Tom FitzGerald Kentucky Resources Council, Inc. Frankfort, Kentucky
Before the National Academy of Sciences Committee On Mine Placement Of Coal Combustion Wastes Harrisburg, Pennsylvania April 19, 2005
Coal combustion wastes are being backhauled and disposed, or “beneficially reused,” in mine workings (including both underground mine voids and more commonly, in surface mine backfills or spoil/mine waste fills) not because of the inherently beneficial or desirable attributes of the wastes relative to other backfill materials, or the lack of alternative locations available to utilities and non-utility customers for coal combustion waste disposal. Rather, such use and disposal is occurring largely because the coal companies offer the backhauling and disposal as a "service" or incentive in order to attract buyers for their coal in an increasingly competitive marketplace.
Absent federal intervention to establish appropriate regulatory benchmarks for characterization and management of the wastes based on their intended end use or disposal, the competitive forces of the coal and electric utility marketplace will continue to result in a parochial failure of the individual states to effectively control the disposal of CCW, and will increase pressure on coal companies to remain "competitive" with each other, and with other coalfields across the nation, by offering the ultimate "out of sight, out of mind" solution to the generation of the coal combustion waste – indiscriminate blending in mine backfill or disposal in active or abandoned mine workings or pits.
What is known concerning the potential toxicity of the leachate from coal combustion ash suggests that a general federal floor of management standards is needed, particularly when considering disposal or use of such wastes in the highly fractured, geologically disturbed and hydrologically transmissive environment of active or abandoned mine workings.
The 1988 EPA determination that coal combustion wastes need not be regulated under RCRA Subpart C as hazardous, was predicated on the assumption that mitigative measures under RCRA Subpart D such as installation of liners, leachate collection systems, and ground-water monitoring systems and corrective action to clean up ground-water contamination, would be employed for protecting public health and the environment. The failure of EPA to require such measures has harmed both. OSM's authority under SMCRA is not sufficient, standing alone, to assure proper management of coal mine co-disposal, and was never intended by Congress to supplant EPA's primary and non-delegable responsibility under RCRA to assure proper management of such wastes. As improvements continue to be achieved in both pre- and post-combustion scrubbing and capture of particulates and metals, we will of necessity change the composition and increase the potential toxicity of the wastes and leachate.
The proper management of CCW is essential for protection of human health and the environment. Adequate and comprehensive safeguards will prevent trafficking in environmental contamination by removing the incentive for those more interested in currying market share and short-term economic gain rather than the long-term public interest to undermanage the wastes. Adoption of a program of uniform, comprehensive and appropriate minimum standards for the characterization and management of coal combustion wastes for reuse and disposal is the best way to improve the beneficial utilization of CCW.
I appreciate this opportunity to present in written form the comments and concerns of the Kentucky Resources Council, Inc. concerning the use or disposal of coal combustion wastes (CCW) at surface coal mining operations.
As I understand the Project Scope, the National Research Council accepted a request from Congress to study the health, safety, and environmental risks associated with using coal combustion wastes for reclamation in active and abandoned coal mines. As defined by the National Academy of Sciences, the study is reviewing the placement in abandoned and active, surface and underground coal mines in all major coal basins, and has defined several specific questions and areas of focus, including:
1. The adequacy of data collection from surface water and ground water monitoring points established at CCW sites in mines.
2. The impacts of aquatic life in streams draining CCW placement areas and the wetlands, lakes, and rivers receiving these drainage.
3. The responses of mine operators and regulators to adverse or unintended impacts such as the contamination of ground water and pollution of surface waters.
4. Whether CCWs and the mines they are being put in are adequately characterized for such placement to ensure that monitoring programs are effective and groundwater and surface waters are not degraded.
5. Whether there are clear performance standards set and regularly assessed for projects that use CCW for "beneficial purposes" in mines.
6. The status of isolation requirements and whether they are needed.
7. The adequacy of monitoring programs including:
a. The status of long-term monitoring and the need for this monitoring after CCW is placed in abandoned mines and active mines when placement is completed and bonds released;
b. Whether monitoring is occurring from enough locations;
c. Whether monitoring occurs for relevant constituents in CCW as determined by characterization of the CCW; and
d. Whether there are clear, enforceable corrective actions standards regularly required in the monitoring.
8. The ability of mines receiving large amounts of CCW to achieve economically productive post mine land uses.
9. The need for upgraded bonding or other mechanisms to assure that adequate resources area available for adequate periods to perform monitoring and address impacts after CCW placement or disposal operations are completed in coal mines.
10. The provisions for public involvement in these questions at the permitting and policy-making levels and any results of that involvement.
11. Evaluate the risks associated with contamination of water supplies and the environment from the disposal or placement of coal combustion wastes in coal mines in the context of the requirements for protection of those resources by RCRA and SMCRA.
My comments focus on the relationship between the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and RCRA relative to the placement of CCW on mine sites, and the inadequacy of a regulatory strategy that places primary reliance on the performance standards, permitting and bonding provisions of SMCRA to assure proper management of CCW rather than developing national minimum standards under RCRA for characterization and management of waste ashes generated by the combustion of coal and the capture of uncombusted particulate fractions of that fossil fuel.
Prior to addressing these concerns, let me first explain my background and perspective.
Background & Qualifications
I am Director of a nonprofit environmental advocacy organization, the Kentucky Resources Council, which has for 21 years provided legal and technical assistance without charge to low-income individuals and communities on air, waste, water, and resource extraction issues. I am a practicing attorney licensed in the Commonwealth of Kentucky, holding a Juris Doctor degree from the University of Kentucky, College of Law, and have held numerous appointments on state and national environmental advisory panels. My vitae is attached.
Since 1985 I have been an adjunct professor of energy and environmental law at the University of Louisville, Brandeis School of Law, and have authored numerous articles on the citizen perspective of environmental issues related to coal mining and reclamation.
My perspective has been forged from 31 years of mining-related advocacy on behalf of communities and injured homeowners; 25 of them as an attorney representing injured parties in a number of coal waste-related cases. KRC’s work can be summed up in one sentence - in mining and coal waste disposal matters, KRC represents people living downhill, downwind and downstream – those who bear disproportionately the off-budget costs of undermanagement of the disturbances associated with surface and underground coal removal and disposal or other use of wastes generated by combustion of the coal.
The charge to this Committee is an important one from the perspective of landowners who live downhill and downstream of mining operations, and for those who have leased land for surface coal mining operations or on whose land mining has taken place. Those citizens rely on federal and state regulatory agencies to assure that the impacts of mining will be minimized, and that their interests in healthy air, uncontaminated land, and water quality and supply, will be respected in the development of those mineral resources and reclamation of areas disturbed.
The legacy of coal extraction, beneficiation, utilization and waste disposal in the coalfields has not been one that inspires confidence in the capacity of the coal industry to self-police, or in the efficacy of state-lead programs and federal “guidelines” which fail to establish mandatory benchmark “floor” standards for management of coal-related wastes. With respect to CCWs and other “special wastes,” the failure of the Environmental Protection Agency to establish national regulations has lead to adverse public health and environmental consequence, and to sort of economic “one-downsmanship” that characterized the political climate of the coal states prior to adoption of SMCRA.
The lack of such standards has also, across the nation, engendered a reluctance on the part of host communities to accept the additional burdens of disposal or “placement” of CCW on active or abandoned mines.
A central tenet of the Surface Coal Mining and Reclamation Act of 1977 was the principle that mining was to be a “temporary” use of land, and that the reclamation and restoration of land to pre-mining status or to other beneficial post-mining land uses of higher or better value, was to be achieved. SMCRA, while addressing the placement and disposal of wastes generated by the mining and beneficiation of coal, was never intended to be a primary tool for management of wastes resulting from combustion of that material, and Congress explicitly preserved the authority and concomitant duty of USEPA to do so under RCRA.
At the core of RCRA’s mandate is the concern of Congress that wastes be managed from generation through disposal, with appropriate characterization of the waste, proper handling an management consistent with the potential for harm to human health and the environment, and that the waste be managed in a manner commensurate with the nature and duration of the potential to cause harm.
The failure of USEPA to have acted to fulfill the commitment to manage CCW through adoption of appropriate regulations under RCRA, has led to a hodgepodge of state laws and regulatory approaches to disposal of such wastes. Additionally, the disparity between state regulations governing the “disposal” of such wastes in landfills, and the allowance of “beneficial reuse” in which the same wastes are dispersed uncontrolled in mine backfill under the aegis of enhancing reclamation, is as marked as it is reckless, given the capacity of the wastes to release into the environment constituents of concern long after the site will be monitored and the obligation to take corrective action for off-site contamination extinguished.
The Case For National Standards
Sufficient evidence of instances of contamination from undermanagement of coal combustion wastes to warrant the development of national minimum standards concerning the characterization, storage, disposal and reuse of these wastes. Specifically, and of particular interest to this panel, the evidence is sufficient to justify an immediate nationwide moratorium on further co-disposal of coal combustion wastes in mine voids and pits until the United States Environmental Protection Agency and federal Office of Surface Mining develop national minimum standards governing the co-disposal of such wastes in mine voids and backfill.
What is known concerning the potential toxicity of the leachate from coal combustion ash suggests that a federal floor of management standards is needed.
It is a myth of dangerous proportion to suggest that there is no potential public health and environmental impact of improper management of coal combustion wastes because the wastes are not classified as “hazardous.” The 1988 US Environmental Protection Agency Report to Congress concerning coal combustion wastes acknowledged the existence of potential for causing groundwater contamination among and within the categories of coal combustion waste. According to the Wastes from the Combustion of Coal by Electric Utility Power Plants, EPA/530-SW-88-002:
The primary concern regarding the disposal of wastes from coal-fired power plants is the potential for waste leachate to cause ground-water contamination. Although most of the materials found in these wastes do not cause much concern (for example, over 95 percent of ash is composed of oxides of silicon, aluminum, iron and calcium), small quantities of other constituents that could potentially damage human health and the environment may also be present. These constituents include arsenic, barium, cadmium, chromium, lead, mercury and selenium. At certain concentrations these elements have toxic effects. Id., at ES-4.
While the findings of the EPA Report and review of industry-generated studies indicated generally that metals did not leach out of coal combustion waste at levels 100x the primary drinking water standard (i.e. characteristically hazardous by TCLP toxicity), hazardous levels of cadmium and arsenic were found in ash and sludge samples, and boiler cleaning wastes sometimes contained hazardous levels of chromium and lead. Id.
The literature suggests that, among other things,
l. Neither EP nor TCLP tests provide a good indication of leachability of CCW in natural disposal settings. Long-term leaching tests conducted until equilibrium has been achieved for each element of concern, using a leaching solution that approximated percolating groundwater, would give a more accurate depiction of ground-water contamination potential at a disposal site.
2. l7 potentially toxic elements are commonly present in CCW: aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chromium, copper, lead, manganese, mercury, molybdenum, nickel, selenium, vanadium, and zinc.
3. Fluidized bed combustion (FBC) wastes retain volatile and semi-volatile elements in the bottom ash to a greater extent than conventional pulverized coal combustion, thus enhancing the leachability of FBC waste elements.
4. Leachates from coal power plant ash and flue gas desulfurization wastes typically exceed drinking water standards, but by a factor less than hazardous levels (i.e. 100 x DWS). The major leaching studies on CCW indicate that drinking water standards are typically exceeded by CCW ash leachate at a factor of 1.1 to 10, and often by a factor greater than 10 for one or more elements.
Other reports indicate a concern with enhanced levels of radionuclides in coal combustion fly ash, including radium-226 and other daughters of the uranium and thorium series that pose significant long-term management challenges.
The available evidence suggests that disposal of coal combustion wastes in mine pits or other workings may be of particular concern, due to a number of factors: 1. The increase in surface area available for leaching of elements resulting from fracturing of overburden and confining layers;
2. Higher total dissolved solids levels in mine spoils that compete for sorption sites on solids with toxic elements released from the buried ash;
3. Direct communication between surface and underground mine workings and aquifers through stress-relief fracture systems and subsidence-induced fracture flow;
4. The dependence of residents of coal-bearing regions on private, groundwater supplies and the significant potential for contamination of those supplies; and
5. The presence of site conditions conducive to creation of acid or toxic-forming material that can solubilize constituents of concern from the waste.
In choosing the appropriate regulatory endpoint for assertion of jurisdiction over the disposal of these wastes in mine workings, the goal should be not be whether the waste leaches at 100 times the drinking water standards (which is the relevant TCLP characteristic of the wastes' "hazard"), but should be whether, if improperly managed or undermanaged, the wastes will leach constituents of health concern into groundwater at above the maximum contaminant level goals. Since the evidence shows that such leaching does occur, intervention to assure proper siting, construction, and use of barrier technology to prevent the wastes from contacting groundwater or rainfall percolation is needed.
The 1988 EPA Report concluded preliminarily that coal combustion waste need not be regulated under RCRA Subpart C as hazardous, but rather that the wastes should continue to be regulated under Subpart D as solid wastes. This conclusion rested on the assumption that mitigative measures under Subpart D such as installation of liners, leachate collection systems, and ground-water monitoring systems and corrective action to clean up ground-water contamination, would be adequate for protecting public health and the environment. The EPA recommendation was predicated on the application of such measures to the management of coal combustion wastes. Unfortunately, such measures are not being employed universally among the states.
Information developed by the Hoosier Environmental Council demonstrates the wide variability among states in the caliber of the management programs for coal combustion wastes disposed of at mine sites. States may have the capacity, but apparently lack the political will, to properly regulate these wastes.
The uneven and inadequate state regulation of disposal of coal combustion wastes at mine sites is evident. The coal combustion waste stream, having been accorded by many states a legal status that is "neither fish nor fowl," neither solid nor hazardous waste but instead "special waste," has been subject to disposal without protections appropriate to the potential toxicity of the waste and the potential problems from improper management. The failures regarding management of these wastes include a failure to require adequate background characterization of geologic and hydrogeologic conditions relative to the disposal of these wastes, and the haphazard characterization of the toxicity, fate and transport of these wastes under proposed disposal conditions, leading to disposal without adequate precautions against future pollution. In some states, CCW is being placed indiscriminately in unlined backfills of coal mining operations in direct communication with groundwaters, and without proper characterization, isolation, management, closure, financial responsibility, monitoring and post-closure corrective action requirements attendant to such wastes. These failures are the direct and predictable result, the bitter fruit, of the failure of OSM and USEPA to establish a federal "floor" of regulation of coal combustion wastes Does the co-disposal of coal combustion wastes in mining areas present heightened risks of contamination of groundwater and injury to public health that warrant adoption by USEPA of specific standards governing such practices? We believe clearly that it does. The evidence of groundwater contamination from disposal of coal combustion wastes in situations comparable to the dumping of such wastes in mine backfill, is more than sufficient to warrant federal involvement in establishing baseline standards for coal combustion waste disposal in mining sites and for “beneficial reuse” of such wastes.
The lack of federal standards has resulted in uneven standard-setting among the states; a regulatory "one-downsmanship" in which states are unwilling to establish stronger standards that might disadvantage their coal industry relative to those standards of other states. This destructive interstate competition in environmental degradation has long been acknowledged as a problem among the coal states, particularly in those areas of the east, midwest and west where the coalfields span a number of states. Congress enacted a national regulatory program over coal mining operations including federal minimum performance and design standards, federal oversight and a federal enforcement component precisely because of the inability of the states to overcome this problem:
For a number of predictable reasons - including insufficient funding and the tendency for State agencies to be protective of local industry – State enforcement has in the past, often fallen short of the vigor necessary to assure adequate protection of the environment.
House of Representatives Report 95-218, 95th Cong., 1st Sess. 129 (1977).
In the absence of federal action, combustion wastes are being undermanaged, and the harms intended to be avoided by Congress are becoming manifest. KRC urges the panel to recommend that USEPA cease dithering and adopt a comprehensive regulatory program governing management (including “beneficial reuse” and “disposal”) of CCW. Both USEPA and OSM have flirted with the concept of deferring any regulatory action in light of OSM’s regulatory authority. While SMCRA may provide supplemental authority to regulate the potential adverse consequences of CCW disposal/use at minesites, SMCRA was never intended nor is it structured to be the primary mechanism for assuring that CCW is properly managed.
USEPA SHOULD LIVE UP TO ITS COMMITMENT TO REGULATE CCW THROUGH NATIONAL REGULATIONS RATHER THAN GUIDANCE
USEPA must cease its flirtation with issuing guidance and instead assert regulatory authority over the disposal of coal combustion wastes and over beneficial reuse of such wastes, developing minimum standards for the states to adopt in order to level the playing field. The USEPA must take the lead since it, and not OSM, is the appropriate agency to develop national minimum standards and assure state implementation of standards for disposal and other land application of coal combustion wastes in mine pits and backfill sufficient to protect human health and the environment.
Guidelines at the national level rather than regulations are not a sufficient or appropriate solution. The failure of EPA to complete the commitment to promulgate regulations establishing minimum standards for coal combustion waste disposal, including "beneficial" uses of coal combustion wastes and the disposal of coal combustion wastes at mine sites, and the proposal to instead issue "guidance" raises a number of regulatory and environmental concerns.
First, as noted earlier, the lack of federal minimum standards results in uneven state standards and under-regulation of wastes that typically exceed drinking water standards for a number of metals. Kentucky, for example, has more rigorous standard for mine filling than many other states, but extremely weak controls on beneficial reuse and disposal in "ash ponds." The lack of federal minimum standards has and will continue to result in one-downsmanship and a "race to the bottom" among the coal states, as companies desirous of securing market share from the purchaser of the lion's share of their output, the utility industry, offer to backhaul and dispose of coal combustion wastes as a package deal;
Second, issuance of national guidance is insufficient to assure proper management of these wastes, since some 23 states have a version of "no more stringent" provisions in their laws that would restrict or preclude those states’ agencies from asserting regulatory authority over use or disposal of the wastes by incorporating federal guidance. Those states are typically limited to adoption and imposition of counterpart state rules based only on those standards that have been adopted by regulation at the federal level. Also, some states cannot under state law impose substantive requirements based on "policies."
Third, the lack of minimum standards penalizes those coal-firing utilities who manage their own wastes under higher standards relative to other companies who allow disposal of coal wastes by the coal industry either for "beneficial" uses or as mine fill without concern for long-term contamination. As coal companies seek to improve market share by offering to backhaul wastes resulting from coal combustion, the lack of standards encourages corner-cutting in management of the wastes.
Fourth, the lack of standards heightens conflicts between host communities and the utility and coal industries due to concerns with under-regulation of the coal combustion wastes relative to their potential to leach metals and other constituents at levels posing environmental or health risks.
Finally, the failure of USEPA to assert federal leadership in establishing up-front baseline standards for management of the disposal of coal combustion wastes invites significant judicial intrusion into the field after the fact, and implicates the disposers, transporters and generators in a web of liability under CERCLA and RCRA that is as open-ended as are the state management programs themselves. The uneven and inadequate state regulation of disposal of coal combustion wastes, including a failure of states to require adequate background characterization of geologic and hydrogeologic conditions relative to the disposal of these wastes, and the haphazard analysis of the fate and transport of these wastes under proposed disposal and "reuse" conditions, is the inevitable and predictable product of the failure of USEPA to establish a federal “floor” of regulation of coal combustion wastes.
The crux of the problem is that the short-term interests of those that are managing or disposing of the wastes are not consistent with the long term interests of either the host communities or the generators of these materials.
THE ROLES OF USEPA AND OSM
With respect to disposal of coal combustion wastes in mining areas, KRC believes that SMCRA is not the appropriate vehicle for primary management of co-disposal at coal mines. OSM's authority under SMCRA is not sufficient, standing alone, to assure proper management of coal mine co-disposal, and was never intended by Congress to supplant EPA's primary and non-delegable responsibility under RCRA to assure proper management of such wastes.
As noted earlier, disposal of coal combustion wastes is of particular concern at coal mines. Coal combustion wastes containing leachable metals at levels well above accepted drinking water standards for safe potability of water, yet are in some states being placed in unlined backfills of coal mining operations in direct communication with groundwaters, and without proper characterization, isolation, management, closure, financial responsibility, monitoring and post-closure corrective action requirements attendant to such wastes. The information concerning the leaching potential of these wastes, the vulnerability of coalfield groundwater resources, and the documented cases of damage are sufficient to warrant immediate action by USEPA to control such wastes where co-disposed in coal mines.
It must be understood by the Committee that the "driver" concerning the disposal of coal combustion wastes backhauled and disposed of in mine workings (including both underground mine voids and more commonly, in surface mine backfills or spoil/mine waste fills) is not the inherently preferential beneficial attributes of the wastes relative to other backfill materials, or the lack of alternative locations available to utilities and non-utility customers for coal combustion waste disposal. The primary “drivers” are certain companies within the coal industry seeking to improve their relative contractual position with utilities by offering backhauling and disposal as a “service” or incentive in order to attract buyers for their coal in an increasingly competitive marketplace.
The Surface Mining Control and Reclamation Act of 1977 is not the appropriate vehicle to regulate coal combustion wastes. SMCRA was neither intended nor designed to address the use and disposal of these wastes. A number of potential conflicts with the core provisions of SMCRA are created in any proposal for disposal of CCW at a minesite:
* Since all spoil material generated by a mining operation must be returned to the mine site in order to restore the mined area to the “approximate original contour” and to minimize off-site placement of “excess” mine spoil, no CCW could lawfully be placed in a location where it would displace spoil and cause more material to be disposed of in a hollow fill. Since disturbance of the strata overlying coal seams results in a typical “swell” of 15-25%, addition of CCW to the active works likely displaces spoil and violates this mandate.
* The requirement for contemporaneous reclamation of mined areas is offended by any delay in reclamation associated with disposal of coal combustion wastes in active mining and reclamation areas. The essence of SMCRA is that mining is to be a temporary use of land, not a permanent dedication of land for waste disposal, and the requirement of contemporaneous reclamation is intended to effectuate the mandate that backfilling, grading, and revegetation follow coal removal promptly.
* Blending of coal combustion wastes in backfill without proper barriers to prevent migration to groundwater and to prevent saturation of the waste from infiltration of rainfall or groundwater, would violate provisions of the SMCRA which require protection of the hydrologic balance and prevention of off-site damage, and which specifically demand isolation of acid- or toxic-forming materials from surface or groundwater.
* Right of entry and other approvals and waivers under the mining laws are intended to authorize specific coal extraction-related activities, and do not extend to include the backhauling and dumping or blending of wastes generated from combustion of the removed coal. Issues concerning right-of-entry and responsibility for contamination could be complex since SMCRA's enforcement, insurance, bonding and right-of-entry provisions are focused on mining regulation. Disposal of coal combustion waste on a mine site, where a part of a surface coal mining operation, would need to be subject to all of the procedural protections, including demonstration of the right to enter and conduct such disposal activit