Another Lawsuit Threat Faces Arrowhead Landfill
February 2nd, 2010TVA Coal Ash Controversy Continues
A panorama view of the Arrowhead Landfill in Perry County, Alabama, along with the surrounding area. Toxic TVA coal ash by the train load is filling up the landfill in Alabama’s Black Belt, causing air and water pollution in one of the poorest counties in the country…
by Glynn Wilson
The controversy over the toxic coal ash pouring into Alabama’s Black Belt from the TVA spill site in Kingston, Tennessee, continues today with the filing of another set of letters declaring an intent to sue the operators of the Arrowhead Landfill in Perry County on behalf of 155 local residents.
David Ludder, a Florida attorney who specializes in environmental law, filed the letters of intent to sue today, giving the landfill management 60 days notice.
The letters, signed by 155 residents of Perry County, accuse the landfill operators of violating the Solid Waste Disposal Act for air pollution that could impact the health of people who live nearby, and for operating what is basically an “open dump,” which is prohibited by law.
If found guilty, the company could be liable for up to $37,500 for each violation.
A copy of the letters were sent to the federal Environmental Protection Agency. One of the letters is included in the comments below.
In direct response to my questioning, the EPA’s public affairs office said the agency “understands the concerns of the people of Uniontown.”
“We want to be very clear that we’ve looked at this issue with the utmost care and met with local leaders and the surrounding community to review the disposal plan and answer questions. Our first priority is the health and safety of the people,” EPA spokesperson Davina Marraccini said. “The Arrowhead landfill was selected because it meets the most stringent federal solid waste disposal safety standards.”
The agency claims the landfill has a 100-foot buffer that surrounds the landfill property, and that the thickness and extremely low permeability of the Selma Chalk geologic formation beneath the landfill provide for additional natural protection of groundwater. The agency also claims the landfill staff conducts regular groundwater monitoring and air monitoring to ensure worker and public safety, although that contradicts what experts are finding on the ground.
The agency also claims it is working with the Alabama Department of Environmental Management to conduct ongoing monitoring of the landfill “to ensure it is operated properly,” Marraccini said. “EPA is watching this matter very closely to ensure that people are protected.”
According to Ludder, however, there is a problem with what EPA, ADEM and the landfill owners and operators are doing, and political and economic factors seem to matter more than the environment when it comes to the question of whether the coal ash should be regulated and disposed of as hazardous waste.
The coal ash contains numerous toxic, radioactive and carcinogenic compounds including arsenic, chromium, lead, mercury, thorium and uranium. Each of those compounds are regulated separately, but when combined in the waste from a coal-fired power plant, they are not now considered “hazardous” according to the federal regulatory scheme of things.
The EPA also has an office to deal with environmental justice issues, which is supposed to prevent pollution from being dumped more on poor people of color than the population at large under the Civil Rights Act.
“EPA is using the same excuse as ADEM always uses: If the activity complies with applicable rules, environmental justice is a non-issue. Not so,” Ludder said in response to EPA’s comments. “Title VI of the Civil Rights Act requires no disparate burden on minorities.”
A preponderance of the negative impacts of the landfill are falling on mostly poor, African-Americans who live in one of the poorest counties in the country, with an unemployment rate of around 19 percent.
According to Marraccini, EPA is reviewing both Ludder’s letters and petitions.
According to Ludder, the letters are legal documents giving the company and the government a notice of intent to sue, which is required by federal law to be served 60 days before a lawsuit is filed. Congress created the 60 day waiting period to allow the state or federal government to sue to enforce the law or for the violator to come into compliance.
Today’s legal action targets the companies operating the landfill. As we previously reported, the landfill owners declared bankruptcy the other day in what appears to be a stalling maneuver to prevent lawsuits.
Related Coverage
Perry County’s Arrowhead Landfill Going Bankrupt?
A Call for EPA Takeover of Alabama’s Water Program
Coal Ash Spill Anniversary as Forgotten as Disaster Itself
TVA Dumps Toxic Coal Ash in Poor Alabama Town
TVA to Begin Coal Ash Spill Cleanup March 20
Tags: Arrowhead Landfill, TVA Coal Ash
February 2nd, 2010 at 3:59 pm
LAW OFFICE OF DAVID A. LUDDER
A Professional Limited Liability Company
9150 McDougal Court
Tallahassee, Florida 32312-4208
Telephone 850-386-5671
Facsimile 206-888-5671
Email DavidALudder@enviro-lawyer.com
Web http://www.enviro-lawyer.com
February 2, 2010
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
No. 7008 1300 0001 2360 2759
Phill-Con Services, LLC
P.O. Box 537
Route 2, Box 110A
Uniontown, Alabama 36786
No.7008 1300 0001 2360 2766
Phillips and Jordan, Incorporated
6621 Wilbanks Road
Knoxville, Tennessee 37912
No. 7008 1300 0001 2360 2773
Mr. John Edward Dorsett
President
Phill-Con Services, LLC
P.O. Box 537
Route 2, Box 110A
Uniontown, Alabama 36786
No. 7008 1300 0001 2360 2780
Mr. John P. McMullen
Manager
Phill-Con Services, LLC
6621 Wilbanks Road
Knoxville, Tennessee 37912
No. 7008 1300 0001 2360 2872
Mr. William Ted Phillips, Jr.
Chief Executive Officer
Phillips and Jordan, Incorporated
6621 Wilbanks Road
Knoxville, Tennessee 37912
No. 7008 1300 0001 2360 2889
Mr. Ben R. Turner
President and Chief Operating Officer
Phillips and Jordan, Incorporated
6621 Wilbanks Road
Knoxville, Tennessee 37912
Re: Notice of Intent to File Suit for Violation of State Implementation Plan for Alabama under the Clean Air Act
Dear Gentlemen:
Pursuant to the Clean Air Act § 304, 42 U.S.C. § 7604, and 40 C.F.R. Part 54, you are hereby notified that after the expiration of 60 days following service of this notice, the Uniontown, Alabama residents identified in the attached list intend to file suit against the above-named entities and persons for the violations described below.
Violation of State Implementation Plan for Alabama
Pursuant to Clean Air Act § 110, 42 U.S.C. § 7410, the State of Alabama adopted and the U.S. Environmental Protection Agency (EPA) approved, Ala. Admin. Code R. 335-3-1-.02 and 335-3-1-.08 as part of the State Implementation Plan for Alabama. Ala. Admin. Code R. 335-3-1-.08 provides:
No person shall permit or cause air pollution, as defined in Rule 335-3-1-.02(1)(e) of this Chapter by the discharge of any air contaminant for which no ambient air quality standards have been set under Rule 335-3-1-.03(1).
“Air Pollution” means “the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or
plant life, or property, or would interfere with the enjoyment of life or property . . ..” Ala. Admin. Code R. 335-3-1-.02(1)(e). “Air Contaminant” means “any solid, liquid, or gaseous matter, any odor, or any combination thereof, from whatever source.” Ala. Admin. Code R. 335-3-1-.02(1)(d).
“Odor” means “smells or aromas which are unpleasant to persons or which tend to lessen human food and water intake, interfere with sleep, upset appetite, produce irritation of the upper respiratory tract, or cause symptoms or nausea, or which by their inherent chemical or physical nature or method or processing are, or may be, detrimental or dangerous to health. Odor and smell are used interchangeably herein.”
Ala. Admin. Code R. 335-3-1-.02(1)(ss).
Since July 2009, the above-named entities and persons have been operating the Perry County Associates Landfill (a/k/a Arrowhead Landfill) located at Route 2, Box 110A, Uniontown, Alabama in such manner as to permit or cause the presence of one or more contaminants, including odors, in the outdoor atmosphere which are injurious to human health and welfare, interfere with the enjoyment of life and property, are unpleasant to persons, tend to upset appetite, lessen food intake, interfere with sleep, produce irritation of the upper respiratory tract, and cause dizziness, headache,
nausea and vomiting. Accordingly, the above-named entities and persons are permitting or causing air pollution in violation of Ala. Admin. Code R. 335-3-1-.08, the State Implementation Plan for Alabama, and the Clean Air Act.
Civil penalties of up to $37,500 per violation per day may be assessed by the court. Suit may be avoided if these violations have been permanently abated before the expiration of 60 days following service of this notice. Please advise the undersigned of any measures that you may undertake which you contend have permanently abated these violations before suit is filed.
Sincerely,
David A. Ludder
cc:
No. 7008 1300 0001 2360 2896
Hon. Lisa P. Jackson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
No. 7008 1300 0001 2360 2902
Hon. A. Stanley Meiburg, Acting Regional Administrator
U.S. Environmental Protection Agency-Region 4
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303-3104
No. 7008 1300 0001 2360 2919
Hon. John P. Hagood, Director
Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, Alabama 36130-1463
No. 7008 1300 0001 2360 2926
The Corporation Company
Registered Agent for Phill-Con Services, LLC
2000 Interstate Park Drive, Suite 204
Montgomery, Alabama 36109
No. 7008 1300 0001 2360 2933
The Corporation Company
Registered Agent for Phillips and Jordan, Incorporated
2000 Interstate Park Drive, Suite 204
Montgomery, Alabama 36109
Hon. Bob Riley, Governor
State Capitol
600 Dexter Avenue
Montgomery, Alabama 36130
February 2nd, 2010 at 5:27 pm
GREAT WORK!
Well written Glynn. Keep it up.