EPA’s Non-hazardous Coal Ash Classification Decision: A Breach of Federal Law
Subject: EPA’s Non-hazardous Coal Ash Classification Decision: A Breach of Federal Law
To: Northampton (NC) Citizens Against Coal Ash (Submitted draft October 30, 2017; revised November 7, 2017; July, 2018; July, 2019. FINAL
From: Ken Ferruccio, past spokesperson / president, Warren County Citizens Concerned About PCBs; Former co-chair, Joint Warren County/State PCB Landfill Working Group.
Date: July 10, 2019
I began research on the Environmental Protection Agency’s (EPA’s) non- hazardous coal ash classification decision because I wanted to share research on (1) why and how EPA reached the nonhazardous decision, (2) the environmental justice implications (3) the technical, scientific, and regulatory reasons why containment of toxic, hazardous, and radioactive waste in land disposal systems continues to fail, and (4) to provide a research-based opposition to the burial of coal ash in Northampton county or in any other place.
PART 1: Selective Overview: (pp. 2-10). Linked to parts and pages of the documented analysis.
PART II: Why and How EPA Reached a Non-hazardous Coal Ash Classification Decision (pp.10-18).
PART III: Technical, Scientific, and Regulatory Insufficiencies(pp. 18-24).
PART IV: Beyond the Waste Land: (pp. 24-27) SOURCES: (pp. 27-29).
PART I Selective Overview
The EPA’s non-hazardous coal ash classification decision, authorizing the states to regulate coal ash under the non-hazardous solid waste subtitle D classification of the Resource Conservation and Recovery Act (RCRA-D), instead of authorizing the federal government to regulate coal ash under the RCRA-C hazardous waste classification, was arbitrary and capricious, a breach of federal law.
The non-hazardous classification is incompatible with the fact that particular coal combustion residuals (CCRs) meet the EPA’s definition for hazardous waste [Part 2, p.12, (# 1)]; incompatible with EPA’s regulatory criteria for listing hazardous waste [Part 2, p.12, (# 2)], and incompatible with the most reliable and peer-reviewed data showing toxic contaminants leached from coal ash exhibit concentrations high above the “ toxicity characteristic,” the level qualifying (“causing”) waste to be hazardous [see Title 40 of the Code of Federal Regulations (C.F.R.) 261.24): Toxicity Characteristic, and see Part 2, p. 12, # 3 of this analysis.
The EPA knew at least as early as 1991 that the Toxic Characteristic Leaching Procedure (TCLP) for Identifying and listing Hazardous Waste for disposal purposes [40 C.F.R. subpart C, section 261.24] promulgated in 1990 was inaccurate, erroneously showing concentrations of particular toxic contaminants leached from coal ash below hazardous levels and therefore misclassified as non-hazardous (Part 2, pp.13,14).
According to EarthJustice, as late as January 18, 2012, the EPA had not reviewed, nor revised the TCLP for accuracy “in accordance with the three- year statutory requirement set forth in RCRA section 2002(b)” (Part 2, pp. 13,14). Even if between January 18, 2012 and the December 19, 2014 non-hazardous coal ash classification decision, the EPA had finally reviewed and revised the TCLP, data from the peer reviewed Leaching Environmental Assessment Framework (LEAF) had already shown coal ash is hazardous waste (Part 2, pp. 15-16).
Therefore, a reviewed and revised TCLP after January 18, 2012, using LEAF’s more accurate methods, actual disposal conditions, and updated maximum contaminant levels, would have by logical inference substantiated the findings of the peer reviewed LEAF data, namely, that coal ash is hazardous waste.
Therefore, To justify a non-hazardous coal ash classification based on toxicity, the EPA would have needed to use data from inaccurate, unrevised TCLP tests before January 18, 2012, or use data from a possibly revised TCLP after January 18, 2012 but contradicting LEAF’s more accurate peer reviewed data. Either way would have been an arbitrary and capricious way to avoid classifying coal ash as hazardous waste under the RCRA-C hazardous waste classification in order to transfer federal regulatory and enforcement authority over coal ash hazardous waste from RCRA-C to the states under the non-hazardous solid waste RCRA-D classification.
EPA had full knowledge of LEAF test results showing coal ash is hazardous. The information was included in EarthJustice’s Coal Ash Comments to EPA, November 19, 2010, and therefore before the December 2014 non-hazardous coal ash classification decision.
Data from erroneous or compromised TCLP tests showing toxic contaminants leached from CCRs in concentrations below hazardous levels before or after January 18, 2010 would have provided an erroneous basis for dismissing from the classification decision the significance of the toxicity characteristic (Part 2, p. 11, par 2).
Furthermore, the alleged similarity of the design for hazardous and non- hazardous waste landfills would have dismissed from the decision the significance of the disposal issue -the issue concerning whether hazardous or non-hazardous waste landfills would be needed for coal ash disposal. (Part 2, p. 11, par 2).
The alleged insignificance of the toxicity and disposal issues opened the door to basing the non-hazardous coal ash classification decision, not on the more protective hazardous RCRA-C classification, but on the more cost-
effective and least protective non-hazardous RCRA-D classification (Part 2, p. 10), contradicting EPA’s statements in 2009 that the non-hazardous classification would not be protective of health and environment (Part 2 p. 10).
Therefore, under the non-hazardous classification, hazardous waste will be handled as non-hazardous under RCRA -D, without the regulatory and enforcement protections of the hazardous waste classification, RCRA-C, and therefore in violation of federal law (RCRA C), and will put Northampton County and the general public in harm’s way.
The implementation of the non-hazardous coal ash classification decision will be arbitrary and capricious.The non-hazardous classification puts Northampton County, North Carolina, and the nation in harm’s way because hazardous coal ash, under the guise of non-hazardous waste, will be produced, loaded, transported, unloaded, and disposed of without the federal RCRA-C regulatory and enforcement protections, which the states, under RCRA-D, are not required to have. Shifting regulatory, oversight, and enforcement responsibilities to citizens, or to states acting as citizens, will not provide RCRA C protections. In response to frequent questions, concerning RCRA-D regulations, EPA stated the following:
“Citizens perform a crucial role in the implementation and enforcement of [the coal ash disposal rule] . . . . “The regulations . . . are “self-implementing,” that is, a facility must comply with them without any action by a regulatory agency. In addition, since these regulations are being promulgated under subtitle D of RCRA, EPA has no formal role in implementation, nor can it enforce the requirements. Thus, enforcement of these requirements will be by citizen suits (or by States acting as citizens) ( Frequent).
EPA can suggest but not require minimal guidelines for the states regarding their solid waste management plans (SWMPs).
In essence, citizens assume hazardous waste management responsibilities rightfully belonging under RCRA-C, but now, arbitrarily and capriciously under RCRA-D:
Citizens also perform a critical role in the development of SWMPs. Revisions of SWMPs must have a public participation process. This process will provide the public and communities near CCR landfills and surface impoundments with an opportunity to participate in the decision-making about how CCRs are managed in their State (Frequent).
In other words, citizens can participate in a democratic process to choose rules for managing failed hazardous waste land disposal systems that will transform their communities into coal ash waste lands because hazardous waste in land disposal systems will migrate beyond the land disposal system(Part 3, p. 20, par 5). Sovereignty, the final say, the fundamental right of communities to make the final decision to accept or reject a coal ash facility within their borders through a democratic process, is not addressed.
States are free to oversee themselves over the handling and disposal of coal ash, cutting costs at the expense of safety, and acting as arbitrarily and capriciously as the EPA acted, classifying hazardous waste as non-hazardous to get the most cost-effective, instead of the most protective, regulations.
Without the administrative, regulatory and enforcement protections universal to all fifty states under the RCRA-C hazardous classification, coal ash management operations are left to the, unchecked, deregulated, and cost- effective will of the states and to coal ash disposal companies such as VistaGreen, leaving Northampton County; the states with a history of environmental injustice issues; and the general public in deep risk assessment uncertainty.
Although the VistaGreen’s coal ash proposal and the Special Use Permit would perhaps be compatible with non-hazardous RCRA-D, the EPA has knowingly and willfully misclassified hazardous coal ash as non-hazardous. Consequently, VistaGreen would be conducting all coal ash operations arbitrarily and capriciously, putting Northampton County in harm’s way because the administrative, regulatory, and enforcement authority over hazardous waste under RCRA-C would not apply.
Therefore, Northampton County Citizens Against Coal Ash will most likely need to write a cease-and-desist letter to VistaGreen at a strategic time of the Citizens’ choosing, and pose a legal challenge to EPA’s non-hazardous coal ash classification decision in order to preserve, protect and defend the health, environment, and natural resources of Northampton County and the general public.
To be unambiguously clear: the issue is sovereignty, the final say: Any attempt to initiate coal ash disposal in Northampton County, from within or beyond its borders, would have serious implications because such an attempt would be inescapably based on an arbitrary and capricious non-hazardous coal ash classification decision, a breach of federal law, of RCRA-C, and having the most serious discriminatory implications.
The RCRA-D classification cannot ensure the protection of Northampton County and the general public because the regulations under RCRA-C, governing all operations concerning coal ash waste management practices, and applicable to all communities in the nation, do not apply. EPA’s non- hazardous coal ash classification decision leads necessarily to environmental justice and to constitutional issues.
Environmental Justice Implications
According to EarthJustice Coal Ash Comments, Integrity Project (November 19, 2010), the following are environmental justice reasons why the EPA needed to have classified coal ash as hazardous waste:
EPA must reject a disparate impact on vulnerable populations and promulgate a subtitle C rule, which ensures equal protection under the law for every community in the nation. Failing to take this
course of action, would be a clear violation of the intent of presidential Executive Order 12898, Federal Actions to Address Environmental Justice in Minority populations and Low Income
Populations (Comments 8).
The inevitable outcome of [subtitle] D regulations is unchecked damage to human health and the environment in violation of RCRA (Comments 188).
EPA’s selection of subtitle D would have a much greater disproportionate impact on poor and minority communities … A weak EPA rule would apply new safeguards for coal ash regulations in states where coal ash presents a relatively small, or even nonexistent, environmental justice problem, while failing to add protections in states where environmental justice communities are heavily impacted by coal ash disposal (Comments (198).
The disproportionate impact of coal ash disposal is worse in states that are not expected to adopt new controls under a subtitle D regulatory framework, but other geographical trends also show the environmental injustices of coal ash are not shared equally throughout the united States (Comments 200).
It is clear that environmental justice impacts are much greater under subtitle D than subtitle C, and these impacts are incompatible with protecting human life and achieving both the goals of Executive Order 12898 and the goal of RCRA (Comments 205).
In Justice Stephen Breyer’s book titled The Court and The World: American Law and the New Global Realities, Justice Breyer raises the following question: “To what extent does the Constitution permit the President and Congress to limit our civil liberties for the sake of national security? (11). I would ask: To what extent does the Constitution permit the President and Congress to preempt the civil liberties of low income populations and minority populations to destroy them with insufficient technology, dishonest science, and discriminatory regulatory frameworks, the destructive inevitabilities of which are known in advance?
The VistaGreen proposal to establish coal ash land disposal systems in Northampton County cannot succeed if the decision is based on, consistent with, and relevant to the following considerations
(1) An arbitrary and capricious transfer of federal regulatory and enforcement authority over hazardous waste from federal to state government, leaving persons and properties of minority and low income communities in states having a history of environmental injustices vulnerable to the most serious discriminatory impacts (Comments, 198).
(2) The truths of empirically-based predictive science and of EPA concerning the failure of land disposal systems to contain hazardous waste
(3) Universal unalienable rights in the Declaration of Independence
(4) Thirteenth and Fourteenth Amendment rights in the United States Constitution
(5) The fundamental right of Northampton County to preserve, protect, and defend itself from becoming a coal ash waste land for millions of tons of coal ash toxic contaminants, and possibly other toxic, hazardous, and radioactive contaminants, produced outside the borders of Northampton County.
Although the 1981 North Carolina Waste Management Act authorized the governor of North Carolina to choose locations for toxic, hazardous, and nuclear waste facilities prior to public hearings; to preempt local sovereignty rights of targeted communities regarding the siting of these facilities, and to authorize force as needed, the constitutionality of the act has yet to be decided by the U.S. Supreme Court.
The use of the Waste Management Act in 1982 to back the forced opening of a state toxic PCB landfill in the Afton community of Warren County, North Carolina, makes it clear that the above mentioned rights were not relevant to the mostly poor and black Afton community. Civil rights activism, backed by four years of research-based opposition, lit the fuse that blew the powder keg. Environmental Justice and environmental civil rights exploded. EPA federal and state regulatory frameworks and waste management legislation were interpreted as facilitating environmental racism. Honest science, truth, laws, and rights were obviously needed to protect and sustain the vision of a promised land for all people.
Because of technical, scientific, and regulatory insufficiencies and limitations concerning safety issues in communities hosting toxic, hazardous, and radioactive waste land disposal systems, having a documented history of failure before the waste ceases to be a threat, and having the most serious discriminatory impacts known in advance, Northampton County citizens need to affirm their sovereign right to
(1) preempt any attempt by local, state, or federal government, or by any entity, foreign or domestic, to acquire or to use property within the borders of Northampton County for the disposal of coal ash contaminants, and toxic, hazardous, or radioactive waste produced beyond Northampton’s borders.
(2) Northampton County citizens need to affirm their sovereign right to have the final say, expressed through their public sentiments, and upheld by their county government, on all decisions affecting the destiny of Northampton County.
By the final say is not meant shifting the decision concerning the Special Use Permit, and the implementation of VistaGreen’s coal ash proposal, from the will of Northampton County citizens to the will of the Department of Environmental Quality and of Duke Energy, but basing the special use permit and implementation issues on the the sovereign will of the people of Northampton, expressed through their public sentiments, the very cornerstone of democracy, and represented by the county commissioners. But before the special use permit and implementation issues are decided, the constitutionality of EPA’s non- hazardous coal ash classification decision must be decided by the U.S. Supreme Court.
These are Northampton’s sovereign rights and ought to be when considered in light of the fact that we are consuming ourselves in consuming toxic, hazardous and radioactive waste generated during production, recycling harmful waste into consumer products, and attempting to resolve the waste management problem by dumping waste, along with discriminatory impacts and costs, on the most vulnerable populations.
Northampton’s sovereign rights are reasonable in light of a history of failed containment of hazardous waste in land disposal systems and the fact that the governmental and regulatory agencies have demonstrated neither the knowledge, the will, nor the ability, neither the technology, the science, nor regulatory frameworks to safely manage toxic, hazardous and radioactive waste in land disposal systems, nor to tell the truth concerning the inevitable discriminatory impacts that would come with VistaGreen’s coal ash landfills and ponds, causing exposures to uncontained hazardous waste leaching from coal ash into ground water and from exposure to uncontained fugitive dust.
The VistaGreen proposal would have purely experimental status — its destructive discriminatory impacts known in advance, which makes the proposal unacceptable and grounds for litigation, backed by nonviolent civil rights activism as needed.
The EPA allowed the judgement of economists, of the utility companies, and of the coal ash recycling industries to substitute for its own judgement concerning a non-hazardous coal ash classification decision (Reis). EPA rendered an economic, instead of a scientific decision, which would have confirmed the scientific truth, known to the EPA, that coal ash is hazardous waste.
Why and How EPA Reached a Non-Hazardous Coal Ash Classification Decision
According to Comments of EarthJustice, Environmental Integrity Project, the EPA expressed the preference to regulate coal ash as hazardous waste as early as October 16, 2009 ( Comments 10), and the EPA stated in its rationale that “without strong federal oversight, which subtitle D of RCRA does not provide, the disposal of CCRs [coal combustion residuals] will continue to present risks to human health and environment” (Comments 10).
Patrick Reis, writing in the New York Times, states that in October 2009, EPA sent only “one rule proposal . . . to the White House’s Office of Management and Budget (OMB) . . . that would have labeled coal ash as hazardous waste,” and “EPA said … compliance with the hazardous-waste regulations would be more expensive but the costs would be outweighed by health and environmental benefits and “‘a [nonhazardous] approach would not be protective of human health and the environment’” (Reis).
However, EPA administrator Lisa Jackson, yielding to “industrial lobbyists and economists,” approved a non-hazardous classification option for consideration in addition to the the hazardous classification (Reis).
At least as recently as June 2010, the EPA’s shift of emphasis away from the toxicity characteristic and toward coal ash disposal in non-hazardous solid waste landfills to facilitate the non-hazardous classification decision can be documented. Discussing the RCRA-C hazardous and RCRA-D non- hazardous options “for regulating coal ash disposal in EPA’s proposed rules, issued in June 2010,” Bradley and Ward argue that “EPA did not claim that coal ash qualifies as a hazardous waste based on the toxicity
characteristic” (17), “the level at which a waste is deemed a ‘hazardous’ waste” (Comments 71).“[T]he landfill design EPA proposed under both its ‘hazardous’ (Subtitle C) and ‘non-hazardous’ (Subtitle D) regulatory options [was] essentially the same. EPA acknowledged that disposing coal ash in landfills that meet ‘non-hazardous’ waste design is protective of human health and environment” (Bradley and Ward 17).
The non-hazardous coal ash classification decision came down to the fact that regulating coal ash as hazardous waste under RCRA-C would be far more expensive than regulating it under RCRA-D. Under the hazardous classification, regulating coal ash would involve a complexity of regulations requiring federal administrative oversight, regulation, and enforcement regarding production, loading, transporting, unloading and disposal operations.
However, a RCRA Subtitle D non-hazardous classification would free the states from federal regulatory and enforcement authority to regulate and oversee their own coal ash handling and disposal operations. The non- hazardous classification would free states from adding protections where
environmental justice communities are heavily impacted by coal ash disposal (Comments 198). Unchecked by federal RCRA-C regulations, states could choose to cut costs needed for safety concerning landfill design and materials, as well as for all handling and disposal operations.
The non-hazardous classification under Subtitle D would be the most cost- effective decision, and most economically advantageous decision for EPA, for the White House’s Office of Management and Budget, for the states, for the utility companies selling coal ash, and for coal ash industries buying coal ash for recycled products, while avoiding the stigma of a hazardous classification (Reis), and for VistaGreen, but the least protective for Northampton County and the general public.
Although the non-hazardous coal ash classification facilitated the transfer of federal EPA regulatory and enforcement authority over hazardous coal ash (under the guise of non-hazardous waste) to the states for economic reasons, the non-hazardous classification doesn’t change the fact that the EPA, environmental organizations, and an informed public know that coal ash is hazardous waste, legally belonging under federal, not state regulation and enforcement, and know the consequence of the decision is that hazardous waste will be handled and disposed of as non-hazardous waste without protections under RCRA-C if the non-hazardous classification stands.
EPA’s challenge was to scientifically justify a non-hazardous coal ash classification decision in order to reach economic objectives without contradicting its regulations and the best available data from LEAF showing concentrations of hazardous contaminants leached from CCRs above the toxicity characteristic. If the classification decision were to be based on toxicity, avoiding contradictions would be impossible for the following reasons: EPA would have had to
(1) disregard its definition for hazardous waste under section 1004(5) of RCRA because CCRs meet EPA’s definition for hazardous waste (Comments 158);
(2) disregard its regulatory criteria for listing hazardous waste set forth in RCRA 40 C.F.R. § 261.11 (a) because CCRs meet this regulatory framework (Comments 160), and (3) disregard the most reliable and
peer reviewed test data from LEAF, demonstrating very high concentrations of particular CCRs in groundwater, and far above toxicity characteristic levels qualifying CCRs to be hazardous (Comments 71).
However, instead of relying on data from LEAF, EPA may have relied on inaccurate data from TCLP, which, according to EarthJustice, could not mimic actual field conditions, an older test than LEAF and far less accurate, the industrial preference. TCLP data consistently showed low concentrations (Comments 71-72).
EarthJustice documents in its January 18, 2012 notice of intent to sue letter
to then EPA administrator Lisa Jackson and U.S. Dept. of Justice Attorney General Eric Holder that at least as early as 1991 EPA knew the TCLP was not accurate. The letter makes it unambiguously clear that EPA knew, at least starting in 1991, from its Science Advisory Board (SAB), and later from federal courts, from the National Academy of Science (NAS), and from EPA’s Office of Research and Development that the TCLP was not an accurate test, and yet did not review and revise regulations for accuracy, disregarding the legal requirement to do so in accordance with the three-year statutory requirement “set forth in RCRA section 2002(b)”. Furthermore, the TCLP “was based on the maximum contaminant levels (MCLS) in existence in 1990, but some levels . . . “have been substantially lowered since
1990” (Notice 11):
Since 1991 [a year after the regulation for TCLP was promulgated: 40. C.F.R. 261. 24), the EPA’s Science Advisory Board has identified significant problems with the adequacy of the TCLP. In fact, in 1999,
the SAB specifically directed EPA to revise its leach test procedures.
In 2006, the National Academy of Sciences (NAS) also acknowledged the inaccuracy of the TCLP and explicitly criticized its use for testing
the toxicity of coal ash. Because all states and federal agencies rely on
the TCLP to determine the hazardous nature of solid waste, the
accuracy of the test is critical to characterizing dangerous waste
properly and to preventing the leaching of toxic contaminants nationwide (Notice 3).
For over a decade, the EPA’s Science Advisory Board and federal courts have acknowledged the TCLP’s failure to predict with accuracy the level of pollutants leaching from broad categories of solid wastes. With regard to coal ash, in 2006, the National Academy of Sciences (NAS) acknowledged the general inaccuracy of the TCLP and explicitly criticized its use for testing coal ash. (See National Academy of Sciences, Managing Coal Combustion Residues in Mines (2006) at 127.) Also, since at least 2006, the EPA’s own Office of Research and Development has acknowledged that the TCLP is not accurate for testing coal ash and has proposed an alternative test that takes into account actual disposal scenarios for coal ash. (See U.S. EPA, Office of Research and Development, Characterization of Coal Combustion
Residues from Electric Utilities—Leaching and Characterization Data, EPA/600 R-09/151 (December 2009) at 18. (Notice 11).
Furthermore, Table 1 (40 C.F.R. section 261. 24), “providing the maximum concentrations of contaminants for TCLP leachate, are calculated based on
MCLS in existence in 1990 when the regulation was promulgated” (Notice 11). EarthJustice contends that “ several toxic metals, such as arsenic, cadmium and lead MCLs have been substantially lowered since 1990 and adds that, consequently, the regulatory levels for the maximum concentration of contaminants for the toxicity characteristic for these metals must be reviewed and revised to match the current MCL (Notice 11).
The question becomes: Since the TCLP tests have been inaccurate at least as early as 1991, or sometime between 1991 through 2012 and beyond, can the amount of hazardous waste arbitrarily and capriciously classified as non- hazardous be quantitatively known? It is perhaps too late now to prevent the damage that surely has been done, and is still being done, from toxic/ hazardous contaminants, including those lasting in perpetuity. The damage perhaps could have been lessened or even avoided to some extent had EPA acted on its knowledge in 1991 that the TCLP was inaccurate, and had the Agency begun reviewing and revising the TCLP for accuracy in accordance with its regulations to do so.
However, it’s not too late for an investigation concerning the basis for EPA’s non-hazardous coal ash classification decision, with conclusions
available to the public, before, not after, the damage has been done, and to know if data from an unreviewed, unrevised, and inaccurate TCLP, or falsified data from a revised TCLP, determined in any way the nonhazardous coal ash classification decision.
EPA could argue that the purpose of the TCLP was to identify and list hazardous waste for purposes of disposal in either a hazardous or non- hazardous waste landfill, but now the disposal issue is irrelevant since both hazardous and non-hazardous waste landfills will have the same design (Bradley and Ward, p. 11).
However, the problem remains that LEAF data show that coal ash is hazardous waste, linked to serious health issues; that by federal law, coal ash must be handled under hazardous RCRA-C; that hazardous waste in land disposal systems will continue to fail; that discriminatory impacts will continue; and that these problems will be exacerbated because the handling and disposal of hazardous coal ash will not have the RCRA-C regulatory protections required by federal law if the RCRA-D non- hazardous coal ash classification stands.
The transfer of regulatory and enforcement authority over hazardous coal ash from federal to state government is arbitrary and capricious. The transfer leaves Northampton and states with a history of environmental injustices without the uniformity of federal regulatory protections and vulnerable to the most serious discriminatory impacts. EPA’s use of procedures for waivers, or categories of exception, would simply strengthen the case that the non-hazardous classification was and remains arbitrary and capricious.
The following comments of EarthJustice to EPA (2010) are quoted at length (Comments, 70-71) to ensure their accuracy. The consistently high concentrations of toxic contaminants from LEAF compared with the low and inaccurate concentrations from TCLP, demonstrate that EPA knew that TCLP was the place to go if needed for the defense of a cost – effective non- hazardous coal ash classification decision:
While TCLP test results rarely exceeded the toxicity
characteristic, Arsenic, a potential carcinogen, leached from fly ash at a concentration 1,800 times the federal safe drinking water standard, more than 3 times the threshold established for hazardous waste and over 76 times the level of previous leach tests (TCLP); [see also p71, footnote note 209]
Antimony, which damages the heart, lung and stomach, also leached from fly ash at a concentration 1,800 times the federal safe drinking water standard and over 900 times the level of previous TCLP tests; [see also p 71, footnote 210].
Chromium, which can cause cancer and stomach ailments, leached from fly ash at a level 73 times the federal safe drinking water standard, over 1.5 times the threshold for hazardous waste, and
124 times the level of previous TCLP tests; [see also p 71, note 211].
Selenium, which causes circulatory problems in humans and is a bio-accumulative toxin extremely deadly to fish, leached from fly
ash at nearly 600 times the federal drinking water standard, 29
times the threshold for hazardous waste and nearly 66 times the
level of previous TCLP tests. [see also p 71, note 212].
Selenium also leached from FGD gypsum at 320 times the federal drinking water standard, 16 times the threshold for hazardous waste, and nearly xx times the level of previous TCLP test. [note
The EPA factored out of the classification decision the fact that CCRs(1) meet the Agency’s definition for hazardous waste,
Previous leach data in the EPA’s 1999 Report to Congress214 and test data produced by the utility industry215 have never revealed such high concentrations of pollutants because they used single point leach tests that could not mimic the conditions under which CCRs are actually disposed. 216.” [see Comments 70-71].
(2) meet the Agency’s regulatory criteria for listing hazardous waste,
(3) meet the most reliable and peer-reviewed test results from LEAF, showing concentrations of toxic contaminants leached from CCRs above regulatory levels qualifying the CCRs to be hazardous.
(4) Furthermore, EPA, knew since 1991 through 2012 and beyond that the TCLP, the industrial preference, was inaccurate, and by regulation needed to be reviewed and revised, but chose not to do so. For more than a decade, EPA violated its own regulations, and within that time range must have classified hazardous waste as non-hazardous because the TCLP had not been updated. It was based on 1990 maximum contaminant levels. The non-hazardous coal ash classification is simply another example of EPA’s arbitrary and capricious decision-making.
EPA’s history of arbitrarily and capriciously identifying and listing hazardous waste based on the TCLP, using 1990 maximum contaminant levels, cannot help but undermine public confidence in EPA’s statements concerning “safe maximum contaminant levels” and therefore its credibility concerning the non-hazardous coal ash classification decision. Clearly, major changes are needed in EPA. The EPA can begin by classifying coal ash as hazardous and putting the handling and disposal of coal ash where it belongs: under federal regulatory and enforcement authority.
To summarize federal EPA’s strategic argument upon which to base the transfer of its regulatory and enforcement authority over coal ash to the states:
EPA could argue on the basis of allegedly low concentrations that toxic contaminants would not cause health problems because they would not exceed safe maximum contaminant levels and would therefore be as safe out of a landfill as in it. On the erroneous basis of low concentrations, EPA could dismiss RCRA-C regulatory and enforcement authority over the handling and disposal operations as a needless expense. EPA could argue also that because of allegedly low and harmless concentrations of toxic contaminants leached from CCR’s into groundwater, and because the design for hazardous RCRA-
C and non-hazardous RCRA-D landfills is essentially the same, (stated above in Bradley and Ward, Part 2, p.9), it would not matter whether coal ash were disposed of in hazardous or non-hazardous landfills, and that grounds for resisting them would be baseless.
______________________________________________________________ PART III
Technical, Scientific, and Regulatory Insufficiencies
EPA would have the public believe that the proposed design for coal ash landfills is new. The truth is that the basic design for toxic and hazardous waste landfills has not changed since at least as early as the late 1970s and early 1980s and became used for municipal solid waste landfills at least as early as the 1990s, and hazardous waste land disposal systems built according to the design continue to fail before the waste ceases to be a threat.
Even the theory hasn’t changed: namely, that applying EPA’s conceptual engineering design to landfill technology can transform marginal sites (relatively speaking) into safe sites. However, empirically based predictive science continues to support the conclusion that hazardous waste in land disposal systems will migrate to the broader environment, regardless of advanced technology. We are left with an arbitrary and capricious non- hazardous coal ash classification decision in violation of federal law (RCRA-C), placing the general public and the environment in harm’s way, and with a coal ash land disposal experiment having the most serious destructive outcomes known in advance.
The reason attempts to contain hazardous waste in land disposal systems east of the Mississippi River are doomed from the start is clear from the following interview with EPA:
In February 1979, questions about EPA’s plan to lower the distance between the base of a toxic waste landfill and groundwater led Deborah Ferruccio and a delegation of Warren County (NC) Citizens to Washington, DC to learn why EPA was planning to change the regulation
in the Toxic Substances Control Act (TOSCA), requiring the base of a toxic waste landfill to be at least 50 feet from groundwater.
The delegation interviewed toxic substances officials Hal Snyder and Pete Principy, responsible for helping to draft PCB disposal operations and regulations; and solid waste coordinator Matt Strauss, office of solid waste, and responsible for approval of PCB disposal sites (landfills) throughout the country. Deborah Ferruccio taped the conversation, I transcribed it, and the following is what we learned:
The EPA was so sure that applying EPA’s conceptual engineering design to landfill technology would contain toxic waste that the Agency dropped the 50-foot requirement in TOSCA between the base of toxic waste landfills and groundwater to five feet and included a waiver.
The waiver allowed the base of a toxic waste landfill to come one foot from groundwater if the owner/operator of the facility could install a leachate collection system between the landfill’s base and groundwater and convince the EPA regional administrator that there would be no hydraulic connection between the base and groundwater.
The procedure for waiver seemed to ensure EPA approval wherever sites were politically possible. In the South, such waivers were interpreted as discriminatory mechanisms for siting in poor black and other minority communities (environmental racism).
However, EPA did not attribute the waivers to environmental racism, but to insufficient geological characteristics east of the Mississippi, unlike the Southwest, where 50 feet from groundwater and heavy clay, “as a rule of thumb,” became the basis for EPA’s 50-foot regulation in TOSCA.
However, after finding that deep distances to groundwater and heavy clay were not common geological characteristics in the East, but instead, shallow distances to groundwater and porous soils, EPA realized that intrinsic geological inadequacies would greatly limit where toxic and hazardous waste land disposal systems east of the Mississippi could be approved if EPA “narrowly held” to the 50-foot requirement between the landfill’s base and groundwater. The EPA therefore changed the 50-foot standard to five feet
with a waiver, allowing a foot from groundwater with the above-mentioned contingency.
From EPA’s point of view, the waivers were a geological necessity. The geological necessity meant the necessity of testing whether the application of a conceptual engineering design to landfill technology could compensate for intrinsic geological inadequacies, and transform intrinsically inadequate sites (compared to sites in the Southwest) into relatively “safe sites.” However, hazardous waste land disposal landfills continue to fail and perhaps explain the use of dishonest science, destructive technology, and discriminatory regulatory frameworks to facilitate the use of toxic and hazardous waste land disposal systems.
It should be noted that the EPA’s present conceptual engineering design for landfill technology has been fundamentally the same failed design for the past four decades and is the present design for Duke Energy’s coal ash waste landfills and VistaGreen’s proposed 804-acre CCR facility for Northampton County, NC.
It should be noted also that the state’s PCB landfill was essentially the same design proposed for VistaGreen’s coal ash facility. The originally submitted PCB-landfill design, available to Warren County Citizens Concerned About PCBs, included top and bottom composite liners (plastic with clay compacted to meet then EPA’s suggested permeability criteria of 1 x 10-7 cm/sec); leachate collection systems, monitoring wells, etc. In essence, the same design proposed for Northampton County.
Princeton University Professor Peter Montague studied four hazardous waste landfills in New Jersey (late 70’s/early 80’s), according to the same design used for the PCB landfill. The landfills failed to meet expected performance criteria within a year of construction. By November, 1982, three months after the Warren County, NC environmental justice demonstrations began (September, 1982) William Sanjour, then EPA hazardous waste chief, testifying before the House of Representatives and referencing the Montague study, quoted the following statement from EPA’s Federal Register (February 5, 1981):
There is good theoretical and empirical evidence that the hazardous
constituents which are placed in land disposal facilities very likely will migrate from the facility into the broader environment. This may occur several years, even many decades after placement of the waste in the facility, but data and scientific prediction indicate that, in most cases, even with the application of best available land disposal technology, it will occur eventually. (Emphasis is Sanjour’s).
It should be noted that the state’s PCB landfill failed to meet engineering assumptions before it was capped. The dry tomb landfill was capped with almost a million gallons of water in it, and detoxified almost two decades after the the use of a million dollars of national guard and police force opened the PCB-landfill site.
Sanjour explained the popularity of dumping:
Dumping is popular because it is cheap. It is cheap because the real cost of dumping is not borne by the producer of the waste or by the disposer but by the people whose health and property values are destroyed when the wastes migrate into their property and by the tax payers who pay to clean it up.
A recent News & Observer article, titled “Taxpayers bear cost of cleaning pollution,” supports Sanjour’s point to some extent: “Over the last 20 years, American taxpayers have spent more than $21 billion in cleanup and oversight costs for properties polluted by dangerous wastes, known as Superfund sites, while hundreds of companies responsible for contaminating water paid little to nothing, a News 21 analysis of congressional budget data shows” (Anderson 1A).
Sanjour came to Warren County during the 1982 protest movement, supporting Warren County’s opposition to the PCB landfill, consisting of the same components, and the same design proposed for the coal ash landfills.
Insufficient technology, insufficient science, and insufficient regulatory frameworks cannot meet safety criteria the public has a right to expect:
How would citizens of Northampton County know the dump is leaking in time to avoid health impacts from groundwater contamination? Monitoring wells with a one-foot zone of capture and spaced, for example, a hundred or a thousand feet apart, would not necessarily detect contamination of groundwater from leaking landfills because the underground contaminated plumes could flow between the wells.
G. Fred Lee and Anne Jones-Lee state that because of the limited zone of capture of conventional vertical monitoring wells (about 1 ft), . . . the current practice of groundwater monitoring at lined landfills is cosmetic and of little utility in protecting groundwater resources from pollution by leachate (1).”
They suggest using leachate detection systems within liners. But even with advanced technology, and even if the state installed leachate detection systems in liners, neither the waste management company nor citizens would necessarily know the landfill was leaking, failing to meet expected performance criteria, regardless of the composite liners chosen: geo-synthetic bentonite clay, sandwiched between two manufactured geo-textile sheets stitched or adhesively bonded to the clay liner (GCLS); or high density polyethylene liners (HDPE): or flexible membrane liners (FMLS).
Even if VistaGreen or the state, overseeing itself, spent money to install composite liners, and other landfill components, the landfill is an integrated system of components: the malfunctioning of one of the components affects the overall performance of the landfill. For example, failure of the leachate collection system causes the landfill to fill up with water putting pressure on the system, causing it eventually to breach.
Furthermore, even if advanced technology would reliably detect failed monitoring wells, failed liners, failed leachate collection systems, and migration of waste to the broader environment, what could the company do? Would it dig up millions of tons of hazardous coal ash and try to fix the
components before ground water contamination occurred while exposing the community and beyond to hazardous clouds of fugitive coal ash dust?
The hazardous coal ash contaminants, possibly having already contaminated groundwater, having already bio-accumulated beyond the allegedly safe level, having perhaps already triggered cancer clusters and other health impacts would have meant knowledge of failed containment came too late to protect Northampton County.
And where would the money come from for a massive and seemingly endless and perhaps impossible remediation? It would come from the people whose properties and health have been destroyed and from the taxpayer. Furthermore, the argument for recycling the coal ash contradicts the argument that lined dry-tomb landfills will isolate the coal ash contaminants from the environment, protect persons and properties from fugitive coal ash dust, and prevent migration and exposures to the contaminants.
The failure of the landfill containment principle, and the release of uncontained harmful chemicals into the environment, has often led to EPA’s regulatory shift of emphasis from containing waste to monitoring it, to the argument that uncontained toxic contaminants need not be contained because concentrations do not exceed safe-maximum contaminant levels (MCLs), an argument perhaps based on unreliable data such as the TCLP, showing low concentrations to justify avoiding the expense of cleaning up the waste.
The safe maximum contaminant level concept, whether at times fiction or fact, is an inescapable strategic regulatory necessity when containment of waste would cause more problems and cost more money than leaving it uncontained. The allegedly safe maximum contaminant level concept is part of the strategic bedrock of EPA and Nuclear Regulatory Commission regulatory frameworks, providing a rationale for poisoning people and the environment while protecting the polluters from liability, and justifying doing nothing when containment fails.
The use of such industrially preferred tests as the erroneous TCLP test to get data showing low concentrations in order to classify waste as non- hazardous cannot help but cause public skepticism concerning the
validity of the safe maximum contaminant level concept, as well as EPA’s non-hazardous coal ash classification decision.
Insufficient Science/Insufficient Regulatory Frameworks
All of the above means that the plan to bury coal ash in Northampton County and other targeted communities cannot meet safety criteria needed to protect Northampton and the general public. Scientists know there is insufficient knowledge, and therefore considerable deep risk assessment uncertainty, concerning reliable safety criteria because of the following reasons:
(1) Honest empirically-based predictive science tells us that the containment of hazardous waste in land disposal systems will continue to fail, regardless of the most advanced technology,
(2) Exposures to hazardous constituents linked to health impacts will contaminate the public health and environment,
(3) The highly speculative and tentative basis on which the legal and safe exposure theory is based is itself a health hazard. It is discriminatory when standardized into law and applied because of the unknown bio- accumulative diversity of the general population,
(4) Members of the risk assessment community and federal agencies disagree regarding safe levels, often working with the same risk assessment data. For example, concerning radiation, Matanoski et al. argue that “the most contentious issue in radiation risk assessment revolves around the estimation of risks at very low doses and dose rates – – small increments of exposure only slightly above background radiation (S93).
(5) Regulations protect polluters from liability while they legally poison persons and properties.
Part IV Beyond the Wasteland
Based on research and activism as spokesperson and president for Warren County Citizens Concerned About PCBs;
Based on experience formulating a five-point framework centering on detoxification for resolving the PCB crisis in Warren County and on co- chairing the Joint Warren County/State PCB Landfill Working Group;
Based on a four-year research-based effort (1978-1982) and activism working on pre-siting, and post-siting issues, said to have contributed to transforming environmentalism (McGurty);
Based on linking environmental concerns with justice criteria (environmental justice), and with civil-rights activism (environmental civil rights);
Based on research and activism that sparked the 1982 environmental justice movement;
Based on a follow-up study by United Church of Christ, Commission for Racial Justice, concluding discriminatory siting patterns in the Southeast (environmental racism);
Based on continuous research and activism, culminating in what has become a research-based environmental justice activist model for defense of targeted communities (partly exemplified by this analysis), I along with many others believe targeted communities have the same rights stated in the Constitution of the United States and in the Declaration of Independence that non-targeted communities have, rights each of us needs to protect. Protection of unalienable rights is the first and last defense against extinction:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty, and the pursuit of happiness”:
(I) The right of Northampton County and of all targeted communities to protection of persons and properties;
(2) The right to equal protection;(3) The right to due process;
(4) The right not to be discriminated against by being segregated within dense pockets of hazardous coal ash and other harmful waste;
(5) the right not to be reduced to a condition of involuntary servitude to waste management experiments destructive to persons and properties by the use of discriminatory EPA regulatory frameworks preemptive of environmental rights and state waste management laws preemptive of civil rights. These preemptions facilitate the use of experimental technology, dishonest science, and dishonest regulatory frameworks under the guise of responsible waste management practices to destroy minority communities, working class communities, low income communities.
We can never be alienated, never separated from unalienable rights: not
by governments, laws, documents, not by EPA regulatory frameworks preempting environmental rights, not by waste management legislation, preempting civil rights; and not by rationales for selective human sacrifice, under the guise of honest technology, honest science, honest regulations,under the guise of an EPA non-hazardous coal ash classification decision.
Because we are environmentally interconnected and grounded in these rights, an attack on the rights of one of us is an attack on the rights of all of us. The defense of these rights is our first and last defense against extinction. If these rights die, we die with them. These rights are fundamental, intrinsic to our lives, to our freedom to choose.
The 19th century philosopher Immanuel Kant states that freedom to choose is the very ground of our dignity, of our infinite intrinsic worth, and that we can never be used as a means to an end without our consent (including a waste management experimental end) because unlike things that can be used as a means to an end, having utilitarian worth, we are ends in ourselves, having infinite intrinsic worth.
To the extent that we regard our unalienable rights, our core values, our standards of principle, our founding documents as relevant to some, but not to all, and not intrinsic to our very being, but as aspirational only, and not to be realized together, we will continue to live by tooth and claw survival of
the fittest environmental policies. We will continue to divide, to conquer, to destroy, because we are all of us going to make it together as an environmental community of one, or none of us is going to make it.
It’s not too soon to begin a research-based environmental justice activist response opposing the burial of coal ash in Northampton County.
Now is the time to denounce a rationale for selective human sacrifice under the guise of honest science, truth, laws, and rights, but, in fact, purely hypothetical, looking for a place to test highly speculative waste management assumptions on human life — a failed and dishonest science, a science for institutional vested interests, a survival-of-the-fittest science, demonstrating a false representation of what empirically-based predictive science and common sense are telling us — but instead, a false representation of our core values, our founding documents, our standards of principle that define fundamentally who we are and what we must stand for as a people, a nation, a world.
If we search for honest science, technology, truth, and rights, if we search for protective regulatory frameworks, if we search for the core values of America’s founding documents, for standards of principle, we will not find them in the rationale for dumping millions of tons of coal ash on Northampton County. Out with self-destructive science, out with self- destructive waste, out with dishonest science poisoning people and their states, out with self-consuming wheels of consumption and of waste, for none of this is worth the loss of Northampton County, nor of any other place.
RCRA C would be more protective than RCRA D, but presently containment systems continue to fail causing discriminatory impacts, therefore inconsistent with the aspirations and principles of environmental justice.
Anderson, Bryan. Taxpayers bear cost of cleaning up pollution. TheNews&Observer. 10 Oct. 2017. 1A+. Print..
Bradley, Lisa Jn and John N. Ward. “Coal Ash in Context: Separating Science
from Sound Bites.” Ash at Work. WRAL.com. Issue 1 2011. 14-20. www. wral. com news/state/nccapitol/ document/14292185/ Web.
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Breyer, Stephen. The Court and TheWorld: American Law and the New
Global Realities. Alfred A. Knopf. 2015. Print.
Code of Federal Regulations. Title 40. Protection of Environment. Part 261. Identification and Listing of Hazardous Waste. Subpart C.
Characteristics of hazardous waste. 261.24. Toxicity Characteristic. Web. Accessed 13 July 2018.
Comments of EarthJustice ,Environmental Integrity Project. Sierra Club; Natural Resources Defense Council; Southern Alliance for Clean Energy; Southern Environmental Law Center; Physicians for Social Responsibility; Clean Air Task Force; Kentucky Resources Council; Environmental Justice Resource Center. Environmental Protection Agency. OCRA Docket ID No. EPA-HQ-RCRA -2009-0640. 19 Nov 2010 earthjustice. org./ documents/legal-document/ earthjustice-coal-ash-comments. Web. Accessed 29 Aug 2017.
Frequent Questions about the Coal Ash Disposal Rule-EPA. Question 25. WEB. Accessed 17 Oct 2017.
Lee, G. Fred, and Anne Jones-Lee. “ A Groundwater Protection Strategy for Lined Landfills.” Environmental Science&Technology. 28: 584-5 (1994). WEB. Accessed 16 Oct. 2017.
Matanoski, Genevieve M., et al. “Radiation Exposures and Cancer: Case Study.” American Journal of Epidemiology.154.12 (2001). S91-S98.
McGurty, Eileen. Transforming Environmentalism: Warren County, PCBs, and the Origins of Environmental Justice. Rutgers. 2007. Print.
Notice of Intent to Sue. EarthJustice letter to EPA Administrator LisaJackson and U.S. Dept. of Justice Attorney General Eric Holder.January 18, 2012.
EarthJustice earth justice.org/sites/default/files/NOI_RCRA_1_18_12.pdf. Web. Accessed 23 Oct 2017.
Reis, Patrick. “EPA Backed Off Hazardous Label For Coal Ash After White House Review.” New York Times. 7 May 20. www.nytimes/
07greenwire-epa-backed-off-hazardous-label-for- col-ash-af./… Web.Accessed: 29August17.
Sanjour, William. Statement of William Sanjour, Hazardous Waste Implementation Branch. U. S. Environmental Protection Agency. Testimony before the Subcommittee on Natural Resources, Agriculture Research and Environmental Committee on Science and Technology. House of Representatives. 30 Nov1982. www.williamsanjour.name/
Congress2.htm. WEB. Accessed: 9/23/17.
Snyder, Hal, Pete Principy, and Matt Strauss. Taped interview by Deborah Ferruccio and Warren County delegation. Washington, D.C. February, 1979. Ferruccios’ Personal files.