THE NEWS SERVICE OF FLORIDA

TALLAHASSEE — A federal judge last week refused to dismiss a lawsuit alleging that pollution has leaked into the Apalachicola River from the site of a Gulf Power Co. coal-fired power plant.

U.S. District Judge Mark Walker on Sept. 26 rejected most of the arguments raised by the Northwest Florida utility as it sought to scuttle a lawsuit filed in June by the environmental groups Apalachicola Riverkeeper, the Southern Alliance for Clean Energy and Waterkeeper Alliance.

The lawsuit focuses on the Herbert Scholz Generating Plant, which is on the west bank of the Apalachicola River near the town of Sneads in Jackson County. The plant began operating in 1953, is used infrequently to generate electricity and is slated to be retired next year, Gulf Power said in a court document.

The plaintiffs in the lawsuit allege that harmful pollutants leaked into the river from impoundments that hold coal ash, which is a byproduct of burning coal to generate electricity. The lawsuit contends, in part, that Gulf Power violated the Clean Water Act and an environmental permit and that toxic pollutants are ingested by fish, which can be eaten by humans.

Gulf Power on Aug. 1 filed a motion to dismiss the case and raised a series of issues. In the motion, Gulf Power said it was complying with a permit that "authorizes surface water and groundwater discharges from Plant Scholz under federal and state law, and there are no credible or judicially cognizable claims of unmet environmental performance obligations."

Among Gulf Power's 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 said the plaintiffs trespassed on the power-plant site to get information before submitting the letter.

"While Gulf is certain that plaintiffs obtained no data or information that could serve as a legitimate legal basis for any of their claims, the notice letter is based on information (albeit erroneous information) obtained by unlawful entry,'' the utility argued in the motion.

Walker, in a 19-page order, denied the motion to dismiss the case, clearing the way for the dispute to move forward. A trial is scheduled for July 2015.

In part of the ruling, Walker rejected the argument about trespassing, writing that "it is well-established that there is no reasonable expectation of privacy in open fields." Walker wrote that an aerial photograph showed that the "land allegedly trespassed cannot be described as the curtilage of any building located at Plant Scholz. At the time plaintiffs observed in plain view the alleged seeps, they stood on land where defendant had no reasonable expectation of privacy."

The judge sided with Gulf Power on one issue, tossing out an argument that the utility violated lead standards. He wrote that the allegation was based on a reported violation from 2010.

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