EPA Asked to Halt TVA Coal Ash Shipments to Alabama
March 4th, 2010by Glynn Wilson
The Environmental Protection Agency is being asked once again to rescind the Perry County landfill’s certification to continue accepting toxic TVA coal ash in Alabama’s Black Belt and to order the shipments to cease, due to ongoing legal violations with the liquid waste being disposed of in a Demopolis wastewater treatment plant.
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| Glynn Wilson / Southwings |
| An aerial view of the growing toxic coal ash mountain in Alabama’s Black Belt |
Florida attorney David Ludder, who specializes in environmental law, filed a petition with the EPA on Wednesday asking the federal agency to take action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, a law designed to clean up abandoned hazardous waste sites, also known as Superfund sites.
The law provides broad federal authority to clean up releases or threatened releases of hazardous substances that may endanger public health or the environment, and authorizes the EPA to identify parties responsible for contamination of sites and compel the parties to clean them up.
Superfund was enacted by Congress in response to the Love Canal disaster in New York, the dioxin exposure of people in Times Beach, Missouri, and the environmental contamination at the Valley of the Drums in Kentucky in the 1970s.
While the coal ash coming to Alabama is not classified as a “hazardous waste” under the Solid Waste Disposal Act, it is classified as a “hazardous substance” under the Superfund law, Ludder said in an e-mail interview.
“EPA is required by CERCLA to make a determination that the landfill where hazardous substances will be disposed is ‘acceptable,’” Ludder said, including whether the landfill is in compliance with state requirements. “Wastes which qualify as hazardous substances like the TVA coal ash may ONLY be disposed at a landfill that has been determined by EPA to be ‘acceptable’.”
After a permit was granted for the disposal of the coal ash in the Arrowhead Landfill by the Alabama Department of Environmental Management, EPA made a determination that it was an “acceptable” place to dispose of the waste, but publicly stated that the decision was “subject to rescission,” Ludder said. “If EPA agreed that the Perry County landfill was not in compliance with state requirements, and rescinded the determination, the disposal of TVA ash would have to cease.”
On Dec. 22, 2008, about 5.4 million cubic yards of coal ash poured out of a holding yard at the Tennessee Valley Authority’s coal-fired power plant in Kingston, Tennessee, filling up the Emory River in Roane County.
In spite of never before being regulated like other hazardous wastes, samples show the ash — left over after coal is burned to create electricity — contains high levels of arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium and zinc.
Some samples have also turned up uranium, which may be a by-product of nuclear waste dumped into the rivers of East Tennessee after World War II by the nuclear bomb-making plant at Oak Ridge.
Plans call for about 3 million cubic yards of the ash being dredged out of the Emory River to be transported in lined train cars through downtown Birmingham to the landfill in Uniontown, which was permitted to accept household garbage from up to 33 states.
ADEM permitted the landfill, and signed off on allowing the coal ash to be dumped alongside the garbage, but assured EPA that the landfill was in compliance with all relevant state requirements.
The petition filed by Ludder claims the landfill has been in non-compliance for air and water discharges, including leachate making its way into Rice Creek through the Marion Wastewater Treatment Plant. That plant was overwhelmed with the shear volume of the leachate draining out of the coal ash, which is being transported in the rail cars wet.
So the landfill management contracted to ship up to 50,000 gallons of leachate per day to the Demopolis wastewater treatment plant.
Not long after the waste started being processed there, the plant experienced occasional high levels of ammonia, which increased its power costs and allowed “intermittent permit excursions.” According to the Demopolis Waterworks and Sewer Board, these excursions were the result of the introduction of landfill leachate into the wastewater treatment plant. The excessive ammonia was discharged into the waterways of Alabama, in this case the Tombigbee River at Demopolis.
The introduction of leachate into a system that results in interference with treatment processes or pass through of pollutants without treatment is unlawful, Ludder said, so the landfill is “not operating in compliance” with state requirements and EPA should rescind its determination of acceptability.
The petition was addressed to Lisa Jackson, the new head of EPA under the Obama administration, as well as the regional EPA office in Atlanta.
Marraccini Davina, a spokesperson for EPA’s Atlanta office, issued the following statement by e-mail just as this story was going to press.
“We are actively reviewing the issues raised in Mr. Ludder’s petition
and, in fact, EPA conducted a stormwater inspection that included an
aerial flyover of the site on Feb. 22nd-23rd,” Davina said. “We expect to respond to Mr. Ludder shortly, and I would be happy to provide more
updated information on the conclusions of our review at that time.”
The political and economic problem at stake is that any decision to halt ash shipments to Alabama could potentially result in a slowdown or even a halt to the cleanup itself in Tennessee, which would then generate more public protests and lawsuits on that end.
Related Coverage
Toxic TVA Coal Ash Mountain Grows in Black Belt
Waterkeeper Alliance Calls for Halt to Coal Ash Shipments
TVA Coal Ash Cleanup Hits Snag in Alabama
Another Lawsuit Threat Faces Arrowhead Landfill
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
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March 5th, 2010 at 3:48 pm
Via Federal Express and Email
Lisa P. Jackson, Administrator
U.S. Environmental Protection Agency Ariel Rios Building
1200 Pennsylvania Avenue, NW Washington, DC 20460
A. Stanley Meiburg, Acting Regional Administrator U.S. Environmental Protection Agency, Region 4 Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, GA 30303-3104
Re: Correspondence to Your Offices from Mr. David Ludder Regarding His Petition to
Rescind Determination that the Perry County Associates, LLC Landfill is Acceptable for the Receipt of CERCLA Waste (His Amendment No. 2) (dated March 3, 2010)
Dear Administrator Jackson and Regional Administrator Meiburg:
Phill-Con Services, LLC., currently operates the Arrowhead Landfill in Perry County, Alabama. As you likely know, the Arrowhead Landfill is the designated disposal site for the management of coal ash from the TVA Kingston Fossil Fuel Plant incident.
We at Phil-Con Services know that your time is valuable and we regret having to impose on it with a letter of this nature. Time is a precious commodity for us as well as we continue to work to safely manage the aforementioned coal ash in an environmentally sound manner at the Arrowhead Landfill. Therefore, rest assured that we do not take up your time lightly. However, the continuing litany of Mr. Ludder’s irresponsible and inaccurate allegations simply cannot go unaddressed — particularly in light of his proclivity to share such correspondence with local
media and his apparent desire to co-opt your offices’ resources for his own litigious purposes.
In particular, in Mr. Ludder’s latest letter, dated March 3, 2010, he claims that, in its February 19, 2010, revised application for an NPDES permit, “the Demopolis Water Works and Sewer Board reported that the leachate introduced by Perry County Associates, LLC into the Wastewater Treatment Plant include `[h]igh ammonia levels [that] have increased power costs and intermitent [sic] permit excursions.’”
This is simply not true. Mr. Ludder, either carelessly or maliciously, is incorrectly “connecting the dots” as he reads Demopolis’ revised permit application. He would apparently have EPA believe that Perry County Associates, LLC, is the only SID discharger to the Wastewater Treatment Plant and thus that that statement refers exclusively to Perry County Associates’ leachate. In reality, however, as the revised permit application clearly shows, there are a number of other SID dischargers to the Wastewater Treatment Plant. Thus, the statement that he quotes from the section referencing problems with SID dischargers (i.e., that “[h]igh ammonia levels [that] have increased power costs and intermitent [sic] permit excursions”) could equally apply to one of those other dischargers (and, in fact, does so, as we have learned from Demopolis). Please see the enclosed for all of the Page 18 submittals associated with the revised permit application. It is unfortunate that Mr. Ludder did not disclose this fact before raising this issue with your offices (or sharing his erroneous conclusions with the media).
Proceeding from the aforementioned inaccurate conclusion, Mr. Ludder then states (inaccurately) that “Perry County Associates, LLC has introduced pollutants into the Demopolis Water Works and Sewer Board Waste Water Treatment Plant that have caused interference or pass through” in violation of certain ADEM regulations. Given his faulty premise as explained above, such a conclusion is simply inaccurate.
In fact, Mr. Ludder’s conclusion is particularly inaccurate given that the only relevant permit excursion that occurred at the Demopolis Wastewater Treatment Plant in the time since the Arrowhead Landfill began receiving coal ash shipments occurred in July of 2009. Our records, however, indicate that the Demopolis Wastewater Treatment Plant received no leachate from Arrowhead from June 1, 2009, through November 9, 2009.
Importantly, and in conclusion, we would like to add that we remain in close communication with the Demopolis Water Works and Sewer Board and have, to date, received no indication that its receipt of our effluent is causing any violations of the wastewater treatment plant’s permit limitations. In fact, we confirmed this status in a meeting with representatives of Demopolis at the landfill today.
Eddie Dorsett, President Enclosures
cc: ADEM
TVA
March 16th, 2010 at 5:44 pm
March 16, 2010
U.S. Mail & Electronic Mail
Hon. Lisa P. Jackson, Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460
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
Re: Withdrawal of Amendment No. 2 – Petition to Rescind Determination that the Perry County Associates Landfill is Acceptable for the Receipt of CERCLA Waste
Dear Ms. Jackson and Mr. Meiburg:
This letter withdraws Amendment No. 2 of the Petition to Rescind Determination that the Perry County Associates Landfill is Acceptable for the Receipt of CERCLA Waste submitted to the U.S. Environmental Protection Agency (EPA) on March 3, 2010. Amendment No. 2 alleged that Perry County Associates, LLC is in violation of applicable State requirements regarding the introduction of pollutants into the Demopolis Waterworks and Sewer Board Wastewater Treatment Plant that have caused “pass through” or “interference” contrary to Ala. Admin. Code r. 335-6-5-.03(1) and r. 335-6-5-.05(1).
The factual assertions in Amendment No. 2 were based on the revised application for an NPDES permit dated February 19, 2010 and filed by the Demopolis Water Works and Sewer Board with the Alabama Department of Environmental Management (ADEM) as published in ADEM’s e-File system. That application describes four significant industrial users (SIUs) of the Demopolis Waterworks and Sewer Board Wastewater Treatment Plant, including the Perry County Associates Landfill. The application instructions state that “[i]f more than one SIU discharges to the treatment works, copy questions F.3 through F.8 and provide the information requested for each SIU.” (Emphasis added). Immediately following the page describing the Perry County Associates Landfill is a page which includes question F.8 — “Has the SIU caused or contributed to any problems (e.g., upsets, interference) at the treatment works in the past three years?” On this page, the Demopolis Water Works and Sewer Board states that “[h]igh ammonia levels have increased power costs and intermittent [sic] permit excursions.” Although there are four pages in the application describing four SIUs, only the page concerning the Perry County Associates Landfill is followed by a page describing problems caused by the SIU.
Subsequent correspondence provided to EPA by Eddie Dorsett, President of Phill-Con Services, LLC, suggests that the Demopolis Water Works and Sewer Board may not have correctly followed the application instructions. Rather than copy and answer question F.8 for each SIU as instructed, the Board may have copied and answered question F.8 only once for one or more SIUs without specifying which SIU caused the problem.
Based upon the assumed veracity of this subsequent correspondence, the Petitioners withdraw Amendment No. 2.
Sincerely,
David A. Ludder
Attorney for Petitioners
cc: John Hagood, Director, ADEM
Byron Cook, Demopolis WW&SB
Eddie Dorsett, President, Phill-Con Services, LLC
John K. Porter, Manager, Perry County Associates, LLC