Regarding the NAS Coal Waste Impoundment Study

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Regarding the NAS Coal Waste Impoundment Study  Posted: April 4, 2001

Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428
(502) 875-2845 fax

April 4, 2001

President Bruce Alberts
National Academies
2101 Constitution Avenue NW
Washington D.C. 20418 By fax 202-334-1377 and e-mail

E. William Colglazier, Ph.D.
Executive Officer
National Academies
2101 Constitution Avenue NW
Washington D.C. 20418

Robert Hamilton
National Research Council By fax 202-334-3362
2101 Constitution Avenue NW
Washington D.C. 20418

Re: Response to March 30, 2001 Letter From Dr. Colglazier Regarding Composition of Committee; Study On Preventing Coal Waste Impoundment Failures and Breakthroughs, Project Identification Number BESR-U-01-01-A

Dear Dr. Colglazier and Mssrs. Alberts and Hamilton:

This letter is in response to a March 30, 2001 letter from Dr. Colglazier concerning the March 21, 23 and 27 letters sent regarding the composition of the Coal Waste Impoundment Study Committee appointments.

I appreciate the extensive explanation of the background of the National Academies/National Research Council study process, and in particular the explanation that the NAS/NRC seek committees that are free from possible conflicts of interest, free from potential sources of bias, and which reflect a "reasonable balance" of relevant points of view on a highly expert committee.

With the exception of the elimination of the role of consultants to the study, however, the March 30, 2001 letter largely failed to address the concerns raised in my letters.

I remain gravely concerned that the failure of the NAS to correct the conflict-of-interest problems with the current committee composition in a timely and coherent manner, and the lack of balanced perspectives has placed in jeopardy the ability to develop a work product that will engender or deserve public confidence.

I understand second-hand that two of the Committee members, Mssrs. Thacker and Hunt, will not be serving on the study committee. I don't have a letter indicating the basis for that decision, but I am informed that it was because of potential conflicts-of-interest.

I urge that you address the conflicts issues at a consistent and coherent policy level rather than individually. Consistent with the conflicts policy of the National Academies, all 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, should be removed from the committee panel.

While such individuals would be welcome to participate by way of Testimony before the Committee, those with a financial stake in the outcome because of potential consequences to current clients, and those whose work may be subject to review, simply should not be in a position of developing the study recommendations.

Let me be perfectly clear in the position of the Council relative to changes in the Committee composition. I was disappointed to read a remark attributed to Mr. Hamilton in the press in which he indicated that I would consider any study committee member with ties to the coal industry "tainted." We have been absolutely clear in our correspondence that the issue is not one of an individual's "taint," but rather whether, under the definitions of "conflict of interest" that your agency has adopted, the best interest of that individual and of the study committee and the National Academies would be served by that individual participating in a capacity other than as a committee member. Mr. Hamilton's statement personalizing the issue certainly does not help in resolving this matter since it is the situational nature of the conflict that is of concern. Where an individual either currently consults for a company that has a coal waste impoundment under permit, or has been involved in the design of impoundments that might be under review by the committee, that individual is placed in an untenable and unfair position if he or she is asked to participate in a study that will review the person's own work or which may require the person to support recommendations that would impose additional costs on his client or dissuade future clients from retaining the individual or his firm.

Likewise, it is neither a sufficient nor appropriate response that the participation of committee members with conflicts of this nature is to be ignored because the NAS/NRC needs the expertise. The siting and construction of waste impoundments is not a field so arcane that, within the ranks of academia, government, and retired engineers, highly qualified individuals could not be located to serve on a "highly expert" committee without having such potential conflicts.

Dr. Colglaziers' letter highlighted the second unresolved concern regarding the committee composition, which is the heavy weighting of study committee members with individuals who approach the issue from the perspective of current or former consultants to the regulated community. In striving to achieve a balance of perspectives, Congress was clear that the committee should be broadly representative of a range of interests and backgrounds, including labor, environmental, citizen, and industry. The current committee composition does not appear to have the "reasonably balanced" points of view that the NAS/NRC strives to achieve.

Towards that end, I would again urge you to promptly address this problem in the manner that you indicate is the norm for your organization, which is, after reducing the committee membership to address conflict-of-interest issues, to add new members to achieve a reasonable balance of perspectives. The Citizens Coal Council has submitted names to you for consideration, and I understand the Morgan Worldwide Mining Consultants has also offered to participate, and I would encourage your consideration of these and other suggestions for adding non-aligned members to the Committee.

The third unresolved concern is the need for improvement of public notice and involvement provisions relative to the report and committee process.

I again urge that you provide the taxpayers to timely, no-cost and complete electronic access to all significant documents related to the committee study including posting on the website a complete administrative record of the proceedings of the study committee, to include:

* Advance adequate notice of all committee and subcommittee meetings,


* Names and contact information for all committee and subcommittee members,

* Minutes of all committee and subcommittee meetings,

* Copies of any written testimony and other provided to the committee from the public and interested parties.

The final unresolved concern, and one that casts the longest shadow on the work of this committee, is the refusal of the NAS/NRC to suspend further substantive work of the committee until these other matters are resolved and the new committee members provisionally appointed.

Notwithstanding significant problems with the committee composition both in terms of conflicts and lack of balance in perspectives, the study committee continues to meet on an almost weekly basis. This continued scheduling of substantive work places any new committee member at an ever-greater disadvantage both in terms of committee work and in terms of adjusting their schedule and making travel arrangements. We believe that any meetings should be postponed until the composition issues are satisfactorily resolved. The process is rapidly approaching a point, if it has not already reached that point, where any new member would be placed at so great a disadvantage from having missed the opportunity to hear and participate in deliberations on the matters already reviewed by the committee at a prior time, that their participation as an equal member of the committee would be jeopardized and their involvement be viewed as a mere afterthought or sop to the critics.

I hope that these unresolved matters can be addressed in a coherent and timely manner that will restore a public confidence in the study process and outcome that is waning daily.

With concern,

Tom FitzGerald, Esq.


By Kentucky Resources Council on 04/04/2001 5:32 PM
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