Suite 5 Suite 408
Denver, CO 80210 Washington D.C .20002
303-722-9119 fax: 303-722-8338 202-544-6120
fax: 303-722-8338 fax:202-544-7164
March 21, 2001
The National Academies
Re: Comments on Committee membership and scope of work of the Study On Preventing Coal Waste Impoundment Failures and Breakthroughs, Project Identification Number BESR-U-01-01-A
Dear Mr. President:
On behalf of the Citizens Coal Council and Kentucky Resources Council, we are writing to express our very serious concerns regarding both the composition of the Provisional Committee and the defined scope of work for the study. We urge you to take five actions immediately to ensure that the Academy's work will be useful and credible. The Academy has a key role in studying alternatives to impoundments and preventing additional coal waste impoundment failures like the massive release of 250,000,000 gallons of slurry into the Big Sandy and Tug Fork Rivers from a coal waste impoundment owned by the Martin County Coal Company (a subsidiary of Massey Energy) on October 11, 2000.
The Citizens Coal Council is a national federation of 54 grassroots organizations located in 22 coal-producing states and the Navajo Nation. Coal mining and coal processing industries directly affect our members by damaging, degrading and even destroying their lives and property. The economic well-being of their communities suffer at the hand of mining and processing companies that flaunt the state and federal laws written to protect the public's health, safety and environment. The Council views the Academy's study as one of its highest priorities and its members intend to follow its progress closely.
The Kentucky Resources Council, Inc. is a non-profit environmental advocacy organization incorporated under the laws of the Commonwealth of Kentucky that provides legal and technical assistance on air, waste, water and land use issues to citizens in the Commonwealth. The Council membership includes individuals and organizations sharing a common concern with prudent use and conservation of the natural resources of the Commonwealth.
We ask you to take these five actions:
1. Remove from the final Committee any individuals with current client relationships to coal companies using coal waste impoundments, or who have designed or certified existing or proposed coal waste impoundments, or who work for companies that perform or have performed such coal waste impoundment work.
2. Change the committee composition to reflect a more balanced perspective on coal waste disposal technologies as directed by Congress. The committee composition is seriously flawed because it has no representatives of citizen, labor and environmental groups, and the local water authorities that service customers near coal waste impoundments.
3. Change the project description and statement of work to address in a more comprehensive manner the full range of technological, safety, environmental, legal and economic issues associated with coal waste generation and disposal.
4. Improve public notice and involvement provisions relative to the report and committee composition.
5. Suspend any further substantive work of the committee for a period of two weeks in order to adjust committee membership to eliminate any conflicts of interest and create a more balanced representation consistent with Congressional direction and to make needed clarification of the project scope.
Our specific comments follow.
I. THE PROVISIONAL COMMITTEE COMPOSITION DOES NOT REFLECT THE INTENT OF CONGRESS IN AUTHORIZING THE STUDY
The Provisional Committee composition as reflected in the National Academies website, includes four representatives of academia, one state agency official, one coal-industry attorney and seven firms that appear to have some level of involvement in consulting to the coal and other mineral industries.
This composition is a far cry from the mandate of the Congressional sponsors that the study include a broad spectrum on interests. The colloquy regarding the authorization is reprinted in its entirety below:
COAL WASTE IMPOUNDMENT STUDY CLARIFICATION
Mr. Byrd: Mr. President, conference report language has been added to H.R. 4577, the fiscal year 2001 Labor/HHS Appropriations Bill to address concerns about the safety of coal waste impoundments. A study, which is to be completed by the National Academy of Sciences (NAS) in nine months, will be funded by monies included in the Mine Safety and Health Administration's (MSHA) Fiscal Year 2001 appropriations. Because MSHA has regulatory authority for coal waste impoundment oversight, I hope that MSHA officials will play an active role throughout the course of the study. The NAS study is intended to review the coal waste impoundments and report on viable methods and alternatives to prevent another dam failure like the one that occurred in Martin County, Kentucky in October of this year.
I would like to clarify the understanding of the chairman and ranking member of the Senate Labor/HHS Appropriations subcommittee regarding this conference report language. Is it their understanding that the NAS study should involve the participation of experts to include, but not be limited to, members of relevant state and federal agencies, such as the Mine Safety and Health Administration, the Office of Surface Mining and Enforcement, the Environmental Protection Agency, as well as industry, labor, citizen and environmental groups, which have either been, or may be, impacted by impoundments in their areas?
Further, in addition to addressing how best to assure the stability of existing impoundments, is it the understanding of my distinguished colleagues that this NAS study should also address alternative methods of coal mine waste disposal and placement in the future?
Mr. SPECTER: As I, too, have had a long-running interest incoal mining and health and safety matters, I thank the Senator for his interest in this important coal matter. Yes, I believe that it is important for a range of stakeholders to be involved in the study as well as to look at both the current and future issues related to coal waste impoundments.
Mr. HARKIN: I would like to thank the Senator from West Virginia for his leadership on this subject. It is also my understanding that relevant federal, state, industry, labor, citizen and environmental parties should participate in this study so as to gain a brooder range of views and recommendations on the current problem and future solutions in order to prevent such problems as he has described from occurring again.
This intent as reflected in the final report language of the Conference Committee Report No. 106-1033 (106th Cong. 2d Sess. Dec. 15, 2000) that accompanied H.R. 4577, "MAKING OMNIBUS CONSOLIDATED AND EMERGENCY SUPPLEMENTAL APPROPRIATIONS FOR FISCAL YEAR 2001." The conferees stated:
The conferees are extremely concerned by a recentcatastrophe in Eastern Kentucky. Millions of gallons of slurry coal waste broke free from an impoundment causing considerable damage to the environment and disrupting water supply for citizens along the Big Sandy and Ohio Rivers. The conferees believe this event warrants a thorough examination of current coal waste disposal methods and an exploration of future dumping alternatives. Therefore, the conference agreement includes $2,000,000 for a contract with the National Academy of Sciences to examine engineering standards for coal waste impoundments, to provide recommendations for improving impoundment structure stabilization, and evaluate potential alternatives for future coal waste disposal, including the benefits of each alternative. The Academy shall seek the participation of representatives of relevant federal, state, and private entities, to include MSHA, OSM, EPA, Corps of Engineers, State mining authorities, and mining companies. Findings of this study shall be conveyed to the Committees on Appropriations no later than October 15, 2001.
Despite the clear indication from Congress that a broad spectrum of experts were to be solicited, we are unaware that any serious effort was made to solicit nominations from many of the groups and perspectives identified by Senators Byrd and Harkin and identified in the language of the Conference Committee Report.
While we are aware that the composition of the committee is "provisional" and that other individuals may be added based on third-party nominations, we are concerned that:
* little or no effort was expended to involve labor, citizen or environmental representatives;
* the provisional committee has already met and begun substantive work, including field tours, and
* the scope of work has already been defined (see comments concerning this point below).
We believe that any further substantive work, including finalization of the scope of study, should be suspended for a period of two weeks in order to allow for identification and nomination of expert individuals representing labor, citizens and environmental groups. We will provide names of suggested individuals for citizen and environmental interests, and we urge your staff to broadly canvass those interests rather than merely awaiting recommendations through a public comment process for which the public has been given no effective notice.
Additionally, despite Congressional concern that the study include the various agencies with oversight or permitting responsibility for waste impoundments, it is unclear whether the committee will be supported and advised by an adequate range of agency staff and perspectives.
Representatives of the federal Office of Surface Mining Reclamation and Enforcement, the state regulatory authorities under SMCRA (including Virginia, Kentucky, West Virginia), the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency and counterpart state water resources agencies with responsibility for issuance of certifications under Section 401 of the Clean Water Act, U.S. and state Fish and Wildlife Agencies, who have jurisdictional responsibility over terrestrial and aquatic resources affected by placement of coal waste and by catastrophic failures of waste impoundments, and the Soil Conservation Service, whose technical standards for a part of the regulatory framework for coal-related impoundments, should each have a liaison representative working with the Committee in a support role. Membership by such representatives on the Committee would be inappropriate since the performance of some of those agencies and the adequacy of the regulatory framework will certainly be a component of any adequate study of the regulation of coal waste impoundments.
II. CONFLICT OF INTEREST CONCERNS SHOULD PRECLUDE PARTICIPATION BY REPRESENTATIVES OF FIRMS WHOSE CLIENTS MAY INCUR FINANCIAL DETRIMENT FROM THE OUTCOME OF THE STUDY, AND THOSE FIRMS WHO HAVE DESIGNED OR CERTIFIED EXISTING COAL WASTE IMPOUNDMENTS
We understand that the National Academies, including the National Academy of Sciences, adhere to the disclosure and conflicts policy adopted on November 1, 1992 and captioned: The National Research Council Policy on Disclosure Of Personal Involvements and Other Matters Potentially Affecting Committee Service.
Utilizing the standards and criteria of that document, it appears that the potential for several of the provisional committee members to have conflicts-of-interest should be seriously explored and that additional effort should be made to solicit membership among individuals without direct and indirect conflicts.
The 1992 policy recognizes that the assurance of the integrity and public confidence in the reports and studies of the NAS/NRC makes consideration of conflicts a paramount concern. The policy identifies two areas of concern, the first being conflicts and the second, allegations of scientific misconduct.
We are unaware of any allegation or issue relating to the second matter with respect to any provisional committee member, and in fact, note that many of the members are well-known and respected members of the engineering community. With respect to the conflicts issues, however, we harbor serious reservations that individuals whose firms have direct financial ties to regulated parties who stand to lose or gain depending on study recommendations as implemented by the regulatory agencies.
The concern of the NAS/NRC policy notes that the goals are to create a committee report that is free of any significant conflict of interest and not compromised by bias. Whether the conflict in fact shades the participation of a committee member, the perception or appearance of any significant conflict of interest can undermine public confidence, as the policy recognizes. ("Conclusions by fully competent committees can be undermined by allegations of lack of objectivity, or conflict of interest, or misconduct on the part of its members.")
The "bias" and "conflict of interest" form defines bias as the taking of positions that are "largely intellectually motivated" or arise from identification with a particular individual or group. The policy notes that bias is not necessarily a disqualifier, but that a balance of potentially biasing backgrounds of professional or organizational perspectives is desirable.
The policy defines "conflict of interest" as any financial or other interest which conflicts with the service of an individual because it (1) could impair the individual's objectivity or (2) could create an unfair competitive advantage for any person or organization. The policy notes "the existence of a significant conflict of interest ordinarily disqualifies an individual from service." The policy then provides specific guidance and discussion concerning both bias and conflicts. That discussion is reprinted below in relevant part and then applied to the circumstances of the provisional committee membership. (Commenters are, of course, limited to the information provided by the NAS on the website, since the completed forms are confidential and public access thereto is not allowed).
The policy states this concerning bias and conflict:
Individual Economic Impact. Actions taken on the basis of reports or other activities of the institution may result in an economic benefit or loss to particular individuals or groups. For example, the stringency of environmental regulation in a given industry may be relaxed or tightened. Or federal research funding for a particular research discipline may be increased or decreased. The fact that an individual is part of a group that may be directly affected, thereby possibly having an indirect economic effect on the individual or on others with whom the individual is associated or related, would normally constitute a potential source of bias. But where the potential economic effect on the individual or on others with whom the individual is associated or related is substantially more direct and immediate, there may be a conflict of interest.
(a) For example, if an individual is selected to serve on acommittee conducting a broad study of proposed new scientific missions in space, the fact that the individual is a consultant or employee of an aerospace company may be a source of bias. Or if an individual is selected to serve on a committee conducting a study of research alternatives and funding priorities in a particular scientific field, the fact that the individual is a faculty member or research scientist at an institution that conducts research in that field may be a source of bias, depending upon the individual's own involvement in the field and other factors. In either example, the existence of possible bias would not ordinarily disqualify an individual from service but would be a factor to be taken into account in the overall composition of the committee.
(b) On the other hand, an individual should not participatein a study in which there is a significant possibility, based upon the nature and scope of the study, that policy recommendations or other similar advice resulting from the study would, if implemented, have a direct and substantial economic impact on the individual, on others with whom the individual is closely associated, or on any person with whom the individual has a family or marital relationship or similar close personal relationship. For example, if the institution were conducting a study of proposed modifications in the federal regulation of a particular application of biotechnology, any individual proposed for study committee membership who is a stockholder or a director of a biotechnology company would necessarily receive extra scrutiny. If an independent observer could reasonably conclude that the individual's objectivity could be compromised because the particular company involved would be likely to experience a direct and substantial change in market value if the regulatory requirements under study were changed, that individual would have a significant conflict of interest with respect to that study.
* * *
Proprietary Information. In the course of a study or other activity at the institution, an individual employed by or associated with a particular organization or enterprise should not be given access to proprietary information (e.g., trade secrets, confidential financial information, etc.) of a competitor or potential competitor unless APPROPRIATE safeguards have been established that reasonably protect the interests of all parties. Otherwise, such access may create an unfair competitive advantage, as well as possible liability for improper disclosure or use. In situations involving access to proprietary information, contact the Office of the General Counsel for guidance.
Public Statements and Positions. An individual may have become committed to a fixed position on a particular issue through public statements (e.g., testimony, speeches, interviews, etc.), through publications (e.g., articles, books, etc.), through close identification or association with the positions or perspectives of a particular group, or through other personal or professional activities. This would ordinarily constitute a potential source of bias. In extreme situations -- e.g., where the individual is currently president of a professional society that espouses the same fixed position on the issue -- the situation may constitute a conflict of interest.
* * *
Access to GovernmentInformation. The opportunity to have access to sensitive government information during the course of a study or other activity at the institution, if abused or misused, may confer an unfair competitive advantage. An individual should not participate in a study or other activity at the institution involving access to sensitive government information that is not reasonably available to the general public if the individual intends to use, or uses, such information for the individual's own direct and substantial economic benefit. The same rule applies if the individual intends to disclose, or discloses, such information (albeit not unlawfully) to other individuals or to organizations in such a manner that a direct and substantial economic benefit may be conferred on such individuals or organizations. The restrictions described above do not apply to information once it has entered the public domain. In some situations (e.g., classified information, medical records, proprietary information, certain procurement information, etc.), special limitations on access to and use of government information will be required.
Reviewing One's Own Work. It is not uncommon for individuals serving on committees engaged in particular studies to find that their own published and professional work, in common with others in the field, is part of the technical basis and literature for the committees. This ordinarily would not constitute a source of bias or conflict of interest. However, an individual should not serve as a member of a committee engaged in a study in which a critical review and evaluation of the individual's own work or that of his or her immediate employer is expected to be a central purpose of the study, but such an individual may provide relevant information to the study.
Based on the NAS/NRC conflicts policy, we believe that the National Academies should reconsider the appointment of any individuals who:
* Are employed by a firm that designed or certified any existing coal waste impoundments or has pending before any agency a proposal for construction of a coal waste impoundment;
* Are employed by or have as clients, coal companies that engage in washing coal as part of their business and who utilize coal waste impoundments for disposal.
The conflict policy notes that where the central purpose of the study will of necessity include a critical review of "one's own work" that an individual should not serve as a committee member. (". . .[A]n individual should not serve as a member of a committee engaged in a study in which a critical review and evaluation of the individual's own work or that of his or her immediate employer is expected to be a central purpose of the study, but such an individual may provide relevant information to the study.")
As noted by Senator Byrd, "[t]he NAS study is intended to review the coal waste impoundments and report on viable methods and alternatives to prevent another dam failure like the one that occurred in Martin County, Kentucky in October of this year."
The review of adequacy of existing impoundment design and geotechnical investigation is a central purpose of this study, and the expected outcome of the study is a set of recommendations that may add costs to the handling and disposal of coal wastes.
We believe that, both with respect to any individuals whose firms have certified or designed existing coal waste impoundments, or who are currently representing clients with financial interests in existing or proposed impoundments, that committee membership is not appropriate for these reasons:
* Any recommendations of the report which call for implementation of additional geotechnical investigation, monitoring or other remedial work will result in direct adverse financial impact on the individual or firms' clients, and create a "situational" conflict in which the committee member may be reluctant to propose such changes because of potential adverse effect on current clients and on future business prospects.
* The full and frank evaluation of the adequacy of existing impoundment design and adequacy of geotechnical investigations for approved waste impoundments, and of the failure mechanisms for existing impoundments from which there have been releases or failures, would be potentially constricted by the participation on the committee of those whose firms conducted those investigations or approved the design work for the existing impoundments, particularly but not limited to those impoundments that have been subject to some failure or release.
While the full extent of coal waste-related work is known only to the NAS through the executed forms, public information suggests that at least one committee member may be so situated as to make committee membership a concern under NAS guidelines. Mr. Barry Thacker, is identified as President of and principal engineer of Geo/Environmental Associates, Inc., and as formerly Vice President and principal engineer for Ogden Environmental and Energy Services from 1980 to 1995.
State and federal records indicate that the Impoundment Sealing Plan for the Big Branch Slurry Impoundment in Martin County, on which basis the state approved continued use of the impoundment after the first release of impounded material in 1994, (the impoundment whose failure was referred to by Senator Byrd as the event that motivated the study), was designed and submitted by Ogden Environmental and Energy Services in August, 1994, during which time Mr. Thacker was associated with that firm as Vice President and principal engineer. An OSM official in the Big Stone Gap office confirmed that state records reflect that Geo-Environmental Associates, Inc. played a role in design revisions to the spillway of the Lone Mountain Processing coal waste impoundment in June 1996. Ogden, in 1993, and later Geo-Environmental also were involved with some aspects of the Consol impoundment in Virginia, according to Virginia state officials.
The NAS/NRC policy recognizes that public perception of a significant conflict may undermine the credibility of a report. While we have no doubt of Mr. Thacker's professionalism, under NAS guidelines it should be determined whether his past and current employers' work on impoundment design makes his involvement as a committee member inappropriate because of the public perception of a conflict.
Similarly, to the extent that any other members of the committee fit within the two categories identified above, we believe that NAS guidelines compel the conclusion that they should be replaced on the committee and asked instead to provide input through the public involvement process instead, in order to avoid public concerns about the adequacy of the study and recommendations. Consistent with the recommendation regarding the suspending of further meetings pending adjustments in committee membership, any provisional committee members with conflicts should be replaced within two weeks in order that the report can commence with a panel that is as free from conflicts as the NAS guidelines demand, and as broadly inclusive as Congress directed.
III. THE STUDY SCOPE SHOULD BE REEVALUATED
The NAS website indicates that the Project Scope is
The "Statement of Task" proceeds to outline a series of specific questions, almost all of which are focused on improving the use of coal waste impoundments as the disposal method for coal processing wastes.
The list of issues and questions does not adequately identify these issues, which are central to any comprehensive study of coal waste disposal:
What are the requirements of the various laws and regulations concerning the location, site investigation, structure design, bonding, closure and reclamation? How are those laws and regulations implemented?
Are those requirements adequately implemented, coordinated, monitored, enforced and understood by regulated entities and the regulators?
What are the availability technologies for disposal of coal mine waste, and what are the full range of costs (including natural resources costs) associated with deployment of these technologies?
What represents the best available technology for coal waste processing and disposal?
What do existing laws and regulations provide, and what do agencies require, concerning geotechnical investigation of coal waste impoundments for subsidence and earthquake hazard, and what changes, if any, should be made?
How should the risks of releases and catastrophic failure be incorporated into the review, approval and insuring of the performance of coal waste impoundments?
There are many other questions that a comprehensiveassessment of coal waste impoundment failures and breakthroughs should evaluate in order to effectuate Congressional intent that "in addition to addressing how best to assure the stability of existing impoundments, . . . this NAS study should also address alternative methods of coal mine waste disposal and placement in the future[.]"
IV. FURTHER SUBSTANTIVE WORK BY THE COMMITTEE SHOULD BE SUSPENDED PENDING FINAL APPROVAL OF ACOMMITTEE BETTER REFLECTING CONGRESSIONAL INTENT AND NAS GUIDELINES
A final concern is that the Provisional Committee appears to have begun substantive work prior to the finalization of the committee composition. A field trip and the soliciting of "Industry's perspectives" was undertaken during a meeting that occurred in Lexington, Kentucky last weekend.
As suggested above, further meetings of the committee should be suspended for a period of two weeks pending adjustments to the committee makeup and study scope.
V. PUBLIC NOTICE PROCEDURES APPEAR INADEQUATE
Given the high degree of public concern with waste impoundment safety, we were troubled to find that neither the media nor organizations with a long-standing and highly-visible concern with coal waste impoundment stability, received any notice of the appointment of the provisional committee, the ability to provide feedback and the limited time period in which to do so, and the initial committee meetings.
Posting matters on the website does little good for the public unless they have some notice that they should visit the website to obtain the information.
We would suggest that the minutes of all meetings be posted, that public notice be given to all media outlets in coal states and that a mailing list be established so that persons could request to receive all committee-related correspondence, minutes and notices.
Disposal of coal processing waste in slurry impoundments has been controversial since the collapse of the Buffalo Creek impoundment. The catastrophic failure of the Ages impoundment, and the releases in Virginia and Kentucky, have caused periodic evaluation of a technology which is chosen not because it is the best available technology, but because it is cheapest in the short-term.
The coal industry has always been a "bottom-line" industry, and to the extent that this study demands an improvement in current waste disposal practices, it will be controversial.
It is essential that the public have a highdegree of confidence that both the committee composition and project scope have been structured to assure that the investigation will be a full, fair, thorough and uncompromising assessment of the use of coal waste impoundments and other technologies for disposal of coal processing and underground development wastes.
Thank you for your attention to these comments.
Carolyn Johnson, Staff Director
Citizens Coal Council
Tom FitzGerald, Director
Kentucky Resources Council, Inc.
cc: The Honorable Robert C. Byrd
The Honorable Tom Harkin
The Honorable Arlen Specter
The Honorable Nick Rahall
The Honorable Harold Rogers