Markey probes Interior crafting of new rule

Massachusetts Rep. Ed Markey, the top Democrat on the House Natural Resources Committee, is expressing concern about the Interior Department’s plan to develop rules to facilitate the reuse of coal ash in mine reclamation.

“Because [coal combustion waste] contains some of the world’s deadliest toxic metals such as arsenic, lead, mercury, cadmium, hexavalent chromium, and selenium, its disposal and reuse poses unique challenges,” Markey wrote today in a letter to Interior Secretary Ken Salazar.

Interior’s Office of Surface Mining confirmed last month that it is in the early stages of developing national regulations for the use of coal ash in mines. Numerous states already allow the practice, such as using the ash as fill material in reclaiming surface mines.

While U.S. EPA is working on developing regulations for the disposal of coal ash, OSM says it is not necessarily waiting for EPA to finish the process to issue its own guidelines.

Agency Director Joe Pizarchik was a champion of the practice when he was an environmental regulator in Pennsylvania, which leads the nation in mining applications for ash (Greenwire, June 12). OSM is reviewing a suite of Keystone State guidelines, according to a Federal Register notice this month.

A 2006 report by the National Academies’ National Research Council vouched for the viability of putting coal ash in mines as long as the government and companies followed proper safeguards. The report also suggested the need for a new test that can specifically address mine disposal issues.

Markey’s letter echoes environmentalist concerns. He wants to know the extent of OSM’s cooperation with EPA, its analysis of the risks and whether it has evaluated existing state programs or developed an inventory of sites.

“Filling mine shafts and reshaping destroyed mountains with coal ash may temporarily hide these toxic waste products,” said Markey, “but without the proper safeguards, there is no way to guarantee it won’t eventually reach drinking water supplies or impact the air we breathe.”

Boosters say not all coal ash is the same, arguing that much of the material is not more dangerous than common dirt. Environmentalists are skeptical of such claims and oppose reuse in mines out of pollution concerns.


Written by Administrator in: Coal Ash,Federal Government |


Several thousand tons of “transportation”

While nominally about extending highway and transit funding through September, the Surface Transportation Extension Act of 2012 (HR 4348) which passed Congress in late June, 2012, was also about attempts to transport various legislators’ and industries’ pet projects into law. One of these was the provision that would have prohibited the United States Environmental Protection Agency from regulating coal ash as a hazardous waste.

Such a provision had been in the version of the law passed by the U.S. House of Representatives. Because it had not been in the version passed by the U.S. Senate, it was the subject of negotiation between the two bodies.

As part of the negotiations, Congressional negotiators deleted fromthe recently passed Surface Transportation Extension Act of 2012 (HR 4348) a provision that would have prohibited the United States Environmental Protection Agency from regulating coal ash as a hazardous waste. (Note: the Act also contained a provision to measures that would advance the controversial trans-Canada Keystone XL pipeline, a provision which was not in the final bill. The West Virginia Highlands Conservancy has not been involved in the dispute over the pipeline.)

In April of this year, the U.S. House of Representatives had passed an amendment to the Surface Transportation Extension Act of 2012 that would effectively pre-empt the Environmental Protection Agency (EPA) from regulating coal ash, the waste from coal burning plants, as a hazardous waste. The measure was introduced by David McKinley (R-WV). About 140 million tons of coal ash are produced by power plants in the United States each year. There are about 1,000 active coal ash storage sites across the country.

According to the EPA, the ash contains concentrations of arsenic, boron, cadmium, chromium, lead, mercury and other metals, but the coal industry has claimed there is less mercury in the ash than in a fluorescent light bulb. The EPA found in 2010, however, that the cancer risk from arsenic near some unlined “coal ash ponds was one in 50 — 2,000 times the agency’s regulatory goal. Additionally, researchers from the Environmental Integrity Project, Earthjustice, and Sierra Club have documented water contamination from coal ash sites in 186 locations. The new bill would strip the EPA’s authority to regulate the ash and hand it over to the states.

Attention to the hazards of coal ash has grown since a devastating spill in eastern Tennessee in 2008, where a Tennessee Valley Authority storage pond poured more than 1.1 billion gallons of ash onto some 300 acres of nearby land, contaminating rivers, destroying homes and accumulating up to six feet of liquid-ash sludge in some areas. The disaster was five times larger, by some measures, than the BP oil spill and more than 100 times the size of the Exxon Valdez spill.

Since then, the EPA affirmed that toxins in the ash can seep into the ground and reach drinking water sources. The Environmental Integrity Project (EIP) recently found that groundwater at 33 coal ash waste sites across the country were contaminated with levels of toxins that may violate a federal dumping ban. Beyond groundwater, residents living near plants complain that coal ash pollutes the air they and their children breath and coats their cars and homes.

According to a CNN in-depth report, which documents the health impacts experienced by a community that lives near a coal plant, over the past 30 years, several studies have found coal ash more radioactive than the waste from nuclear power plants.

The West Virginia Highlands Conservancy’s most recent experience with coal ash is reflected in the litigation against the Albright ash dump that was reported in the March, 2011, issue of The Highlands Voice.

The EPA has been evaluating over the past two years whether to regulate this material as hazardous waste but has yet to make a ruling. In hopes of hastening the regulatory process, a coalition of environmental groups filed a federal lawsuit on April 5, urging a judge to compel the EPA to make a ruling on the substance. Coal ash is currently considered a municipal solid waste, in the same ranking as household trash, despite its documented hazards.

“As we clean up the smokestacks of power plants, we can’t just shift the pollution from air to water and think the problem is solved. The EPA must set strong, federally enforceable safeguards against this toxic menace,” Lisa Evans, a lawyer with Earthjustice, said in a statement.

The agency received some 450,000 public comments in response to its 2010 hearings and public comment period on the issue.

The House bill’s provision to turn the issue of coal ash over to the states was introduced by West Virginia Republican Representative David McKinley. According to Open Secrets, McKinley’s top campaign donors are from the coal industry.

Mr. McKinley claims that federal regulation of coal ash as a hazardous waste would impede job growth. The industry argues that the preferable use of coal ash is in products such as kitchen materials, cement, and bowling balls. Spokesmen for the industry claim that the uncertainty of not knowing how coal ash will be regulated is damaging coal ash recycling. Environmentalists call the recycling argument a red herring. They say electric utilities do not want to bear the cost of properly disposing of the material, including phasing out all wet dumps.

Note: Much of the material for this article came from a story in PRWatch, the on line publication of the Center for Media and Democracy, www.prwatch.org.

Written by Administrator in: Coal Ash,Federal Government,The Highlands Voice |


By Petra and John Wood

Note: A version of this article first appeared in the WV Sierra Club’s November December newsletter, MOUNTAIN STATE SIERRAN.

Readers have heard about the massive inputs of coal combustion waste (aka fly ash) on minelands around Morgantown, WV. On ~3,500 acres in 3 watersheds, up to 10,000 tons per acre (~10 ft of ash/acre) have been added during reclamation as a supposed beneficial use to reduce acid mine drainage. There is abundant evidence, however, that it does not necessarily reduce AMD and at the same time reduces air quality and especially water quality because toxic metals and TDS (Total Dissolved Solids) leach from fly ash dumped in minefills.

Several new and expanded mine permits proposing to dump ash are in the works, including the New Hill West and Coresco permits.


Mine complex ~3 mi in length visible from I-79 just north of Morgantown. Part of New Hill West permit area is in lower left of photo

When the National Pollution Elimination Discharge System (NPDES) permit was approved for this 225 acre mine in 2010, Sierra Club and Appalachian Mountain Advocates (formerly the Appalachian Center for the Economy and the Environment) challenged the permit in an appeal before the WV Environmental Quality Board (EQB).

To prevent degradation of water quality in Scott’s Run before the hearing could be held, a stay on the permit was requested and granted in November, 2010.

A four day EQB hearing in early December, 2010 featured expert witnesses who presented scientific evidence that high TDS, conductivity, and sulfates can impair aquatic life which is a violation of the Clean Water Act and of the WV Narrative Water Quality Standards (WQS). The WQS specifically state that NPDES Permit limits must ensure compliance against discharges of … “materials in concentrations which are harmful … to … aquatic life” (47 C.S.R. § 2-3.2.e) or that cause “significant adverse impact to the … biological components of aquatic ecosystems …” (47 C.S.R. § 2-3.2.i).

In March 2011, the five member EQB unanimously found that DEP’s issuance of the permit was unlawful, that they failed to include enforceable effluent limits sufficient to ensure protection of water quality standards, and that discharges from the New Hill West surface mine have the reasonable potential to cause or contribute to degraded water quality. The EQB remanded the permit back to DEP to set appropriate and enforceable limits for conductivity, sulfate, total dissolved solids, manganese, and selenium.

But even though the EQB decision was based on scientific evidence and the law, the WVDEP and the mining company appealed the decision to Kanawha County circuit court. Interestingly, the circuit court did not actually make a ruling on this appeal. Instead, in late September 2011, Judge James Stucky remanded the case back to EQB with the following statement. “The EQB shall provide written supplemental findings detailing a reasoned and articulate decision in the Final Order. Additionally, these findings should include guidance to calculate threshold values for regulating conductivity, TDS, and sulfate.”

In the meantime, the mining company filed an appeal to the EQB to lift the stay on the permit so that mining can commence. Additionally, their lawyers argue that because the company is losing $2 million a month in revenue that Sierra Club should have to post bond in this amount

http://blogs.wvgazette.com/coaltattoo/2011/10/11/judge-sendspatriot-permit-back-to-eqb/ ).

At the time this article was written, the EQB had not made a final ruling on the stay or the bond and has asked the lawyers for all parties to provide input on how to proceed with judge Stucky’s order. Apparently, this is an unusual ruling and the EQB is “feeling its way” on how to proceed. It does appear that the issuance of a valid NPDES permit for this mine will be delayed.

[Editorial/CLR update: As of mid-November EQB did lift the stay on the mining, but the basic permit issues await Board action with regard to further clarifications, guidance or thresholds values for conductivity, TDS and sulfate as ordered by Judge Stucky.

However, there has been an ironic – though perhaps not unexpected – twist. Just days before Thanksgiving newly elected Governor Tomblin removed two Board members who had expressed very strong opinions in the New Hill West case. ]


Coresco ash dump site

Two permits are in play here.

One is an existing ~140 acre ash dump. An application for renewal of this permit is pending even though there is evidence that the site is degrading water quality and is contributing to air pollution problems. All of the white and gray material in the upper half of the photo included here is fly ash and coal waste (note the large dozer near center top of the ash pile).

A new 338 acre SMCRA mine permit application is pending even though the application specifically states that there will be NO coal mining. The application proposes to dump ~86 million tons of fly ash over 25-30 yrs which will result in an unlined and uncovered ash pile 500 ft thick. This site, if permitted, will simply be a way for area power plants to dump their waste for free rather than have to pay for liners and treatment of run-off that would keep toxic metals and total dissolved solids (TDS) out of our surface and ground water.

A public meeting with WV DEP took place on Monday, October 17 and was attended by 20 some citizens, delegates Barbara Fleischauer and Mike Manypenny, and several media. The overriding theme of comments from attendees was that these sites are fly ash dumps that degrade our environment, affect human health, and should not be permitted under SMCRA.

Earlier that day the Sierra Club, the West Virginia Highlands Conservancy and the Fort Martin Community Association filed notice of intent to sue Coresco and affiliated company and property owner Mepco for violations of the Clean Water Act and the Surface Mining Control and Reclamation Act.



Adapted from Public Justice press release issued October 17, 2011.

According to a new report from Downstream Strategies in Morgantown, WV coal combusion waste (CCW) and acid mine drainage (AMD) have seriously harmed aquatic life and aquatic ecosystems in a local stream, Crafts Run, which spans multiple miles and discharges into the Monongahela River.

The report’s data shows elevated levels of dissolved solids, aluminum, iron and manganese in water samples collected from the stream.

High amounts of boron and selenium indicated CCW pollution specifically, and in certain places, the concentration of iron violated state surface water quality standards.

Self-monitoring data by Coresco LLC—the company that owns and runs the disposal sites adjacent to Crafts Run—showed that violations of state criteria have occurred in the past for dissolved aluminum, iron and pH, all indicators of AMD pollution.

Coresco is now asking the WVDEP to allow it to expand its disposal operations within the watershed.

The 46-page report by Downstream Strategies states that as a result of those revisions, Coresco could potentially place 2.8 million tons of CCW and refuse waste within the Crafts Run watershed each year.

After years of undemonstrated assumptions that dumping coal ash is a good thing, monitoring reports are finally showing that there are indeed harmful impacts to waters downstream from mine and refuse sites. Expanding Coresco’s current coal ash disposal practices will not only further pollute Crafts Run but will also add additional stress to the Monongahela River, a valuable resource for tens of thousands of people all the way to Pittsburgh, Pa.

The notice letter details the groups’ position that Coresco must come into compliance with water quality standards. The letter was written to coincide with the WVDEP hearing concerning Area No. 4—the area into which Coresco is hoping to expand.

Public Justice and Appalachia Mountain Advocates plan to file a lawsuit on behalf of the Sierra Club, the West Virginia Highlands Conservancy and the Fort Martin Community Association if the streams are not cleaned up within sixty days.

The potential lawsuit would allege multiple violations of the Clean Water Act by both Coresco LLC and Mepco LLC. (All of the waste disposal areas in the Crafts Run watershed are operated by Coresco on Mepco property. Both companies are subsidiaries of a common corporate parent, Mepco Intermediary Holdings.)

The lawsuit would also claim violations of the Surface Mining Control and Reclamation Act (SMCRA) by Coresco solely, and would seek both civil penalties and injunctions compelling Coresco and Mepco to come into compliance with the Clean Water Act, and Coresco with the SMCRA.

Written by Administrator in: Coal Ash,Mining Matters,The Highlands Voice |


By John McFerrin

The West Virginia Highlands Conservancy, the West Virginia chapter of The Sierra Club and The West Virginia Rivers Coalition have given notice to the owners of Monongahela Power’s Albright Power Station in Preston County, West Virginia. In the Notice, the groups report that the company is filling tributaries of Daughergy Run of the Cheat River with ash, a violation of the federal Clean Water Act. The Notice informs Monongahela Power of the groups’ intention to sue if the violation continues.

This follows on the heels of an earlier notice which the groups filed in February, 2011 (See The Highlands Voice, March, 2011). In that notice, the groups complained of unlawfully high levels of arsenic flowing into the Cheat River from coal ash in the water that comes from the ash dump and flows into the Cheat River watershed.

In response to that notice, the company suggested that we lower the quality of the receiving stream. Discharge limits are set low enough that the pollution that is discharged will not affect the use that can be made of the receiving stream. Monongahela Power suggested that we lower the use that can be made of the receiving stream. That way, it could discharge the same amount of pollution but the discharge would be legal because the standards would be lower.

This notice addresses a different but related problem. The earlier filing was based largely upon the company’s Discharge Monitoring Reports. Anyone who discharges water to the waters of the United States must get a permit which sets a limit on how much of a named pollutant it may discharge. It then must test that water that is discharged and report the results. In the earlier filing, the groups noted that Allegheny Energy’s discharge monitoring reports show a pattern of harmful arsenic discharges.

In this notice, the allegation is not that the company has gotten a permit and is not following it. The allegation is that the company has not gotten a permit.

The ordinary procedure for building a coal ash impoundment would be to get a permit which would have discharge limits setting forth how much pollution could come from the site. In this case, Monongahela Power is disposing of coal ash in an impoundment for which it has never received a permit. It has never even applied. It is filling three unnamed tributaries of Daugherty Run of the Cheat River. Each of these streams is a water of the United States. Because Monongahela Power does not possess permits for these discharges, it is in violation of the Clean Water Act.

By filing Freedom of Information Act requests, the groups have determined that there is no permit. Had the company asked for and gotten the mandatory permit, there would have been an environmental analysis, evaluating the possible impacts to this high-quality fishing and boating stream. Instead, Monongahela Power ignored its legal responsibility to obtain a permit and thus bypassed the necessary independent review of potential consequences to local trout habitat and recreational potential.

It is unlikely that the United States Army Corps of Engineers or the West Virginia Department of Environmental Protection would approve such a permit. Daugherty Run is a trout stream; it is not likely that a permit to fill its tributaries would be issued.

Under the federal Clean Water Act, citizens have the right to go to court to require that polluters comply with the Act. Before they may do so, they must give the company sixty days notice of the violations. Unless the Environmental Protection Agency or the State of West Virginia takes enforcement action within the sixty days, the citizens may file suit to enforce the law. By filing the notice of intent to sue, the groups have begun the process.

The sixty day period also gives the company an opportunity to show that it has sought and obtained the required permit, that the responses to the Freedom of Information Act requests were in error, or something else to indicate that it is in compliance with the Clean Water Act. Otherwise, the groups are free to proceed with litigation.

The groups are represented by Mike Becher with the Appalachian Center for the Economy and the Environment.


Written by Administrator in: Coal Ash,The Highlands Voice,Water Quality |


By Cindy Rank

Hero on wilderness and other issues near and dear to the heart of the West Virginia Highlands Conservancy, Congressman Nick Joe Rahall is one of those people we often work with while quietly acknowledging we don’t always agree on all subjects. Nonetheless his recent actions to thwart long awaited and much fought for strong enforcement of the Clean Water Act cannot go without comment.

We need note his continued advocacy for wilderness and recognize his support for and shepherding of the recent Wilderness Bill was indispensible and unquestionably essential to its passage.

Also laudable have been his advocating for continuing the Abandoned Mine Lands Fund for years beyond its original termination date, for advancing the idea of stronger regulations for hard rock mining (gold, etc.), and his critical attention to preserving the Surface Mine Act over the years.

Nonetheless, few can forgive him for turning a blind eye to the destruction caused by the enormous strip mines of today – be they technically classified as mountaintop removal, area, steep slope or whatever.

And now his most recent actions joining in fierce opposition to Environmental Protection Agency (EPA) attempts to genuinely enforce Federal environmental laws are no less than reprehensible.


Along with Congresswoman Shelley Moore Capito of West Virginia’s 2nd District Congressman Rahall joined in co sponsoring HR 1391-a bill proposed by West Virginia’s newest Representative from the 1st District, David McKinley.

HR 1391 is McKinley’s response to an EPA proposal to reclassify coal ash – a byproduct of coal combustion often disposed of in unlined waste impoundments and used in such things as cement and drywall, and on surface mines to mitigate acid drainage – as a hazardous waste.

Despite the highly toxic components of coal ash, the proliferation of unlined waste impoundments (such as the now infamous Tennessee Valley Authority’s impoundment that broke loose in December 2008 and the coal ash impoundment at the Albright Power Plant that is subject to recent legal actions by WV Highlands Conservancy, WV Sierra Club and WV Rivers Coalition, and other similar impoundments in and around West Virginia) and nagging questions and concerns about pollution even from those ‘beneficial uses’ (e.g. as in the sickening drywall found in temporary trailers used to house refugees from Hurricane Katrina, and in mine backfill in several northern WV strip mines like Patriot Mining’s New Hill West mine being challenged by local residents and others) Congressman McKinley’s bill would curtail EPA’s authority to improve or strengthen rules pertaining to the disposal of this toxic waste.

McKinley’s bill was advanced by the subcommittee of the House Energy & Commerce Committee but awaits further act by the full committee sometime after the July 4th holiday.


As has often been written about in the pages of the Highlands Voice, the Clean Water Act is one of our nation’s most important and fundamental laws.

Enter Congressman Rahall and his HR 2018 – yet another attempt to weaken the Clean Water Act (CWA) and EPA’s authority to guarantee enforcement of that landmark legislation by the states – including our fair state of West Virginia.

HR 2018 – the “Clean Water Cooperative Federalism Act of 2011″ – would reverse many key provisions of the Clean Water Act by appointing the states, rather than the EPA, as the ultimate arbiter of water quality standards and final authority on Clean Water Act permits, shifting regulatory powers over water, wetlands (and mountaintop removal mining regulation) from EPA to the states. The result would be a patchwork of state water quality standards in which the EPA would be powerless to intercede, even if the agency found a state-issued Clean Water Act permit to be questionable.

By allowing states to opt out of implementing federal water quality standards citizens of communities near and downstream of polluters would be negatively affected if and when those states are willing to adopt scientifically indefensible water quality standards that sacrifice public health for corporate profits.

HR 2018 was passed in the Transportation and Infrastructure committee and House Majority Leader Eric Cantor (R-Va.) said he hopes to have a floor vote on the bill this summer.

Congressman Bishop (D-NY) objected to the committee’s fast-track consideration of the measure, noting the markup was announced just days earlier — and held in advance of another subcommittee hearing scheduled for two days later which was meant to explore several of the relevant Clean Water Act issues.

In addition, Congressman Bishop said “This go-it-alone approach flies in the face of science, common sense and decades of experience implementing the Clean Water Act”.

Congressman Rahall replied to questions about the bill saying that it re-establishes the “cooperative federalism” in Clean Water Act enforcement and cited the slowdown of mining and job losses in West Virginia. Among the legislation’s provisions is a clause to limit EPA’s ability to veto “dredge and fill” 404 permits issued by the Army Corps of Engineers. [Note the recent veto by EPA of the 404 fill permit for the Spruce#1 mine in Logan County.] States would have to approve such a move.

“What we are experiencing at least in the Appalachian region is an overreach by EPA,” he said.

. Always hoping for better, we have to urge Congressman Rahall – and the rest of the West Virginia delegation in Washington – to break free from the whirlwind of EPA bashing and let the agency get on with the business of protecting our water and air and environment we all rely on for our very health and well being.


Written by Administrator in: Air Quality,Coal Ash,The Highlands Voice,Water Quality |


By John McFerrin

The West Virginia Highlands Conservancy has joined with the West Virginia Rivers Coalition and the West Virginia Chaptero f the Sierra Club in putting Allegheny Energy on notice for releasing unlawfully high levels of arsenic into the Cheat River from coal ash dumps at its Albright power plant in Preston County, West Virginia. The groups, West Virginia Highlands Conservancy, West Virginia Rivers Coalition and the West Virginia Chapter of the Sierra Club are also concerned about inadequate testing at the Albright coal plant which makes it impossible to adequately monitor other types of pollution, such as toxic selenium.

Under the federal Clean Water Act, citizens have the right to go to court to require that polluters comply with the Act. Before they may do so, they must give the company sixty days notice of the violations. Unless the Environmental Protection Agency or the State of West Virginia takes enforcement action within the 60 days, the citizens may file suit to enforce the law. By filing the notice of intent to sue, the groups have begun the process.

Much of the notice of intent is based upon what are called Discharge Monitoring Reports. Anyone who discharges water to the waters of the United States must test that water and report the results. In this case, Allegheny Energy’s discharge monitoring reports show a pattern of harmful arsenic discharges between July and October of 2010, clear violations of the Clean Water Act.

The arsenic is discharged into the Cheat River watershed. The Cheat is a major tributary of the Monongahela River, the drinking water source for thousands of people. Arsenic in drinking water can cause a host of health problems from cancer, to nervous system damage, to skin problems.

This filing is only the latest in a history of concrn about problems arising from the disposal of coal ash. (See, e.g., The Highlands Voice, March 2009).

“The tragic collapse of the coal ash impoundment in Kingston Tennessee December 2008 alerted the nation to the potential pollution from toxic elements found in coal wastes from power plants like the one in Albright. Closer attention to discharges from these coal ash impoundments in West Virginia is long in coming. Illegal discharges of arsenic and other toxins from these waste piles should not be tolerated,” said Cindy Rank of the West Virginia Highlands Conservancy.

The Cheat River and Cheat Lake are popular recreation destinations for boaters, anglers, rafters, and more. Allegheny’s toxic pollution puts those recreational users and the local businesses they support at risk. The welfare of Cheat River and Cheat Lake have been longstanding concerns of the Rivers Coalition.

The national Sierra Club is well known for its Beyond Coal campaign, a campaign that (among other things) seeks to prevent the pollution that comes from coal plants.

In addition to arsenic pollution violations, the notice-of-intentto- sue letter raises concerns about lax testing for toxic selenium pollution at the Albright coal plant. Selenium pollution is quickly emerging as a major issue of concern for streams and communities near coal operations.

Selenium causes reproductive failure and deformities in fish and other forms of aquatic life and at very high levels, can pose a risk to human health, causing hair and fingernail loss, kidney and liver damage, and damage to the nervous and circulatory systems.

The groups are represented by Mike Becher, Derek Teaney, and Joe Lovett with the Appalachian Center for the Economy and the Environment. For a copy of the notice letter please contact Mike Becher at mbecher@appalachian-center.org.



Hazardous or Beneficial?

By Cindy Rank


While the Environmental Protection Agency (EPA) considers whether to designate coal ash as hazardous waste, questions continue to mount about the content of these combustion wastes generated at coal fired power plants and the safety of current methods of disposal and/or use of the by-products.

Nearly two years after the breach of the coal combustion waste impoundment in Kingston Tennessee and the release of nearly 1 billion gallons of toxic coal ash, researchers at Duke University have documented high levels of arsenic in sediment downstream of the TVA power plant even as levels in the surface waters appear to have abated.

“For their current report, the team collected over 220 surface water and sediment samples during an 18-month period of TVA’s clean up. They measured concentrations of five leachable coal ash contaminants, including arsenic and selenium. The researchers found that anaerobic bacteria in the sediments produce conditions that reduce arsenic from the common pentavalent form to the moretoxic trivalent form, As3+. Meanwhile, selenium leeches out of these anoxic sediments and migrates to the more-oxygenated surface water.

“While surface water concentrations of selenium were high only in the cove [near the spill site], As3+ levels were high in sediments throughout the 300-acre spill site and surrounding watershed, …”

The researchers also questioned the adequacy of the cleanup and the accuracy of the Toxicity Testing EPA relies on.

“…even after the remediation, buried ash in some locations still contaminates water among river sediments at arsenic levels beyond 2,000 ppb [parts per billion]. In comparison, EPA’s maximum contaminant level for arsenic in drinking water is 10 ppb. (The threshold for protection of aquatic life is 150 ppb.)

If one has heard Jim Kotcon or Duane Nichols speak about EPA’s toxicity testing, the opinions of the Duke researchers will sound familiar. …

“The EPA Toxicity Characteristic Leaching Procedure (TCLP) which is used to determine whether a material must be regulated as a hazardous waste, only considers leaching in weakly acidic conditions (pH ? 4), and does not consider leaching of contaminants under a wide range of pH conditions, nor possible anaerobic conditions. In the case of coal ash waste, our [Duke] results indicate that the TCLP test would greatly underestimate leachate concentrations of As [arsenic] for anaerobic disposal conditions, thus would underestimate the potential impact of coal ash leachate in many situations.”


Whether or not EPA finally determines coal ash and other coal combustion wastes should be considered hazardous, and whatever restrictions the agency requires for its disposal or for its reuse in road surfacing, wallboard and other building materials, etc., the EPA has left to the Office of Surface Mining Reclamation and Enforcement (OSM for short) the responsibility for regulating and overseeing the use of coal ash as backfill at strip mines.

Here in WV coal ash is being used as backfill in strip mines to add alkalinity to otherwise acidic overburden at several mines in the northern part of the state … most notably several International Coal Group (ICG) mines operating under the name Patriot Mining Company. [Patriot Coal whose selenium discharging mines in southern WV are the ongoing focus of litigation discussed in previous issues of the Voice is an entirely different beast.]

Neighbors of the expanding ICG/Patriot Mining job in Monongalia County near Cassville, WV have challenged the use of coal ash at the proposed 225 acre New Hill West mine. [A portion of the mine is clearly visible from Interstate 79 to the west as you cross the state line travelling south from PA into WV.]

Patriot Mining intends to apply coal ash and other forms of coal combustion waste (CCW) to mined areas on the mine expansion in amounts between 1,000 to 10,000 tons per acre.

The water permit in question already covers discharges from five previously approved surface mining permits, and the proposed mine would add another 225-acre operation that would discharge into Scotts Run of the Monongahela River drainage.

The appeal by Sierra Club and local residents argues that the WV Department of Environmental Protection (WVDEP) did not perform a reasonable potential analysis of possible water quality impacts and failed to establish discharge limits based on the analysis for specific conductivity, total dissolved solids or sulfate for any of the outlets; for pollutants associated with coal combustion waste (e.g. antimony, arsenic, barium, beryllium, cadmium, chromium, copper, lead, mercury, nickel, selenium, silver, thallium, and zinc), etc.

Concerns were also raised about the potential to contribute to another outbreak of golden algae similar to the one responsible for the huge 2009 fish and mussel kill in nearby Dunkard Creek. And mention was made that existing mining at the site is already violating water quality standards.

In mid-November the state Environmental Quality Board (EQB) temporarily blocked this permit expansion and scheduled a week long hearing for December.

Previous Voice articles about the Patriot New West Mine laid out the concerns of residents John and Petra Wood. Speaking for her neighbors about the EQB decision, Petra expressed relief.

“We’re very pleased that the Environmental Quality Board appreciates the risk of harm that will occur to streams and the environment if the company is allowed to conduct its proposed mining operations, and that the board has granted the motion for a stay. … We look forward to the hearing in December which will show the board all of the problems with the permit, and that these streams and our community should be permanently protected.”

Written by Administrator in: Coal Ash,Mining Matters,The Highlands Voice |

EPA Announces a Schedule of Public Hearings on Proposed Coal Ash Regulations

Latisha Petteway

August 19, 2010

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is hosting seven public hearings on the agency’s proposal to regulate the disposal and management of coal ash from coal-fired power plants.  EPA’s proposal is the first-ever national effort to ensure the safe disposal and management of coal ash from coal-fired power plants.

Each hearing will begin at 10:00 a.m. and continue until 9:00 p.m. with a break at noon and 5:00 p.m. local time. The hearings will continue past 9:00 p.m. if necessary.  People who wish for a guaranteed slot to speak must register no later than three business days before each hearing.  Additionally, walk-ins and written comments will be accepted at each hearing. The agency will consider the public’s comments in its final decision.

August 30:           Hyatt Regency, 2799 Jefferson Davis Highway, Arlington, Va
September 2:    Grand Hyatt, 1750 Welton Street, Denver, Colo.
September 8:    Hyatt Regency Dallas, 300 Reunion Boulevard, Dallas, Texas
September 14:  Holiday Inn Charlotte (Airport), 2707 Little Rock Road, Charlotte, N.C.
September 16:  Hilton Chicago, 720 South Michigan Avenue, Chicago, Ill.
September 21:  Omni Hotel, 530 William Penn Place, Pittsburgh, Pa.
September 28:  Seelbach Hilton, 500 Fourth Street, Louisville, Ky.

To pre-register to speak at the hearings, please call (703) 308-8429 or sign up online at

The need for national management criteria and regulation was emphasized by the December 2008 spill of coal ash from a surface impoundment near Kingston, Tenn. The proposal will ensure for the first time that protective controls, such as liners and ground water monitoring, are in place at new landfills to protect groundwater and human health.  Existing surface impoundments will also require liners, with strong incentives to close these impoundments and transition to safer landfills which store coal ash in dry form.  The proposed regulations will ensure stronger oversight of the structural integrity of impoundments and promote environmentally safe and desirable forms of recycling coal ash, known as beneficial uses.

EPA has proposed two main management approaches, one of which phases out surface impoundments and moves all coal ash to landfills; the other allows coal ash to be disposed in surface impoundments, but with stricter safety criteria.

More information about the proposed regulation: http://www.epa.gov/coalashrule

To view the chart comparing the two approaches: http://www.epa.gov/coalashrule/ccr-table.htm

Written by Administrator in: Coal Ash,Energy,Environment,Mining Matters |

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