953, and today is used only infrequently to generate electricity. In a court document, Gulf Power says Scholz is slated for retirement in April, 2015. EarthJustice attorney Alisa Coe says for their purposes, shuttering the plant does not affect their case, which is scheduled for trial next July.

Meanwhile, in the run up to the trial, Coe says there’s lots to do. Every possibility -- including an out-of-court settlement – remains on the table. But she says talks to that end so far have been “unfruitful.”

Judge Mark Walker did side with Gulf Power on one issue. He tossed out an argument that the utility violated lead standards – an allegation that based on a reported violation four years ago.