KRC Director Tom FitzGerald presented testimony on behalf of the adjacent downhill neighbors, the Fergusons, in opposition to the request by C.V. Bennett of Cumberland Elkhorn Coal and Coke to dispose of the coal fly and bottom ash at the site under a "beneficial reuse" exemption to state solid waste laws. An application is pending before the state, which has issued a notice of deficiency requesting much more information concerning the site.
After taking testimony from the applicant, a local resident and opposition leader, FitzGerald and local attorney John Spainhour, the applicant requested to withdraw the application and by unaminous vote the Board of Adjustment approved the withdrawal.
The case highlights the importance of local planning and zoning in combatting incompatible land uses, and the need to reform state laws to strengthen controls over "beneficial reuse" of coal combustion wastes and to narrow exemptions from solid waste laws for such wastes, which typically leach one or more metals at levels above drinking water standards.
KRCs comments are attached, for your information.
May 8, 2003
Before the Bullitt County Board of Adjustment
Statement of Tom FitzGerald, Esq.
On Behalf of Mary Renn and her family
May 8, 2003
Good afternoon. My name is Tom FitzGerald, and I am Director of and counsel to the Kentucky Resources Council, Inc., a non-profit environmental advocacy organization providing legal and technical assistance on environmental issues across the Commonwealth. The KRC address is 213 St. Clair Street, Suite 200, Frankfort, Kentucky 40601.
I am here on behalf of Mary Renn and her family, who own an adjoining farmstead to the property purchased by Mr. Bennett, through "Bennett Farms," to oppose the requested conditional use permit to allow the disposal of American Synthetic Rubber Corporation's coal combustion wastes on the property. Ms. Renn and her family oppose issuance of the requested conditional use permit, and requests that you reject the proposal as it stands.
Section 7.302 of the county zoning regulations authorizes the Board to approve, modify or deny an application for a conditional use permit, or CUP. A CUP is a mechanism to "allow the proper integration into the community of uses which are specifically named in the zoning regulations which may be suitable only in specific locations in the zone and only if certain conditions are met."
At this time, the applicant has not provided sufficient information to demonstrate to this Board and its neighbors that this proposed use is suitable and appropriate, and can be under any conditions made compatible with and integrated into the surrounding community in a manner that protects the use and enjoyment of those other lands.
Before addressing the specific areas in which the application fails to provide adequate assurances, it is important that you have a more full picture of the waste material that is being handled and proposed for disposal here.
The waste stream, coal combustion ash from the American Synthetic Rubber Corporation, is an industrial waste resulting from the combustion of coal.
While it is true that, under carefully engineered and properly controlled circumstances, coal combustion wastes may be beneficially used for a range of applications, it is equally the case that without proper engineering and careful controls, including thorough characterization of the waste and its chemical, biological, radiological and physical characteristics and leaching potential; thorough assessment of the hydrology and geology of the proposed disposal site so that the surface and groundwater regimes are understood and the probable hydrologic consequences of the land disposal can be predicted and impacts avoided or mitigated; a comprehensive plan for avoiding airborne releases of coal combustion wastes; and long-term groundwater and surface water monitoring to assure protection of the surface and groundwater resources, disposal of such wastes in an manner such as that proposed here can result and in documented cases has resulted in environmental degradation and long-term damage to land and water resources.
It must be understood that these coal combustion wastes are an industrial waste product which, unless approved for a beneficial reuse by the state, must be disposed of in a lined solid waste landfill with an impermeable cap, leachate collection and treatment, groundwater and surface water monitoring, liability insurance, a performance bond, a background check on all persons owning or operating the site, thirty-years of post closure monitoring and an obligation to perform corrective action if off-site contamination occurs. It is my understanding that this waste stream is currently being disposed of at the WMK landfill.
A waving of the wand of "beneficial reuse" over the waste does not change its chemical, physical and radiological composition, and this Board needs much more information both about the waste and about the site in order to determine if, and under what conditions, this proposed use could be made compatible with the zoning and surrounding land uses.
INTRODUCTION TO CCW
It is important to understand that coal combustion wastes (CCW) are not inert wastes. The wastes include impurities from the coal combustion process, particularly metals that are sorbed to the ash and either collected through pollution control devices as "fly ash", or which fall through grates as "bottom ash". Fly ash tends to contain more of the metals and other compounds of concern than bottom ash, and the specific composition of the ash depends on variables such as the composition of the raw coal, and the combustion and post-combustion conditions.
The 1988 US. Environmental Protection Agency Report to Congress concerning coal combustion wastes (including fly ash, bottom ash, boiler slag and flue gas emission control wastes) acknowledged that there is a range of toxicity and potential for causing groundwater contamination among and within the categories of coal combustion waste. According to the EPA Report 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 (CCW) at hazardous levels, 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.
While acknowledging that coal combustion wastes (fly ash and scrubber sludge) do not usually exhibit sufficiently high toxic properties to be classified as hazardous based on TCLP toxicity, a 1991 study of CCW in Indiana indicated that CCW does contain high enough concentrations of leachable toxic elements to create significant environmental concern. Boulding, J. Russell, Disposal of Coal Combustion Waste in Indiana: An Analysis of Technical and Regulatory Issues (1991).
Among the significant findings of this report, which was based on extensive literature review and analysis of coals burned in Indiana utilities (including Kentucky coals), were:
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.
In sum, the EPA Report and Boulding study indicate that the management of these wastes must be attuned to the variability of the concentrations of potentially toxic elements in the waste, and to the different problems presented by disposal sites, and by the type of coal waste.
In a nation where much of the CCW wastes are disposed of in areas where there is no public water supply, the regulatory endpoint of concern for groundwater contamination (and thus for EPA regulatory intervention in the management of CCW) should 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 the wastes may leach into groundwater at above the drinking water standards themselves. 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 EPA Report concluded preliminarily that CCW 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. In so recommending, EPA determined that while field observations detected off-site migration of potentially hazardous constituents from utility waste disposal sites, reflecting a potentially larger problem than laboratory analyses would suggest, the use of 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 CCW. Id. at ES 4-
The Bennett Farm Proposal
Turning to the specific proposal, the proposal that has been submitted lacks sufficient assurances that the interests of the public and of neighbors will be protected from the potential adverse effects of the proposed activity.
First, it is appropriate that the Board understand what is the driver here.
It is not that this particular property is uniquely appropriate for disposal of coal combustion wastes. Nor is it that there is something inherently valuable about this material that would make this proposed use appropriate to elevate the land in an agricultural zone for pasturage purposes?
The "rest of the story," as Paul Harvey would say, as best I have been able to piece it together, is that this project is being driven by a need to get rid of this waste material. Mr. Bennett, through one of his companies bid on the contract to dispose of the American Synthetic Rubber Corporation's coal combustion waste, and succeeded in winning the contract.
Formerly, the waste was disposed of in the Louisville Underground cavern in Louisville, where it was blended with clay under controlled conditions, isolated from water, and used to increase the floor height of the former caverns in order to support development of a document storage site.
As I can best piece together the sequence of events, the waste stream briefly ended up on a piece of land on the river side of the Ohio River floodwall, under a proposal to use the material for block construction. That project has apparently fallen through and the state is considering whether to take enforcement action to require removal of the stored material from that site.
The waste material is currently being disposed of in a lined solid waste landfill at the Outer Loop WMK facility. The driving force here appears to be a need to find a place to get rid of this material.
The questions that need to be answered by this Board, in order to determine whether and under what conditions this proposed disposal of coal combustion wastes should be allowed, require careful consideration of the nature of the material, its' potential for adverse effects, and whether it is suitable for the proposed use.
In order to answer that, much more information is needed.
In reviewing the application, there is a dearth of detail concerning the management of this waste material.
* The information provided concerning the beneficial reuse of the East Kentucky Power Cooperative coal ash waste in Clark County has no relevance to whether ASRC's waste is appropriate for disposal here.
I have known Bob Hughes at EKPC for many years, and called him today to ask about the material used in those projects. He indicated that it was somewhat of a unique situation, since the ash used had already been managed in an ash pond, in which water had been circulated through the ash for as much, in some cases, as 30 years, so that any metals and other pollutants of concern had already been "washed" from the ash.
The East Kentucky Power Cooperative Clark County information has bearing on this case in only one way to highlight that each waste stream must be carefully evaluated based on specific information and testing. The chemical composition of the ash depends on the levels of impurities in the raw coal, the manner in which the coal is prepared and combusted, and the manner in which it is subsequently managed and disposed.
* It is proposed that the waste will be blended with a mixture of soil and lime and used for pasturage. The consistency of a proposed agricultural use with the existing scientific literature must be demonstrated in light of EPA's Report to Congress in 1999 that due to levels of arsenic, beneficial reuse of coal wastes for agricultural uses was of potential health and environmental concern. There has been no demonstration of the suitability, both in pH and other elements, and in structure, as a growth medium for pasturage.
* Much more information is needed concerning the chemical, physical and radiological composition of the coal ash waste. While some testing results have been provided, those tests may not be indicative of the leaching potential of the waste-lime-soil mixture in situ. As noted by the Boulding Report, a short-term TCLP, intended to reflect landfill conditions in a dilute acid environment, may not be representative of long-term impacts in an alkaline environment.
The sampling that was provided indicates that it was of "wastewater" rather than a TCLP analysis of the material itself. There is no chain of custody documentation provided concerning who took the samples and who managed them.
There does not appear to have been any radiological testing for the possible presence of radionuclides. As reflected in an article from an Oak Ridge researcher, included in your packet, radionuclides are present in the raw coal and are liberated during combustion, exiting in exhaust gases. It is reasonable to assume that a fraction of those radionuclides are sorbed to the fly ash.
In order to properly design for disposal of coal combustion waste, the full extent of the characteristics of the waste must be known, and the leachate potential must be established by use of appropriate modeling of the disposal site, the amount of rainfall infiltration, the pH of the waste and associated materials through which the rainfall will pass, and a hydrogeologic investigation into the location, extent, and characteristics of the surface and groundwater systems at the site.
* There is scant information provided concerning the erosion and sediment potential and location and flow of surface waters from the property. While sediment control is proposed, the sediment pond design is not provided, nor are there calculations regarding the amount of rainfall and runoff, and anticipated performance of the ponds. Silt fences are of limited value unless actively managed to prevent breakthroughs.
* No groundwater information is provided in an area where groundwater is used for beneficial purposes by neighbors. A thorough hydrogeologic assessment is needed, including information on the seasonal high groundwater table, the type of groundwater flow systems, the location of aquifers and the relationship of the site to the surrounding hydrogeologic regime.
* It is unclear who will manage the disposal and who will be accountable for any long-term problems. Of equal importance with the substantive standards by which the waste will be managed, is the history and experience of the party proposing the disposal. The site application to the county is in the name of "Bennett Farms," but the name "Cumberland Elkhorn Coal and Coke" variously appears as well. The checks from Bennett are not Bennett Farms, but instead from the address of Cumberland Elkhorn Coal and Coke.
If there are problems with the site, those problems may not be immediate. If groundwater contamination occurs, if there is airborne exposure to this probable carcinogen, if there are losses in the use of surface waters for uses off site because of contamination; if the site requires remediation in the future, there is no financial responsibility for remediation or third-party damages comparable to that which would be required of a solid waste disposal site.
The neighbors have every right to expect that there will be a party with sufficient resources who will be responsible and accountable if there are problems. Towards that end, a corporate guarantee from ASRC should be obtained, a performance bond posted in an amount sufficient to assure proper closure and post-closure monitoring of the site for surface and groundwater impacts, and third-party liability insurance should be required to be posted.
* Groundwater monitoring is needed, sufficient to allow for prompt detection of leachate migration at the waste site boundary. Monitoring parameters and well locations must be such that they are appropriate to the area in which the waste is disposed.
* An assessment of air pollution controls is needed. The disposal that has occurred on the property has, according to information I have received, already caused visible fugitive dust to cross property lines in potential violation of state air pollution standards. The adverse consequences of airborne exposure of on-site workers and off-site neighbors should be taken very seriously since, according to ASRC's own MSDS sheet, the coal combustion wastes have been identified by EPA as a probable carcinogen.
In conclusion, on the basis of the application and in consideration of the available information concerning the potential toxicity of coal ash waste proposed for land disposal on this property, I believe that the applicant has failed to make a case of issuance of a conditional use permit for the proposed use, and urge you to deny the application.