Gavin Power, LLC v. United States Environmental Protection Agency, 2:24-cv-00041

Gavin Power, LLC operates a coal-fired power plant in Ohio and manages residual coal ash in unlined impoundments on-site.
Coal ash is hazardous due to its toxic components, and improper disposal raises health and environmental risks, especially through groundwater contamination.
The EPA promulgated comprehensive coal ash disposal rules in 2015 (“2015 Rule”), later amended in 2020 and 2024, requiring units like Gavin’s to minimize groundwater infiltration and related pollution.
Gavin sought an extension to close one of its coal ash ponds but was denied by the EPA, which found the existing Fly Ash Reservoir closure non-compliant due to substantial groundwater saturation.
Gavin challenged the EPA’s denial in the D.C. Circuit, which found the EPA action was an adjudication applying the existing rule—not a new or retroactive requirement—then dismissed for lack of jurisdiction over non-legislative rules.
Gavin then brought APA-based and common law claims in federal district court, seeking to undo the EPA’s compliance and enforcement actions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether EPA’s denial retroactively imposed a new requirement prohibiting groundwater saturation in closed units	EPA unfairly retroactively applied a new, stricter interpretation; closure occurred under earlier understanding	EPA simply applied the plain text of the 2015 Rule which always required minimizing groundwater infiltration	No retroactivity; EPA interpreted and applied existing law
Whether EPA’s findings of noncompliance were legally or factually erroneous	EPA misinterpreted the law and/or underlying facts, making the denial arbitrary and capricious	EPA made rational, evidence-based determinations under correct legal standard	No plausible legal or factual error alleged; claim dismissed
Whether Gavin was deprived of fair notice and due process	Closure performance standards were too vague to provide fair notice	2015 Rule clearly articulated obligations; fair notice given	Due process satisfied by clear text of the rule
Whether waiver and estoppel claims are actionable under Ohio law	EPA should be barred from enforcing due to prior conduct and delay	Such claims are not recognized as independent causes of action	Affirmative waiver/estoppel dismissed with prejudice

Util. Solid Waste Activities Group v. Envtl. Prot. Agency, 901 F.3d 414 (D.C. Cir. 2018) (struck down “innocent-until-proven-contamination” rule for failing RCRA safeguards)
SEC v. Chenery Corp., 332 U.S. 194 (1947) (agencies may apply new rules retroactively in adjudications if equitable)
Bennett v. Spear, 520 U.S. 154 (1997) (final agency action standard)
Abbott Labs. v. Gardner, 387 U.S. 136 (1967) (ripeness doctrine for agency actions)
Sackett v. EPA, 566 U.S. 120 (2012) (agency compliance orders as final and reviewable)